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Monday
Jul192010

Is Suing Your Medical Spas Patients Ever A Good Business Strategy?

Your medical spa or laser clinic is going to be the target of negative reviews at some point. How are you going to deal with unhappy patients who have a forum?

In the aesthetic medicine business, reputation management is a big deal. First, of course, you want to do good work for your patients. You want them to be happy with the results, and then you want them to tell all of their friends how happy they are. Good reputations take time to build, but bad ones can be made very quickly. A California plastic surgeon is now dealing with the fallout of some bad online reviews by taking legal action against the people who posted them.

Unhappy patients aren't anything new, but the Internet, with it's assortment of social media and consumer review sites give grudge-holding patients a significant amount of power. A few of those patients recently vented their opinions of Greenbrae, CA, plastic surgeon Kimberly Henry, MD, on consumer rating sites Yelp.com and DoctorScorecard.com. The doctor, in return, sued the patients.

What may have begun as a consumer rant--the sort that goes on every day about restaurants, car dealerships and plumbers-just got serious. According to an article in the Contra Costa Times, Dr. Henry is currently seeking injunctions against 12 reviewers, allegedly former patients, for libel, defamation, invasion of privacy and interference with prospective economic advantage. The doctor is seeking $2 million in damages plus other unspecified costs.

Earl Thurston, the proprietor of DoctorScorecard, confirmed that he provided Nordskog e-mail and IP addresses of Henry critics in January, but has not done so since. Nordskog's subpoena was the first he had ever received.

"I was inexperienced with the law and the way the court system works," Thurston said. "I assumed that if a judge ordered that I provide the information, that I was required to do so by law."

Since then, another lawyer sent him a subpoena for user information for a similar lawsuit in Texas. Thurston said he is fighting the subpoena with the help of Public Citizen, a nonprofit consumer advocacy organization in Washington D.C.

"I spent many hours reading online about the legal process and came to the conclusion that I could fight to keep our users anonymous, even if a judge orders us to reveal their identities," Thurston said.

Stephanie Ichinose, a spokeswoman for www.Yelp.com, a site that posts user reviews on numerous subjects, noted that a similar case played out last year in San Francisco. In that case, dentist Gelareh Rahbar filed a defamation suit against Jennifer Batoon, a patient who wrote a negative review about the dentist on Yelp.com.

"The judge threw out the defamation counts and ordered Rahbar to pay $43,000 for Batoon's legal fees," Ichinose said.

The claim was dismissed because of California's law against so-called SLAPPs - strategic lawsuits against public participation - which are lawsuits aimed to squelch free speech. Batoon was represented by the California Anti-SLAPP Project, a public interest law firm in Berkeley.

John Diamond, a professor at University of California, Hastings College of the Law, in San Francisco, said forum providers such as Yelp.com are immune from defamation suits, and that anti-SLAPP laws provide some protection for online commentators.

But Diamond, who has no knowledge of Henry's case, said reviewers can be held liable if they assert "false facts, not just opinions."

"They actually have to commit defamations, and that is something that is false and damaging to reputation," said Diamond, a Tiburon resident. "I think what's happened is many more people have a forum now to make comments and have a impact. Previously there haven't been that many opportunities."

This guest post is written by Grant Clauser, Editor of Healthy Aging Magazine. Read Grant's post: Plastic Surgeon Strikes Back At Online Reviews on the Healthy Aging blog.

Submit a guest post and be heard.

Reader Comments (1)

Anonymity is part of the Internet. Unfortunately, anonymity creates a willingness and boldness to criticize. When online criticism (anonymous or not) strays over the line into libel, questions surrounding freedom of speech arise.

The hallmark of the Internet is its ability to increase the free exchange of ideas. The ease with which information is proliferated increases the damage caused by false or harmful information, stretching the bounds of defamation.

The Internet gives the average person an opportunity to express their opinion, anonymously, well-beyond any other venue. An individual now has the ability to publish statements and articles across the world in an instant, without the guidelines or checks and balances of traditional publishing. Thereafter, online erroneous statements may linger for months, or even years, almost impossible to recover, amend and remove. Internet defamation lawsuits are on the rise and the number of people sued over online speech is increasing sharply, according to statistics from the Citizen Media Law Project at Harvard's Berkman Center for Internet and Society.

As a physician, you know that your reputation is one of your most valuable assets. It takes years to cultivate impeccable credentials and positive public perception. Unfortunately, one disgruntled patient can destroy that hard work in minutes with a few clicks of the computer mouse. In these difficult and challenging times, protecting your most valuable assets becomes top-of-mind priority.

Disgruntled patients, or those posing as patients, can easily publish content to the web - regardless of the veracity of that content. Increasingly, physicians are experiencing the damage caused to their hard-earned reputations from these posts, blogs and doctor rating sites.

The meteoric rise of websites where posters anonymously “rate” physicians has particular implications for Internet defamation. Traditional remedies and approaches do not apply to cases involving physicians. First, state confidentiality laws and HIPAA bind physicians. Physicians are forbidden from defending against reputational assaults by posting the medical record as a correction. Second, under traditional legal principles, one who is defamed can sue not only the originator of the libelous comments, but also the distributor- such as a newspaper or a television station. Using that analogy, a natural target would be the digital distributor, the Internet Service Provider. However, in 1996, Congress foreclosed that option by granting broad immunity to Internet Service Providers for the tort of defamation. In general, physicians have few practical after-the-fact remedies against Internet assaults on their reputation.

What can physicians to do protect their reputation from internet defamation? Medical Justice an organization offering viable and successful solutions for removing online posts that are defamatory in nature.

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