February 23, 2013
Jeffrey Segal, MD, Medical Justice Blog
Proving defamation is hard. To prevail, you must demonstrate someone (a) made a false statement; (b) to another; and (c) that false statement damaged your reputation.
Truth is a defense to a charge of defamation. And statements of opinion don’t count.
An example of a defamatory statement is: “Dr. X is not Board Certified in Neurosurgery” when it is demonstrably provable Dr. X is indeed Board Certified in Neurosurgery.
An example of a statement which is not defamatory (because it is an opinion) is: “Dr. Y is a jerk and he has horrible bedside manner.”
Once you sue a patient for defamation, you guarantee his or her commentary, which might have been buried on page 4 of a Google search, will move to page 1. Further, it will take a long time to resolve the conflict. Finally, it will cost a lot of money with an uncertain outcome. In fact, the outcome will likely be against you. In general, we think it’s a bad idea for a doctor to sue a patient for defamation.
Every case is different, and if a patient is hell-bent on destroying your career, and you have exhausted all reasonable options, you might have little choice. That was the difficult challenge experienced by Dr. Carlotta, an Arizona surgeon. He sued his patient for defamation and won a $12 million jury verdict. This outcome is the exception to the rule. Dr. Carlotta described the single-minded purpose of his patient’s attacks as forcing him to live in a perpetual nightmare.
The more typical outcome was just published by the Minnesota Supreme Court in Laurion v. McKee. Dr. McKee is a neurologist who took care of a patient who suffered a hemorrhagic stroke. The patient’s son posted comments on a doctor review site which portrayed McKee as rude and insensitive. The actual review follows:
My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and a physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” When we gaped at him, he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” My father mentioned that he’d been seen by a physical therapist and speech therapist. Dr. McKee said, “Therapists? You don’t need therapy.” He pulled my father to a sitting position and asked him to get out of bed and walk. When my father said his gown was just hanging from his neck without a back, Dr. McKee said, “That doesn’t matter.” My wife said, “It matters to us; let us go into the hall.” Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or myself. When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!”
I’ve definitely seen worse.
McKee sued the patient’s son for defamation. He lost in lower court. An appellate court overturned. And now the Minnesota Supreme Court ruled in favor the patient’s son. The Court concluded:
We hold that none of the six statements is actionable either (1) because there is no genuine issue of material fact as to the falsity of the statements or (2) because the statements are not capable of conveying a defamatory meaning that would harm respondent’s reputation and lower him in the estimation of the community. Therefore, we reverse.
So there you have it. A goose-egg.
The better way to address an occasional negative review is to deputize confirmed patients to give real feedback on the review sites. If you are doing a good job, the world will then have a more representational picture of your practice – and you won’t be defined by two noisy people with a megaphone.