By Jeff Segal, MD, JD, ByrdAdatto and Medical Justice

So – is it against the law to pay patients for online reviews?

The short answer...

Yes.

The more nuanced longer version...

Giving anything of value for reviews without disclosing the gift can be considered false and deceptive advertising by the Federal Trade Commission (FTC). It does not matter if it is $1, an Amazon gift card, or free services. Or even entry into a sweepstakes where the patient has a mere chance to win something of value.

So, the "safe harbor" is that the party doing the review would have to conspicuously disclose the gift. Here's what a safe harbor FTC compliant review might look like:

"Dr. Segal saved my mother's life. He is my hero. (Dr. Segal gave me a $25 Amazon gift card for the review.)"

The disclosure devalues the review and makes it looks ridiculous. And in the real world, no patient receiving a gift discloses the gift. But that is what the FTC is getting at. They want the public to know if the reviewer had an incentive or bias. The public has a right to know so it can judge the validity of the review.

The simple version of the FTC's position can be found on its FTC's website. Select Questions and Answers are below:

I'm starting a new Internet business. I don't have any money for advertising, so I need publicity. Can I tell people that if they say good things about my business on Yelp or Etsy, I'll give them a discount on items they buy through my website?

It's not a good idea. Endorsements must reflect the honest opinions or experiences of the endorser, and your plan could cause people to make up positive reviews even if they'e never done business with you. However, it's okay to invite people to post reviews of your business after they'e actually used your products or services. If you're offering them something of value in return for these reviews, tell them in advance that they should disclose what they received from you. You should also inform potential reviewers that the discount will be conditioned upon their making the disclosure. That way, other consumers can decide how much stock to put in those reviews.

A company is giving me a free product to review on one particular website or social media platform. They say that if I voluntarily review it on another site or on a different social media platform, I don't need to make any disclosures. Is that true?

No. If you received a free or discounted product to provide a review somewhere, your connection to the company should be disclosed everywhere you endorse the product.

There's a much longer guidebook published by the FTC which goes into great detail. If you are looking for an even deeper dive, see the Federal Register.

If the FTC takes action for non-disclosure of the consideration, both the practice AND the reviewer (in this case the patient) would be in the crosshairs.

The first question a practice might ask: How would the FTC find out if we pay for reviews?

The usual way. Disgruntled employee, ex-spouse, or competitor. It is complaint driven.

If the FTC does act, and the charge is false and deceptive advertising, the state Attorney General and medical licensing board may be next in line to seek blood.

In 2016 the NY Attorney General settled with two companies, Carmel Car Service and Medrite (an urgent care center), for $75,000 and $100,000 respectively for paid online reviews. The fine was ugly. The PR that followed was even worse.

Jeffrey J. Segal, MD, JD, is the founder and CEO of Medical Justice and eMerit, the online review platform behind Medical Justice. eMerit captures patient feedback and gets it automatically uploaded to the dominant review sites. eMerit also captures patient feedback at the point of service for upload. Your practice can also collect surveys via text message, email, and a survey link integrated into your existing EMR systems.