Innovations In Clinical Neuroscience

MAY-JUN 2017

A peer-reviewed, evidence-based journal for clinicians in the field of neuroscience

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Innovations in CLINICAL NEUROSCIENCE [ V O L U M E 1 4 , N U M B E R 5 – 6 , M A Y – J U N E 2 0 1 7 ] 32 R I S K M A N A G E M E N T o n physician-patient communication; a $2,000 penalty; and having to pass the Board's Medical Jurisprudence Examination. Additional consequences are likely, as the patient has filed a lawsuit against the physician. What you should consider very carefully before doing. Contacting the patient. You should think very carefully about contacting a former patient based on a negative online review. In at least one situation when this was done, it led to an even angrier post by the former patient, who, outraged that she was contacted by her former physician, asserted legal and ethical violations by the physician. Filing a lawsuit. There have been several lawsuits involving online negative reviews—some involve the healthcare professional suing the patient, others suing the review site, and still others suing other healthcare professionals. Consider the following: • When patients are sued for negative reviews, the vast majority of courts find for the patient, typically viewing the posts as opinions and not defamation. In light of this, some physicians have gotten creative in their allegations and have sued for other alleged wrongdoings. In one recently decided case, 5 a patient sued a plastic surgeon for malpractice and won a $5.1-million jury verdict, which was reduced to a $600,000 judgment. After prevailing in court, the patient posted an unfavorable review online of the plastic surgeon. Claiming the negative review resulted in the cancellation of a scheduled procedure by a different patient, the plastic surgeon sued the patient, claiming tortious interference with business relations and tortious interference with contracts. The trial court found there was no support for either of the two allegations by the physician, and ruled in favor of the patient. The a ppellate court affirmed the trial court's decision. • Several healthcare professionals have sued the review sites, including Yelp and Google, on which the negative reviews were posted. Most, if not all, of these cases were dismissed. • And there have been a few lawsuits where a healthcare professional sued another healthcare professional over allegedly defamatory comments online. 6,7 These cases tend to be dismissed or not pursued. What you can do. The first thing you should do is really think about the patient's complaint to rule out that it is a valid one. For example, just because you and your front office assistant always communicate professionally with each other does not mean that a patient's complaint of rudeness on the part of the office assistant is, per se, false. Next, if the negative review was posted by a current patient, you should discuss the concerns privately with the patient. And finally, if there is no confirmation that the poster is or was a patient, you can also ask the hosting site to remove the post if the post is false and violates the site's own policies and terms and/or if removal is allowed (e.g., some sites will give physicians a set number of "take downs" per year, no questions asked). CONCLUSION While the vast majority of online reviews about healthcare professionals are positive, it can be very frustrating to see false, negative, and/or unfair comments posted about one's professionalism and/or treatment practices or that of one's clinic. Keep in mind that there are very few options in terms of response, and some responses, such as filing a lawsuit against the poster, will likely not benefit the healthcare professional, and will very l ikely generate more attention to the accusations in the post. REFERENCES 1. Attorney General Cuomo secures settlement with plastic surgery franchise that flooded internet with false positive reviews. Attorney General (NY) Eric T. Schneiderman site. July 14, 2009. https://ag.ny.gov/press- release/attorney-general-cuomo- secures-settlement-plastic-surgery- franchise-flooded-internet. Accessed May 1, 2017. 2. Health information privacy. All case examples. Private practice ceases conditioning of compliance with the Privacy Rule. United States Department of Health & Human Services site. https://www.hhs.gov/hipaa/for- professionals/compliance- enforcement/examples/all- cases/index.html?language=es. Accessed May 1, 2017. 3. Lee v. Makhnevick. No. 1:11-CV-08665 (S.D.N.Y. filed Nov. 29, 2011). 4. Texas Medical Board, http://www.tmb.state.tx.us/. 5. Gentile v. Turkoly. No. 16 MA 0071, 2017 WL 1058828 (Ohio Ct. App. Mar. 20, 2017). 6. Tener v. Cremer. No. 104583/10 (N.Y. Sup. Ct. Aug. 7, 2012). 7. Courtney v. Vereb. No. 2:12-CV-00655 (E.D. La. filed Mar. 9, 2012). AUTHOR AFFILIATION Ms. Vanderpool is Vice President, Risk Management, at PRMS, Inc. ADDRESS FOR CORRESPONDENCE Donna Vanderpool, MBA, JD, Vice President, Professional Risk Management Services, Inc., 1401 Wilson Blvd., Suite 700, Arlington, VA 22209; E-mail: vanderpool@prms.com

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