Restraint, Response, or Retaliation: Dentists Need to Think Carefully Before Responding to Negative Online Reviews

nat rosasco • February 5, 2020

Dentistry may be a unique profession with a proud history, but online, a dental practice is no different than a dry cleaner, restaurant, mechanic, or liquor store. That is because dental patients are just as likely to post a review of their experience on Yelp! or other online review sites as are customers of other businesses. And, as is the case for all businesses and professions, customers who have negative opinions tend to share those more often, and more adamantly, than those who have positive things to say. And Mary Alberti recently had a lot to say about her experience with a Buffalo Grove, Illinois endodontist.


As outlined in a defamation lawsuit the endodontist filed against Alberti, his former patient engaged in a concerted internet smear campaign to destroy his good name and reputation by posting “post after post” on Yelp!, Google, and other sites that contained false, defamatory, and anti-Semitic comments. He is seeking more than $4 million in damages, while Alberti has moved to have the case dismissed.


While the allegations in the Alberti case represent an extreme example of an angry, vindictive, and prolific patient using the internet to smear a dentist with an otherwise impeccable record, even one negative review can have a significant impact on a dentist’s practice and reputation.


Can You Sue for Defamation? Sure. Whether You Should Is a Much Harder Question

On more than one occasion, a panicked and indignant dentist or other client of mine has called me to ask whether they could and should sue their former patient for defamation as the doctor in the Alberti case has done. The answer, of course, is that you are well within your rights to sue “IHateYourDentalPractice123” or whoever it is that is trying to take a wrecking ball to your career. You can sue anybody for anything. Whether such a lawsuit will be successful or has any legal basis is another matter entirely.


The fact is that even the most scathing negative online review, if susceptible to the principle of “innocent construction” (meaning the allegedly libelous statement is given a non-defamatory interpretation because it is deemed ambiguous) or is composed of opinions rather than demonstrably false allegations of misconduct, will likely not qualify as actionable defamation in Illinois. Furthermore, such lawsuits can expose the offended dentist or other professional to backlash, ridicule, and bad publicity in the fast-moving and fickle world of social media.


If you look to hold online review sites and other platforms responsible for false and defamatory information posted by reviewers, you won’t get terribly far. While you may be able to get a website to remove a particularly egregious post, Section 230 of the federal Communications Decency Act largely immunizes such sites from claims based on comments or reviews posted by third party users.


A High Bar to Prove Defamation in Illinois

In order for a dentist to prove defamation under Illinois law, including a claim based on an online review, he or she needs to show that:

  • the patient made a false statement about the dentist;
  • there was an unprivileged publication of the false statement to a third party;
  • fault by the defendant amounting to at least negligence; and
  • the patient’s publication of the review caused damage to the dentist.

 

As to that last element, a defamation plaintiff does not need to prove actual damages if the statements are deemed inherently damaging. Defamation per se, as it is called, includes making such false allegations that the plaintiff:

  • committed a crime;
  • is infected with a loathsome communicable disease;
  •  is unable to perform or lacks integrity in fulfilling his or her professional responsibilities;
  • lacks the ability to perform their professional duties, or otherwise harms the plaintiff in their professional reputation
  • has committed fornication or adultery.


Is It a Subjective Opinion or Factual Allegation?

The most common issue that arises in defamation cases based on online reviews is the question of whether or not a statement was false. Only false statements of fact can form the basis of a defamation claim, not opinions, no matter how histrionic or counterfactual they may be.


 A statement of fact is one that can be objectively proved or disproved. Consider the two following hypothetical reviews of a dentist:

“She was rude, impatient, and treated me disrespectfully. It was perhaps the worst experience I’ve ever had with a dentist in my entire life. She is horrible.”


“He stole money from my purse and touched me inappropriately while I was under sedation.”


The former is non-actionable opinion, as the dentist will not be able to objectively prove whether or not she was, in fact, rude, disrespectful and the cause of one of the worst experiences in the patient’s life. Contrast that with the latter statement that accuses the dentist of specific actions and misconduct that can be proven or disproven with evidence.


Context Matters

Illinois courts have also focused on the context in which an allegedly defamatory statement was made when determining whether it can be the basis of a defamation claim. Even if one comment in a lengthy online rant is arguably a statement of provable fact, it may not rise to the level of defamation if a reasonable reader would see it merely as hyperbolic invective.

Consider the 2013 case of Brompton Building, LLC v. Yelp, Inc., in which a building management company filed a defamation suit against an anonymous former tenant who had posted an over-the-top, relentlessly negative, and extremely lengthy review online. Even though the rant contained a few objectively disprovable statements, the Illinois Appellate Court found that those comments could not support a defamation claim because they would not be understood to be actual factual allegations in the context of the full review. As the court stated, "The context of the defamatory statements is critical in determining its meaning. In determining the context of the defamatory statements, we must read the writing containing the defamatory statement 'as a whole.'"


Dentists Need to Consider Patient Privacy and Professional Ethics

When faced with negative reviews, dentists need to make sure that their response doesn’t make a bad situation worse or make them appear petty and vindictive. Additionally, dentists who do decide to respond to a patient’s negative review publicly may inadvertently reveal confidential patient information in their attempts to refute allegations of poor or substandard care. Such HIPPA violations can have catastrophic licensing and regulatory consequences for dentists.

As infuriating as negative online reviews can be, it is the rare dentist who can make it through their career without leaving at least one patient dissatisfied or unhappy with their treatment. When a patient shares those feelings with the world, it can be easy to let it get under your skin, especially if the attacks are as relentless, ongoing, and full of unsavory allegations as appear in the Alberti case, which we’ll be monitoring to see if the court protects the endodontist from what seems to be a clear case of defamation. But sometimes, restraint can speak louder than a retort.

Employers Can Require COVID-19 Vaccinations For Most Employees

By nat rosasco • February 25, 2021
As this relentlessly awful year mercifully draws to a close, a light at the end of our pandemic tunnel is rapidly approaching. COVID-19 vaccines are poised for approval, and it is expected that distribution will begin in earnest shortly. But no matter how much and how confidently the FDA and other health experts proclaim these vaccines to be safe and effective, there are large numbers of Americans who say they won’t get the shot when it becomes available. The most recent Gallup poll found that only 63 percent of Americans say they are willing to be inoculated against the disease. Many of those who don’t want to get vaccinated will soon find out that they work for an employer who feels differently. Those employers may also tell them that they either need to get the vaccine or need to find a new job. And, in most cases, employers may be well within their rights to terminate employees who refuse to take the COVID-19 vaccine. Mandatory Vaccinations Are Not New Companies that have spent the better part of the year – and lots of money - trying to keep their workplaces COVID-free see the vaccine as the apex of those efforts. With a fully vaccinated workforce, business owners can operate without disruption and provide employees, customers, clients, and patients with confidence and peace of mind. But all of those benefits of the vaccine only accrue to fully vaccinated workforces. So, many companies may mandate that employees get their shot as a condition of continued employment. By doing so, they are following a legally sound path that predates the current pandemic. Well before anyone had heard of coronavirus, plenty of employers, primarily in the health care sector, required employees to get the flu vaccine and vaccinations against other infectious diseases. Most public school districts also require proof of vaccinations before a student can enroll and attend classes. Since most employees in Illinois work on an “at-will” basis, they can face termination for almost any reason not expressly prohibited by federal, state, or local laws. Generally, no law stands in the way of an employer requiring the COVID-19 vaccine for its workers. ADA and Religious Exceptions However, employers who make vaccines mandatory need to be mindful that employees with legitimate health or religious concerns about the vaccine may be protected from termination and other adverse employment actions if they refuse the shot. But these exceptions don’t necessarily apply just because someone doesn’t believe in vaccines generally (“anti-vaxers”) or thinks that forcing them to get vaccination is an infringement on their liberties. Employees who have a disability recognized under the Americans with Disabilities Act (ADA) that prevents them from taking the coronavirus vaccine cannot be forced to get the vaccine, so long as their exemption does not impose an “undue hardship” on the employer. Such disabilities in this context may include a compromised immune system or an allergy to an ingredient in the vaccine. While there has been no definitive guidance on the subject, one could credibly argue that an employee’s refusal to get vaccinated is an “undue hardship” if it places the health and safety of other employees and visitors at increase risk of infection. Even in such cases, however, an employer may need to make a “reasonable accommodation” for the employee, such as allowing them to work from home. Similarly, the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 may protect a worker if their “sincerely-held religious beliefs” preclude them from getting a vaccination. Such beliefs do not include political or personal views. The burden is on the employee to demonstrate the legitimacy of their religious objections to the vaccine. More Than Legal Issues To Consider Even when an employer is within their legal rights to require employees to get the COVID-19 vaccine, other considerations may weigh against such a mandate. For example, they may need protection against an employee who has an adverse reaction, even if they signed a waiver upon receiving the shot. A vaccination requirement may also get an adverse reaction from employees generally as well as the general public if it seems heavy-handed and overreaching. Of course, those that decide against a mandate face risks if someone does contract the coronavirus in the workplace and sues. Please Contact Grogan Hesse & Uditsky With All Of Your COVID-Related Employment Questions If you have questions or concerns about how to handle vaccinations or other employment issues related to COVID-19, please call us at (630) 833-5533 or contact us online to arrange for a consultation.

Are You Eligible for the Second Round of PPP Loan Forgiveness?

By nat rosasco • January 11, 2021
The Paycheck Protection Program (PPP) is back , offering a second round of loan forgiveness to new borrowers and qualified second-time PPP borrowers. The second round of PPP loans has earmarked up to $284 billion to support business owners' payroll costs and other eligible expenses through March 31, 2021. Loans will be available to first-time participants on Monday, January 11, and existing PPP participants on Wednesday, January 13. First Draw PPP Loan Eligibility Borrowers that did not participate in the first round are generally eligible for a First Draw PPP Loan if they were in operation on February 15, 2020, and fall into one of the following categories: Businesses with 500 or fewer employees that are eligible for other SBA 7(a) loans. Eligible self-employed individuals (including sole proprietors and independent contractors). Non-profit organizations, including churches. Accommodation and food services operations with no more than 500 employees per location. Sec. 501(c)(6) business leagues with no more than 300 employees that do not receive more than 15% of its income from lobbying. Qualifying news organizations with 500 or fewer employees per location. Second Draw PPP Loan Eligibility Existing PPP participants are generally eligible for a Second Draw PPP Loan if the borrower: Used or will have used its First Draw PPP Loan as authorized. Has no more than 300 employees. Can prove it has suffered at least a 25% reduction in gross income between the same quarters in 2019 and 2020. Our team is committed to monitoring new developments with the PPP and providing you with the information you need. It is essential that your small business consults with knowledgeable corporate attorneys , financial advisors, and accountants on your PPP eligibility and forgiveness applications. If you have any questions about the new eligibility requirements or any other issues involving the PPP, please feel free to call or email us.

Amendments to PPP Loan Forgiveness

By nat rosasco • June 5, 2020
Many businesses that received Paycheck Protection Program (“PPP”) funds are coming to the end of their respective eight-week time periods (“Expenditure Period”) during which they must use the PPP funds to obtain forgiveness under the CARES Act. Unfortunately, many of these businesses have found it difficult to reopen and remain fully operational throughout the Expenditure Period and consequently to meet spending thresholds necessary to obtain full forgiveness. Luckily for these businesses, some much needed flexibility is on its way. Paycheck Protection Program Flexibility Act On June 5th, the Paycheck Protection Program Flexibility Act (“PPPFA”) was signed into law. The PPPFA made the following changes relevant to PPP loan forgiveness: Extends the Expenditure Period from eight weeks to the earlier of twenty-four weeks from the date of the loan origination or December 31, 2020. Reduces the required payroll spending amount to a minimum of 60% on payroll instead of the current 75% minimum requirement. This would allow businesses to use the remaining 40% of the PPP funds on rent and other operational items as needed. Extends the deadline for workers to be able to be rehired to December 31, 2020 instead of the current cutoff of June 30, 2020. Extends the PPP loan to a five-year term instead of the current two-year term. As any amendments governing the use and repayment of PPP loans may be vital to a small business’ ability to continue to operate and successfully plan for the future, our team will continue to keep you up to date on the on-going developments. As always, it is important to consult with informed attorneys, financial advisors, bankers and accountants on how best to use your PPP funds. Should you have any questions, don’t hesitate to call or email us.
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