Doctor review: physician must prove absence of patient contact!

A negative doctor review by persons who in reality never had contact with the reviewed doctor can have a damaging effect on business. However, the blanket denial of a treatment contact by the doctor is not always sufficient for a claim for cessation, as the Brandenburg Higher Regional Court (OLG) established.

A dentist took action against a negative review by an alleged patient on a doctor review portal. The doctor initially filed a complaint against the published doctor review with the portal operator. He justified this on the grounds that he was not aware of such a treatment case in this form. The doctor review platform then asked the author of the review to provide evidence of the treatment contact.

The author of the doctor review specified the time period during which he had been a patient of the reviewed dentist. He also described further details of the treatment contact and submitted an invoice. On the basis of this information, the platform restored the review online after it had been temporarily taken offline.

In response to a cease-and-desist letter from the doctor, the review platform replied that the review process had been completed and it considered the patient status to be sufficiently proven. Subsequently, the platform operator asked the reviewing person again for further evidence regarding the treatment performed. The author of the doctor review then submitted the cost estimate of a dental ceramicist from April 2013 together with an accompanying letter of the treatment and cost plan of the dentist from May 2013.

Finally, the dentist sued the doctor review portal for cessation. The doctor claimed that the reviewer had never been a patient of his, so that the review had no true factual basis. He could not recall a treatment contact, nor was it evidenced in his patient records.

Regional Court (LG) Potsdam: No breach of examination duties

The first instance (Regional Court (LG) Potsdam, 04.09.2019, Az. 2 O 223/18) dismissed the dentist's action against the negative doctor review. The court made clear that the operator of the doctor review portal had fulfilled its examination duty. Thus, the reviewing person had been asked to state his position and to submit evidence for the existence of a treatment contact with the reviewed doctor. Furthermore, the review in question had initially been removed from the platform.

Through the documents submitted by the doctor review portal, a treatment contact had been sufficiently plausibly demonstrated. The court further emphasised that the doctor review portal was not obliged to disclose the contact details of the reviewer to the suing doctor.

Doctor review: The doctor is under obligation

The dentist's appeal ()Brandenburg Higher Regional Court (OLG), Order of 05.03.2020, Az. 1 U 80/19) was dismissed.

The dentist had not sufficiently demonstrated the absence of a treatment contact. The doctor review portal, on the other hand, had fulfilled its secondary obligation to disclose by obtaining information about the treatment contact. A reversal of the burden of proof did not take place in these cases. The blanket denial of a treatment contact without substantive engagement, as the doctor had done, was not sufficient.

Conclusion

Blanket denial of a treatment contact without further substantiation is not always sufficient to achieve the deletion of a negative doctor review, particularly if the reviewer provides evidence of the contact.