SEPTEMBER 2, 2010
“When Neurologists Sue For Defamation”
Orly Avitzur, MD, American Academy of Neurology
NEUROLOGY TODAY: Volume 10 – Issue 17 – PP 16-17
It began much like any other hospital visit with a neurology consult that had been requested on a patient who had suffered a stroke. The patient’s son was unhappy with the way his father was treated, though he never discussed his concerns directly with the neurologist. Within days, the son’s complaint escalated to a full-blown war, with letters sent to at least 10 medical organizations including the AAN and the American Neurological Association, and four physician-rating Web sites, followed by a defamation lawsuit, newspaper headlines, and national television exposure.
David McKee, MD, the Duluth, MN, neurologist, said he first learned of the family member’s grievance when a long-time patient came to his office and remarked, “I can’t believe what I read about you on the Internet today!” Before this happened, Dr. McKee was only vaguely aware that patient ratings Web sites existed. For the first time, he Googled his own name, and was stunned by what he discovered.
“An awful review popped up immediately, and within minutes, I found three nearly identical others,” he recalled. Dr. McKee said he soon learned, that over the course of recent weeks, his patient’s son had written an additional 14 letters of complaint to physicians, hospitals, as well as county, state, and national medical societies, and the Minnesota Board of Medical Practice. The son also contacted a reporter at the local newspaper and tried to get the local television stations to take an interest, drafting a total of 20 letters.
“The situation became much worse after the newspaper article came out,” Dr. McKee said. “I have a son in college, but three daughters, aged 10, 13, and 16 at home, and their friends found out through their parents. The children were very upset and felt blindsided…it was very unsettling.”
Dr. McKee, who described the complaints as inaccurate and unfair, said that when his lawyer requested that the patient’s son stop his campaign, he escalated to more serious complaints instead. The neurologist decided to sue for defamation, seeking in excess of $50,000 for damages including harm to reputation, emotional distress, pain and suffering, and a similar amount for interference with business.
In the defamation lawsuit that ensued, Dr. McKee’s complaint outlined, among other things, that the plaintiff falsely accused him of “blaming the patient” for the loss of his time, “scowling,” as well treating the family member as a “task and charting assignment” and without dignity.
“It’s a matter of principle for me,” said Dr. McKee, whose case is still pending. “In days past, a disgruntled family member might have complained, but now with the Internet, someone can actually do damage to your career,” he concluded.
The price of acting on principle can be too great for some. One neurologist, who spoke to NEUROLOGY TODAY on the grounds of anonymity about ultimately dropping his defamation lawsuit against his employer-hospital, said, “The entire series of events was very traumatic. The defamation was clearly a part of that, however, their initial actions, the media coverage and the tremendous sense of loss was (and is) the focus of much of my emotional turmoil. The action of suing the hospital was somewhat cathartic, although ultimately not terribly productive.” He advised that those contemplating suing for defamation first make sure that there is at least one individual who will stand up for you and verify that they received information that was inflammatory and/or defaming. “If, as in my case, the individuals who could verify the hospital’s role in propagating defaming information are themselves fearful of their job, the effort to bring a suit can be futile,” he said.
“Physicians considering defamation lawsuits must prove that the statements were false and not purely opinion,” said Daniel Larriviere, MD, JD, assistant professor of neurology at the University of Virginia and chair of the AAN Ethics, Law and Humanities Committee. “It’s even trickier if an opinion references fact, and requires an attorney to tell if you have a legitimate claim. Even then, defamation lawsuits are much more difficult to prognosticate than medical malpractice lawsuits.”
In fact, in another recent case involving a neurologist, a newspaper printed a story with the headline “Gross Mistake” alleging misdiagnosis of amyotrophic lateral sclerosis (ALS) in a patient later determined to have a dystonia. The neurologist, who explained that ALS had only been mentioned in the differential diagnosis, was never contacted by the writer, and sued the newspaper publisher for defamation of character after it had refused to retract or correct the article. The defense attorney for the publisher argued, however, that it appeared to be a matter of trade libel — charges that require a higher burden of proof —because there were damages claimed to the practice. Although the judge agreed that from a moral perspective, the word “misdiagnose” should not have been used in the story, he granted the newspaper’s motion to dismiss because malice, necessary to establish trade libel, could not be established. The judge did state, however, that use of the term “misdiagnose” was a “substantially false statement.”
Fortunately, media stories are fairly uncommon. What’s become alarmingly common, however, is the tendency for disgruntled patients to turn to the Web to voice their gripes, as Dr. McKee learned. “These sites tend to give a very biased, very selective view,” he observed. “Having now trolled around the Web sites looking up physicians in a sort of anecdotal experiment — to see what’s out there about people I consider the best and worst physicians — there’s absolutely no correlation between my opinion and the ratings,” he concluded.