A Patient Has Left a Negative Review of Your Practice on Google/Yelp! What Can You Do?

This is a common question I get, especially as review sites like Google and Yelp! have become increasingly important in attracting new patients to dental practices.

This question has two answers: a legal one and a practical one. The legal answer depends on whether the review meets the legal definition of defamation, which is discussed below. While legal action is sometimes necessary, as a practical matter, you can often achieve better results through alternative methods. These methods can include trying to resolve the issue with the patient or working through the review site to have the review removed.

In evaluating the best course of action it’s important to consider the “Streisand Effect,” named after Barbra Streisand. Barbara Streisand famously filed an invasion of privacy suit against a photographer who posted aerial photos of her home, demanding the photographer remove the photos from the internet.

Before Streisand filed the lawsuit, the photos had been viewed a total of six times. In just the month after filing the lawsuit, the photos that Streisand wanted to keep out of the public eye were viewed more than 400,000 times. Streisand’s lawsuit not only had the opposite effect of what she was hoping to accomplish, but she also ultimately lost and had to pay the defendant more than $150,000 in legal fees.

Although this is an extreme example, the act of suing a patient can lead to negative publicity that outweighs any possible benefit in removing a review, no matter how false or unfair it may be. That is why, in advising my clients, I evaluate both the legal options available, and practical alternatives and creative solutions.

Legal Options

Defamation is the primary legal doctrine that applies to negative online review lawsuits. To succeed on a claim for defamation, a dentist must show that: (1) a false statement of fact was made concerning the dentist; (2) the statement was defamatory; (3) the statement was published to a third party; (4) the defendant was at fault; and (5) the dentist suffered damages.[1]

The most important factor is usually whether the review is a statement of fact, or whether it expresses an opinion. This factor is critical because statements of opinion, no matter how harmful they may be to a practice, generally are not defamation, unless they imply a false statement of fact.[2]

For example, if a reviewer leaves a one-star review with no comment, or with a comment that the front office staff was rude, or that the office smelled funny, those are statements of opinion. No matter how much a dentist would like to remove the comment, the legal options are limited.

On the other hand, if the review falsely claims that the dentist extracted the wrong tooth, or that the dentist was drunk during the procedure, or that a staff member stole their purse, those are false statements of fact that could be the basis for a lawsuit. Litigation can be costly, uncertain, and lengthy, though, so before I suggest that approach, I usually explore alternative options.

Alternative Approaches

Contacting the Review Site

Every review site, including Yelp! and Google, requires users to acknowledge and abide by their terms of service before leaving a review. If a review violates the terms of service, the review can be removed by the site.

For example, some of the types of reviews that Yelp! will remove include:

1. Reviews containing threats, harassment, or hate speech;
2. Fake reviews, which would include reviews from people a dentist has not treated;
3. Reviews created for the purpose of extorting money from a business;
4. Defamatory reviews; and
5. Reviews that violate the privacy rights of others.[3]

If the online review violates one of these terms of service, then a dentist’s best option may not be to go to court, but instead contact the review site, make the case for why the review is a violation of the site’s legal terms of service, and ask the site to remove the review.

HIPAA and other patient privacy laws prohibit you from sharing any patient information with the site, so you will need to be careful that you do not disclose any protected information during this process.

Bury a Negative Review

 Another way to fight a negative review is by obtaining positive reviews from other patients. If you have three reviews and one of them is negative, the negative result will stand out much more than if you have thirty reviews and one of them is negative. However, there are some legal missteps you can take when attempting to bury a negative review.

For example, you can expose yourself to legal lability if you offer any kind of compensation or reward for leaving a positive review. This would constitute a “paid endorsement” under FTC regulations, and must be disclosed, or else you risk potential fines and other sanctions. Fake reviews, whether from staff members or family and friends, can also expose you to legal liability, as they may also require certain disclosures and/or be banned by the site’s terms of service.

Keep in mind that many sites have also been criticized for not adequately policing fake reviews, and the credibility of the site is often key to the company’s business model.

This can help dentists remove obviously negative fake reviews, but it can also lead to potential issues when dentists attempt to “astroturf” their site with positive fake reviews. Not only can this lead to the reviews getting removed, but it could also be a violation of the terms of service which could lead to removal of a practice from the site.

Addressing the Issue with the Patient

Another possible approach is to address the issue directly with the patient. When a dentist receives a negative review, it is often the result of miscommunication, and can sometimes come completely by surprise. Many reviews are not the result of the quality of dental care, but instead relate to the patient’s perception of the customer service experience of their visit.

If that is the case, reaching out to the patient directly and privately, letting them know that their concern has been heard and that you are addressing the issue, can often lead to the patient voluntarily removing the negative post.

When it works, this is the best and easiest solution. Unfortunately, it requires cooperation from the patient and thus is not always an option, especially if there are difficult personalities involved.

Missteps to Avoid

Finally, there are some things to always keep in mind, regardless of which of the above approaches you choose.

Remember HIPAA

 Do not, under any circumstances, post any information about the patient online or send any information about the patient to the review site. The consequences for violating HIPAA are far worse than the consequences of a negative review. You should avoid even mentioning the patient’s name online or in any communications, and you should definitely avoid including any information about their health history or case.

Avoid Lashing Out/Engaging with the Reviewer Online

There is nothing to gain and much to lose by engaging in a war of words with the reviewer online. At best, it makes you look petty, defensive, and confrontational, none of which are characteristics patients look for in a dentist. At worst, you risk violating HIPAA by inadvertently or intentionally disclosing protected health information. To the extent you need to make any public comment at all about the review, it should be very limited, very general, and carefully thought out.

Do Not Sue the Review Site

Review sites are protected under the Communications Decency Act of 1996[4] and are largely immune from defamation claims because they are not considered the “publisher” of the reviews. Therefore, filing a lawsuit against the site is almost certainly a losing proposition, and several doctors have been required to pay Yelp!’s attorneys fees after trying to bring them in to a lawsuit.

Conclusions

This is just a general discussion of the options available to dentists facing a negative online review. The circumstances of each case will vary, and the strategies may change, depending on the situation. The important thing is to have the right professionals in place to advise and assist with providing the right recommendations to resolve the issue as quickly as possible.

DISCLAIMER: The information in this article has been prepared for informational purposes only, does not constitute legal advice, and anyone reading this article should not act on this information without seeking individualized advice from an attorney. The author and publisher shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.

Patrick T. Stanley, Esq. heads the practice management and healthcare transactions practice at the Phoenix/Scottsdale-based law firm, Comitz | Stanley.

[1] Morris v. Warner, 160 Ariz. 55, 62 (Ct. App. 1988).

[2] Dube v. Likins, 216 Ariz. 406 (Ct. App. 2007).

[3] https://terms.yelp.com/tos/en_us/20200101_en_us/.

[4] 47 U.S.C. § 230, et seq.