Thursday, November 15, 2012
By Dan Schulte, J.D.
MDA Legal Counsel
From the November 2012 issue of the Journal
Question: It was recently brought to my attention that a patient posted false and misleading information on the Internet regarding treatment I provided to her. The posting further describes me as gruff and someone who does not care about the comfort of my patients. I can tell from the details given in this posting exactly who this patient is. The fact of the matter is that she is upset because I am insisting that she pay (she has no dental insurance) for prior services before I undertake any future dental work. I initially extracted a tooth and provided other services, all of which were the result of her very poor dental hygiene and certain lifestyle choices. I would like to respond with my own Internet posting giving these facts and otherwise setting the record straight. Can I legally do this?
Answer: The Internet has certainly made it easy for patients to publically broadcast their criticisms. This is especially true in the case of health care professionals, where there are a number of websites facilitating the posting of patient “ratings” and the publishing of patient comments regarding diagnosis and treatment received.
Unfortunately for dentists and other health care professionals, the playing field is not level. Patients are free to provide whatever information they wish about either themselves or their dentist and to post commentary (whether informed or uninformed) unrestrained by any privilege or other confidentiality restrictions. This is not the case for dentists and health care professionals.
HIPAA allows the use of patient information only for treatment, payment and health care operation purposes unless you have obtained an authorization from the patient allowing your use of information for some other purpose. Since it is doubtful in the situation you describe that the patient is going to provide you with a written authorization to use her patient record to refute what she has posted online, you are prohibited from doing so.
Prior to the enactment of the HIPAA Privacy Rule, Michigan’s Dentist-Patient Privilege Statute would have also prohibited you from using this patient’s information without her first waiving the dentist-patient privilege.
Making matters worse, legal recourse in these situations in most cases is not possible. First, it is typically an issue proving who posted the information, since most online postings are anonymous. Second — even in your case where you are sure who the poster of the information is — it is often difficult proving whether the statements are factual (which are legally actionable) vs. statements of opinion (which are not actionable). Finally, even if you can prove the identity of the poster and that the statements are factual you still have to prove how you have been specifically damaged by the posting. Tying the posting to a specific loss of patients is difficult.
This is a frustrating situation to be in, with no satisfactory way to defend yourself using patient records. The best advice is not to respond to negative postings like this and to instead manage your online reputation through your own Internet advertising, your practice website, etc. Consider asking satisfied patients to provide online testimonials praising you for the care you provided. Most consumers will believe the majority of the opinions that they read and will disregard the minority. If this negative posting stands alone among several favorable patient testimonials it will likely be disregarded.
Whatever you do, do not disclose any patient information without first getting a signed authorization from the patient.
Editor’s Note: The MDA endorses Demandforce for online reputation management and electronic patient communication. Learn how Demandforce can help you address online patient reviews by calling 800-210-0355.