Negative online reviews leave doctors with little recourse

A column analyzing the impact of recent court decisions on physicians

By — Posted Oct. 4, 2010.

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The Internet is rife with reviews about the latest restaurant and auto repair shop someone tried the week before -- or a visit to a doctor. But some physicians say they shouldn't be reviewed online the same way people judge how a filet mignon was cooked or how fast a tire was changed. And when it comes to negative reviews, doctors say they have more at stake than other businesses.

A New York dermatologist grappled with the issue after discovering what she called false characterizations of her practice on the review website Yelp.

"When it comes to physicians, people are very cautious, and it's not just a matter of taste. It's a matter of your health and your life," she said. "This is much more serious than a review of whether you like a chocolate chip cookie at a particular bakery. People put their lives in the hands of doctors, so reviews on the Internet have a tremendous impact on the public perception of your integrity."

Several legal roadblocks put physicians at a disadvantage, however, in defending against inappropriate online reviews and the websites that host the postings, experts say. With many websites rating physicians, the issue has garnered significant attention from the medical community.

It wasn't until Yelp called the dermatologist to ask her to advertise that she discovered her practice had been reviewed. "I wasn't even aware I had a listing," she said.

After noticing that many negative reviews of her practice were at the top of her business listing, while the positive ones were at the bottom, she expressed her concern to Yelp.

The company said it uses an automated filtering system. The methodology is designed to give more credibility to established reviewers to provide more trustworthy content and guard against fake reviews by malicious competitors or disgruntled employees. The company contends that the review system is not linked in any way to advertising sponsorships.

But the dermatologist said the postings give an unbalanced view.

In one negative review, for example, she said a patient disagreed with her diagnosis, saying it was motivated by greed. Another patient complained that the dermatologist's laser surgery recommendation also was financially driven. A third patient criticized her hiring practices as racist.

"Some things can have nothing to do with your practice at all," she said.

The dermatologist then sought positive reviews from her patients to balance out the negative ones, only to see them get filtered as well.

The dermatologist found it difficult to combat what she said were opinions about care rather than facts based on medical standards. She also faced violating patient confidentiality rules if she tried to dispel online allegations. Further complicating matters, most online reviews are anonymous, making it difficult to defend against dubious attacks from false patients, she said.

"I don't think people's opinions should be suppressed, but it is very dangerous when you have people with no expertise reviewing doctors in such a way that you really do need medical expertise to be fair," she said.

Review sites should take some responsibility for their content, particularly if they cannot verify the veracity of a posting or a reviewer's identity, she said.

Legal hurdles

But Internet sites contend that because they merely post comments, they are protected by the federal Communications Decency Act of 1996. The legislation, which was intended to encourage development of the Internet, immunizes providers of an "interactive computer service" from liability for defamatory statements made by a third party through their websites.

Yelp recently argued successfully for such protections to a New York trial court. In a September decision, New York Supreme Court Judge Jane S. Solomon ruled that the federal statute barred a dentist from suing Yelp for defamation and deceptive business practices. The dentist alleged that the website selectively removed positive reviews of his practice after he asked the website to remove what he said was a false and defamatory anonymous review. Yelp denied any wrongdoing. The dentist is considering an appeal.

Solomon said in Reit v. Yelp that under the statute, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Congress granted such entities immunity from liability for publishing false or defamatory material "so long as the information was provided by another party."

But the federal law was not meant to protect websites that are actively involved in how the information on their site is presented publicly, said Gregory S. Weston, a lead attorney in a class-action lawsuit a group of California businesses filed in March against Yelp. The group alleges that the website manipulated placement of negative reviews and leveraged them to solicit ad money, in violation of state unfair competition laws. The case, which awaits class certification, is pending in the U.S. District Court for the Central District of California.

Online review sites "do say something, and they are not acting passively when they filter reviews or order them in a certain way," said Weston, of The Weston Firm in San Diego.

Yelp denied any wrongdoing, saying businesses cannot pay to move or remove reviews. The company stands by its review filter, which is "entirely automated to avoid human bias, and it affects both positive and negative reviews," Yelp's website says.

Still, federal law makes it difficult for doctors to sue for Internet defamation, said Donald Moy, chief legal counsel to the Medical Society of the State of New York. The society has been monitoring the issue and seeking legislative and regulatory oversight at state and national levels.

Because most reviews are anonymous, tracking the identity of a reviewer can prove difficult, Moy said. Although state laws generally allow defamation claims, "an opinion cannot be found to be defamatory. In order to be defamatory, the statement that causes injury must be false. However, an opinion can neither be proven to be true or false."

Constitutional issues may arise in trying to restrict online communication, said Alan J. Howard, a constitutional law professor at Saint Louis University School of Law. If a reviewer "says something that's wrong or you think is wrong, you can rebut it. Normally what the First Amendment requires is more speech, not regulation of speech."

Fighting back

With such hurdles, the American Medical Association continues to study the issue as online review sites and patient involvement evolve.

AMA policy calls for the investigation of publication of physician information on Internet websites, potential solutions to erroneous physician information posted online and the development of educational materials to help doctors identify legal options to protect them from targeted harassment. AMA policy supports the use of physician profiling to promote quality of care, so long as the methods used promote accuracy and transparency and give physicians a chance to respond to the results.

"Websites like Yelp are popular because they are accessible, not because of their accuracy," Weston said. Even if prospective patients don't go to such sites directly to research a doctor, a general Internet search often brings up such reviews, influencing a practice's business, he said. "And the amount of lost business [physicians] can suffer can be substantially higher than the restaurant that charges $10 for a meal."

Meanwhile, the New York dermatologist remains vigilant. With little legal recourse and the inability to afford such help, she has turned to other tools and found one in particular to be effective: simple communication with her patients.

In some cases, she said patients gave enough details in reviews that she was able to discern their identities. In those instances, she confronted her patients to resolve their grievances, taking time to explain that her recommendations were consistent with standards of care.

Some of the patients agreed to take down their negative reviews, though not all were receptive.

She now spends several hours a week checking her Yelp listing and e-mail notifications of review postings.

"I'm not saying [patients] can't say anything bad about me. They can express their opinions to friends, family, colleagues ... But if there's an issue, talk to me," she said. "You don't have to go on the Internet and ruin the reputation of a business that takes decades to build."

Editor's note: The original version of this article named the New York dermatologist, who later asked that he name be removed.

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