The internet makes it simple to instantly tell the world precisely what you think. Anyone with an internet connection can post comments about anyone or anything on social media platforms such as Facebook, Instagram and Twitter. It now seems to be the norm for consumers to publicly rate and review every product and service. Websites are dedicated to the publication of consumer reviews, from Google Reviews to specialist sites such as Realself.com for cosmetic surgery.
Therefore specialist self-employed surgeons are increasingly likely to be commented about on social media, or be the subject of an online review by a patient. Which? it isn’t, with the majority of reviews being self-published by the patients, with little oversight by host site’s moderators, nor much pro-active work by host sites to ensure that reviews are accurate, objective or balanced.
The Incision medico-legal helpline service has had numerous requests for help from surgeons arising out of negative online posts or reviews. The patients’ motivation varies. Some deliberately use the threat of negative reviews to try to bully ‘freebies’ out of surgeons. Others are genuinely upset at the outcome of their treatment and are seeking catharsis.
So what, if anything, can surgeons do? Incision members have access to a detailed guidance note written by DWF LLP on this topic, but we highlight a few key aspects here.
Even if a surgeon is outraged by an online post, it is important to nevertheless think first about their professional/clinical duties. It would be asking for trouble to respond in kind in the heat of the moment! The professional conduct and clinical aspects can include; i) does the post indicate that the patient needs clinical follow-up, including mental health intervention? ii) does it indicate that the doctor/patient relationship has irretrievably broken down? iii) would responding on-line inadvertently breach patient confidentiality?
As a result, very great care is needed when considering what, if anything, can be done about negative posts or reviews.
For some surgeons, it might not be worth investing time and effort in trying to ‘clean up’ their own online profile. Not all surgeons get any significant proportion of their private work as a result of their online profile. However, for those whose practices do depend on online publicity, there are a few potential avenues.
It might be worth considering whether the post is defamatory, although since the Defamation Act 2013 came into force, it is now difficult to bring actions unless the surgeon can prove a financial loss.
Even if a defamation action is not realistic, if the post is dishonest or malicious it might in itself breach the terms and conditions of the host website, so the surgeon might be able to ask the website to remove it (albeit that care would be needed to avoid breaching patient confidentiality in doing so).
Alternatively, surgeons could try gently and sympathetically asking their patients to remove the post, so that the patient him or herself does not come to regret publicising the fact of their procedure and their unhappiness with it.
That won’t work for some patients, but negotiating the removal of the post for a full or partial refund or discount might be appropriate in some cases.
Leaving aside the question of what can be done about negative posts, there is an important Medical Indemnity insurance aspect to consider. Many surgeons overlook the fact that a negative online post or review might indicate that the patient intends to bring a clinical negligence claim, and fail to notify their insurers. Not only do they miss out on support and assistance, they could even store up problems in having the eventual claim covered by those insurers.
Joanne Staphnill, Partner, DWF LLP