Social media has become the leading tool for patients seeking information on medical care. The number of patients who research their current and prospective providers online has exploded in a few short years. As a consequence, health care providers are increasingly concerned about their online reputations and often wonder what they can do about negative reviews of their facilities, personnel, and quality of care.
In general, a provider's response to a negative review should be crafted to avoid direct public confrontation, and the provider should refrain from responding online, in part because to do so runs the risk that the provider will divulge details about the patient's care in violation of privacy laws. The best practice is often to try to identify the patient and reach out confidentially to encourage him or her to contact the office to discuss the issue. It is also helpful for the provider to encourage other patients to post positive reviews, allowing the negative review to lose prominence over time. However, there are some instances where the online posting is so damaging that a provider may feel there is no choice but to aggressively fight to have the review removed.
This is what occurred in Great Wall Medical P.C. et al. v. Michelle Levine, a supreme court action brought in New York County in August 2017. In this case, a physician and his practice took the extraordinary step of suing a patient over negative online postings. The complaint alleged defamation, trade disparagement, tortious interference with contractual relations, and intentional infliction of emotional distress. It was alleged that the patient willingly and knowingly created and posted false reviews on several online sites, including yelp.com, zocdoc.com, healthgrades.com, ratemds.com, and vitals.com. The reviews included similar statements alleging the practice had a "very poor and crooked business practice," had "zero knowledge of the subject," had "zero qualified staff," engaged in "medical billing fraud," "MEDICAL FRAUD," "INSURANCE FRAUD," and tried to scam the patient by intentionally giving her "a false diagnosis" to "collect more money for a second visit to tell me that I don't have what they [falsely] made me think I had." The practice claimed the websites and reviews were seen by thousands of visitors each day, causing irreparable harm in lost contracts and damage to its professional reputation. The complaint sought $1 million in punitive damages to make the defendant an example to the community and an injunction to remove and withdraw the postings.
After the complaint was served, the parties stipulated that the patient would take down and delete statements she made on any blog, website, social media account, or online bulletin board or in bulk emails concerning the physician and his medical practice. The patient agreed not to make any further oral or written statements of a disparaging nature, whether in her own name or through another party. This agreement was memorialized in a court order. However, after the order was issued, the patient was featured in a New York Post article discussing her story and her legal dispute with the plaintiffs. She also spoke with other news outlets and started a GoFundMe page requesting money to defend herself against the suit. After the articles and GoFundMe page appeared, the medical practice received angry phone calls and over 50 negative online reviews. The practice responded to the barrage of negative publicity by bringing a motion to force the defendant to contact the news organizations to retract her statements, to prohibit her from publishing any further statements, and holding her in contempt for violating the court order. The plaintiffs also demanded she pay its legal fees to enforce her compliance with the court order.
On August 2, 2018, the court found the defendant in contempt of court for violating the previous court order. However, because the defendant maintained that what she told the press was true, she was not required to contact the news organizations to retract her statements. Rather, the court directed her to remove her online postings discussing the lawsuit, to turn over the $2,555 proceeds from her GoFundMe page to the plaintiffs, to delete the page, and to pay the plaintiffs' costs and attorneys' fees in connection with bringing the contempt motion, which amounted to just under $8,000.
Health care providers are naturally averse to suing their patients for unflattering remarks as lawsuits are expensive with no guarantee of success, and unwanted publicity can backfire on the practice. This case is unusual in the aggressive way the provider is seeking to punish the patient for her statements. It is also unusual in its notoriety and longevity. The case has not been quietly settled out of court, the parties are still battling a year after the lawsuit was commenced, and there is no resolution in sight. It remains to be seen if, in the end, it will serve as a caution to the online community.
If you have questions regarding the information presented in this alert, please contact Fran Ciardullo, special counsel, at fciardullo@barclaydamon.com or another member of the firm's Health Care & Human Services Practice Area.