Episode 7 - ONLINE REVIEWS AND LEGAL PITFALLS IN DENTISTRY

In this episode, host Karen Wood, Director of Operations for VDA Member Perks, interviews Mike Urbanik from RK Tongue Insurance. The discussion focuses on common legal questions dentists face regarding patient reviews on social media. Key insights include how to respond to positive and negative reviews without violating HIPAA, the implications of patients posting reviews, and the importance of legal consultation before taking any action. 

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The information, opinions, and recommendations presented in this Podcast are for general information only, and any reliance on the information provided in this Podcast is done at your own risk. This Podcast should not be considered professional, medical, or legal advice.

Music in this episode from Epidemic Sound

Transcript

[00:00:00] Karen Wood: Hello, and welcome to another episode of the Virginia Dental Association's Podcast, The Fulcrum. My name is Karen Wood, and I'm the Director of Operations for VDA Member Perks, which is the member benefit program for all VDA members. Today, we have the pleasure of speaking with Mike Urbanik from RK Tongue Insurance, which is an endorsed vendor of the VDA Member Perks Program and one of our longest partnerships, and they're widely relied upon by many VDA members.

[00:00:26] Karen Wood: Mike, thanks for joining us today. We're so happy you could join us and, and give us a lot of good information for members to use. And I think the topic we're talking about today is commonly asked legal questions. 

[00:00:36] Mike Urbanik: Yeah, it's great to be here. Thanks for having me. Happy to get this information out into the world. These are questions we see a lot. We answer with phone calls, provide information on. So, you know, we said, Hey, let's get together and just talk about this and have everyone be informed and deal with it as best they can. 

[00:00:54] Karen Wood: Yeah, and I don't know if it should have been a surprise to me or not to know that the top legal questions are around social media with Google reviews and patients giving feedback about your practice, because that's what every dentist wants when the patient leaves, is to leave a positive review and boost those stars up along the way. So, it's interesting that there's so many pitfalls and possible loopholes if you or your staff does not know how to handle them properly? 

[00:01:20] Mike Urbanik: Yeah, absolutely. Everyone wants a positive review. Ultimately, we all know that just isn't the case. Even if a business did everything perfectly all the time, you're just inevitably gonna run into people that don't give five-star reviews. And some people, when they get unhappy, they give one-star reviews and they leave some unhappy comments. So, it's just. How to deal with those to protect yourself. Don't overextend yourself. Get yourself in hot water. And full disclosure, I'm an insurance agent. I'm not an attorney. I don't even play one on TV. This conversation even took place between our risk management for the Professional Protector Plan, Dr. Anthony Chillura, and his conversation with Tom O'Carroll, who works for Hinshaw and Culbertson as our attorney. And they took these questions, I still think they're relevant, so I brought them here today to share because, I think one, any dentist listening to this can either A, see themselves having something like this play out or two have been in this exact situation. And we just want people to be informed so they know how to deal with this situation should it arise. 

[00:02:31] Karen Wood: So, always get to start off with a positive. So let's say a patient leaves a nice positive review and specifically says, Oh my gosh, you know, uh, my dentist did the most amazing crowns on my front teeth. My smile's never looked better. And the dental office wants to respond. What's a way for them not to get into trouble violating HIPAA, even though it's a positive review?

[00:02:52] Mike Urbanik: Yeah, that's a great question. The biggest thing you want to be careful of is not giving out identifiable information. And you know, it's very common. You think, oh, that was Ms. Smith who posted that review. She's so lovely. Ms. Smith, thank you. You're a really valued patient. We're happy you come to Urbanik and Hinshaw Smiles, et cetera, et cetera. You, you can't do that, even though that seems like such a great and benign thing to do. 

[00:03:17] Karen Wood: Of course, yeah. 

[00:03:18] Mike Urbanik: 'cause you identified her as a patient. And that's what we need to be really careful of, because a simple event like that can breach HIPAA. You can respond to the comment if you would like and say. We strive to make Urbanik and Hinshaw Smiles the best possible place. We're happy to see this feedback. That way, it's accepting of it. It you know, acknowledges it. You say, Hey, we're happy to see this, but we didn't disclose. We're happy that you're a patient. 

[00:03:51] Karen Wood: Correct. Okay. 

[00:03:52] Mike Urbanik: So, you keep it very vague, and you just don't want to even breach HIPAA in that simplest way.

[00:03:57] Karen Wood: It might be a good idea for offices to have written scripts for this. So... 

[00:04:00] Mike Urbanik: Not a bad idea. 

[00:04:01] Karen Wood: If you're listening, write this down. All right. We gotta go into the negative 'cause that's when you have legal problems. If a patient posts negative information about a treatment they received, does this waive their HIPAA compliance in any way?

[00:04:14] Mike Urbanik: It does not you do not um, waive your HIPAA, compliance as a patient if you post a negative review, self-identifying, as you're a patient of that practice. Now, if the patient or the practice responds in a tone or confirms that the patient went there, that is a breach of HIPAA. They don't have to say, Mr. Urbanik, you came to our practice. What you say in this Google Review is not true, which would obviously be a breach of HIPAA, 'cause you're directly identifying me. We did X, Y, and Z. Nothing went wrong with your procedure. It was clinically correct. That's obvious. But even if you just say, when you came in, you were late, blah blah, blah. Nothing about the medical component, but you just say acknowledge they're a patient, that's a breach of HIPAA. So even when they do that, they don't waive their consent to it. You still have to protect their medical information.

[00:05:07] Karen Wood: Got it. We already talked about positive review. If you get a negative review, what's the best way to respond to that? 

[00:05:13] Mike Urbanik: That's a great question. I'll say this first. When I work with dentists who get a negative review, they always take it personally. They put a lot of time, energy, and effort into it. And they want a good practice. It's very obvious. So when they get a negative view, they wanna react, hey, that's not true. This patient might be lying. And they wanna defend themselves,  and they have the right to do so, but there's a right way to go about that. So, the scenario would be you get a negative review there, there might be truth to it, there might be not. You want to address it. I think that's a good business practice, but you want to do it in a way that doesn't breach HIPAA, and it doesn't put any information out there. So, you could say something along the lines of, it is our policy to provide a safe and comfortable dental experience. We invite you to contact our office to discuss this in detail. By doing so, you acknowledge the review; you acknowledge that there was a negative comment. You've said it's our practice not to do the thing that they said, and you invite them to contact you. You didn't give out their name; you didn't disclose that they're a patient. You just said, hey, it's our practice to do this to this standard. And we invite you to contact us. So, that's what I would recommend. 

[00:06:28] Karen Wood: Okay. That sounds like sound advice. A negative review, I guess you'd say that's an opinion versus an accusation of something that was done wrong or could be illegal, like how do you handle that?

[00:06:42] Mike Urbanik: Yeah, that's a great question. And that question surrounds the idea of can I go after this patient for what they said? And it depends on what they say. And then we can talk about whether you should or should not. But if they make a general comment, they could say, my dentist, Mike Urbanik, was very mean to me and unpleasant, and I was unhappy. That's their opinion. That is a protected statement. You'll go all the way up to the State Supreme Court, and they're gonna shoot it down because that is a protected statement. Now, if they said my doctor, Mike Urbanik, cut my gums, and they list a specific act or action that can be defamation. So, it’s broad opinion, generalized statements, things of feeling. He's mean. Versus, he did this thing, cutting my gums. So that's the difference between whether it is opinion or defamation. Is it an opinion or is it an actual statement? And then the next question could be, well, if it's not true, I didn't cut, you know, my patient's gums. 

[00:07:52] Karen Wood: Hopefully not. 

[00:07:53] Mike Urbanik: That's a lie. I, and I take that personally, and I want to go after them. The feedback we got when, from this call with Dr. Chillura and Tom O' Carroll was, it almost is never a good idea to do that. Society will accept a patient suing a dentist or a doctor all day every day, but they will not accept a doctor or dentist suing a patient. It's just a societal norm. You're going against the current. It typically never goes well. It always typically turns into a mess from what we've seen. There's probably other ways to address this and handle it. You might be really salty and depending on what they say, and if they post it on Google, you can contact an attorney, work with them to get that review removed. But to take legal action just never really pans out. So, I encourage you take the former road work to get that review addressed 'cause that's really what you're most likely concerned about. Is the optics of it, but to actually get an attorney or lawyer and pursue them just never works. So, I would say don't take that route. 

[00:09:04] Karen Wood: Yeah, it's unfortunate, but appreciate the honesty. So, we don't let anybody go down that road. So, let's say I own a practice, I'm very concerned about negative patient reviews, patient sign consent forms all day long. Can I include that anywhere on my patient information, form, or consent forms that they will not pose a negative review? 

[00:09:23] Mike Urbanik: That is a great question, and you cannot. That is a violation of federal law. It's the Consumer Review and Fairness Act. You cannot say by accepting treatment here, you cannot post a review. You're not gonna get very far with that, and you're gonna get yourself into legal trouble if you take that route. If you have that clause in your paperwork today, 

[00:09:45] Karen Wood: Get rid of it.

[00:09:45] Mike Urbanik: I'm encouraging you to get rid of it. 

[00:09:48] Karen Wood: And I wanna boost my reviews as a practice. All right. And so I have my dental assistant who could be a patient, maybe maybe for prophys or something. But if she goes on and she pretends to be an actual patient outside the office and pose a positive review, is that allowed?

[00:10:04] Mike Urbanik: No, it's not allowed either. You cannot have fake reviews posted. And you cannot have your staff post fake reviews. A lot of times we see this, Hey, I got a negative review. It bumped me down to three stars. If all my staff goes in and puts five stars, now I go back up to 4.5. That's just how Google reviews work, stars metrics, we all know that. So you wanna drown out the negative ones with positive ones. Attempting to manipulate that never works well in my opinion. And if you tell your staff to do it in post fake reviews, that can interfere with the FTCs guidelines on that and get yourself into legal trouble. 

[00:10:44] Karen Wood: Wow. So, in trying to get those reviews up and not using my employees, can I offer discounts or any incentives to the patients to post a review, whether it's good or bad, not influencing that, but just a positive review?

[00:10:58] Mike Urbanik: To answer your question, can I offer discounts for positive reviews? The answer is pretty much no. It would have to be disclosed, so you could say. Let's say you get a bunch of positive reviews, they would need to post, Hey, I got free treatment in the course of providing this review. Then what's the point of the review? Anyone who digs into it's gonna see that.

[00:11:21] Karen Wood: Yeah, sure. 

[00:11:21] Mike Urbanik: And they're like, am I'm going to someone who pays to get free reviews. That's probably a red flag in and of itself. 

[00:11:27] Karen Wood: Right? 

[00:11:27] Mike Urbanik: If you're doing that, not having it disclosed again, that can violate FTC. A Fair Trade Commission guidelines and you can get yourself into legal trouble. So I would say don't do it. Don't try to manipulate it that way. It's just not gonna work out well. 

[00:11:45] Karen Wood: I think that there's probably a lot of takeaways offices could learn from this. And if you're a VDA member, share this with your staff to make sure that their policies and scripts are in alignment with, what keeps you outta hot water, frankly? And any parting words before we uh, close this up? 

[00:12:02] Mike Urbanik: Yeah. I guess my parting words one, hopefully anyone who listened to this you know, if you've been in this position, you've learned something, understand it. If you find yourself in this position, feel free to contact me or your RK Tongue agent. We have tools and services, we have risk management, both on the clinical side and legal side. We can connect you with, if you don't work with us, that's fine, too. Contact your insurance agent. Many carriers do have support for this because before you take any action as a dental practice once the cat's outta the bag, you can't put it back in. Get legal help, get legal consultation before you do anything. The point of this was just to get you more informed about some of the challenges you could run into. 

[00:12:48] Karen Wood: Sounds like they're pretty easy to trip over. Mike, we're so glad you get to take, take some time today to sit down with us, share this valuable information with our members. Let's just keep it real. Insurance may not be the sexiest topic to discuss. But one that's so important for peace of mind, knowing you're covered as well as what to do, and then having confidence in RK Tongue's reliability, in the event something does happen. I would like to remind listeners that VDA members receive special discounts through RK Tongue and that your business with them provides financial support to the VDA.

[00:13:16] Karen Wood: So, look at this win-win situation. If you have not already. Mike's contact information will be in the show notes and is also on the Member Perks website at vdamemberperks.com. We appreciate you taking the time to listen. Hope that you found this information helpful, and look forward to you joining us again for the next episode of The Fulcrum.

[00:13:34] Karen Wood: Thank you for joining us for this episode of The Fulcrum Podcast. If you found it valuable, please leave a review and help others discover it. The Fulcrum is a podcast of the Virginia Dental Association. Please send your comments and ideas for future topics to thefulcrumpodcast@vadental.org.