For many dentists, that moment when you google yourself and find a negative review can push you right through all the stages of grief in a matter of moments:
Denial – “That can’t be about me, there must be some mistake.”
Anger – “Hey, I know who wrote that review. They were late, emotionally needy, and I gave them a huge discount – which they still never paid. This is absurd, my good name attacked – I’m suing.”
Bargaining – “I’ll reach out to the online rating system. I’m sure they’ll take the review down when they understand. If not, I’ll sue!”
Depression – “The process for disputing a review is lengthy and doesn’t even get the original review removed in most cases. Their online review site has a huge legal team.”
And finally, acceptance that this is just something you get to live with. Something that your patients, friends, and family get to see every time they look you up.
I’d love to be a ray of light and tell you that it doesn’t have to be this way. Unfortunately, due to legal precedent, fighting negative online reviews in court has largely become an exercise in futility. We’ll examine why, those rare scenarios when you may have a case, and alternatives to legal action that may help you out.
Can I sue?
Well, yes, but it is not likely to end in your favor. One doctor sued a patient who described him as a “real tool” in an online review. The Minnesota Supreme Court found that the “statements [we]re not capable of conveying a defamatory meaning that would harm [the doctor]’s reputation and lower him in the estimation of the community.” McKee v. Laurion, 825 N.W.2d 725, 728 (Minn. 2013). The court further held that calling the physician a “real tool” was a constitutionally protected statement of opinion. Id. at 733. Whether you agree with this opinion or not, courts across the country focus the defamatory nature of the comment.
The only grounds a physician or dentist would have in winning such a claim would be if the review constitutes defamation. However, grounds for meeting defamation are strict. In 2011, for example, a California dentist who sued the parents of a patient, alleging that a negative review they posted on Yelp defamed her, was ordered to pay the parents and Yelp $80,000 in attorneys’ fees and litigation costs. The court ordered the dentist to pay these fees because California has an anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. Previously, in December 2010, the California’s 6th District Court of Appeals found that due to the “public concern, discussion and controversy” about the use of silver amalgam, which was mentioned in the said review, the Yelp posting was protected because it contributed to public discussion regarding amalgam use in dental treatment.
Defamation law changes as you cross state borders, but there are normally some accepted standards that make laws similar no matter where you are. Generally speaking, defamation requires that:
Someone made a statement;
That statement was published;
The statement caused you injury;
The statement was false; and
The statement did not fall into a privileged category.
Anti-SLAPP laws make lawsuits for online comments extremely difficult. And honestly, this is probably not the type of publicity you want to generate for your practice.
Can I make my patients promise not to write a negative review?
The answer is most likely “no,” with a small chance of “maybe” depending on your state laws. A New York dentist attempted this very approach by requiring her patients to sign a confidentiality agreement and to assign any copyright in online comments about the practice to her. Lee v. Makhnevich, 11 Civ. 8665 (PAC), 2013 WL 1234829 (S.D.N.Y. Mar. 27, 2013). Sounds pretty clever. When one patient posted an online review describing the poor service he received, the dentist sent letters threatening to sue for defamation, breach of contract, and copyright infringement as well as take-down notices to host websites. Id. at *2. However, the patient argued that the agreement was void because the comments were true (and therefore not defamatory) and the court denied the dentist’s motion to dismiss. Id. Courts across the country have a strong interest in protecting the “freedom of speech” issues they find central to these types of cases.
So what can I do?
Do you have any recourse? Yes, though the options are generally not very strong. Online marketers have an array of perspectives, ideas, and suggestions on the proper recourse for the negative dental review. Of all the potential suggestions, these three are legally defensible:
First, you can contact the site. Some sites will allow you to flag a review for removal if it is suspicious or malicious. If you feel the review is completely unwarranted, do some investigating as to the site’s posting rules.
Second, you could do nothing. There is wisdom to just leaving the darn thing alone. Some review sites will actually penalize you if all your reviews are positive. The other advantage to ignoring it is that you won’t risk provoking the angry reviewer. Dentists have gotten into heated arguments on these sites going back-and-forth with their former patients, accusing and name-calling. Not only does that look bad on the screen, it could also lead your reviewer to pursue more aggressive action.
Finally, you could reply with a polite post. However, online responses can be tricky because dentists are bound by HIPAA and the patient is not. If you are going to respond, be very general in your response. The response to any review online may open the door to a potential HIPAA violation if you acknowledge and disclose that the commenter is a patient.
The absence of legal recourse in most online posting scenarios is frustrating, so frustrating in fact that you may be tempted to respond as did one of our fellow dentists:
“One of the founding principles of Western Civilization is the right to confront one’s accusers openly. This website throws that principle to the dogs. It denies Hippocratic healers the rights that other citizens have had for a thousand years. So, I feel no reluctance to post a mission statement about myself above. This website gives people with a political, or medical grudge the ability to destroy someone’s life with immunity from prosecution. It encourages crimes to be committed. I have treated tens of thousands of patients in my life. Those who are adult enough to realize that dentists are Human Beings rather than GODS are very happy with me. A few, who are angry that they did not get away with abusing and neglecting their teeth forever post hateful things from their computer consoles as they sit at home in their underwear! This website is designed with them in mind. If you are and adult, and grownup, come see me and I will fix your teeth very expertly. And I anticipate really enjoying your company as well.”
But, alas, that may not be the most productive response. Remember, the legal sticking place is defamation.
-Ben