April 24, 2015
“Defamation Suits Against Patients – Three Big Risks”
Sara Kropf, Physicians Practice
There are rare times when an online review is so damaging that a doctor must file a defamation lawsuit, such as when the review accuses the doctor of criminal behavior or serious malpractice. The reputational harm of that type of review is simply too great to ignore.
For most other negative reviews, however, your best bet is to take a deep breath and ignore it. The risks of filing a lawsuit are too high. Here are three of the biggest risks of filing a defamation lawsuit against a patient.
The Penalty Imposed by Anti-SLAPP Laws
About half of the states have passed laws prohibiting “Strategic Lawsuits Against Public Participation,” or “SLAPPs.” SLAPPs are lawsuits intended to silence critics by burdening them with the costs of defending a lawsuit until they stop the criticism.
Anti-SLAPP laws try to reduce the lawsuits that are filed to restrict free speech and have been successfully used to defend against defamation cases filed by doctors.
These laws vary by state. For example, in California, the anti-SLAPP statute allows a defendant to file a special motion to strike the complaint when the defendant’s supposed bad conduct arose from his “right of petition or free speech under the U.S. Constitution or the California Constitution in connection with a public issue.” Posting an online review almost certainly fits this requirement.
After the defendant files this special motion, the court will dismiss the complaint “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” This is not a high standard, but losing this motion can mean paying a penalty: not only will the court dismiss the lawsuit, but it will also order the plaintiff to pay the defendant’s attorney’s fees.
Here’s a real-life example: In 2009, a California dentist filed a defamation lawsuit against a patient based on a Yelp review that said, in part, “don’t go here, most painful dentist ever.” The patient filed a motion to strike under the anti-SLAPP statute and won. The complaint was dismissed and the patient was awarded $43,000 in legal fees. The doctor filed a second complaint, and the case was dismissed again; this time the patient was awarded $26,000 in legal fees. In 2013, the California Supreme Court refused to allow the doctor to revive his lawsuit.
Not only did the dentist pay his own legal fees in this case, but he also paid an additional $69,000 for the patient’s legal fees. Anti-SLAPP laws are a serious deterrent against filing defamation lawsuits.
Appearance of Bullying and Greater Exposure of Negative Reviews
Another risk of filing a lawsuit is the appearance that you are bullying a patient and the related risk that your complaint will bring more attention to the negative review than simply leaving it alone.
This is sometimes known as the “Streisand effect.” In 2003, Barbara Streisand sued a photographer for $50 million for taking aerial pictures of her home in California. She claimed the photographs violated her privacy. Her lawsuit, however, drew massive media attention and, according to some reports, over 400,000 people ultimately viewed the pictures of her home online.
The public may view a lawsuit by a doctor as an effort to bully a patient into removing a bad review. Public criticism may be harsh, even if the review contains demonstrable untruths. For example, in the McKee v. Laurion case discussed earlier, the story of physician McKee’s lawsuit was picked up by a local newspaper and then was posted on the popular website Reddit. According to McKee, he received dozens of negative reviews on Rate MDs, including one that called him the “d*ckface doctor of Duluth.” Plus there was extensive media coverage of the case — much of which was sympathetic to the patient.
Defending (or Losing) the Lawsuit
Lawsuits are public events. The filings are generally available to anyone who wants to read them, and the media often finds defamation lawsuits irresistible, particularly if the allegations are salacious.
Winning a defamation lawsuit may be an uncomfortable experience. Defendants will often claim that the review is true and therefore not defamatory. Part of litigation will include answering questions about whether the statements are true.
Let’s take a hypothetical example. A review by a former patient on Rate MDs says that you had a sexual relationship with her when she was a minor. You sue the patient for defamation. During your deposition, your personal relationships with any patient (adult or minor, current or former) will be the topic of questioning. Even if you have nothing to hide, having your personal life under a microscope is an unsettling process.
The bigger risk, though, may be losing the lawsuit altogether. Losing a defamation lawsuit will forever leave the impression that the review is accurate. This is an unfortunate result since you can lose a lawsuit for any number of reasons.