Latest / Off the Chart: A Business of Medicine Podcast / S1 Ep191: When a negative review becomes defamation, with Michael Pelagalli of Minc Law
Transcript
- Michael Pelagalli 0:00 I recall one case where we represented a family physician. I think overnight had dozens of fake reviews on a couple different platforms. You know, we did some digging into the subpoena process and unmasked a family physician from the next county over. There really wasn't even any personal animus that our client could recall between that physician, I think it was just a, you know, really bad idea for trying to get new patients. Austin Littrell 0:28 Welcome to Off the Chart, a business of medicine podcast featuring lively and informative conversations with healthcare experts, opinion leaders, and practicing physicians about the challenges facing doctors and medical practices. My name is Austin Latrell. I'm the associate editor of Medical Economics, and I'd like to thank you for joining us today. In a June survey from the reputation management company Rater Eight, 55% of adults said they'd walked away from at least one physician because of something they read online. That's why in today's episode, I sat down with Michael Peligali, a partner at Mink Law, a Cleveland law firm that works exclusively on internet defamation and online reputation matters, to talk about what physicians can actually do when a review is fake or false. We get into where the legal line falls between a defamatory review and protected opinion, why HIPAA leaves physicians with almost nothing to say in a public reply, and how law firms can use John Doe lawsuits to unmask anonymous reviewers, and what changes when the person behind the reviews turns out to actually be a competing physician. There's a lot in this one, so Michael, thank you for joining us. Without further ado, let's get into the episode. Today, I'm joined by Michael Pellegalli, an attorney from Mink Law, a national law firm based out of Cleveland that works exclusively on internet defamation and online reputation, and a lot of that work involves physicians and medical practices dealing with fake or defamatory reviews, and that's what we'll be getting into today. Michael, thank you for joining me. Michael Pelagalli 1:52 Austin, thank you for having me on. I think that was a fantastic overview of what we do here at Mink Law, and I'm you know excited to talk with you about how our practice area then blends into the medical profession and how we help medical professionals and medical practices. Austin Littrell 2:08 Yeah, I guess just kind of getting started there. What could you tell me a little bit more about about Mink Law and and how healthcare ended up being such a big piece of what you do? Michael Pelagalli 2:15 Yeah, well, like you said, Minklaw, we're a firm that specializes in cases that arise from defamation, generally, more specifically online defamation and harassment and extortion. The ways that we know the internet can be used and manipulated these days. We involve, you know, we deal with claims surrounding those types of attacks. We also help our clients from a proactive measure to manage and champion their reputations online and offline. Now, where this blends into the medical profession is, you know, one personally. I've been practicing law for over 10 years. I'm a partner at the firm. I started my practice at another firm defending medical care professionals and medical care facilities in excuse me in medical malpractice cases. So I've seen how these cases go and the types of claims and the types of allegations that are levied against medical care providers in in those types of cases, and then how that can bleed into defamation, right? Oftentimes in the medical field, we're dealing with you know real people and families and emotions and sometimes, despite the best of care and despite all reasonable measures being taken, things happen outside of the provider's control. And those you know family members and people affected by the outcome take to the internet to you know say what they have to say about the situation, and it isn't always actionable. Where the medical profession comes into our practice specifically is the unique handcuffs that are in place against medical care providers when they are attacked online and when they're attacked publicly. That's where our firm can come in and help the medical care provider navigate those difficult waters help them either respond privately or take action formally if it's necessary. Austin Littrell 4:09 Great. I guess just kind of you know for a broad overview here, what makes a review online defamatory instead of just a bad or a negative review? Michael Pelagalli 4:20 Yeah, it's a question I get all the time from medical care provider clients, but you know, clients of mine that are outside the medical profession as well. And what I tell people is the simplest thing to look at first is: does the statement at issue sound like an opinion, or is it a statement that is being asserted as a fact, as something that can be verified one way or another to prove whether or not that fact is true. So, for example, you know you see a Google review that said the doctor was rude, a common one, or the doctor's bedside manner was poor, or I had to wait too long for. Or my appointment in the waiting room. These are all statements that you know. I've heard some people say, "Well, as a matter of fact, they did not wait too long in the waiting room. And as a matter of fact, I have numerous reviews that say my bedside manner is superb. But at the end of the day, I think we all understand that those are types of statements that we can't objectively, through evidence, verify to a certain degree whether a doctor was rude to a particular person on a particular day. Okay. Now, if it says the doctor was intoxicated while performing surgery, and I smelled alcohol on his breath, and he slurred his words in the pre-op, you know, intake discussion. That's where now it's crossed the line in numerous ways because they've made assertions of fact that we can prove or disprove through the medical records, through other you know medical excuse me other medical care providers who were treating that particular patient and we're familiar with the events and can you know disprove what was being said. So the first thing is really, is this an opinion or is this being asserted as something that people should believe if they were going to believe it? Austin Littrell 6:13 Do you have like an example of of a review that crossed the line and maybe one that the doctor might feel like it should have crossed the line, but it, you know, legally did not. Michael Pelagalli 6:24 Yeah, I can definitely start with the the second part where you know, hey, reviews that doctors think cross the line that maybe don't. It's really difficult when the reviewer is an actual patient, right? Because we have two, not two, but there are different types of reviews a physician or a medical care provider can face, and that's a fake review from someone who was never a patient or former patient, and is being done by someone for the sole purpose of truly just attacking that medical care provider or that practice to harm their reputation. Perhaps it's a competitor looking to gain an unfair advantage. You know that's a situation where very clearly we can take action to go against someone who is never a patient but is purporting to be one on a Google review or a WebMD review or a Vitals.com review. Now, where it gets a little bit more difficult, where I have a lot more complicated conversations with physicians, is when the reviewer is an actual patient, and let's just say their review says something to the effect of the the surgery was unnecessary. I felt they did this to overcharge my insurance, and it didn't really result in what I wanted. I can go sit through the doctor's records and you know work with him or her to talk about why that isn't true from like a granular level, but when we're talking about whether the juice is going to be worth the squeeze to actually go and litigate against someone who legitimately was a patient, those types of reviews start to you know wade into the waters of more opinion or might be more protected or even if they were actionable. The relief the doctor is going to be afforded isn't the same, or isn't going to be as meaningful as someone who truly was never a patient, or a patient who is making something up. Okay, like if that same former patient never actually had surgery, and our records can show that they never had surgery and that there was no overcharging, then that is you know something that would go from not crossing the line into crossing the line. A real world example I can give of a of a review against a physician that definitely crossed the line was a recent case that we've had local to our firm. It was a physician who had been accused publicly and numerous times of sexually abusing his patient on the operating table, very serious accusations, heinous claims, frankly, that were alleged against the physician. Those claims had been investigated numerous times because of the number of reports that this single individual had made his name had been cleared numerous times, but it did not stop this particular patient from continuing to accuse him of the worst things possible against a physician. We sought to have the matter resolved privately, which is my advice to almost every medical care provider in almost every situation, barring the most extreme circumstances, even in that case, we tried to resolve it privately. Our offers were rejected, and we were forced to litigate. We took it to a trial. We were successful in that trial. We were able to, you know, have our client awarded with hundreds of 1000s of dollars in compensatory damages, attorneys' fees, punitive damages, and thankfully that case was you know just approved in terms of it was appealed and it was taken up to the Supreme Court and the Supreme Court rejected to hear the case. They confirmed that what was done at the trial level was appropriate. So that was a real. Case for a real physician who took this all the way to trial because the claims were so serious and so significant that anything short of complete vindication legally wasn't going to be enough for him in that situation. Austin Littrell 10:16 Wow, I guess starting with like some actionable insight for practices, they they see a review that they know is false. What's their first step? Michael Pelagalli 10:30 A practice or a physician or you know practice manager at a medical facility sees a false review or a problematic review. The first thing they need to do is document by way of screenshots, by way of you know a contemporaneous note or email to someone else at the practice to say, hey, this just came up. It was published here. This is what's going on. Something to record what had happened because fake reviews can come up. They can come down because the reviewer takes them down quickly. They can come down because maybe the platform takes them down, but you want to make sure that you preserve what's been published as soon as you can. That's the first step. The second step would be then to assess what type of response is warranted, and that's where we can get into a little bit of the difficulties that medical care providers have in these situations, because once you document and you screenshot the review, there is the natural urge to want to publicly write the record, publicly respond with facts, with the truth, to say, wait a minute, this is not a legitimate accounting of what this patient experienced, so I guess to break it up, the first thing to do is document, and then the next thing to do is to sit down with the team of individuals or the person that you work with or whomever at the facility works with to assess this particular review. Whomever might have knowledge about the particular patient, and decide what types of steps to take next. Okay, those steps really are going to be one of two things, and they can be both done too. First is if the review is certainly from a non-patient, you go through your records. The name that's left on the review is not a name that matches your patient records, you can start to flag those types of fake reviews from non-patients to the platforms. Okay, those are the types of reviews that even if those platforms don't work to remove on the very first wave of reports, our clients have found that numerous reporting or repetitive reporting of these types of clearly false reviews, where the practice or the physician can tell the platform, "We've searched our records. This does not match a patient. It does not relate to a family member. It does not match any experience that any of our patients have had by way of this record. That could be a positive way to get relief to take to get that review taken down. The difficulty with that is it's completely up to the platform. There is no deadline or time constraints that the platform has to take action if they see fit. It's truly up to them, which is why I say our clients oftentimes find the most success flagging reviews if they're doing it, you know, regularly a couple times a week. If people at their office are able to do it from different accounts to get that platform's attention. Now, where the review might be a more complicated situation, or because it was left by a former patient, and it maybe goes along the lines we discussed, where maybe some of what they said is true in that they were a patient, they did have some experiences, but we have all these facts to rebut what they're saying publicly. That's where I tell physicians and medical care, you know, practices to call the lawyer, you know, call their lawyer to have a discussion before anything gets done privately, and certainly before anything gets done publicly, call your lawyer and talk about the situation so that you can then decide what is the best step. Physician's Practice 14:19 Hey there, Keith Reynolds here, and welcome to the P2 Management Minute. In just 60 seconds, we deliver proven, real-world tactics you can plug into your practice today. Whether that means speeding up check-in, lifting staff morale, or nudging patient satisfaction north, no theory, no fluff, just the kind of guidance that fits between appointments and moves the needle before lunch. But the best ideas don't all come from our newsroom. They come from you. Got a clever workflow hack, an employee engagement win, or a lesson learned the hard way? I want to feature it. Shoot me an email at kreynolds@mjhlifesciences.com with your topic, a quick outline, or even a smartphone clip. We'll handle the rest and get your insights in front of your peers nationwide. Let's make every. Together, thanks for watching, and I'll see you in the next P2 Management Minute. The Austin Littrell 15:12 Office for Civil Rights has fine practices over what they said in a public reply to those reviews. I guess how much, in terms of of replying to them, how much can a physician actually say back? Michael Pelagalli 15:25 Yeah, in terms of meaningful responses, very little, right? Because a patient can go online and provide all sorts of seemingly detailed, authentic facts and experiences about which provider said what and when, and you would think that because that patient sort of opened the door, if you will, by outing themselves. Let's say they use their real name on their review, and they start divulging these details voluntarily. I think the natural, you know, response would be okay. Well, if they've opened the door to this. Why can't I, as the physician, in a meaningful and narrow way, reasonable way, respond with the facts so that someone could see that? And unfortunately, the you know prohibitions set under HIPAA preclude physicians from I say meaningfully responding, and I say meaningfully because you know, medical care providers and physicians, when they get a bad review online or a fake review online, they're allowed to put up a general response saying, you know, we strive to provide you know care to all of our patients in a way that you know meets the applicable standards of care. We invite all of our patients with any issues to contact us privately at this number, and we're happy to like something generic that sort of takes that reviewer offline and signals to the public that you're willing to work with them to resolve this privately. But if that review stays up and those false allegations of fact remain up, that is still something a reviewer or a potential patient or prospective patient could see, and that's where it becomes very difficult for you know doctors to say anything because you can't obviously disclose patient identifying information in a response to a review. Even if they do, you can't say that you never took certain action, like saying what you did as the provider, not what they said or what they did, you can't say any of that, and you even can't say anything that would confirm the existence of a physician-patient relationship. So even if that patient has already done so by virtue of their review, the public response can't even acknowledge that that person actually is a patient. It really handcuffs, you know, physicians and medical care providers in a unique way. You know, this is different from clients of mine who run, you know, large restaurant chains who have, you know, numerous Google My Business pages and are assaulted with different types of attacks all the time. Who can publicly respond with screenshots of security footage showing exactly when a patron came and left, and like they can do things, or other types of businesses can do things that, frankly, medical care providers and lawyers cannot do in in a lot of ways. Austin Littrell 18:21 That's very interesting. I mean, yeah, that's their hands are tied there, and Michael Pelagalli 18:25 yeah, there now. I I I say some of this sort of with an asterisk that I don't know all the details of this effort, but I have been made aware recently of an effort, a legislative effort to amend HIPAA, called the Respond Act, and I don't know all the details. I don't know exactly what stage of their efforts they're in, but I saw it. I read their materials, and I was really encouraged by what they're trying to do, which is propose an amendment to HIPAA-not a you know not wiping away the prohibition that we're talking about, but an amendment that is very very, in my opinion, narrowly tailored but effective. That kind of addresses this concern that we just talked about. What they're saying is that HIPAA should be amended to allow physicians to, in a proportional way, respond to those types of reviews when a patient voluntarily does this, when they you know disclose facts, and when they open the door, physicians and healthcare providers should be allowed under those circumstances. And there is restrictions. It says, "Hey, if only you know certain types of information are discussed in the patient's review, a proportional response would not include the physician bringing up additional pieces of information that you know they think may help them, but wasn't originally brought up in the patient's complaints. You know, so there has to be sort of a very narrow, reasonably restricted response. But it at least gives, in my opinion, the physicians more meaningful relief publicly than what they're afforded now. And in my opinion, I think it's really important that physicians and medical care providers are allowed to attempt to get public relief themselves, is because of the fact that litigation is very costly. It's time-consuming. It's something that, you know, in my opinion, isn't always a fair situation when someone can take to the internet for free on a fake account, you know, behind the protection of anonymity, and in the matter of minutes, post something online that then reverberates through this physician and healthcare practices, you know, entire operation, you know, from the top to the bottom, from business to personnel to you know profit and losses, and then the physician comes to us and says, "What can I do? And they're looking at you know hefty legal fees and uncertain litigation because no lawsuit is a slam dunk or a guarantee. So they're faced with you know a daunting task to you know right this wrong that should have never had to you know have been corrected in the first place, and a lot of times physicians are forced to do that because they can't get the relief publicly. So I really like to see this, you know, legislative effort succeed. I'd like to see physicians get the opportunity to solve these problems and respond more directly, so that maybe they don't always have to go into a lawsuit. But you know we'll see. It's it's a certainly an interesting development. Austin Littrell 21:24 Absolutely, that's really interesting. At least the ability to dispute what is being said, right? I guess you mentioned there some patients or just reviewers leaving these these reviews behind a you know not their name, anonymity of the internet. How do you find out who wrote a review? Michael Pelagalli 21:46 We find out who wrote these reviews through what's called a John Doe lawsuit. It's not a guaranteed process, like I said. In any case, there's no guarantees, but it is the most effective method to unmasking, is the standard or the term we use to unmask anonymous reviewers online, and that process is from a like a 30,000 foot overview, a fairly straightforward process. But then, when you get into the weeds and the individual trees of that you know forest, if you will, it becomes you know a really sort of sometimes difficult journey for people to go on. But you know our firm has done this for quite some time. We've done it across the country through the help of you know firms across the country as well. And what happens in a John Doe case is we file a lawsuit. You know almost like a standard lawsuit where we identify the claims at issue, the factual allegations that support those claims. Except instead of naming a defendant, we have John Doe, aka Reddit user whatever, or Instagram user this, or Gmail account that, and we describe what these anonymous accounts have done, and how their conduct has crossed the line, and why we want to pursue them. We then petition the court to allow us to issue subpoenas to let's just say that case was Reddit, Meta, and Google for three different accounts that were all sort of operating together to attack a client. We would work with those platforms to satisfy any sort of concerns they may have from a due process perspective, we have meet and confer sessions with those platforms' attorneys. Those platforms then afford the user, the anonymous user, time to object and fight the subpoena if they want. But assuming our case has merit, assuming the anonymous user has been afforded their time to respond, and they don't. More often than not, we are getting data from these platforms that then helps us eventually identify an anonymous person. That data can look like two different things. Typically, it's either BSI, basic subscriber information, which is the information that the user just provides to the platform directly when they're creating their fake Gmail account-it's the name, the recovery phone number, the recovery email address that they provide to Google to create that account. Some people provide real information that we're able to unmask them right from BSI. Most of the time, I'd say though that when someone's operating anonymously and doing things that are you know legally actionable and committing defamation, they don't always give their government name and their phone numbers and their old emails. They'll give fake information and burner numbers and burner Gmails that they've already created with fake information. So that's not always helpful. But the other set of data that we get from these platforms tends to be the most helpful, and that's IP addresses, those unique you know identifiers for internet connections that help us start to identify exactly who we're dealing with. Because, for example, you know, say we subpoena Google and we get basic subscriber information. That does not identify a person. It says the account was created by Mickey Mouse. Great, that doesn't help. But if we have several IP addresses, and let's say one of those IP addresses leads back to a you know Verizon Wireless account in the same county and state in which our John Doe lawsuit is venueed, right? Someone in the area, that's not always a surprise. You know what we would then do is issue a second round of subpoenas to the internet service providers who service those particular IP addresses, and that's where we start to get a lot more identifying information. Right? Hey, this you know AT and T will say this is the user, this is the account, the information, the credit card, all the information that you can't hide. You know, once you get to that point, so that really is the process in a nutshell. We file the lawsuit, we issue the subpoenas for the data, we assess that data, and once it identifies that person, we have the sort of critical position at that point in the case of contacting that person to see if they want to resolve it. That's typically what we do in almost every situation in unmasking cases. Michael Pelagalli 26:08 I will write that person a letter, and I will say, "Hey, this lawsuit has been filed in this court. Here's the case number. Here's all the filings. We've subpoenaed these platforms. It gave us this information, which leads directly to your residential address at these dates and times. Your options are comply with these reasonable demands, whatever they may be, or we move forward. We name you in our active lawsuit. We substitute John Doe for whoever we've unmasked, and then the lawsuit proceeds from there as though we had known who that person was from the start. Okay, Austin Littrell 26:43 great. You know, and I want to jump ahead one too because I am I'm curious, especially with healthcare. I think this is interesting. What if it turns out that that is a competitor who wrote that? You know, the doctor's office down the street. I guess how often do you see stuff like that, and then what is the process there? Michael Pelagalli 27:02 Yeah, that's a particularly interesting scenario. It is one that I wouldn't say is the most common type of situation when we're unmasking an anonymous reviewer in a healthcare situation. I would say most typically, it's a former patient or family member of a patient, and there was some adverse outcome, or something didn't go exactly how they want. That being said, we have gone through cases, and you know, for healthcare providers, for legal professionals, for accountants, any type of professional where you know we think it's one thing, and then it turns out to be a competitor, and that's happened. You know, I I recall one case where we represented a family physician. I think overnight had dozens of fake reviews on a couple different platforms. You know, we did some digging into the subpoena process and unmasked a family physician from the next county over. You know, very clearly trying to get some sort of you know poaching of patients and just making that person look bad. There really wasn't even any personal animus that our client could recall between that physician. I think it was just a you know really bad idea for trying to get new patients. And in that case, you know, it goes from you know potentially just defamation to something bigger. You know, if it's truly a competitor, unfair competition claims, tortious interference with contracts or business relations become a lot more viable when you have a competitor because you can much easier argue that they were aware of these contractual relationships. They knew what type of harm they would cause specifically by publishing the defamatory content in a certain way, depending on the scope and depending on the parties involved. If you're, you know, potentially going into federal court, you could potentially sue under the Lanham Act or different types of claims, civil claims under you know fake reviews, laws for the FTC, things like that. Where there's a lot that can be done if it's a competitor. It certainly opens the door to more arguments for actual malice and intentional misconduct, right? Like if it's you know another physician who is posing as numerous you know quote unquote patients of the physician they're attacking, claiming to have these bad experiences. You know I don't know what argument that physicians going to make that their conduct was anything but intentional and malicious, which opens the door for higher damages and a much scarier case to look at from the reviewer's perspective. Austin Littrell 29:33 Great. Is there anything that that I haven't asked you, or something else that physicians should keep in mind regarding this? Michael Pelagalli 29:42 Yeah, and that's a great way to end a deposition too. So you're you're a lawyer already. No, I mean I think you you know we've talked about a lot of the things that I speak with physicians about, especially on like a very first call or initial consult. You know, I think the thing I would impress upon physicians and medical care providers. Or office managers at these facilities is to you know act promptly, and again that doesn't always and usually doesn't mean acting promptly publicly. But when something comes in, don't sit and wait for weeks to go by before we start to address it, because if there is going to be private resolution had with the patient, which is the number one way we want these things resolved, my experience has been, and I think it's pretty logical that you know the sooner we are able to make contact with that patient to the review being published, the sooner we're able to make that touch point, have that human conversation on the phone, or provide our physician with instructions on how they can you know approach the patient privately. The chances of success, you know, being the remove the review getting removed and assurances that they're not going to do this again, the success goes way up. Those percentages go way up when you act, you know, within a couple of days or a week of that review coming up, as opposed to you know letting several reviews pile up over several weeks and months, and then coming later to say, I want to start addressing these one by one. So you know, screenshot right away, start looking at it right away. It doesn't mean you have to move mountains and divert a bunch of resources from ordinary operations, but just make sure it's something that's addressed, you know, in a timely fashion. Austin Littrell 31:18 Great. Well, Michael, thank you so much again for taking the time today. Michael Pelagalli 31:22 Thank you, Austin. Had a great time. Thank you. Austin Littrell 31:34 Once again, that was a conversation I had with Michael Peligali, partner at Mink Law. My name is Austin Latrell, and on behalf of the whole medical economics and Physicians Practice Team. So I'd like to thank you for listening to the show and ask that you subscribe so you don't miss the next episode. As always, be sure to check back on Monday and Thursday mornings for the latest conversations with experts, sharing strategies, stories, and solutions for your practice. You can find us by searching Off the Chart wherever you get your podcasts. Also, if you'd like the best stories that Medical Economics and Physicians Practice published, delivered straight to your email six days of the week. Subscribe to our newsletters at medicaleconomics.com and physicianspractice.com. Off the chart, a business of medicine podcast is executive produced by Chris Masalini and Keith Reynolds, and produced by Austin Latrell. Medical Economics and Physicians Practice are both members of the MJH Life Sciences family. Thank you. Transcribed by https://otter.ai