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Have You Googled Yourself Recently?, Kentuckydoc, December 2010- January 2011, Volume 2, Issue 5

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Kentucky doc December 2010 - January 2011, Volume 2, Issue 5

Authored by Molly Nicol Lewis and Lisa English Hinkle

Before the explosion of social media and mega-search engines, Warren Buffet said: "It takes 20 years to build a reputation and five minute to ruin it. If you think about that, you'll do things differently." What was five minutes then, is just a click of a button today. In 2010, 77.3 percent of the American population was reported to be Internet users, 1 and with this growth in popularity, the use of "rank and review websites," rating everything from hotel room to rheumatologists, has also experienced a substantial uptick. In fact, research indicates that 20 percent of all patients use doctor review websites when selecting a health care provider, and as members of a more technologically inclined generation mature and begin to make their own health care decisions, the numbers are sure to rise. Social media communication can be an effective marketing tool and an inexpensive way to disseminate important information quickly but if not managed properly, the Internet has the potential to destroy a physician's good reputation, fast. Because HIPAA prohibitions preclude physicians from responding to derogatory comments, 2 it is important that physicians be proactive and institute practices to promote a positive reputation online.

What is social media and how can it impact a physician's reputation?

According to the Federal Trade Commission, social media is information that is disseminated through highly accessible publishing techniques that transform people from content consumers into content producers. 3 Examples of social media include Facebook, MySpace, Topix, Twitter, YouTube, blogs, and emails. In addition, Angie's List, RateMDs.com, DrScore.com and Vitals.com are consumer portals for physician comparison. Several attributes of social media are important to consider in terms of a physician's reputation online.

First, social media enables anyone, anywhere to spread information, regardless of its truthfulness, around the world, instantly. Topix is especially problematic because it creates forums by geographic location and seems to be regularly used by posters in small rural communities. For example, a recent posting (names omitted) on Topix from an anonymous person, who lists London, Kentucky as their residence, states "Dr. A. is a jerk. Dr. B. doesn't know eczema from shingles. Dr. C. is an idiot and instead of treating you at his office he will tell you to wait and if it gets worse to go to the ER. What's the friggin point of going to his office for a problem if he's just telling people to go to the ER?" Topix also runs a forum where comments can be posted to such topics as "Doctors to Avoid in London KY." Because social media is so new, the law is playing catch-up and there are no clear cut rules about how these sites may be used and whether they can be regulated.

Second, social media has enabled free expression like no other medium in history. With the benefit of anonymity, posters are rarely held accountable for their comments so they can criticize freely and boldly. The debate between the First Amendment's guarantee of free speech and the common law's protection from defamation is far from settled in the realm of cyberlaw. Courts have time and time again found that it is important to protect the rights of anonymous speech online, but these rights are not limitless. For example, the First Amendment does not protect libel or published speech that damages one's reputation. Kentucky's defamation laws protect physicians from publication of false statements that damage a physician's reputation. Unfortunately, invoking the protection of the defamation laws means filing a lawsuit that may be costly and difficult to pursue. When comments are anonymously posted, a subpoena will most likely be required to identify the defendant.

Third, internet service providers are immune from the tort of defamation. In addition to broad sweeping disclaimers and indemnity clauses, which protect websites from being accountable for the content users post on their sites, Congress granted immunity to internet service providers in 1996 thereby reducing physicians' after-the-fact remedies against Internet assaults on their reputation.

Finally, and importantly, physicians are forbidden from responding to negative postings by disgruntled patients or setting the record straight because of state and federal privacy laws. Specifically, HIPAA restricts a covered entity from disclosing protected health information that is individually identifiable. HIPAA's definition of individually identifiable health information is so broad that almost any information about a patient that relates to a health condition or to payment for health care is considered protected. The penalties for privacy breaches have been strengthened by HITECH, 4 as recent regulations have implemented new notification requirements and enhanced civil and criminal penalties. In addition, most states also have identity theft and other data security laws that should be considered when confidential health information is disclosed.

What should a physician do to manage his reputation online?

Google yourself. All websites can be accessed through search engines like Google, which processes over one billion search requests per day. 5 By typing in their name or the name of their practice at google.com, physicians can view what their patients, potential patients, or could-have-been patients already have.

While physicians cannot eliminate the negative, accentuating the positive allows physicians to influence what patients view. A rule of thumb when building a digital identity is that the average Internet user views 1.9 pages of results per search items. 6 in other words, even though an Internet search using an engine like Google yields hundreds or thousands of results, the average user looks at less than 20 of them. A proactive physician can pull unwanted material back so that the Internet user is less likely to view any negative commentary. 7 This can be achieved in a number of ways.

  1. Create and maintain a physician practice website, with links. Search engines like Google prioritize websites with active links, so physicians should be proactive in maximizing their Search Engine Optimization by creating and maintaining their own websites which link to other related web pages such as medical societies, alumni organizations, hospital affiliations, etc. this will make current and accurate information more available to users searching for information about the physician or his practice.
  2. Purchase domain names. For as little as $8.00/year, physicians can buy domain names with their own name, practice name, as well as their iterations. By linking those sites to their active website, physicians can direct users to the information posted by them. Not only will this direct Internet users to positive information, but it will make those websites unavailable to disgruntled patients seeking to harm the physician's reputation by creating a website that appears to have been created by the physician but contains negative or hostile information.
  3. Originate and update profiles on rank and review websites. Because 60 percent of Americans polled believe medical care can be measured fairly and reliably, it is important for physicians to make sure fair and reliable information is available to their patients. 8 Physicians can register with sites like WebMD and create their own profiles in order to ensure that the information available online is current and accurate. Of course, the benefit of a physician creating his own profile is that it prevents someone else from doing it for him.
  4. Direct patients to post comments on rank and review websites. Satisfied patients can be a physician's best ambassadors and the vast majority of comments on rank and review websites are positive. By encouraging patients to write reviews, physicians can increase positive recognition and minimize the negative effects of any unflattering posts.
  5. Create a forum for feedback. When a patient vents negatively online, it is most likely because it is the most convenient venue for him or her to express his or her frustrations. To avoid this, physicians should institute an easy way to collect patient feedback. A follow-up phone call or an active email address can create a convenient way for patients to comment on their office experience without making the information available to the whole world. Not only will this circumvent unwanted postings online, but also it is a productive way for physicians to collect information from patients and improve as a health care provider.
  6. Perform regular checks. The Internet is a dynamic creature and it is important for physicians to monitor the information associated with their name and the name of their practice, frequently. By making it a habit to perform regular searches, physicians can be among the first to learn of any negative postings and manage the situation affectively.

Conclusion

Social media has been incorporated into the American way of life and is a force that is hard, if not impossible, to control. Because of the inability to correct and even respond to social media postings, a physician practice should implement practices to produce and manage the information available online. Today, creating a prominent and positive Internet presence is the best solution for physicians to minimize the risk of a damaged reputation online. The thought that a disgruntled patient could ruin a good reputation in an instant, should encourage physicians to heed Mr. Buffet's advice and be proactive in managing their reputation on the Internet.

Lisa English Hinkle, partner of the Lexington office, also contributed to this article and can be reached at lhinkle@mmlk.com or 859-231-8780.

This article is intended as a summary of newly enacted federal law and does not constitute as legal advice.

Sources

  1. Internet World Stats. Usage and Population Statistics., June 30, 2010, http://www.internetworldstats.com/top20.htm (last visited November 15, 2010).
  2. The Health Insurance Portability and Accountability Act of 1996 ("HIPAA") (December 28, 2006 codified in 45 CFR Parts 160 and 164).
  3. The Fair and Accurate Credit Transaction Act of 2003 (FACTA) added new sections to the federal Fair Credit Reporting Act (FCRA, 15 U.S.C. 1681 et seq.), intended primarily to help consumers fight the growing crime of identity theft. Accuracy, privacy, limits on information sharing, and new consumers rights to disclosure are included in FACTA. (Pub. L. 108-159, 111 Sat. 1952).
  4. The Health Information Technology for Economic and Clinical Health (HITECH) Act, enacted as part of the American Recovery and Reinvestment Act of 2009, was signed into law on February 17, 2009, to promote the adoption and meaningful use of health information technology.
  5. Khun, Eric. CNN Politics-Political Ticker...Google unveils top political searches for 2009. CNN. December 18, 2009, http://politicalticker.blogs.cnn.com/2009/12/18/google-unveils-top-political-searches-of-2009/ (last visited November 15, 2010).
  6. Arruda W., K. Dixson. Career Distinction: Standout by Building your Brand. Hoboken, NJ: J. Wiley & Sons Inc., 2007.
  7. Gorrindo, T. and J.E. Groves. Web Searching for Information about Physicians. JAMA 2008; 300 (2): 213-215.
  8. Bright, Becky. Patient Surveys Seen as Reliable for Rating Health-Care Providers. THE WALL STREET JOURNAL. February 23, 2008.
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