There comes a time in every doctor’s career when he or she is the recipient of an online review that makes them fighting mad.
Some will take a deep breath and respond calmly; some will lash out with verbal counterpunches of their own, and some will take the fight from the Internet to the courtroom by filing a lawsuit claiming defamation.
For those who have been tempted to join the latter, a cold SLAPP of reality — as in the realities of filing a Strategic Lawsuit Against Public Participation — might spare you some grief, legal bills and a whole lot of bad PR. Filing a suit because you feel you’ve been defamed in an online review is seldom a good idea.
The simple reason is that the vast majority of online reviews merely express opinions, which can’t be considered defamatory (more on that below). As such, they’re protected by the First Amendment right of free speech and a proliferating array of state-mandated anti-SLAPP laws.
Such laws, which are now in effect in 28 states, are a response to lawsuits that are intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense. In many cases, the idea behind a SLAPP motion isn’t even to try the case but rather to get the reviewer to back down and remove their review.
Consider the recent case of a Texas dentist whose lawyer sent a letter threatening criminal charges to an ex-patient after she posted a negative review on Yelp. As quoted on Dr. Bicuspid.com, the letter read, “You are hereby on notice that if you fail to retract your libelous post on yelp.com that we will recommend to our client that he pursue legal action against you.”
In the short term, the threat seems to have worked — the review in question is no long on Yelp — but it came with an unintended consequence: a counterclaim from the reviewer’s lawyer that the threatening letter was legally actionable under Texas’ anti-SLAPP law.
Regardless of how the war of words eventually plays out, it’s unlikely that the dentist’s reputation will benefit from the process.
In fact, few such cases prove worth the time and expense to pursue. As this list compiled by Santa Clara University School of Law professor Eric Goldman shows, most such cases are dismissed or settled. In several, the doctor or dentist who threatened legal action over a negative review ended up paying thousands of dollars to cover the defendant’s attorney fees.
And the damage seldom stops there as such cases inevitably make the news, provoking outrage at what readers perceive as an unfair attempt to attack a consumer for expressing an opinion.
“You will be news story, not the crappy review,” says Jeffrey Segal, MD, JD and CEO of Medical Justice. “You’ll be paying [your lawyer] $50,000 and, at the end of the day, you may be paying the patient another 50 grand.”
Does that mean you should never consider going to court over a negative review? Not necessarily. The key is understanding what constitutes defamation. According to the law, a statement can only be considered defamatory if it’s false, it’s made to another and it damages your reputation. In a nutshell, if an online reviewer expresses his or her opinion, you can’t assign truth or falsity to it.
For example, if a review says, “Dr. X is not Board Certified in Neurosurgery” when it is demonstrably provable that Dr. X is indeed Board Certified in Neurosurgery, that’s defamatory, says Segal. On the other hand, if the reviewer writes, “Dr. Y is a f$%^&* jerk and he has horrible bedside manner,” that’s strictly an opinion. What it isn’t is defamatory.
Either way, Segal argues that there are better approaches to countering a negative review. Reaching out to the patient to try and resolve their complaint amicably is one; encouraging satisfied patients to post positive their own reviews, thus diluting the influence (and search ranking) of a single bad review, is another.
On the other hand, there’s no escaping the fact that patients sometimes do make defamatory statements, refuse to remove or amend their reviews and, in the process, inflict serious damage on doctors’ reputations. When that happens, Segal advises that doctors seriously consider their options and their odds of success.
“If you have no choice — if you’ve got one patient hell-bent on destroying your practice, you’ve tried everything under the sun and your practice is, indeed, suffering — I can imagine that qualifying,” he says. “There are times when litigation makes sense but it’s almost never.”