Negative Online Reviews- What Amounts to Defamation?

Online review can impact a medical practice more than ever in today's digital world and no one is policing what patients post online or how truthful it is.  All it takes is a cell phone and in a few minutes a review can be permanently posted for all to see. And in many cases that review is prominently displayed with each google search of you or your practice.  In an industry where reputation is everything, many physicians actively monitor their reviews and are highly aware of the impact an unhappy patient can have on their practice.  A review's impact is particularly concerning in light of the need to tell a patient news they may not want to hear, such as denying their request for additional pain medication or other drug.

But while a negative online review may be damaging and the reviews by their nature only tell one side of the story, when does it amount to defamation?

Consider the following review on Yelp discussing a hospital (the name of the hospital is removed from this post):

This place is an over priced, [sic] dump. Horrendous place, with other facilities in the area I highly recommend you avoid [hospital] like the plague. . . After speaking to our insurance company found [sic] out that [hospital] apparently charges the highest rates in the industry for the area.  Guess those good [doctors] need to fill their coffers some how [sic], bless their little stone hearts.

It is obvious the review is hurtful, but whether the review is defamatory is less certain. Generally, defamation claims are available only for statements of fact as opposed to opinion. If the hospital is not actually the highest priced in the area or is not charging uncustomary rates, the review could potentially amount to defamation.  But the victim of the defamation also has to prove that they were harmed by the defamatory statements directly, which requires an actual causal link between a decline in business and the posting of the negative review.  It may be extremely difficult to establish such a link and will in most cases require enlisting the help of a potential costly expert.  And always consider that truth is an absolute defense to defamation, even substantial truth if the average reader would not find it more damaging to the plaintiff's reputation than the actual truth.

Even if the statement does amount to defamation, and damages can be proven, it is always critical to consider the fact that litigation many times only brings more attention to the review you want to bury.  And in most circumstances, the litigation can only be brought against the actual author of the review, not the website that published it. This not only limits the economic recovery available to you but in many cases makes it extremely difficult to identify the proper person to sue, as many reviews are posted anonymously.

Even so, in many cases it is necessary and worthwhile to take all reasonable actions to protect your hard earned reputation from slanderous online content.  But do so with knowledge of the costs and benefits.

Look for my next post: Hurdles to Bringing a Defamation Suit for an Online Review.