Online reviews have the power to shape and impact the reputation of a business. In this episode, ByrdAdatto Partner Jeff Segal, MD, JD joins us to share how health care practices can address negative patient reviews without violating patient privacy. We discuss HIPAA, risks associated with sending a Cease and Desist, and alternative approaches to de-escalate these situations. Tune in to learn how to safeguard your practice’s reputation.
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Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real-world experiences, creating simplicity in 3, 2, 1.
Brad: Welcome back to another episode of Legal 123’s with ByrdAdatto. I’m your host, Brad Adatto with my co-host Michael Byrd.
Michael: As a business and health care law firm, we meet a lot of interesting people and learn their amazing stories. Our clients commonly come to us with the latest word on the street that they heard from a friend. This season, we will talk about stories with a common legal urban legend and seek to either prove or disprove the legend. This season’s theme is Fake or Real.
Brad: I’m so excited. Michael, I was reading this article-
Michael: Fake! Brad, the funnies are not considered an article, and I know that’s all you read.
Brad: Let me try this again. Uh, Michael, I think you jumped the gun. We’re not ready to discuss fake or real with today’s guests.
Michael: Oh. [00:01:00]
Brad: Um, let me at least tell you-
Michael: So, I can’t call you fake?
Brad: Yes. No.
Brad: Now, let me tell you the summary of the article to see if you’re interested. Alright. “Moving company fined 125,000. Penalty by the state for trying to block negative reviews.”
Michael: Well, I’m a little curious now.
Brad: Okay. The attorney general state of Maine sued a moving company for violations of the Federal Consumers Reviewer Fairness Act and the Maine’s Unfair Trade Practice Act and some other business violations.
Michael: Well, it sounds kind of scary. I’m not sure. Tell me more. What’s happening?
Brad: So, this is a moving and storage company and they tried to use contracts to stop customers from publishing negative online reviews. And any bad reviews posted on the social media or review, aggregators that are out there were automatically basically deemed false and defamatory by the business. And customers who posted these reviews were subject to fines and litigation by the company.
Michael: So, they really focus on customer service as a business?
Brad: Yes. So, [00:02:00] the moving company was accused of sending disgruntled customers emails threatening fines, litigations if the customer failed to remove the reviews or social media posts on the company, which of course they deemed defamatory. And the emails also implied that these disgruntled customers would be responsible for paying lawyers’ fees of up to, or basically almost up to, $10,000 for the defamation fee. And there would also be a fee of basically a thousand dollars for these negative views subject to interest rates that compounded daily, but basically within 30 days that, that $1,000 fine would be like $2,000. So, as you can tell, they’re very customer friendly.
Michael: It’s making me think of the Soup Man from Seinfeld.
Michael: Except worse.
Brad: Yes, that’s right. Well, under the Salem Agreement announced by the state of Maine, the moving company agreed to pay that fine that we talked about and they had to stop engaging in a number of prohibited business practices, including threatening their customers who leave negative reviews on the company’s, website [00:03:00] or other social media services.
Michael: Did not end well. So where did you find this article, Brad?
Brad: Yeah, well, I saw this blog written by this company called Medical Justice. I don’t know if you’ve heard of them.
Michael: Yes, Brad, I have, and if we were in Maine, you would get fined for asking that question. Medical Justice was founded by our partner, Dr. Jeff Siegel, who, as you know, because you’re staring at him too, is our guest today.
Brad: Yes, that’s right. Well, I was testing you, Michael. We all know you’re 190-years-old or whatever you are, so I just wanted to make sure you’re paying attention. And I would love to get Jeff to comment on this story, including the next one. So, we’ll bring in Jeff, audience members, in the second half to discuss the legal issues that we’re hearing today, including the article we just talked about, but really to help address patient negative views and help answer today’s Fake or Real question.
Michael: Okay, let’s get into our story today so we can bring Jeff on. So, tell me what you have, Brad.
Brad: Alright. Well, for today’s story, we’re going to start off with a story. We have this, patient named Mad Max, who [00:04:00] is a patient of Dr. Lovely. And Dr. Lovely was extremely nice physician and a client of the firm. Dr. Lovely, had actually really great patient reviews. And I know that every single time she interacted with our team, everyone talked about how kind and sweet she was.
Michael: I’m curious, is Mad Max, is mad for, because mad means crazy or mad means angry?
Brad: I think we’ll find out soon.
Michael: Oh, okay.
Brad: And the answer is both of them, might be –if it’s a choice.
Michael: Answer’s yes?
Brad: Well, Dr. Lovey’s practice was based in the Northeast and as occasionally happens, you know, the weather can hamper business and a giant snowstorm covered up the entire city and many homes were losing power. Dr. Lovey and several team members could not make it into the practice that particular day and Dr. Lovey’s office manager, who we’ll just call Tina, was able to get in and she started notifying all the patients that their appointments were being canceled and they needed to be rescheduled.
Michael: Okay. Well, but so far, I don’t see this being [00:05:00] story worthy.
Brad: No. It sounds pretty normal, right? Well, Mad Max did not like the fact that his appointment was canceled and demanded that he have a telemedicine call. Well, Tina explained that she was the only person in the office that day and that she’d need to reschedule and could not accommodate the telemedicine request. And Mad Max was very unhappy that he could not get a call set or a telemedicine set that day.
Michael: Brad, I think I’m realizing that I’m missing some context here.
Brad: Yeah, you like context.
Michael: Does Dr. Lovely have some sort of urgent care specialty like cardiology or something? I mean, what was the urgency here?
Brad: Yeah, sorry, that’s actually a good question. No, not a cardiologist or any other type of specially trained, you know, emergency medicine that you might need for something like this. She was just an elective business cash base to help with. You know, a wellness clinic, basically.
Michael: Oh, okay. Well, that makes me start thinking that Mad Max [00:06:00] may have been wanting his steroids or something.
Brad: Maybe. Well, the office rescheduled Mad Max’s appointment and unfortunately, he missed that one, but then he just arrived then another day when the office actually was getting ready to close. And, he demanded to be seen by a medical provider, but there were no medical providers at the office that day. So then they try to reschedule. And for several months, no one actually heard back from Mad Max until he basically, you know, let them know that he had been posting some very nasty, negative reviews on Yelp. He actually started a website where patients of Dr. Lovely could post their medical grievances against her. And he started a Facebook page with the same information.
Michael: Well, as one does when they don’t get their appointment and then don’t show up for a long time, but then want their appointment right then.
Brad: Yeah, obviously.
Michael: Well, so what was the, I can’t even figure out, what was his major complaint?
Brad: That’s a good question. So, Tina, the office manager, called the patient attempting to deescalate and solve what his [00:07:00] grievance was. And, Mad Max was tangential in the communications, but they were unable to really verify what was his exact grievance. And on the last call before he disconnected on Trina, he told her, quote, I’m going to make it my mission in life to take your business down.
Brad: And after this threat, the fact that the patient was not, you know, they weren’t even positive as to what the actual complaint was, they just decided to send the patient a termination letter.
Michael: Okay. Well, how did that go?
Brad: Well, as you can imagine, with the name Mad Max, it did not go well. He actually started just sending tons of emails to the practice over and over again, and then started posting new negative reviews. And then actually even posted the termination letter on his blog, or on the Facebook page. And I’d had to take some of the quotes out that I thought were pretty interesting. You know, these are his quotes, a termination letter, are you out of your mind? I would never step foot back in your clinic for any reason. So, obviously, [00:08:00] you have a hidden motive, you’re desperately trying to ignore it. It is my goal to find another attorney to speak with you. This experience, oh by the way, this is all one basically-
Michael: Continuous sentence?
Brad: Basically. This experience is by far the most unprofessional encounter I’ve ever dealt with in my entire life. And thus far, nobody has the integrity to address this as an acceptable manner. I plan on developing a class action lawsuit against the practice. I’m an extremely intelligent and reasonable human being, obviously with a name like Mad Max, of course, reasonable. My only concern, though, is making sure you don’t act so callously with other human beings. Shame to push someone off the edge. Yep. I’m crazy by your standards, crazy like a fox.
Michael: Well, what I just heard you say, Brad, is a sentence where you said, I am extremely intelligent and reasonable human being. And in the next sentence, say that, yes, I’m crazy [00:09:00] by your standards.
Brad: But before that though, they were going to take a class action lawsuit against them too. Don’t forget that part. This is again, all within the same blurb. So finally Mad Max said he would, you know, he decided he’d take down all these posts, but the practice would need to pay him money. Dr. Lovely would need to issue a public apology. So, as you imagine, Dr. Lovely’s practice reached out to us about setting a cease-and-desist order along with posting response to all these negative posts and including this creation of the website and the Facebook attacking the practice.
Michael: I feel like we need an expert now, Brad.
Michael: Okay. Well, let’s go into commercial and on the other side, we’ll bring our guest today on and let’s jump into the legal insights from this situation and let’s get to today’s fake or real question, can a physician or a medical provider respond to negative patient reviews?
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Brad: Welcome back to Legal 123’s with ByrdAdatto. I’m your host, Brad Adatto with my cohost, Michael Byrd. And our lawyer partner, Dr. Jeff Segel is actually with us for the second half of the show. Michael, this season’s theme is fake or real. And we talked about an angry patient review and then the practice’s desire to really respond to them so maybe we should bring someone on.
Michael: Yeah, I mean, I was trying to think [00:11:00] about how to recap this for the audience. And I still don’t know what our character, Mad Max, what was really happening other than to say it like this, he had his appointment canceled and something triggered him. I don’t know what it was. I don’t know why, because it clearly wasn’t the appointment itself cause then he didn’t show up. He went dark for a long period of time and then he comes back and all of a sudden, it’s his mission to take this business down and does all these different things. And it leaves us with this question of what in the world can they do? And so, we’ve got our partner, Jeff Segel on to join us today and I’m going to do our introduction and we’ll get him on. So, Dr. Jeff Segel, he’s a friend. He’s our law partner. Jeff is licensed in California as an attorney. He’s also licensed as a physician. He is a neurosurgeon. He [00:12:00] went to medical school at Baylor College of Medicine in Texas. Most importantly, he went to UT undergrad, like me, hook ‘em, founder of Medical Justice and EMerit. Jeff’s wife is Shelly. Josh and Jordan are his twins. Jeff is a cyclist who will sometimes cycle all around the world as he was telling us earlier and a scuba diver and a climber. And he is the owner of many incredible stories. And most importantly, this is his third time on as a guest. Jeff welcome.
Jeff: It’s a delight to be here. Good to see you again.
Jeff: And again, and again and again.
Brad: And we’re always excited to have Jeff. Now, Jeff you know our audience has been waiting to address this question that the podcast is named after basically, but today we’re really addressing this myth out there fake or real, can a physician or a medical provider respond to negative [00:13:00] patient reviews?
Jeff: The answer is yes, if. So, the lawyerly answer is, it depends. It really depends. So, how are we constrained? We’re constrained by HIPAA. HIPAA means that you can’t disclose protected health information without the patient’s prior authorization. So, can you respond to a review without disclosing protected health information? The answer is yes. We do it all the time for our clients. The more the patient has outed themselves, the harder it is, and the more attention you will have to pay to making sure that you’re speaking broadly and not disclosing protected health information. So, for example, there’s this myth that if a patient has outed themselves by disclosing their name, you’re their doctor and this is the procedure that they had that you can just, you know, [00:14:00] that the toothpaste is out of the tube, and you can just go ahead and correct the record. You can’t do that. You can’t just correct the record. It’s a mistake to try and debate it. Look, I don’t make the rules, but this is how it was defined by Congress and Department of Health and Human Services. The patient is in control of their protected health informational list. There is an exception, but you can only speak broadly and generally. So, for example, if somebody says that Dr. Segel performed an operation, I ended up getting an infection, now he wants to charge me $10,000 to fix the mistake that he caused. Here’s how you could respond and be compliant. You could say that in our practice, the risk of infection is less than 1%, which is below the national average of 2%. Still, patients are not statistics. Anytime any patient gets an infection, we will stand by them to try and help get [00:15:00] them to a more optimal outcome. So, in that, we’ve spoken broadly to the general public. We’ve talked about our statistics. We’ve educated that anybody could end up getting an infection that you either get it zero or 100%, not 1% or 2% and that we won’t abandon you. I never said anything about this patient. I never said anything about this particular patient. So that would be very compliant. Now, if I came back and said, well, this patient ended up with an infection because against our advice, the patient ended up smoking and ended up going scuba diving in the Houston ship channel on post-op day number three, that would be disclosing protected health information without the patient’s authorization. You would be screwed.
Brad: Yeah. And I think the point for our audience to understand is it is real that you can respond, but as Jeff was articulating better than Michael and I could ever come up with, you have to be very cautious as to how much you’re disclosing.
Michael: [00:16:00] Yeah, I’m curious too, because I’m thinking about this particular story with Mad Max and you know, my assessment, I’m guessing the client and the stories assessment is that they had a crazy person on their hands. And so, you know, all the stuff, who knows what’s going on these review sites. You know, how can you engage that without, I mean, because I guess you just have a public service announcement about how important scheduling is or I don’t know. I’m curious what your thoughts are there.
Brad: Well, the good news is you can be taught.
Jeff: I can be taught. I am teachable.
Michael: What I’m thinking about all that you’ve shared too, and you have this situation where someone’s, you know, posting crazy nonsensical thoughts is, you know, from the practices perspective, is there a message that the public needs to hear from me that’s not about this person, going back to your point, and is there some sort of one time public service announcement that you would make that doesn’t cross over into disclosing or identifying them as a patient?
Jeff: Yeah, I think that’s a great point. So, the main point you made was one time, you know, one and done, and I would even put in there, this is the only [00:20:00] time I will ever respond to this particular post, but it would be a broad statement about how we work and try to schedule patients, but we have a very busy practice and we do our best to accommodate everybody’s needs and to the extent there are things beyond our control, such as weather. Again, we will do our best to try and get people in as quickly as possible. It’s a very plain, vanilla type of statement, but it shows that you’re the professional, you took the high ground, you’re not overreacting and you’re not going to get into the mud, debating this individual.
Michael: Awesome. Well, our client in this story wanted to do something more, Jeff. So, Dr. Lovely also wanted to send a cease-and-desist letter to Mad Max.
Jeff: Oh, don’t do that. Please don’t do that.
Michael: Well, talk a little bit about that. What are the issues with firing a cease-and-desist letter out to a patient?
Jeff: Okay, the challenge with a cease and desist is will they accept [00:21:00] the document and cease and desist, okay? And if somebody is not thinking rationally, they may just double down on their efforts, use that document as Exhibit A, post Exhibit A on the website to show how horrible you are as a human being. I do think you are just better off not overreacting. And there’s no reason to throw gasoline into a fire here. There are much softer tools to try and deal with these individuals, but remember, this is a bluff because the truth is, is that what options do you have if the patient chooses not to seize and not to desist, what are you going to sue them for? Are you going to sue them for defamation? Well, it’s probably just their opinion that you’re a horrible practice. I mean, my guess is you would lose. More importantly, in many states, you can get beat up with something called a SLAPP lawsuit. SLAPP stands for Strategic Lawsuit Against Public Participation. I won’t bore the listeners with the details, but suffice it to say, if you’re trying to [00:22:00] puff your chest out and sue someone just because you have the resources to do it, if they can demonstrate on round number one in the court that there is no defamation, there’s no even plain case to be made for defamation, two things will happen. One, the case will get thrown out. Number two, you may get stuck with their legal fees, the ultimate insult. Not only did you lose the case, you got to pay for their legal fees, and that’s unusual in the American legal system. Not uncommon in the British legal system, but very uncommon in the U.S. legal system. So, my point is, if you’re going to bluff, are there better ways to manage this? And I do think when you’re dealing with somebody who is unbalanced, you really want to dial down, you don’t want to dial up the temperature. You want to dial it down.
Brad: Yeah. And it’s funny because Jeff, you and I have had this conversation, but many of our clients aren’t even aware of the anti-SLAPP laws that are [00:23:00] out there and they’ll just go full bolt, like, I’m going to go after this guy and end up, you know, moving forward no matter what. And so, it’s important for, you know, obviously it’s a state dependent issue, but if you are that riled up and you do try to go after a particular patient, understand that that could end up harming you, as Jeff explained, which is a good point.
Michael: And we haven’t even talked about, even if you could sue him, the cost and emotional commitment, and time commitment.
Brad: Wait, before we get to that one, I think we can have a follow up. I do want to, you know, jump back out of this for one second and, you know, addressing your article that you already had earlier. We were addressing an article that Medical Justice had posted about the moving company prohibiting its customers from responding to negative reviews. Do you have any stories, you know, this is addressing it before they can even do it of physicians attempting to prevent their patients from even posting them?
Jeff: [00:24:00] Well, yeah, this is interesting. So, in 2007 or 2008, I’m actually going back down memory lane, we were the company that actually propelled some of these contracts, these patient agreements early on to keep patients from posting negative reviews. This is very early in the online review space, primarily because we thought that while people could rate a restaurant reasonably accurately, it wouldn’t create a potential life altering problem. And we thought that what patients were presumably good at was looking at the softer side of a practice, namely, you know, bedside manner, communication, money, parking, but we did not believe that they were quite adept at looking at the important things or commenting on the important things, namely patient safety and clinical outcomes. So, we thought early on, let’s just take a pause and just see if we can, you know, put a finger in the dike here and keep patients from posting reviews about a practice negative and [00:25:00] positive. And again, remember, this is a long time ago, so we propelled this and it seemed like a good legal idea at the time, but it wasn’t a great public relations idea. So, in 2011, we basically said, no, we’re retiring these types of agreements because we thought from a legal perspective it was quite clever. There are ways to use Copyright to try and get ownership of these reviews and so on and so forth, but again, I won’t bore the listeners with the details, but we definitely retired them in 2011 and then replaced it with a technology platform just to capture reviews from everyone and get them posted to the internet called demerit. Now fast forward to 2016 because others picked up on this idea Congress passed a law called the Consumer Review Fairness Act, which basically made these contracts unenforceable. This was a bipartisan result in Congress. I believe it had [00:26:00] unanimous consent, was signed into law in 2017, so I like to believe that we as Medical Justice were unenforceable. The single company that was able to get unanimity from Congress on any issue, even though we had retired those agreements multiple years before. So my point is that, well in the early days of the Internet, it seemed like a reasonable thing to do, once it became clear that patients were going to be able to be free to speak, I think the key is just to make sure that the happy patients have a platform to speak and every practice will get negative reviews. The point is not to overanalyze this. The good news is, is that having an occasional negative review is actually perceived better by patients than having 100% positive reviews. 100% positive reviews are perceived rightly or wrongly as marketing material. It’s perceived as not authentic. So 4.9 is actually better than a 5.0 and although [00:27:00] it’s counterintuitive, you probably should send chocolate and flowers to that one angry patient just because they actually helped you out even if they didn’t think they helped you out.
Michael: That’s awesome. Cool. Brad, that makes me curious cause you have not finished talking about Mad Max. Whatever happened with that story?
Brad: Well, the practice decided after some counseling not to respond to the patient. So, there was no cease and desist, no lawsuits. And, clearly they couldn’t really figure out what the true nature of the complaint was. So, it was even hard to, to Jeff’s point, even apologize because they don’t even know what they’re supposed to apologize for. And for over a year, they actually never heard back from this patient thinking this strategy worked. They’ve been pretty happy until, believe it or not, not even making this up, audience members, last week they received a four-page letter from Mad Max still complaining about his lack of treatment or whatever it was, and demanding an [00:28:00] apology. And if, Dr. Lovely apologized he will take down all the negative reviews and quote, audience members, that he can remember, and refrain from posting more negative reviews. If not, he will continue to post negative reviews and seek a six-digit settlement again quote, audience members, which let’s face it, that’s really what I deserve anyway. Jeff, final thoughts or takeaways on this or any other fun stories you have.
Jeff: Well, when they say six digits, I assume they didn’t want, the doctor to chop off six fingers and send it in a shoe box, correct?
Brad: I would hope so.
Jeff: I would probably just have someone pick up the phone and saying, look, it sounds like something is still bothering you. We are sorry. We’re sorry that you didn’t have the experience you expected, and I wouldn’t even demand that they take it down, but I would say hopefully they would honor their word. I do think that less is more here, the less you interact, [00:29:00] but I do think if you do not interact with this individual, they will come back. One thing that I will comment on, because a lot of practices do not think about this, is that early on they have captured the patient’s email address or their text or their mobile phone number and mark it to them and they don’t remove the email address or their phone number from their ongoing marketing campaign while you have this angry patient that’s out there. Every two weeks they’re getting a marketing message just about how wonderful the practice is and it just riles them up so one technical note is that if somebody is unhappy, the first thing you should do is remove them completely from all of your marketing material. At least don’t communicate with them that way.
Brad: Great point. Well, Michael, your final takeaways.
Michael: This is a highly emotional issue for everyone involved. And I’m thinking particularly [00:30:00] with our clients who are particularly charged by these circumstances, you know, their reputation in their work is sometimes their identity. I mean, they want to control being seen as great at what they do. And so whether it’s a moving company that’s trying to put in their contract saying you will never say anything bad or all these things are going to happen, they’re trying to control anything from happening kind of preemptively or you’re on the other side of it and something has happened and you’re wanting to send demand letters and cease and desist and engage online. You’re trying to control something you can’t control and you’re taking actions out of emotion. And what I appreciated from listening to Jeff and I always appreciate when he talks about this is he’s coming at it from a non-emotional, let’s deescalate the situation, not, you [00:31:00] know, try to get justice that we’re feeling in our emotions at the moment.
Brad: All true. Well, again, Jeff, thanks for joining us, buddy.
Jeff: It’s been a pleasure. Let’s do it again.
Brad: I love it.
Jeff: And again, and again and again and again.
Brad: Well, we will be doing this again next Wednesday, audience members, as we address the legal myth by addressing the question, fake or real, can I use standing orders for my IV bar?
Outro: Thanks again for joining us today and remember if you like this episode please subscribe. Make sure to give us a five star rating and share with your friends. You can also sign up for the ByrdAdatto newsletter by going to our website at ByrdAdatto.com. ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does it establish an attorney-client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own and their appearance on the program does not imply an endorsement of [00:32:00] them or any entity they represent. Please consult with an attorney on your legal issues.