RM Matters: War of Words

RM Matters: War of Words

Carla Christensen*:

Introduction
In today’s ever expanding and developing use of technology, the application of the Web as a communication tool is expanding faster than regulations designed to limit potential abuse of this social media. Web sites like doctoroogle.com, healthgrades.com, ddsreviews.com, and localsearch.com are gaining in popularity and are examples of online venues that encourage users to rate or review dentists. The tendency for health care professionals to challenge these postings is increasing in response to the growing number of patients who choose the Internet as a public means of expressing personal dissatisfaction with services provided. In January 2009, a San Francisco chiropractor successfully settled a lawsuit against a patient who posted inaccurate statements about his office billing practices on yelp.com. The same Web site permitted parents to post claims against a pediatric dentist and, as a result, she has filed a defamation suit against the individuals. The dentist also attempted to sue yelp.com; however, the federal Communications Decency Act provides protection for Web sites that publish third-party information.


Be Prepared
Dentists should have a plan of action to address defamatory comments patients may post online. Defamation is a false statement of fact about an individual to a third party in such a way that the statement has the potential to “tarnish the person’s morality or integrity, or even to discredit the person’s financial standing in the community”. Slander is defamation by the spoken word. Libel is defamation by the written word, and publishing by posting in a public forum, such as a newspaper or online, is the communication of defamatory statements.

There are specific actions dentists and their staffs can take to reduce the likelihood of a patient posting a negative review online. Apply interpersonal skills such as listening and repeating back in your own words patient comments, concerns, or questions when treating individuals or advising parents or guardians about a patient’s treatment plan. The Journal of the American Medical Association (JAMA) reported in 2007 that breakdown in communication is a causative factor in up to 80 percent of all professional liability lawsuits. The Internet gives unhappy patients a free and unfettered forum for venting displeasure rather than taking legal action. If a patient’s interactions in the dental office - from the introduction to the practice, to clarification of clinical and financial expectations - are consistent, respectful, and responsive to patient concerns, the chance of the patient finding fault with how he or she was treated is greatly reduced.

Documentation is an excellent defense against defamatory statements. Charting should be chronological, factual, and objective, and provide anyone who reviews the patient record with clear insight into how staff responded to that person’s specific concerns. It is appropriate to have members of the staff document interactions with the patient. For example, if the office manager is the only one to hear a patient comment about how unhappy he is with the treatment he received, he or she should record it in the patient’s chart and immediately notify the dentist. It is the dentist’s responsibility to follow up with the patient and record both the discussion and outcome in the chart.
If dentist and staff strive for good communication and documentation, yet a patient still chooses to write a negative posting online, apply the following guidelines:
• Do not attempt to publicly respond or refute the claim on the Web site. There is a common misconception that once the patient has divulged private information his or her disclosure protects you from violating the patient’s privacy rights if or when you reply. Do not fall prey to that error. You may inadvertently breach patient confidentiality (e.g., John Doe has hepatitis C) or make a libelous statement (e.g., Sally Smith never pays her bills on time) in return.
• Check to see if the Web site has a written policy or protocol for removal of potentially libelous postings. Follow the process to request removal of the information.•
Ascertain who posted the negative comments, then review chart documentation to determine whether information exists that may either corroborate your position or contradict the poster’s claim.
• Seek legal advice to determine what type of recourse may be available.


Legal Recourse
Under section 230 of the Communications Decency Act of 1996, specific protections are afforded Web sites that publish or post information from a third party online, so there is no direct legal remedy available against Internet domains that post libelous information. A Strategic Lawsuit Against Public Participation (SLAPP) is intended to intimidate defamation defendants into withdrawing their comments by the threat of a costly lawsuit; however, Anti-SLAPP statutes have been passed in Arizona, California, Hawaii, Illinois, Minnesota, Nevada, and Pennsylvania to prevent misuse of SLAPP litigation. Anti-SLAPP regulations allow defendants the opportunity to file a special motion to have a court determine whether the comments posted fall under the right of petition or free speech.


Think Twice
It has been suggested dentists have patients sign a document prohibiting the individual from posting defamatory claims on the Internet. Think carefully about what kind of message this sends. The patient may become curious as to whether the practice has received a bad review and speculate that the only reason the dentist has requested he or she sign an agreement is because of poor patient relations or service in the past. Also, the patient may feel the dentist is unfairly requesting the individual give up a basic First Amendment right - freedom of speech. While a dentist may believe this is a proactive step to combating abuse of the online rating and review system, patients may see it as a license to practice bad dentistry without the threat of disclosure.


Patients pleased with the care they receive will refer friends and acquaintances to the practice, while less-than-satisfied individuals may complain openly about perceived poor service and care to anyone who will listen. Whether the complaints are slanderous or libelous in nature, the best protection a practice can offer itself is to effectively communicate with patients, colleagues, and the dental team, and to document these interactions accurately and objectively.
If you are unsure about how to handle a situation, please call TDIC’s Risk Management Advice Line at (800) 733-0634, where a risk management analyst can assist you with finding a solution.

*Carla Christensen is a Risk Management Analyst for TDIC (The Dentists Insurance Company), Sacramento, California.