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Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
While social media can help a physician's professional reputation grow, the misuse of social media by others can be destructive.
Physicians who use social media understand it can help increase referrals, grow the practice’s patient base and generate a positive reputation for physicians and their practice. However, the same social media can create opportunity for disgruntled patients (and family members), ex-employees, competitors, and others to destroy the very reputation that social media is being used to build.
I often receive calls from clients who are upset or want to sue someone for “defamation” for information posted about them on the web. However, not all comments made by third parties rise to the level of defamation and physicians should understand when, in fact, their legal rights have been violated.
Generally, defamation occurs when false words are spoken (slander) or written (libel) to a third party which exposes the individual to hatred, contempt, ridicule, or which causes the individual to be shunned or avoided, or which injures the individual or his or her business. Physicians are especially sensitive to critical comments by patients. While hurtful, these comments are often opinions and are not necessarily considered defamatory because they do not contain facts that can be proven untrue. For example, “I think he is a sloppy physician who rushes through a patient visit” is merely an opinion. The standard used by courts to determine if a statement is an opinion, is to look at whether a reasonable person would understand the statement as being an opinion or a statement of fact that could be proven true. A statement like “In my opinion, Dr. Smith is a child molester,” is not merely an opinion but something, if untrue, would be considered defamation even though it claims to be an opinion.
Sometimes defamation is considered “defamation per se,” the definition of which varies among states but which generally means a statement is false on its face without need for explanation. Examples of defamation per se (as it might apply to physicians), are statements that: falsely charge someone with crime (“He’s been indicted for Medicare fraud.”); claim someone has an infectious, contagious, or loathsome disease (“She has AIDS.”); injures someone with respect to their profession by imputing disqualification in those respects that the occupation requires (“He lost his license.”); or by imputing something with reference to his or her profession that has a natural tendency to lessen its profits (“They take kickbacks from other doctors.”). The truth, of course, is always a defense to any defamation claim.
The most common complaints I receive from clients concern comments posted on sites such as Yelp, healthgrades.com, and ratemds.com. Unlike the practice’s own Facebook or Twitter accounts where the physician can control and/or respond to negative comments, on these other sites physicians often are unable to reply to remarks or even determine the real identity of the individual posting. Additionally, physicians are always restricted in any response by HIPAA privacy concerns.
To help clients protect their practices against intentionally harmful and/or misleading information being posted, I recommend the following steps:
1. Check out the web and other social media sites regularly. Find out what people are saying about you and your practice. It’s easy to create Google alerts and lists to search daily for mentions of the practice and its providers across the web;
2. Register the social media handles for your practice and physicians on all the major social media sites to prevent others from using the name(s) improperly;
3. Work with legal counsel to develop a strategy for responding when defamation occurs. This process should minimally include evaluating postings to determine whether they could generate harmful publicity for the practice and if any reaction is needed. Consider whether the individual who posted can be contacted directly to resolve the problem and withdraw the posting.
4. If a truly defamatory statement is made, the practice should follow the social network platform’s dispute resolution policy, if there is one, before deciding whether to file a lawsuit.
A physician’s reputation is everything to both the physician and his or her practice. While social media can help that reputation grow, the misuse of social media by others can be destructive. It’s just as important to be savvy about protecting your reputation as it is to be effective at growing it.
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