If Patients Bash You on Internet Rating Sites, Consider This
Introduction
A disgruntled patient posts a critical comment about a doctor on the Internet. The doctor is furious and wants to get the comment removed to make sure it doesn't harm his practice or reputation. What can he do?
He could have his lawyer send a letter threatening a lawsuit to get the offending remark taken down. But that rarely works. Or he may attempt to flood the site with positive comments. But what happens when these tactics don't work?
Most lawsuits filed against bloggers and hosting sites (ie, physician rating sites) by doctors for defamation (or other actions, such as claiming interference with a business contract) have failed. And filing these suits can lead to unexpected negative consequences. Really persistent bloggers may continue to post. Drawing attention to the negative comments can even attract others who don't know the doctor to post negatively as well.
Dr. David McKee, a neurologist in Minnesota, learned the hard way about the unintended consequences of filing a defamation lawsuit in response to online postings by a disgruntled patient.
After consulting on an 85-year-old stroke patient, the patient's son posted derogatory comments about Dr. McKee online and filed complaints with various medical associations. The doctor sued the patient's son.
Dr. McKee's lawsuit was dismissed. The judge stated that the comments posted online were not defamatory. Rather, they were an emotional discussion of the issues. The fact that they had been placed online did not make them defamatory. There was not enough information to form the basis of a lawsuit.
However, Dr. McKee's filing of the suit drew public attention to the matter. Afterward, more than 60 derogatory and negative reports were posted against him on medical rating Websites. Most of these came from people who were neither his patients nor had any personal knowledge of him. Knowledge of the lawsuit appeared to spur anger and revenge from some who didn't even know the doctor.
More Damage When Doctors Strike Back
In another case that backfired, Dr. Jonathan Sykes, a California plastic surgeon, sued a patient who put up a Website criticizing him and his work.
Sykes performed a series of facial cosmetic procedures on Georgette Gilbert in 2003. Gilbert was appalled by the results. She not only sued Sykes for medical malpractice but also created a Website relating her experiences with Dr. Sykes (including before-and-after photos), as well as information and advice for those considering plastic surgery.
Dr. Sykes was a prominent professor of plastic and reconstructive surgery at the University of California, Davis, Medical Center. He had been featured in local and national publications touting his expertise in plastic surgery. In the eyes of the court, this made him a "limited-purpose public figure."' As a result, the court dismissed his lawsuit.
When Gilbert refused to close down her Website, Sykes filed a cross-complaint for damages and injunctive relief based on publications appearing in the Website that were allegedly defamatory and caused Sykes emotional distress and loss of business. Sykes ended up paying his own lawyers, plus Gilbert's legal fees, estimated to be in the range of 6 figures. Her Website stayed up and he got more negative publicity.
Were You Really Defamed?
To save yourself trouble and money, it's important to know what constitutes defamation, how to prove it, and how to defend against it.
Defamation is the communication of a false statement purporting to be fact and that causes harm to reputation. Written defamation is known as libel, while verbal defamation is called slander. Statements of opinion are usually not defamatory. Opinion can be erroneous and malicious. However, opinion can cross the line and become defamatory.
Rude, insulting, or offensive statements are generally not defamation. The First Amendment provides wide latitude for free speech. Historically, US courts have always ruled in favor of free speech rather than find for defamation.
Typical defamation statutes require a plaintiff to prove that the defendant made a defamatory statement which a reasonable person would find harmful to reputation; that the statement was shared or transmitted to a third party; that the statement was false (true statements cannot be defamatory); and that the plaintiff experienced damages of reputation as a result of the statement. These could include some form of provable public hatred, ridicule, contempt, or degradation which led to damages.
Defamation per se. Some statements are considered defamation per se (by definition). Plaintiffs are not required to prove that the statements were harmful to the plaintiff's reputation (state laws vary).
Defamation per se typically includes false statements presented as fact concerning a plaintiff's trade or business (stating that the plaintiff is no longer in business, can't get credit, or is engaged in illegal activity); false statements presented as fact indicating that the plaintiff has a "loathsome disease"' (eg, leprosy, sexually transmitted diseases, HIV, hepatitis, tuberculosis, or mental illness); false statements that the plaintiff is unchaste or sexually impure; false statements that the plaintiff has been involved in criminal activity or convicted of a crime.
Are You a Public Figure?
It's harder for public figures to prove defamation.
Plaintiffs must prove an additional element for defamation when the plaintiff is a public figure. That element is "actual malice." This extra step also applies when the statement relates to a matter of public concern.
Public figures include government officials, people who occupy positions of power and influence, and those who have thrust themselves to the forefront of public controversies. Courts may rule the plaintiff to be a "limited-purpose public figure'" if the plaintiff has some degree of public exposure and recognition, such as frequent advertising or holding out to the public in a notable way. The question of whether a doctor is a public figure is a question of fact for the trial court to determine.
In such cases, the plaintiff must prove that the defendant made the defamatory statement with "actual malice." This means that the speaker knows the statement is false or acts with reckless disregard for the truth or falsity of the statement.
What's the Defense to Defamation?
Truth is an absolute defense to defamation. Only false statements can be defamatory. If there is truth to what a patient said about you, you won't have a case.
Defamatory statements must be asserted as fact, not opinion. Political cartoons and parody are generally considered opinion rather than fact.
A physician who is a public figure and files a defamation lawsuit must prove that the defendant acted negligently with malice. If the physician is not considered a public figure, there needs to be only proof that the defendant acted in a negligent manner.
Actual malice occurs when a defendant publishes a statement known to be false or which is in reckless disregard for the truth. A failure to discover the truthfulness of a false statement can be considered actual malice. Demonstration of actual malice is necessary for a successful suit brought by a public figure or a limited-purpose public figure.
Another Way Your Lawsuit Could Get Dismissed
California anti-SLAPP laws. A defendant's attorney can try to get your lawsuit dismissed under anti-SLAPP laws. SLAPP stands for Strategic Lawsuit Against Public Participation. A typical SLAPP lawsuit is filed in an attempt to stifle free speech by burdening the defendant (the person who posted on the Website) with overwhelming legal costs. There is no attempt for the filer to actually win the suit.
Anti-SLAPP laws have been enacted to protect free-speech rights. Doctors who file defamation lawsuits against bloggers risk having their suit dismissed under anti-SLAPP laws. Costs of the litigation can be awarded against the doctor. Or a doctor may be found to be a limited-purpose public person, making defamation difficult to prove. Typically, the blogger will try to get the doctor's lawsuit dismissed using anti-SLAPP laws. Other states also have anti-SLAPP laws.
Suing for online defamation is expensive and may not work. There are cases where it has been successful, but these are the minority. The publicity from the lawsuit can lead to a public backlash. Threats from a lawyer to sue may intimidate a hostile blogger into taking down the negative comments. But it is not guaranteed to work. Another tactic involves having a patient sign an agreement to not make negative comments. These are problematic in their own way, because they raise unnecessary suspicion on the part of the patient and are probably not enforceable.
What Should You Do?
Consider the pros and cons, as well as alternative ways to deal with the situation, before deciding to bring a defamation lawsuit. One way is to place as many positive statements as possible on any Website containing negative comments. Another is to ignore the comments and practice good medicine. As with any business, a loyal following will counterbalance any negativity. Some patients have always made disparaging comments about doctors. The Internet only serves to amplify the level of the rhetoric.