Navigating the Legal Ramifications of Medical Online Reviews
| Publication year | 2019 |
| Pages | 44 |
BY ASHLIE BAREFOOT MALONE
The Health Insurance Portability and Accountability Act of 1996 (HI-PAA) affords specific regulatory protections for certain patient health information, or PHI. Defamation laws protect the reputation of individuals and other entities from untrue and damaging statements, whether in written format as libel or the spoken word as slander. Both would seem to offer unique individual protections against reputational harm. But what if the very regulations created to protect concomitantly restrict the ability to defend?
The increasing use of online review websites in the consumer decision-making process brings unique challenges to the health care market. By its nature, HIPAA prevents medical providers from publicly sharing or discussing patient information, or even acknowledging a patient is under the provider's care. If a patient posts a review in a public forum about the care they received from a medical provider, the patient is sharing. They are the recipient of that care, and they are openly welcome to share their experience. But when a medical provider enters that same arena of sharing in response to a patient's online post, they may be in direct violation of HIPAA.
Doctors hold a unique position by the very nature of the services they provide. Long before HIPAA was enacted into law, the Hippocratic Oath from the late fifth century BC laid the foundation for confidentiality by commanding doctors to abide by the philosophy that "whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets."[1] From the earliest beginnings, the foundation for the doctor's duty of care is drenched in an equal commitment to a duty of confidentiality. As a result, “doctors feel like patients can criticize their medical advice but the doctor can’t respond adequately due to confidentiality obligations.”[2]
Criticism of current defamation law rests in a doctor’s ability to defend against slanderous attacks that may damage his or her reputation. The concern, however, surrounds more than the doctor’s reputation. A doctor is not simply a small business owner. A doctor is the small business itself. Without the doctor, there is no product. Without a product, there is no business. Without the business, there is no practice or clinic from which patients receive care. Defamation laws afford certain protections against libel and slander, but without bridging the chasm created by HIPAA, doctors are oftentimes left undefended and at the mercy of their online assailant.
HIPAA offers specific protections for the privacy and security of certain health information. The Standards for Privacy of Individually Identifiable Health Information, or “Privacy Rule,” and the Security Standards for the Protection of Electronic Protected Health Information, or “Security Rule,” were enacted by the Department of Health and Human Services in 1996 to encapsulate patient health information with privacy and security and protect it with the highest level of confidentiality possible. These standards for privacy and security quickly evolved into HIPAA and encompass the blanket expectation of confidentiality surrounding the provision of medical care in the American consumer health care system today. The Act’s message is clear: protected health information is to remain private. Protected health information is to be protected by the medical provider at all costs. It is not to be shared, accessed or put at risk of access by any party at any time. Under HI-PAA, privacy is not only an expectation, it is also a federal requirement that has become so ingrained into the fabric of the medical community that medical providers are often hesitant to even speak a patient’s name without fear of unintentionally engaging in a breach of confidentially under the law.
In comes defamation . . .
By design, defamation law provides the legal framework to shield Americans against damage to their person or reputation by affording specific protections against false or malicious language between two or more parties. By requiring more than hurtful words, common law protections may be invoked, but only when false, malicious, and intentional or negligent defamatory comments result in damage to one’s reputation. The four elements of defamation require (1) defamatory language; (2) publication to a third party; (3) falsity of the statement; and (4) damage to the plaintiff’s reputation.[3] For public figures, or matters of public concern, the two additional elements of (5) falsity of the defamatory language; and (6) fault on the part of the defendant must also be met.[4] Further analysis of existing defamation law in today’s web-based culture is not only appropriate, it is also imperative for continued application of common law theories to this dynamic and quickly evolving area of practice, especially in today’s healthcare-blanketed marketplace.
Curtis Publishing Co. v. Butts[5] challenged the Court to consider the preparation of a defamatory article published in The Saturday Evening Post as the foundation for an affirmative claim for libel under the law. By departing from standards of good investigation and reporting, the plaintiff contended the article’s assertions “amount[ed] to reckless and wanton conduct”[6] and that the newspaper’s malicious portrayal of the plaintiff warranted a favorable judgment for both compensatory and punitive damages. In a 5-4 decision by the U.S. Supreme Court, the majority reasoned that public figures who are not public officials may recover damages for libel stemming from false reports based on “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”[7] The Purcell v. Westinghouse Broadcasting Co.[8] Court explored the same concept a few years earlier in 1963 when it held that “[t]he failure to employ such ‘reasonable care and diligence’ can destroy a privilege which otherwise would protect the utterer of the communication.”[9] The Curtis and Purcell Courts take an interesting approach to assigning liability to the publishers of malicious content when the publication of the content itself is not properly vetted through responsible investigative reporting standards and techniques. The publishing landscape at the time of the Curtis decision in 1967 is archaic by today’s technological standards, but even without the use of cell phones, home computers and Internet-based research, the Court recognized the need to retain a process of integrity and honesty in the publishing process.
By applying the Curtis standard for the responsible publishing of potentially damaging content, courts must consider the ownership of responsibility often lacking in today’s online culture. Social media platforms such as Facebook, Instagram and Twitter encourage users to post unedited and often unfiltered content without any formal process to properly vet the accuracy of the content or the potential harm to one’s reputation the publishing of that content may cause. Online review websites take these concerns a step further by encouraging online users to rate or comment on their personal medical experience, often anonymously or without a formal process for ensuring the post is accurate or true. If the Curtis Court commands recognition of libelous standards from lack of accuracy in reporting, it is worth consideration if similar standards must also apply to the spontaneous, unverified, first person publication of highly subjective content that comprises the online library of content available today.
Where the Curtis Court favors protections against libelous content by considering the integrity of the publication...
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