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.
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.