With experience in business, law and medicine, guest Jeff Segal, MD, JD is dedicated to helping doctors address false negative patient reviews through his company eMerit. Tune in as we discuss regulatory protection from false patient reviews and how to legally acquire online reviews without violating rules and regulations.
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Transcript
Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues, simplified through real client stories and real world experiences. Creating simplicity in three, two, one.
Brad: Welcome back to another episode of Legal 123s with ByrdAdatto I’m your host Brad Adatto with my cohost Michael Byrd.
Michael: Thanks Brad. As a business and healthcare law firm, it’s important to also focus on the details. This season’s theme is Zoom In. Once we know our big picture, vision or strategy, we have to roll up our sleeves to get the work done. With each episode this season, we’ll have our typical stories and make sure we talk about specific actions to focus on for 2022.
Brad: Now Michael, have you ever heard the statement? He’s a modern day snake oil salesman.
Michael: Well, Brad, yes, I have. It means someone who deceives people in order to get money [00:01:00] from them. And unlike you, I was not alive when the traveling salesman arrived in the town to sell the latest cure, all tonic.
Brad: Fake news. As a reminder, Michael is older than me. But your definition is correct of what a snake oil salesman. This has been a common expression used to describe someone who sells or promotes a fraudulent cure or some type of remedy. And typically this is as best described as a scammer or a scam, but Michael, like a lot of expressions. Do you know the origins of the term snake oil salesman?
Michael: Well Brad, I think what you’re really saying here is that one of us is going to tap into Siri to give the answer and I’ll let you do it.
Brad: You would be correct him. So when I was speaking with our well-paid research assistant Siri earlier, Siri had pushed me to a bunch of articles, but basically in the 18 hundreds. Thousands of Chinese immigrants moved to the United States to help work on the transcontinental railroad. Most of these people, [00:02:00] when they came over, they brought a lot of their various medicines with them, including snake oil. Now it was made of the oral of a Chinese water snake. And when used properly, this snake oil helped reduce inflation, inflation, sorry, inflammation. In doing so, it really helped affect them, at the end of the day. And so they rubbed it on their joints and they’d start feeling better. Well, the Americans who started seeing this, they said, oh, wow, this looks great. Will you share it? And they were blown away by the effects of how well it worked.
Michael: Well, based on what you just described and I’m guessing that something went wrong for this to become a negative turn.
Brad: See, you’re the smart one here. And you would be correct. Gentlemen, named Clark Stanley, AKA the rattlesnake king. He learned all about healing power and he said well I think I could do this with rattlesnake oil. [00:03:00] so in 1893, at the world’s expedition in Chicago, he premiered the rattlesnake oil cure all.
Michael: Is Stanley related to the tiger king?
Brad: Yeah, I don’t think he’s related to the tiger king. But unfortunately for the rattlesnake king in 1917, the federal investigators see a shipment of oils and learned that he really wasn’t using snake oil. In fact, when they tested it, it was basically beef, fat, red pepper and turpentine, that’s right. Stanley’s signature product didn’t even contain a drop of actual snake. Water. Chinese water snake or rattlesnake. Hundreds of his customers obviously discovered that they had been deceived over these years. On a fun little side note, history modern medicine eventually learned that the Chinese water snake actually does contain these healing oils, but the rattlesnake doesn’t have the same impact. So one Chinese water snake [00:04:00] is a comparison to three different rattlesnakes. So even if the rattlesnake king was doing it correctly, he would need a lot more rattlesnakes for this even to work the same way.
Michael: Man, you actually sounded smart there for a minute. Pretty impressive. So over 100 years later, people still use snake oil as a negative description. Thanks to the rattlesnake king.
Brad: That’s right.
Michael: And I’ll just say this, Brad. I hope that people are not quoting the tiger king a hundred years from now and that there’s not some famous expression around golden nuggets.
Brad: Okay. I hope that phrase does not become famous. And for anyone who does not know what we’re talking about, there was a Netflix show that came out last year called the Tiger King. And it’s just all kinds of bad stuff. It’s like watching a train wreck. You can’t stop. All right. But the good news is, in the healthcare industry, we no longer have these traveling salesman that sale snake oils.
Michael: True, but there are [00:05:00] figurative snake oil salesman in healthcare. And so I think we need to bring in our special guest today to help shed some light on the modern version of the snake oil salesman. And so today joining us is our law partner, Jeff Segal, and our friend more importantly. Jeff has been on the episode before, he is attorney licensed in California. He’s also a physician, he went to the medical school at Baylor College of Medicine in Texas. He is a neurosurgeon and probably the most important degree of course, is his undergrad degree at UT, Hook ‘em. He’s a founder of Medical Justice and eMerit and wife, Shelly, twins, Josh and Jordan. He is a cyclist, a scuba diver and a climber and has many great stories. In fact, I wonder if Jeff already knew that story, when we were trying to use Siri to [00:06:00] tap into it. Welcome.
Jeff: Great to be with you. And no, I actually didn’t know the story of snake oil itself. We had interviewed on our podcast, a medical historian. He talked about the origin of the board of medicine. The first one of which was in West Virginia, surprisingly enough, but it was a way to consolidate control over the various philosophies of quote unquote medicine, one of which was snake oil. But what I learned today was that snake oil was useful. So it’s too bad that snake oil salesman is used as a pejorative, as opposed to a term of adulation.
Brad: I agree with that. Well Jeff, as Michael was bringing you on today, we’ve had you on other episodes where we talked about your different companies, but we really want to focus on eMerit today. So for our audience who had not heard that prior episode, can you kind of give everyone an [00:07:00] understanding what the mission is for EMerit?
Jeff: Yes. So EMerit is the platform we have with Medical Justice, which is focused on protecting and preserving a doctor’s most important asset, namely his or her reputation. And we do it three ways. One is to monitor what patients are saying about the doctor online. Number two, help deescalate conflict. It may mean reaching out to the rating site, trying to draw to their attention. The fact that a review bad review is a violation of the terms of use. It may mean putting together a HIPAA compliant response to educate the public that not all is as it is alleged to be. Or sometimes there are some tools in terms of reaching out to the patient directly to solve their problem and update the review. And then finally, the third prong is to capture feedback from patient at the point of service, typically on an iPad and get it uploaded to the [00:08:00] dominant review sites. So instead of being defined by two or three nasty reviews, you’re defined by the silent majority. And if you’re doing great work and you have a high performing practice, the silent majority should become vocal, visible, and actually dominate the conversation.
Michael: And so, yeah, I think intuitively it puts a premium on a medical practice to want to capture these online reviews. It becomes something of utmost important.
Jeff: Yeah. So a decade ago I was the skeptic. I thought who would pick a doctor based on online reviews. I certainly wouldn’t, but it turns out at the time I was the dinosaur. In fact, each and every year reviews factor into the selection of not just toaster or where you’re going, what hotel you’re going to stay in, but what doctor, you will see it’s social proof. And [00:09:00] social proof is considered to be extremely valuable. And what we learned over time is that, not only do those who have positive reviews, see new patient volume and revenue go up. It goes up a lot. So it was kind of surprising to me the correlation between online reviews, which would be the least expensive form of marketing and the outcome, the result, namely, more patients, more revenue, and very successful marketing program.
Brad: That’s awesome. And Jeff, you kind of alluded to this a little bit earlier, but I’ve heard you say this before. So what does the term false negative review mean?
Jeff: So it’s interesting. Well, a negative review is something that disparages the practice or the reputation and false is sometimes put up there to demonstrate that it’s not the patient may not even be a patient that it may be [00:10:00] a competitor. It may be an ex-employee, it could be an ex-spouse. We’ve seen it all. In fact, recently we saw someone at down the hall posting nasty negative reviews of someone on the same floor, why? Perceive competitor. So littering the internet and review space to disparage and sully, the reputation of your neighbors. No bueno, not good.
Michael: And you know, we were talking recently about a story you have about just the idea of capturing fake reviews. And I think that the audience would benefit just to hear that story and kind of see how this impacts the practices.
Jeff: So I was turned on to this by a woman that runs a website called Fake Review Watch. So fake review watch, it’s a website. It’s also a [00:11:00] YouTube channel and I think she had a personal experience where she was trying to select a healthcare professional and actually made the choice based on reviews. And her experience with his practice was just horrible. And she said, what is this disconnect between what I’m reading online and her personal experience? And I think the practice threatened her. I can’t recall specifically when she wrote her honest review and it led her into this rabbit hole of these business opportunities where you can purchase reviews. So what do I mean by that? She highlighted Facebook groups where people are buying and selling reviews, or either trading reviews. For example, one business would say, I’ve never been to your business. And I never intend to go to your business. In fact, that’ll even live in your part of the country, but let’s try this. You write a positive [00:12:00] review on my site and I’ll write a positive review on your site. So it’s review trading group, but wait, there’s more, then there’s also review purchase where with these Facebook groups, and it’s not limited to Facebook it’s there are other venues where you can seek out these brokers that you can have one of these brokers, someone who owns a mobile phone in Bangladesh, for example, and you pay the broker 50 bucks, they pay the person in Bangladesh about a dollar and they’ll post a positive review on your website and you write the reviews. So basically you’re offering the review and the person in Bangladesh is posting the review, on Yelp, on Google, etcetera. So she was able to connect the dots, putting together a nice timeline and spreadsheet and outed a number of practices that are using, [00:13:00] one or both of these techniques, which he was basically saying what a coincidence look at this spreadsheet that I’ve created. You have one individual, posting a review for a moving company in California, for a veterinarian in Texas, for a plastic surgeon in New York, and some other vendor in Wichita, Kansas, this person really gets around. And so she was able to connect these dots. And if you start to look at the math, in terms of the probability of this happening, you’re probably more likely to win a Powerball lottery than seeing all this take place. So what happened? She then published this on her site. So instead of being the recipient of all this glowing praise on these sites, now you’re on the receiving end of looking like a person that games the system, and then once Google and Yelp found out, they took down all these reviews and they probably took down even more reviews. [00:14:00] and I’m sure we’ll get into some of the unique aspects of healthcare, why this would be, No Bueno.
Brad: This kind of reminds me of this, hearing your story about how everything she had a map out. I feel like one of her rooms had like little red dots with a rope connecting from one side to the next, like the brilliant mind, to be able to figure out all those different moving pieces, that’s pretty incredible work and hat tip to her for being at a figure out that just by one experience that there had to be something out there that was not right. But you know, let’s just take an even bigger step back here right here is why do you think these people are getting reviews from either posting on each other sites or going to Bangladesh? What do you think is happening here?
Jeff: It’s a great question. It’s easy, cheap, and easy. If you can purchase a positive review for 50 bucks, a trade reviews for someone else and get 20 or 30 reviews, the thinking is that each positive review is worth hundreds, if not thousands of dollars. So just [00:15:00] think of it as a return on your investment. In their brain, the practice is saying zero risk. The only risk is the $50 investment to make this happen. And the upside is potentially hundreds. If not thousands, maybe even tens of thousands of dollars, what a great ROI. But I don’t know that in their brains they’re calculating the potential risk. I don’t think they calculated, that there’s a Doggett investigator with the spreadsheet on her wall, connecting the dots. And one of her beefs is that she’s doing this by hand. And she’s been able to accomplish an outcome or result connecting these dots, but Google and Yelp and Facebook with all the money and resources in the world must be able to do this in an automated fashion, but they’ve chosen not to accept when she outed them. So she does have a beef with the businesses who are doing it. She’s got a bigger beef with the review sites that [00:16:00] are allowing this ecosystem to, to thrive
Michael: Sounds more like a commune than an ecosystem.
Jeff: Yes. Yes. It would be would definitely be a commune.
Michael: Yes. Well, unfortunately we all know, and the audience knows that the healthcare field is highly regulated and so reviews that are not real, that would lead a patient to go and receive medical services. I think that, that’s a problem.
Brad: Maybe.
Michael: Yeah. So I think we need to go to commercial and I may actually go take a quick shower after hearing that story. Then let’s come back and discuss the regulatory impact of this, on the healthcare side.
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Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host, Brad Adatto here with my cohost Michael Byrd. And we’re still here with our guest who has been with us before, Jeff Segal.
Michael: This season’s theme is Zoom In. For our audience, it’s clear that capturing patient’s reviews is important, but submitting false positive reviews seems to be less than honest. If not illegal. Brad.
Brad: That’s me.
Michael: What regulatory body helps protect the general public from such deceit?
Brad: So I’m going to go in two areas here just on a very high level, which understand that as Michael said right before commercial, the medical industry [00:18:00] is highly regulated. This goes with almost every aspect, including advertisement. The American Medical Association has issued basically their code of ethics and some advisory opinions that are out there on what you should be doing from an advertising piece and high level again. They say like you can’t be misleading people, you can’t have false or deceptive information or include claims, of experiences or quality of services that basically don’t exist. And as many of you all may have heard us talk about before the AMA at the end of the day is just submitting guidelines that some medical boards look to and actually copy verbatim, but ultimately they don’t have any ability to issue fine. This just kind of, this is what we think the rest of the medical boards could do. So let’s jump into who can do that. And this is where a lot of people don’t even realize the federal trade commission. Which is the federal government. Part of their, when they were founded was to protect consumers from [00:19:00] anti-competitive deceptive and unfair business practices. And so when you dive into their act, one of the things they look for is on the advertising side. If someone is deceiving someone through advertisement. They can issue civil fines and they have issued that to Ivy bars. And obviously during COVID, when people were saying, if you come in and get this treatment, this will cure COVID or whatever it is. So, although fines are rare when they do hit there, it can be very impactful.
Michael: So if these are rare. Jeff, I’d love for you to talk about something less rare and some of the other bodies that have authority in these situations.
Jeff: So relevant to physicians, the big concern would be medical licensing boards because you need the piece of paper, the license to make a living. That piece of paper allows you to practice your trade, your profession. And if it is impacted in any way through discipline or curtailing of [00:20:00] your privileges, you can’t make money. So what do I mean by that? The state board of medicine. And I haven’t read the medical practice fact for every state and every territory, but for the most part, they all have a clause which says no false and deceptive advertising, no false and deceptive advertising decades ago, you couldn’t advertise at all. There was no advertising whatsoever for any of the professions, be it law or, or medicine, but that was loosened up and were dialed back. So you can’t deliver false and deceptive advertising. If you have fake reviews, if you’re purchasing reviews that are fake from people who’ve never been to your practice, arguably a complaint can be filed, which can turn into an investigation. Investigation can turn into an accusation. Accusation can turn into discipline and consent order or hearing none of which is good. And even if you prevail, the [00:21:00] publicity associated with this cannot be good. You’re ultimately tarred as a person who cannot be trusted and in health care, what are we buying and selling? We’re really selling trust.
Michael: And I just have to believe based on all of our experiences with medical boards over the years that if they found out a medical practice was part of one of these review communes that it would not be taken lightly. I think it would be frowned upon.
Jeff: Yeah, I think there’s going to be a fair amount of pressure to investigate that. There’s already pressure on medical boards to discipline more doctors. I can’t remember the name of the organization, maybe public citizen, but each year they put out their list saying that all these bad doctors are able to practice without any restrictions, the medical boards aren’t investigating. Of course, that turns into a pendulum where in my estimation, some of the boards have become draconian, investigating everything to be of the [00:22:00] universe. Probably unfairly and inappropriately putting people in the crosshairs. But why make it easy for organizations, public citizens to say that the public is being deceived and if it’s so much easier to actually get real reviews from real patients. Well, maybe it’s not easier, but there’s certainly easy ways to do it. And you don’t have to take any risk by doing that. Why wouldn’t you just adopt the simpler approach rather than taking risks? I think part of the issue is that the people listening and the Physician audience at large just does not believe in their heart of hearts will ever get caught. I mean, who would know, but I’m telling you, these groups are on Facebook in plain sight and back that’s how the proprietor for fake review watch, was able to complete her spreadsheet. She joined one of these groups. She was invited in [00:23:00] and she got to see the ping pong ball going back and forth and then wrote about it.
Michael: Wow. Well, if the risk to your licenses ain’t enough, we got a little kicker we can add to it. We’ve talked about this before, but if you’re a licensed medical provider and you have a disciplinary action, it gets recorded in the national practitioner Databank. And we’ve talked about the Databank before. This is the proverbial permanent record that follows doctors around and their disciplinary history. And the different hospitals, the insurance carriers and other state licensing boards, all can check the permanent record of a provider and see if they’ve had an event.
Brad: Yeah, and I want to add two more points to what Jeff had thrown out first off, going back to what you said, a lot of these doctors or providers think they’re not going to get caught because they’re like, oh, they’ll never figure it out. [00:24:00] Well, remember, and our audience knows this is how do you get caught. Well angry people report you. And typically that could be your patient. Like in this case who started the whole investigation, you’re a former employees are mad at you sometimes, maybe your competitors, if they figured out. And finally, as Michael and I have seen multiple times the ex-spouses or ex-lovers who are scoring and they know about it. So yeah, it does get found out. So that’s, I think that’s the first thing. The other piece is even if your state has a poorly written medical advertising rules that to say, the medical boards have this one thing they love, it’s their catch all for everything. And this is where I’ve seen when they don’t know what to do with someone, they said, you know, it’s just unethical and unprofessional what you’re doing and that almost every single medical where we’ve ever looked at, that seems to be, if I can’t figure out, if you’re actually violating a rule, I know this doesn’t seem professional. And so now, no matter your state submitting false reviews, is a huge risk to your license. Jeff, you had said it [00:25:00] already. I mean, most of these people work, pretty damn hard to get their license. I know how hard I worked to get mine. I know how hard you worked to get yours. And I don’t want to jeopardize it by having some fake review, but let’s start closing out today. So Jeff, I’m going to start with you. As we Zoom In on these online reviews, what are some of the takeaways you can give our audience as to, and you kind of alluded to this right in the beginning, I want to make sure they heard it is how they can acquire online reviews without violating these rules and regulations.
Jeff: Right. So they’re probably four ways to get reviews. One would be ask your patients, will you give me a review? And of course all your patients will shake their head up and down saying, they’re going to do it. Then they go home and they don’t do it, but that’s probably single digit update. You could email your patient a link. And make it a little bit easier. All they have to do is click on it and take action. So you’ve removed one of the friction points for capturing review, and that’s a little bit higher uptake. [00:26:00] Number three would be to use a texting platform there. That’s probably a story for another day, regarding the pitfalls of using texting without dotting I’s and crossing T’s, but that is probably a somewhat more effective way to get people to do it either at the point of service or as soon after they’ve left. And to me, the easiest way to capture reviews is with a point of service review capture system, we’re asking the patient for feedback. Not reviews, but feedback. And then with the patient’s permission, you ask if it can be uploaded to the dominant review sites of the internet, once you adopt a program, similar to that, you’ll find that you can start capturing many reviews that go to multiple platforms and the silent majority will have spoken. What you will also have avoided is the temptation to cut a corner. Go to one of these Facebook groups, Facebook [00:27:00] brokers out to Bangladesh capturing reviews. You may get a near term bump on that, but long-term, I think the odds are against you. You’re better off doing it. The clean and appropriate way without snake oil.
Brad: Fair enough, Michael, what are some takeaways you have for today?
Michael: Well first, we don’t want to be like the rattlesnake king or the tiger king, and join one of these review communes that we talked about. And what I realized that most of our audience is not going to go out and do something as seemingly obviously nefarious as going and getting fake reviews. But I think a greater point is not to take shortcuts in your marketing and advertising and healthcare. And that if it seems easy and it seems like something that will give you a boost without any effort or [00:28:00] substance behind it, that you’re probably creating some serious risks to your practice.
Brad: All good points. Well, Jeff, thank you again for joining us. We appreciate you jumping in with us today and please give the audience a shout out for your podcast real quick.
Jeff: Yeah. So our podcast, Medical Liability Minute where we speak for more than a minute. So Medical Liability Minute, you can find it on medicaljustice.com as well as the other podcast platforms. Thank you.
Brad: Yeah. And for our audience, we’ll also have it in the notes underneath this podcast. So you can, if you want to listen to it. And I will say that we’ve been blessed to be on his podcast too. So we enjoyed being on it, it’s a great podcast, but everybody that’s all the time we have. So next Wednesday, we have a special guest Amy Anderson will be joining us to discuss BrinsonAnderson Consulting and they help coach surgeons and private practice to become the best versions of themselves.
Outro: Thanks again for joining us today. And remember, if you liked this episode, please subscribe. Make sure to give [00:28:00] 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 them or any entity they represent. Please consult with an attorney on your legal issues.
