December 12, 2011
“Physicians face barriers when fighting derogatory comments posted on the Internet, but some legal strategies can curb the problem”
Alicia Gallegos, AMedNews
“The doctor misdiagnosed the case.”
“It was a failed surgery.”
When unhappy patients post these kinds of comments about physicians online, doctors’ reputations — and their practices — can suffer.
Reviews by patients have become common as blogs and review websites proliferate on the Internet. But doctors are seeking legal remedies to battle alleged online libel and defamation.
An Illinois plastic surgeon on Nov. 3 sued Google in federal court for failing to remove blog posts the doctor claims are libelous and false.
On Nov. 10, the Minnesota Court of Appeals heard arguments in the case of a neurologist suing a former patient’s family for alleged defamation. David McKee, MD, alleges that a family member made derogatory and untrue posts about his treatment of the man’s father. A ruling is expected by January 2012.
From 2009 to 2011, Chicago plastic surgeon Jay Pensler, MD, sued three patients and an attorney for alleged defamation stemming from comments left on review websites and for statements made to a TV station. One of the cases was settled, and three are ongoing, said an attorney involved in the litigation.
Taking legal action against Internet posters is not always ideal, legal experts say. However, doctors who do so should be aware of how best to navigate the judicial process.
Before suing, experts say doctors should consider all legal strategies that may help remove comments from a website. Knowing the right legal step to take — and when to take it — could be the difference between a quick remedy and a years-long ordeal.
“Lawsuits are time-consuming and they’re expensive, and they may not result in the outcome the physician wants,” said neurologist Daniel Larriviere, MD, a former medical liability attorney and current chair of the American Academy of Neurology’s Ethics, Law and Humanities Committee. But because of federal laws, “a physician can’t go onto the website where a comment is posted and defend themselves. For better or for worse, sometimes the only way for the physician to present his or her side of the story is to do so in court.”
Opinion vs. defamation
Before claiming defamation, physicians should understand its meaning. Though gray areas exist, defamation generally is a statement that can be proven true or false, said Enrico Schaefer, an Internet defamation and copyright attorney who founded the law firm Traverse Legal PLC in California.
For instance, an online poster who writes that he is a patient of a doctor and had a procedure performed has written a statement that usually can be confirmed or disproved, he said. On the other hand, a comment about being treated rudely while visiting a doctor is more of an opinion.
“While doctors have to have a thick skin about a patient’s opinion, we get a lot of calls where physicians are dealing with a posting where the [writer] is not a patient, where the person is unstable or has confused them with someone else, or where the poster is really” the doctor’s competition, he said.
In Dr. McKee’s case, a trial court ruled that the comments posted by Dennis Laurion, the son of one of Dr. McKee’s former patients, were not defamation but rather an “emotional discussion of the issues.” Dr. McKee appealed. He accused Laurion of writing untrue posts about his interaction with Laurion’s family, including a charge that the doctor did not treat his father with dignity after a stroke.
Laurion’s assertions go beyond opinion, said Marshall H. Tanick, Dr. McKee’s attorney. “He felt he was viciously defamed by the son of a patient. He sued to vindicate his reputation,” Tanick said. “We maintain these statements cross the line. [They are] demonstrably false.”
Laurion’s attorney, John D. Kelly, said some of Laurion’s statements were true and the rest were vague or obvious opinions. For example, Laurion wrote that Dr. McKee was “scowling” during his interaction with Laurion’s family, Kelly said. Statements about a person’s expression or demeanor are open to interpretation and cannot be considered defamatory, he said. If doctors aren’t sure if an online comment is defamatory, seeking legal guidance can help, Schaefer said.
People behind the posts
Anonymous posts create challenges for doctors who want to remove negative blogs. However, identifying people behind posts is sometimes as simple as asking. Most websites have policies against libelous statements, Schaefer said.
Questioning website operators about false posts could lead to removal or to finding out posters’ identities. If that doesn’t work, physicians can seek a subpoena ordering the Internet service provider to give identification data, said Sheldon Halpern, a professor at the Albany Law School in New York. “Generally, whether you’re a doctor or anyone else and someone has posted what is really defamatory statements about you, you can get a court to require the ISP to give you the name of the person who did it,” he said.
Doctors can contact the patient directly to ask that the post be removed or request that an attorney send a letter warning the poster of potential legal action, said Mitchell Marinello, an Illinois attorney who practices defamation law.
In one case, an investigation revealed that a blogger was posting negative comments from his employer’s email system. Once Marinello contacted the poster, he quickly removed the posts before making waves with his employer. “There is a whole series of things you can do short of a lawsuit, assuming that you’re dealing with a reasonable person,” Marinello said.
If requests to take down posts fail, seeking a court order is another option. If doctors can show that false posts are causing irreparable harm to their reputation or practice, a judge can demand the comments be removed.
That’s what Indiana plastic surgeon Barry Eppley, MD, sought in 2009 after finding Internet postings by Lucille Iacovelli, a patient who was unhappy about a facelift done by Dr. Eppley, court documents show. She also created Web pages about her experience. Dr. Eppley sued Iacovelli for defamation and other things. A federal judge granted a preliminary injunction against Iacovelli, preventing her or anyone “acting as her agent” from posting online comments about Dr. Eppley, according to court documents. She was ordered to remove prior postings about the doctor from her websites. A Web operator who did not remove postings about the doctor was ordered to pay Dr. Eppley $1,772. The operator is appealing. Dr. Eppley got $40,000 in damages and attorney fees.
“The record before the court demonstrates that Ms. Iacovelli has made numerous false and offensive statements about Dr. Eppley on public websites,” said Judge Sarah Evans Barker, U.S. District Court, Southern District of Indiana, in her ruling on the injunction. “As Indiana courts have held, when the speech enjoined is of lesser constitutional value because it is false and defamatory, and the injunction operates to address specifically that speech, the injunction passes constitutional muster under the First Amendment.”
To sue or not to sue?
Suing over negative posts is typically a last resort, Schaefer said. But lawsuits bring challenges. Legal proceedings often run for years and can draw more negative online attention for plaintiffs, he said. Schaefer said most states have a statute of limitations in which to file defamation suits. If negative online content is found years after being posted, physicians have no legal recourse. “There are no great answers here. You have to spend some time and some money to get the problem handled, and there are some instances where you’re stuck,” he said.
If doctors sue, experts say individual posters, not websites, are the more logical defendants. The Communications Decency Act of 1996 protects Internet service providers from liability for third-party comments.
Some physicians, such as New Hampshire internist Kevin Pho, MD, believe legal action is the wrong answer to curb negative Internet reviews and blogs. “In general, I can’t think of a time where a lawsuit would be tremendously effective. The negative publicity and the fallout from the lawsuit is far worse than the initial issue,” said Dr. Pho, who writes a physician-focused blog on health and social media called KevinMD.com. “It’s a better idea to take charge of your online presence.” For instance, doctors should have a Facebook page, join other social networking sites and participate in blogs, he said. Those links show up first during a Google search of a physician’s name, pushing negative reviews farther down.
Physicians also should consider distributing satisfaction surveys to their patients, said Susan Shepard, RN, director of patient safety education and electronic issues for The Doctors Company, a medical liability insurer. Surveys provide a forum for patients to express their feelings about visits and allow doctors instant feedback about problems that may need to be addressed. “I would encourage practices to look at a visit through the patient’s eyes — look at the comfort standards. There’s a lot more to a physician visit than having the current magazines in the waiting room,” she said. Shepard discourages doctors from taking legal action against online blogs or review sites. “I understand the anger and the need to get back at someone, but it’s very difficult to sue someone for an opinion,” she said. “Most of the comments are very subjective, meaning neither one can prove the other is wrong.”