Professional ethics guide the health care staff in their interactions with patients, providers, co-staff and business associates in the workplace. However, there is a need for guidance on the best practices for the professional conduct of physicians and health care personnel in the digital environment. As new social networking platforms gain acceptance, professionalism must be applied in this new setting. In particular, ready access to online platforms leads to instantaneous feedbacks and comments from patients, health care workers, and health providers. In particular, issues of defamation have steadily risen.
Defamation usually involves publication, without any justification, of a derogatory and/or false statement regarding another individual or party. Defamation may either be slander or libel. Libel is a defamatory statement in writing or other visible forms; whereas, slander is a spoken defamatory statement. A defamatory statement has the potential to injure the reputation of another individual, which may lower the opinion of the affected person in society; and this may result in him or her being disliked, hated, ridiculed, feared, or scorned. In most cases, the defamed person will almost always claim that it resulted in a loss of income.
Defamation was not historically considered to be a big issue in the healthcare industry. However, the rise of social media has resulted in a corresponding increase in defamation cases. Cyber defamation is defamation using digital media, most commonly the Internet. Healthcare workers who post or make negative comments about other patients/healthcare workers can face serious legal action. There have already been many reported cases involving health care professionals in which allegations of defamation have been raised. This article discusses defamation and presents several cases of defamation in the healthcare industry.
What is Defamation and Cyber Defamation?
People can write or say anything on the internet. Lawyers and potential litigants are aware of the amount of money awarded by the court system in defamation cases. In several recent cases, litigants have been awarded millions of dollars because of defamation, and it is expected that these awards will continue. Since defamation immediately downgrades the individual's, the practice's or patient's reputation, loss of income may result immediately. Therefore, these cases are heard by the court system without much delay. Defamation and cyber defamation in the health care industry are illustrated in the following cases.
After a nurse resigned, her supervising manager wrote defamatory statements in a letter of reference. She mentioned that the nurse was unstable. The nurse could not get another job, but when she found out what the letter of reference had stated, she filed suit. She did not have a history of mental illness. She wanted a part-time job so that she could look after her mother, who was ill. Adherence to the guidelines set by professional ethics would have avoided this suit and many other suits.
A parent was questioned about suspected sexual abuse and one of the nurses, thinking that the parent would not hear, remarked that the father looked like an abuser. The parent went to a lawyer, and the nurse was charged with defamation of character and HIPPA violation. The child had not been sexually abused. Professionalism dictates that opinions should be evidenced by clinical facts and clinical data. In this case, no evidence exists for the conclusion.
During an internal hospital review, a nurse made negative remarks about 2 of her colleagues claiming that they were most likely stealing leftover medications. The colleagues filed a lawsuit claiming defamation of character. The hospital settled out of court. There was no evidence that any medication had ever been reported stolen.
A doctor was wrongfully dismissed, and the employer stated that the doctor had committed malicious acts. The doctor filed a wrongful dismissal and defamation of character lawsuit. The hospital had to rehire the doctor and settle for an undisclosed amount. The person in human resources who made the information public was fired.
A manager called in a nurse and berated her for releasing patient information to her colleagues, an allegation that was false. The manager claimed that the nurse was untrustworthy and unreliable. The nurse filed a lawsuit for defamation of character. It was later proven that another co-worker had released the patient information. The manager was assigned another position.
A nurse educator commented to her colleagues that one of the nursing students was lazy and cheating in the exams. The information was hearsay, and the student filed a lawsuit against the nursing instructor and was awarded a lump sum. The nursing manager was assigned other duties. Administrators must be careful in gathering evidence before jumping into conclusions. Adequate investigation of the parties involved in the alleged offense should have been carried out.
A senior surgeon wrote up a surgery resident for being negligent during the care of the patient and said that the resident was unfit to be a surgeon. The surgery resident filed suit that his character was defamed and that there was no evidence to substantiate what the surgeon had written. The case went to trial, and the resident won. The court was told that a complication had occurred during surgery, but the surgeon was present at all times and it was he who controlled the events in the operating room. The hospital and the surgeon had to pay a huge penalty and court fees. The resident completed his training; the surgeon’s privileges were curtailed.
Although it may seem that it takes time and money to counter these defamation charges; however, a healthcare professional's reputation is often the most valuable asset they have.
Case Studies on Cyber Defamation
Case 1. A cosmetic surgeon learns that someone has anonymously been posting negative reviews online. The review suggests this cosmetic surgeon is a bad surgeon with deceptive practice, never follows up with patients, cut corners in surgery that result in many complications for the patient. This defamation can have a tragic consequence and can quickly ruin the professional’s name and character; furthermore, it can lead to a drop in the surgeon's business. In time, the surgeon notes that patient numbers are declining and income is dropping.
Consequently, the surgeon may have to change his or her practice. However, if these reviews are untrue, then the surgeon can file suit for defamation. In court, the surgeon must prove that none of the alleged complaints are true. They can do this by providing facts, which can include patient reviews, show how they manage their clinical practice and present complication rates. They can present testimonials from many patients who are satisfied with their surgery. This seems simple, but it requires an enormous amount of time and money to fight defamation cases.
Case 2. A 33-year old female underwent elective breast augmentation and botulinum toxin injections 2 weeks ago. After the dressing came off, she was not satisfied with the result. The surgeon had told her she had to wait until the swelling and edema subsided, only then would she see the cosmetic benefits. The patient went on social media and posted negative reviews about the surgeon. She claimed she had suffered major complications from breast augmentation and that the surgeon ignored her. She suggested that other patients not visit this surgeon for cosmetic surgery because he was reluctant to see her after the surgery. Her opinion was that the surgeon was not skilled and incompetent. The surgeon came across the review on Yelp and filed a lawsuit for defamation. In court, the surgeon had the appointment book, pre- and post-surgery photos, and all the communications between himself and the patient. The surgeon claimed in court that he never neglected the patient, asked her to follow up, and wait for the swelling to subside before she would see the cosmetic result. She instead defamed him on social media, and the jury sided with him. The surgeon also claimed that this false statement about him has resulted in a decline in new patients seeking surgery. The patient lost the lawsuit and ended up paying the surgeon over $300,000 in damages.
Why are defamation cases on the rise?
Many people are compelled to speak out about things that they see that are unfair or unjust. Furthermore, with the availability of social media, instead of speaking their observations and feelings, people write what they think and feel online where nothing is private. While social media can help improve medical practice, generate a positive reputation, and increase referrals, at the same time, social media is also used by former patients, disgruntled or unhappy patients, competitors, former employees, or others who can quickly destroy the reputation of a business.
Two things that have increased the risk of defamation are the mobile phone and the internet. These days when people are not busy writing their thoughts on cyberspace, they are verbally expressing themselves on their digital devices. Not all comments rise to the level of defamation; healthcare workers should understand that they have legal rights and not all statements are a violation, and the same applies to the consumer.
While some patients may defame healthcare workers, sometimes, healthcare workers also defame patients. Healthcare workers are especially sensitive to negative comments made by their patients, because not only do these comments hurt psychologically, these comments can also ruin a business.
Unfortunately, healthcare workers may be quick to jump to litigation when they see negative comments. However, it is important to understand that not every comment is defamatory and some of the comments are opinions. For example, when a patient reports that his or her health care worker is careless because he or she is always rushing around the clinic, they are only expressing an opinion. The courts try and differentiate between an opinion and a fact.
On the other hand, when a patient makes a statement like, "I think that Doctor X looks like a pedophile," it may sound like an opinion, but it can be considered defamation.
What is "defamation per se?"
In some cases, defamation may be considered "defamation per se," which means that the statement is not true on face value. Examples of defamation per se, as applied to health care workers, are statements like falsely accusing someone of a crime. Examples include someone saying that a healthcare worker has been indicted for healthcare fraud, a healthcare worker saying that a patient transmitted a sexually transmitted infection to their child, or a patient stating that the healthcare worker has lost his/her medical or nursing license.
Defamation per se can damage the reputation of a healthcare worker by saying false things like he or she lost his license when it is not true. The defamation may lead to a loss of patients, and consequently, income. All the healthcare provider must prove is that he never lost his license. In most defamation cases, once the truth comes out, the litigant wins.
Where are defamatory comments usually posted?
Patients generally post complaints about doctors on Healthgrades, Yelp, and ratemds.com. Once a comment is posted on these websites, physicians are not able to reply or identify the individual posting the comments. On the other hand, when comments are posted on Twitter or Facebook, the healthcare worker can quickly identify the individual who posted the comments. Some physicians feel they must reply to negative comments, but the reply must fall within the constraints of HIPAA; otherwise, they can be punished for violating the privacy act.
People can post comments anywhere online, and in many cases, they can write under a fictitious name. When this happens, it is often impossible to know who the author is, and most websites will not reveal the names of their users. Going to court can be costly.
How Healthcare Workers Can Protect Their Practice and Reputation
Patients today view the practice of medicine as a business, and thus, the healthcare professionals should remember the adage "the customer is always right." To prevent negative, false, or misleading information from being posted, published in newspapers, or circulated orally, the health care staff must uphold professionalism in their conduct with everyone they encounter. To address a negative comment or feedback on cyberspace, common responses of health care staff are: ignoring the comment, contacting the critic, requesting the service provider to remove or take down the comment, rebutting the statement in the same or different online forum, and filing a legal action. The following principles are recommended as guides in responding to negative comments:
What does it take to prove defamation in court?
While many people say or write things about others, in most cases, these comments are opinions and not defamatory statements. Three key features that must be proven in court to win a case of defamation include the following:
Advice for healthcare workers for communicating on social media
Because many healthcare workers now take to the media to write about their encounters with patients, here are some precautionary warnings:
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