Doctors, hospitals sue patients who post negative comments, reviews on social media
Doctors, hospitals sue patients who post negative
comments, reviews on social media
Jayne O'Donnell and Ken Alltucker, USA TODAY 8:32 a.m. ET
July 18, 2018 | Updated
Surgeon says a former patient posted hundreds of negative
reviews about him for a span of 10 years. USA TODAY
CLEVELAND – Retired Air Force Colonel David Antoon agreed
to pay $100 to settle what were felony charges for emailing his former
Cleveland Clinic surgeon articles the doctor found threatening and posting a
list on Yelp of all the surgeries the urologist had scheduled at the same time
as the one that left Antoon incontinent and impotent a decade ago.
He faced up to a year in prison.
Antoon's 10-year crusade against the Cleveland Clinic and
his urologist is unusual for its length and intensity, as is the extent to
which Cleveland Clinic urologist Jihad Kaouk was able to convince police and
prosecutors to advocate on his behalf.
Antoon's plea deal last week came as others in the
medical community aggressively combat negative social media posts, casting a
pall over one of the few ways prospective patients can get unvarnished opinions
of doctors.
Among recent cases:
• Cleveland physician Bahman Guyuron sued a former
patient for defamation for posting negative reviews on Yelp and other sites
about her nose job. Guyuron's attorney Steve Friedman says that although the
First Amendment protects patients' rights to post their opinions, "our
position is she did far beyond that (and) deliberately made false factual
statements." A settlement mediation
is slated for early August, and a trial is set for late August if no agreement
is reached.
• Jazz singer Sherry Petta used her own website and
doctor-rating sites to criticize a Scottsdale, Arizona, medical practice over
her nasal tip surgery, laser treatment and other procedures. Her doctors,
Albert Carlotti and Michelle Cabret-Carlotti, successfully sued for defamation.
They won a $12 million jury award that was vacated on appeal. Petta claimed the
court judgment forced her to sell a house and file bankruptcy. The parties
would not discuss the case and jointly asked for it to be dismissed in 2016 but
declined to explain why.
• A Michigan hospital sued an elderly patient’s two
daughters and a granddaughter over a Facebook post and for picketing in front
of the hospital they said mistreated the late Eleanor Pound. The operator of
Kalkaska Memorial Health Center sued Aliza Morse, Carol Pound and Diane Pound
for defamation, tortious interference and invasion of privacy.
Petta's attorney, Ryan Lorenz, says consumers need to
know there can be consequences if they post factually incorrect information.
Lorenz, who has represented both consumers and businesses on cases involving
online comments, says consumers are allowed to offer opinions that do not
address factual points.
“Make sure what you are saying is true – it has to be
truthful,” he says.
"It would be great if the regulators of hospitals
and doctors were more diligent about responding to harm to patients, but
they’re not, so people have turned to other people," says Lisa McGiffert,
former head of Consumer Reports' Safe Patient Project. "This is what happens
when your system of oversight is failing patients."
As doctors and hospitals throw their considerable
resources behind legal fights, some patients face huge legal bills for posting
critiques and other consumers face their own challenges trying to get a
straight story.
Experts say doctors take on extra risk when they resort
to suing a patient.
Doctors typically can’t successfully sue third-party
websites such as Yelp that allow consumer comments, but they can sue patients
over reviews.
Even so, "you can win (a case) and still not win,”
says Eric Goldman, a professor at Santa Clara University's law school.
Goldman, who has tracked about two dozen cases of doctors
suing patients over online reviews, says physicians rarely win the cases and
sometimes must pay the patients’ legal fees.
Physician-patient confidentiality rules complicate
options for doctors, Goldman says, but they can respond to factually incorrect
reviews if the patient agrees to waive confidentiality and publicly discuss the
case.
The comments challenged legally are typically those that
were left online. Many medical review sites will remove posts they deem
offensive or threatening to doctors, as many of Antoon's or other Kaouk
patients' were. Yelp removes reviews only if they violate the consumer
website's terms of service.
Patients should first bring up complaints directly to the
doctor or other medical provider, says Edward Hopkins, an attorney who
represented Carlotti, Cabret-Carlotti and their medical practice for part of
the case. Other options could include reporting a doctor to state oversight
agencies, consulting with an attorney or filing complaints with a state
attorneys' general office.
Advocacy or obsession?
By the time he was arrested last December, Antoon had
tried most every option with very little success.
Along the way, Antoon became a patient advocate –
volunteering with Consumer Reports' Safe Patient Project and HealthWatch USA –
and advising others who say they were harmed by Kaouk and the Cleveland Clinic.
Cleveland Clinic, one of the top-rated hospitals in the
country, has an aggressive legal department. Kaouk and the clinic prevailed in
malpractice and fraud cases filed by Antoon and other patients who claimed they
were harmed.
Matthew Donnelly, Cleveland Clinic's deputy chief legal
officer, attended Antoon's criminal hearing in November.
To Kaouk, a decade of negative reviews on social media
led to what he considered an escalation when Antoon sent him several emails,
including one with a link to an article about a Chinese crackdown on research
fraud that could include the death penalty if people were injured or killed.
The day before Antoon posted on Yelp in November, Kaouk
was granted a civil stalking protective order against Antoon, which barred him
from contacting the doctor.
"What would be next – showing up at my door?"
Kaouk said in court. "That's what we feared."
In his posts and emails, Antoon documented alleged
issues, including Kaouk and the urology department's lack of credentials to use
the robotic device in his surgery. He sent records to the Centers for Medicare
and Medicaid Services (CMS), claiming they showed Kaouk was not present in the
operating room during his surgery despite his insistence that only Kaouk could
perform the surgery.
The Ohio Medical Board closed its investigation into
Kaouk after five years without reprimanding him in any way. Antoon's complaints
to CMS temporarily put the hospital's $1 billion annual Medicare reimbursement
at risk.
Antoon's claims were rejected, and Kaouk was not held
liable for the surgery that left Antoon impotent and incontinent.
Along with more than $40,000 defending himself against
the criminal charges, Antoon spent almost two days in jail. He had to post
$50,000 bond in Shaker Heights and again in Cleveland's Cuyahoga County after
the case was transferred there.
It's common "for someone in a position of wealth,
power and money to go after someone like David to silence critics," says
Antoon's attorney, Don Malarcik. "That happens often and it happened
here."
Hospitals, including the Cleveland Clinic, combat
negative comments with their own rating systems, which let them "control
their message," McGiffert says.
Some comments posted by Antoon and Dan Galliano, another
patient who claimed he was injured, disappeared from the websites RateMDs and
Vitals, as shown in screenshots Antoon took right after they were posted.
Cleveland Clinic spokeswoman Eileen Sheil says it posts
all the government-required satisfaction survey responses patients fill out
about doctors on its ratings site, once at least 30 are received. Comments
aren't edited.
Sheil says Cleveland Clinic will request comments to be
removed from other sites when they violate the sites' terms of service.
RateMDs did not respond to requests for comment. Vitals
spokeswoman Rosie Mattio says the site has a care team that will investigate
reviews it is contacted about.
"While we will not pull down a necessarily negative
review, we will remove the review if we find that it violates our terms and
includes material that is threatening, racist or vulgar," Mattio says.
Navigating Yelp
On Yelp, business owners can flag a review to be removed
for violation of Yelp’s terms of services. Yelp reviews flagged comments and
removes those that include hate speech or a conflict of interest or that are
not based on a commenter’s firsthand experience.
The website doesn't intervene over factual disputes, Yelp
spokeswoman Hannah Cheesman says. Instead, it classifies consumer reviews as
“recommended” or “not currently recommended” based on an automated software
review.
If Yelp’s software detects multiple reviews from the same
IP address or biased reviews from a competitor or disgruntled employee, it puts
the comment in the not-recommended category. Consumers can still view such
reviews by clicking on another page, but those comments are not factors in
Yelp’s five-star rating system.
McGiffert has long advocated for a federal database where
people could report medical errors and infections. Unless that happens, online
review sites – including hospitals' own and ones that will remove some reviews
doctors object to – are among the only places patients can find physician
reviews.
Doctors such as Kaouk suggest they are the ones who are
disadvantaged.
"It is something that if anybody would look just by
Googling my name online, you would see what he has written about me," Kaouk
says of Antoon.
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