Providers fight back in court against online reviews
Negative online reviews and ratings are prompting some providers to seek legal redress.
In October, Saint Anthony Hospital in Chicago sued the Leapfrog group, claiming the organization knowingly used incorrect information to downgrade its patient safety grade from an A to a C.
The lawsuit, filed in the Circuit Court of Cook County, alleges Leapfrog gave the safety net hospital an A grade in its fall 2016 and spring 2017 hospital safety reports, but cut the grade to C in the fall 2017 report on the grounds that Saint Anthony prescribed patient medications electronically only 50% to 74% of the time. Saint Anthony, which was not available for comment, maintains its doctors prescribe electronically 95% of the time or greater and that Leapfrog had received data to prove so.
The hospital said it repeatedly pressed Leapfrog about the error and asked that the score be corrected before the report’s Oct. 31 release. It contends Leapfrog’s failure to respond amounted to defamation.
“Saint Anthony lacks an adequate remedy at law because once the grade is published, Saint Anthony cannot undue the effect to its reputation,” the complaint states. “Saint Anthony brings this motion to seek the narrowest relief possible — temporarily stop Leapfrog from publishing the false statements regarding Saint Anthony and Saint Anthony’s inaccurate Hospital Safety Grade of ‘C.’”
A recent search of Leapfrog’s website did not show a rating for Saint Anthony Hospital.
In defense documents filed with the court, Leapfrog maintains the disputed data was self-reported by Saint Anthony and that the hospital ignored numerous earlier opportunities to correct information. Hospitals could confidentially preview their grades two weeks prior to release and that’s when Saint Anthony balked and asked Leapfrog not to publish their score.
The dispute has to do with computerized physician order entry. Saint Anthony verbally claimed 95% of their orders were entered by computer, while the disputed data they self-reported said 60%, Erica Mobley, director of operations at Leapfrog Group, told Healthcare Dive. To date, the hospital has not been able to substantiate the 95% figure.
“What’s kind of ironic about the situation is that by filing this lawsuit and then speaking out to the press about it, they’ve actually drawn more attention to the fact that they would have received a C than if they had not done anything,” Mobley said.
A follow-up court date is scheduled for February.
The Chicago hospital is not the only healthcare provider to challenge an online rating or review. In Dallas, two freestanding emergency departments filed a petition in district court in October asking Google to reveal who posted nearly two dozen negative online reviews and ratings. The facilities — Highland Park Emergency Center and Preston Hollow Emergency Room — filed the pre-suit deposition seeking the identities of 22 screen names they say belong to people they didn't treat.
In yet another recent case, an Ohio plastic surgeon filed a defamation lawsuit after a patient wrote anonymous online reviews reflecting poorly on the doctor’s work.
With the advent of online ratings and reviews, and with more consumers willing to shop around for healthcare, providers risk losing patients and seeing their reputations tarnished by negative postings. In most cases, such disputes are resolved offline, but a small number end up in court. When they do, what are their chances of success?
Case or no case?
In 2013, the Minnesota Supreme Court ruled against a neurologist who sued a patient’s son for defamation after he wrote that the doctor had a poor bedside manner on a rate-your-doctor website. In its decision, which overturned an earlier Appeals Court decision, the court said there was no proof the defendant’s online statements were false or were capable of damaging the doctor's reputation. They merely amounted to an opinion.
For a case to be compelling, providers need to demonstrate the online review or rating caused actual harm. It is a distinction to be made and one the courts are starting to weigh very seriously, says Erika Adler, health law partner at Roetzel & Andress in Chicago.
“If it’s illegal competition, something fraudulent, then I think that they are going to grant it,” Adler tells Healthcare Dive. “But if your feelings are hurt or you think the person is just being mean, I don’t think the court is going to grant that. I think it will be unsuccessful.”
The Chicago hospital case is interesting, she adds, because a competitor was using the online medium to post false reviews to affect competition. To the extent that a court is willing to rule that competitors can’t hire people to post false information to harm reputation or impact competition, “that would be a good outcome,” she says.
Adler cited another case involving online posts that a physician performed surgery on the wrong shoulder. “That’s a false statement, not an opinion,” since the claims can be disproved by medical records and affidavits from the physician and practice, she says. Yet when asked to remove the false posts, the website said the comments fall within its guidelines of allowing people to express opinions.
When that happens, the aggrieved party can push the matter to the next level — filing a lawsuit demanding that the ISP turn over the name of the individual. Websites like Healthgrades and Yelp don’t want to be involved in a case, so they may just take down the post at that point. If they don’t, then legal action will proceed to attain that information and the provider will file a lawsuit directly with the person posting the reviews or ratings.
Exhaust other options
“My advice to clients is if you are really upset about what a patient wrote, do whatever it takes,” she says. That may mean an apology, reducing a bill, assigning them to another doctor. Or, in the case of someone who refuses to back down, burying the negative review beneath positive patient reviews. People tend to post online when they are either very happy or very unhappy about an experience, she notes, so encouraging patients to post good reviews can be a strong offense against bad online postings.
David Williams, chief strategy officer at provider advisory firm Levo Health, agrees. What providers don’t want to do is take their beef with patients online. Choosing to publicly respond to bad reviews could lead to HIPAA violations and an investigation by HHS’ Office for Civil Rights if protected health information is disclosed.
“Prior to responding online, have the practice manager reach out to the patient via phone and/or email to understand why they left the negative review,” he told Healthcare Dive via email. “This simple interaction can sometimes lead to the patient changing the review or taking it down.
But sometimes the perceived damage from a negative review or rating seems too large to ignore or handle quietly. It boils down to facts and intent, says Adler. If somebody has posted something false about your competency, that amounts to disparagement and is not permissible.
“The internet does need to be monitored. And the law is not really written to monitor it, so we look to the courts to do that,” she says. “To the extent that somebody has come up with a scheme, a plan, they’re paying people to provide false information, to me that is absolutely the kind of case that a court should be involved with."