David B. Pearce
David B. Pearce

Plaintiffs’ lawyers use negative advertising for the same reason political consultants do — because it works. And although modern political campaigns seem never-ending, mercifully, there is a defined beginning, middle and end. Unfortunately for healthcare providers, especially skilled nursing facilities, there is no end to the cycle of targeted, negative advertising.  

The advertisements usually take the form of a quasi-public service announcement. Normally, excerpts from a state survey statement of deficiencies are included in the text of the advertisement. The information is rarely current and the deficient practice usually has been corrected or the findings changed on appeal to exonerate the provider. 

Sustained negative advertising against a healthcare provider not only brings potential claimants out of the woodwork, but also helps plaintiffs’ lawyers locate additional witnesses that can be used effectively in pending cases. Advertising also can tilt public opinion against the provider and demoralize facility staff, giving rise to a self-fulfilling prophecy of inadequate care.

No state bar association has attempted to place significant limitations on targeted advertising by plaintiffs’ lawyers and only a few state trade associations or legislatures have tried to provide meaningful relief from the onslaught of negative advertising. So what can a provider do when it tires of being a punching bag for the plaintiffs’ bar? 

Using high-tech and low-tech approaches

While it is true that there is no substitute for good care, quality alone will not insulate a provider from being sued. A 2011 New England Journal of Medicine study that looked at data from 1998-2006 found that the “worst facilities” faced a 47% litigation risk and the “best facilities” faced a 40% litigation risk. Increasingly, providers are waking up to the fact that in the war to develop or preserve a good reputation, they must fight back using all of the tools at their disposal, including some of the same tools used by the plaintiffs.

There are both “low-tech” and “high-tech” approaches to building a good reputation. The low-tech approaches are often targeted to lift employee morale, which has a direct bearing on quality of care and also can impact the testimony an employee or former employee will provide if called to testify in a lawsuit. 

Celebrate success

Some low-tech approaches include things like community sponsorships (fun runs, Little League teams, bake sales or pizza parties) — essentially any activity designed to showcase the facility workforce as ambassadors to the community.

There is also value in courting the local print and broadcast media. If a facility receives an excellent survey or wins an award, a provider should consider running an ad congratulating the staff. Human interest stories focused on residents or staff members, or both, will play well.  Editorials or letters to the editor in response to negative advertising buoy employee morale and help define the facility in a positive way.

Higher-tech approaches are less targeted to raise employee morale, but essential to establishing a good reputation in an era of instant access to information. It starts by recognizing that perception is reality and a facility’s Internet reputation is critical. Good websites are indispensable. It is better to have facility-specific websites; but at a minimum, providers should invest in a good enterprise level website. Websites must be kept current. They can be used to promote good news and control bad news. The facility’s website should be the authoritative resource for all external informational needs.

Bad Internet reputation

But what if a facility already has a bad Internet reputation? Can it be repaired? The short answer is yes, but it requires work and may necessitate the services of an expert.

In order to correct the digital record, it is necessary to supplant dated and/or inaccurate stories with stories that promote awareness of the facility’s successes and that frame both the facility and the industry in a more positive light. This process is often referred to as “curation” of the record. Depending on the extent of negative online publicity, a facility might have to hire a digital media-savvy consultant who understands information sourcing and the algorithms that govern Internet search returns.

At a minimum, the goal is to ensure that the top returns of an Internet search using the facility’s name aren’t sponsored ads or negative stories placed by a plaintiff’s law firm.

Social Media

Finally, in considering a comprehensive media plan, providers shouldn’t overlook social media. Love it or hate it, there is no doubt that social media is here to stay and it can be a powerful tool to advance the facility’s interests. Social media is excellent for promoting “soft stories” and any matter that requires a continuing real-time dialog.

A University of Missouri study suggests that social media is valuable in managing negative events. The study found that Facebook posts encourage positive public opinion in crisis. The timely flow of information had a significant positive impact on attitudes toward the facility. Posts that were written in a narrative style were the most effective.

The bottom line is that ignoring negative advertising or media coverage is no longer a viable option. The provider community has many positive stories to tell, but providers must be prepared to take matters into their own hands and use the tools that will be most effective in getting the positive message out.

David B. Pearce is a partner in the Healthcare Practice at Arnall Golden Gregory LLP, a law firm with offices in Atlanta and Washington. He is a nationally recognized for creating efficiencies and advising businesses on building customer-focused legal, compliance and risk management teams.