By Kathy Gough
Team Leader Claims, Avant Mutual Group Limited
Reviews about health professionals posted on forums on the internet are becoming an increasingly common way for patients to express dissatisfaction with their health treatment across the world.
Whereas once patients would write letters of complaint to health professionals or the Health Care Complaints Commission, they now often go straight to social media, depriving the health professional of the opportunity to address their concerns or correct misunderstandings about their treatment.
Unfortunately, there are few options available at present to respond to these comments and sometimes it is better not to respond at all so as not to exacerbate the situation and escalate the negative reviews.
There are four options available to you if you object to comments made on the internet.
Request the website in question remove any offending comment.
It is Avant’s experience that members have had varying success with making requests for removal of material. Some websites are likely to comply with your request to avoid any further action being taken against them. Other websites may not agree to a removal on the basis that consumers are allowed to express their honest opinions.
Some websites have specific policies to the effect that comments will not be taken down simply because of a request. You can make a request but it may be rejected.
Request the party making the comments to withdraw them and if appropriate, publish a retraction to any persons to whom the comments were made and arrange for the comments to be removed from the website.
This is often difficult because the identity of the author is not always possible to ascertain.
There is also a risk that by making such a request, further negative comments will follow, escalating the negative situation.
Take further action
If the actions are not acceptable to you, consider instituting proceedings under the Defamation Act 2005.
In relation to the requirements of an action in defamation, in order to succeed in a claim, it is necessary to establish that:
1. The words published have a defamatory meaning or ‘imputation’. To be defamatory, the words must injure a person’s reputation and not merely a person’s pride or feelings.
2. The person bringing the claim has been identified in the defamatory words.
3. The defamatory words are being communicated or published to at least one other person.
Defamation claims need to be brought within 12 months from the date of publication of the offending material.
There are several defences under the Defamation Act which are available in relation to a claim for defamation. These include the defence of truth (or ‘justification’), honest opinion, innocent dissemination and qualified privilege.
The application of defamation to publications on the internet is complex and sometimes even writing a letter threatening defamation proceedings can be fuel to the fire of patients and the media, and result in an article indicating that you have threatened proceedings against the aggrieved patients.
Defamation proceedings are very technical and as a result costly to pursue. Not all of the legal costs which may be incurred will be recovered on the successful completion of a claim. Defamation actions are popular with the media and are very likely to generate adverse publicity.
Wait and see
The final option is to ignore the comments and wait until further positive reviews move the negative review down the blog page and out of view of the public.
It is sometimes advised that doctors should respond to the negative comments about them by posting complementary blogs. Care needs to be taken in adopting this approach as it can backfire and may fall foul of the Australian Competition and Consumer Commission and professional guidelines prohibiting the publication of testimonials.
One of the things that professionals should do if they receive one or a series of negative comments on the internet is to actually stop and reflect on their practice to see whether there is an element of truth in the comment.
Is there an issue of communication with the staff? Was someone rude to them? Did they wait too long to be seen? Does your website create unrealistic expectations? A complaint or negative comment can be an opportunity to improve the service to your patients.
Comment on internet sites can cause distress and frustration. You can seek Avant’s advice if you are unsure how to respond.
Disclaimer: This article is not comprehensive and does not constitute legal advice. You should seek legal or other professional advice before relying on any content, and practice proper clinical decision making with regard to the individual circumstances. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.
Avant provides professional indemnity insurance for members of Optometry Australia