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When Patient Reviews Become Slander: Best practices for defeating negative reviews. Part Four: Disputing Reviews, Following the Dispute Progression

When Patient Reviews Become Slander: Best practices for defeating negative reviews.
Part Four:
Disputing Reviews, Following the Dispute Progression

Negative reviews happen, and every practice makes mistakes, whether in scheduling and customer service or some other error. Sometimes it’s not possible to mitigate the impact of those reviews simply by having more positive ones.

Reviews online can be disputed in several ways. There are guidelines for responding to reviews, and it is important to follow the dispute progression. There are also rules about how you can dispute reviews online, and they vary depending upon the website where the review was posted.

HIPPA Compliance

When replying to a review directly online, you must keep in mind HIPPA guidelines. You technically cannot even confirm that the person is your patient. You must reply in a very general way, and offer to respond confidentially.

If you at all feel your response might be questionable with regard to HIPPA regulation, consult your attorney or a company like EMPATHIQ who offers review response services and is familiar with how to respond in a way that is compliant with HIPPA guidelines.

Don’t Overreact

Do not respond immediately to the review online no matter how inflammatory it might be. The patient may be goading you for a reaction, but responding defensively or with personal attacks damages your reputation, and may lead to an online argument that spirals out of your control.

Never respond to online reviews out of emotion. Even though reviews might hurt your feelings, take your time and look at the real issue: what is the patient’s real complaint? What part of your practice do they actually have an issue with? Is there a way to reasonably resolve it?

Offer Empathy

Without addressing clinical details or confirming any claims the patient may have made, take a few simple steps.

Confirm your willingness to hear them. The patient has exercised their voice by posting a review online instead of addressing you or your staff directly. However, this is still an opportunity for you to let them know you are willing to listen to what they have to say.

In the book Getting Past No by William Ury, he describes a couple of techniques for empathy in conflict management.

  • Step to the Other Side. Try to see things from the patient’s point of view. Do they have a legitimate complaint? Would you be upset in the same situation? Even if the answer is no, try to see the why behind their complaint, and acknowledge your ability to understand how they might feel the way they do.
  • Go to the Balcony. Going to the balcony means trying to see the big picture by getting above the potential issue, and looking at the bigger picture. Was your nurse having a bad day, and may have been shorter with patients than she normally would be? Was the patient in pain, and so the wait to be called back seemed longer than normal? Take these things into account before you respond, and offer understanding without admitting fault.

Seek to carry on dialogue and learn more offline. Do not carry on a discussion with the reviewer online. Not only does this put your significantly at risk for violating HIPPA guidelines, but on most review sites it is not only inappropriate, but shows potential customers that you are augmentative and defensive rather than understanding.

Remember that 22% of patients are likely to disregard a negative review if the doctor or practice responds well.

Understand Defamation

There is a point where a review goes beyond negative feedback. If the complaint is unreasonable and potentially damaging to your practice the reviewer may have gone too far. Also, if it inaccurately alleges illegal activity or incompetent medical practice, the reviewer’s comments may be considered defamatory.

Once a review reaches this point and offering empathy to the patient has been ineffective, or they refuse to continue the discussion offline, you can attempt to get the review removed in other ways.

Dispute the Review with the Review Site

The first step to getting a site to remove a review is to evaluate their guidelines. While each site differs, most have some reasons for taking down a review in common.

Racism: Racially inappropriate content will often be removed by the site before you have a chance to dispute it, but if a reviewer has made such statements and the site has not removed them, most will do so quickly once the content has been pointed out to them.

Defamation: Defamation is a false statement of fact which tends to harm the reputation of a person or company. Defamation may include libel or slander.

  • Slander: This is defined as the action or crime of making a false spoken statement damaging to a person’s reputation. In the case of online reviews, this may include transcribed video, a podcast or even audio review.
  • Libel: Defined as a published false statement that is damaging to a person’s reputation. This includes any published review in written form.

There are specific legal requirements for proving defamation, outlined in more detail in the next section. The primary issue is proving that the review contains false information, is damaging your business or reputation, and in some cases that the motive is malicious.

Second Hand Experiences: Most sites do not allow reviewers to post reviews for another person. In other words, if the review is written by someone who is outlining the experience their friend or relative had with your practice, and it is not their own, you may be able to get the site to remove the review.

Remember, the site is not yours, and the administrators of the site have the final say about whether the review is removed or not. Even if they do agree to remove a review, it may not happen right away. Response times to requests vary by site, and it may be some time after the response before the review is actually taken down.

Proving reviews are false must be based on facts, and not opinions. One of the most common causes for negative reviews is long wait times. It is first difficult to prove that wait times are not factual. Secondly, if the patient thinks they waited too long, that is an opinion, and most often those types of reviews will not be removed.

Evaluate Litigation

If the site will not remove the site, and you are sure it falls under the category of defamation, you do have the option to litigate. However, before you do, you need to evaluate some key factors.

How much time and money do you want to invest? Litigation is an expensive process, and one that is time consuming. You must ask yourself some honest questions:

  • How much money have you actually lost due to the review? Are you continuing to lose money?
  • How much traffic is the specific review page on the website getting? Are people liking and sharing the review on social media?
  • Are you sure any losses in your business, including new patients choosing someone else and current patients leaving are directly related to that review?

You also need to consider the amount of time any litigation will take. This will be time away from your practice you will not get paid for, even if the patient loses and is required to pay your court costs.

Do you have a case? To prove defamation, you are going to have to prove six things:

  1. There is a “published” statement. This is a very low legal barrier and easy to prove. If the review is still online, there is a published statement.
  2. The defamatory statement is about you or your practice. Since typically a review is posted directly about you or your business, this is not an issue. However, even if it is posted more generally as long as a reader could identify the doctor by the words used in the statement (for example: the “obstetrician on duty in the ER of St. Luke’s hospital in Boise, Idaho on Friday, July 8th“), then you can prove this.
  3. The statement is false. A true statement is never defamatory.
  4. The statement is a statement of fact, not opinion. This is usually the hardest to prove. The First Amendment protects patients who are only expressing their opinions or merely insulting someone. So, it is not defamation if someone posts that you are “rude” or your receptionist is “an idiot.”
  5. The speaker was either negligent or malicious. Depending on the type of case, one of these two elements must be proven. Malice means the reviewer knew the statement was false. For example, if a reviewer claimed that you did not have a medical license but it was clearly displayed in your office, this would be malice.
  6. You suffered some provable damages. This is one of the most difficult, because you must prove that any financial damages or loss of revenue you have suffered was due to this review, and no other reason. If your receptionist is indeed rude, or your wait times are exceptionally long, this may be a reason you have lost revenue perhaps in addition to or separate from the online review.

Will the lawsuit result in bad publicity? Beware of the Streisand Effect, defined as the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the internet.

It may be more harmful for you or your practice if new patients know you have sued another patient to attempt to remove a negative review. The resulting publicity from the lawsuit may do more harm than the review itself.

Do you have an attorney familiar with this process? If you are going to litigate, you will need to hire an attorney familiar with the process. The business attorney you have on retainer to handle other legal matters for you may not be qualified to litigate, or have the desire to do so.

Does your state have a SLAPP initiative? A strategic lawsuit against public participation (SLAPP) is defined as a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. The First Amendment Project (FAP) has sought to pass this type of legislation and has succeeded in several states.

Consult your attorney about this legislation and make sure that your suit will not be categorized in this way. Not only would you be likely to lose, and liable for any court costs the patient may have incurred, but publicity in such a case is likely to be greater, and cast you in a negative light.

Continually Evaluate Cost vs. Benefit: There are cases where a malicious negative review does have a significant impact on your business, however even if you do decide to litigate continually evaluate the cost of the lawsuit vs. the benefit to you and your practice.

Using the dispute progression to get negative reviews removed is the best way to ensure that you are not only legally protected, but that your reputation is not further damaged in the process.

Anything you do to respond must be HIPPA compliant, show empathy, and encourage continued discussion offline. If that does not work, the review can be disputed with the site where it was posted, but you must check their guidelines and abide by the site’s review dispute process.

If all of those things do not work, you can litigate provided the review does include defamation and has caused damage to your business and reputation that can be proven, Such a drastic step must be carefully evaluated and reviewed by an attorney.

Want to know more? Download our 2017 Guide to Online Patient Review Management or Read Part OnePart Two, or Part Three in this series. You can also receive a demo of the EMPATHIQ software from an online reputation management expert.

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