June 19, 2014
“Plastic Surgery Practice investigates the real meaning behind Loftus v Nazari”
William Payton and Alayna Zayas, Plastic Surgury Practice
“Horrible scars.” “Permanent nerve damage.” “Disfigured.” Patients have every right to describe your surgical results in such terms on Internet review sites. Or so it would appear, if a ruling handed down in federal court last month is deemed instructive to other courts. Loftus v Nazari (ED Ky, May 13, 2014) echoes numerous rulings against service providers who have filed libel suits against the authors of negative customer reviews posted online.
Loftus v Nazari is not the first such case to be lost by a surgeon, and it won’t be the last. It may be a hard pill for doctors to swallow, but it also highlights how important it is for doctors to familiarize themselves with the principles of defamation and liability, to avoid filing costly and wasteful lawsuits.
Richard M. Escoffery, an Atlanta-based attorney who helps his clients proactively manage online consumer reviews and address reputation attacks, believes the court conducted a fairly routine analysis to determine whether the statements at issue were defamatory or protected opinion. While not a watershed decision, he says, “What makes the case of interest is that these statements were made online, and the court recognized ‘[i]n the present Internet age’ that opinions made online have some social utility.”
In 2006, Jean Loftus, MD, a plastic surgeon with practices in Cincinnati and Fort Wright, Ky, performed an arm lift, abdominoplasty, breast augmentation with implants, and breast lift on Catherine Nazari. Unhappy with the results, Nazari posted negative reviews on three separate websites. Most notably, Nazari stated, “I had plastic surgery done by Dr Jean Loftus only to be left with permanent nerve damage in both arms, severe abdominal pain, horrible scars, and disfigurement in both breasts as a result of her mistakes.”
In response to Nazari’s posts, Dr Loftus filed a lawsuit for defamation and interference with future business prospects. Nazari filed counterclaims for defamation, invasion of privacy, malicious prosecution, and intentional infliction of emotional distress. The court dismissed all claims on summary judgment, meaning the court did not think there was enough evidence to warrant a trial for any of the claims.
The crux of the case is the defamation claim against Nazari. Defamation is an intentionally false statement which is publicly spoken (slander) or written (libel) that damages another person’s reputation. In general, to establish defamation, a plaintiff has to show: (1) there was a false statement; (2) the statement was communicated to a third party; (3) the statement was negligently or intentionally made without reason to believe it was true; and (4) the plaintiff’s reputation was harmed. Courts will assess the circumstances surrounding the statement and consider its effect upon the average reader or listener.
The court surmised, “Basically, she says she had the surgery, and she has the unfortunate conditions described. Also, in her opinion, they are the result of the surgery, which also in her opinion involved negligence on the part of Dr Loftus.”
” What is more, the court recognized that because the postings were made on ‘opinion websites,’ one would logically presume they were her opinion. “It’s an example of how application of the same law in the context of social media/the Internet can produce somewhat different results,” Escoffery explains.
Litigating a defamation claim is expensive, risky, and almost always a last resort. “Is it worth it to sue? Probably not,” says Joseph Niamtu III, DMD, a Virginia-based cosmetic facial surgeon who teaches fellow surgeons about managing their reputations online. “If you try to fight fire with fire, it will probably backfire.”
Escoffery agrees. Even if a physician prevails in a defamation case, “What’s the value of an uncollectable judgment? Winning a lawsuit might not be worth the cost if the defendant doesn’t have deep pockets,” he says.
Paradoxically, the publicity surrounding a defamation case may bring unwanted attention to the very information the physician sought to be suppressed. Lastly, potential plaintiffs should be aware of anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes. If applicable, the court might dismiss a physician’s claims and award attorney’s fees to the defendant.
“We might take from this case that some courts are less likely to find statements to be defamatory if they are made in this, rather than another, context,” Escoffery says. In today’s online environment, cosmetic surgeons have no choice but to prevent bad reviews, address them when they happen, and, if all else fails, accept them and move on.
William Payton and Alayna Zayas are contributing writers for Plastic Surgery Practice magazine. They can be reached via PSPeditor@allied360.com.