Chicago Tribune: Doctor Sues Former Patients Over Allegations Of Sexual Contact

August 12, 2013

“Doctor Sues Former Patients Over Allegations Of Sexual Contact”

Crystal Lake neurologist never charged with crime, but license was suspended last year

Robert McCoppin, Chicago Tribune

A doctor in Crystal Lake is suing three former patients for defamation over their allegations that he fondled them in his office.

Dr. Mahesh Parikh, a neurologist, had his medical license suspended indefinitely last year as a result of the claims. But he has denied any misconduct and is seeking to have his license reinstated.

His attorney said that since Parikh was stripped of his ability to practice medicine, his reputation has been harmed, he has lost his annual income of $1 million and his home is in foreclosure.

The doctor filed separate defamation lawsuits this month against three former patients and the mother of one of the patients. That woman, who testified against Parikh at regulatory hearings leading to his suspension, said she was taken aback that the lawsuits publicly name the three alleged victims.

“This is an appalling action by a remorseless individual who is trying to intimidate those who would testify against him,” the mother wrote in an email. The Tribune is not naming her or the patients to protect the identities of the three alleged victims of sexual misconduct.

Parikh’s attorney, Rishi Agrawal, said he would file an amended suit that will identify the patients by initials only, calling it a “more appropriate” way to handle the unusual case, but said the baseless allegations against Parikh justified the lawsuits.

“We’re trying to right this wrong for this man who has contributed so much to the community,” Agrawal said. “We’re trying to get him back to practicing medicine.”

In response to an inquiry about Parikh’s lawsuits, Susan Hofer, a spokeswoman for the Illinois Department of Financial and Professional Regulation, noted that the Medical Practice Act “specifically prohibits breaching patient confidentiality,” and protects people from civil liability if they contact regulators under the act.

Disclosing a patient’s name, without disclosing protected health information, is not generally a violation of federal law, said Joel Shalowitz, director of health industry management at Northwestern University’s Kellogg School of Management. But that doesn’t make the lawsuit a good idea in his eyes.

“By making this a very prominent case, (the doctor is) probably making a strategic error in trying to restore his reputation,” said Shalowitz, adding that he had never heard of a similar suit by a doctor against a patient. “If he gets his license back nobody will know, but if he sues, it’s news, and his name will be all over the place.”

The case that led to Parikh losing his license involved a college-age woman who saw him on multiple occasions in 2008 and 2009 to treat migraine headaches and other ailments, according to her testimony at a disciplinary hearing for the doctor.

When the patient complained of breast tenderness, she testified, the doctor said it was a side effect of a drug he had prescribed for her, and he touched her breasts on repeated visits. During later visits, she claimed, he touched her vaginal area under her clothes.

The patient testified that she felt uncomfortable but assumed the doctor was doing what was medically necessary. A state’s expert involved in the disciplinary hearing said there was no medical reason for such exams.

Police also investigated the young woman’s claims, though Parikh was not charged with a crime. Neither Crystal Lake police nor McHenry County prosecutors could be reached for comment on the case. The woman’s mother said authorities told her they lacked evidence to pursue the case.

Parikh was, however, the subject of a disciplinary hearing to determine whether he violated the state Medical Practice Act. An administrative law judge found that the state failed to prove any violation. The judge questioned the young woman’s credibility, saying that her naivete about her treatment didn’t seem to match her age and experience.

The Illinois Medical Disciplinary Board agreed with those findings but was overruled by the state Division of Professional Regulation.

Jay Stewart, director of the division, wrote that Parikh engaged in “unethical” and “immoral” misconduct.

The state’s investigation determined that the doctor “took advantage of an innocent and naive patient over a period of six months,” Stewart wrote. “This was not a brief lapse of judgment or an isolated incident.”

According to his legal filings, Parikh learned from state regulators after his license was suspended that two other women had come forward with claims they had been “touched inappropriately in a sexual manner” while they were patients of Parikh’s. Those two women are among the four he is suing.

One of the women, reached Monday at her home in the northwest suburbs, said she saw Parikh about 25 years ago to treat leg numbness after a car crash.

Parikh’s suit against the woman states that she made “false statements when she falsely accused Dr. Parikh of sexual misconduct in course of being treated by Dr. Parikh.”

She was too embarrassed to tell anyone besides her family and close friends, she said. But when she saw a newspaper account of the most recent allegations against Parikh last year, she said she wanted to back up the patient’s story, and called Crystal Lake police.

She said they referred her to the Department of Financial and Professional Regulation, where she filed a statement.

“I hate to see him do it to somebody else,” she said.

Through his attorney and his lawsuit against the woman, Parikh stated that he was notified of the woman’s complaint in April but denied the incident took place.

Parikh is seeking reinstatement of his license at a hearing this fall and wants an injunction to bar the four defendants from making further statements against him. He also is seeking at least $5 million in damages from each defendant.

Source

Petition To Reinstate Dr. Parikh’s Medical License

Other Doctor Lawsuits

Boston Globe: Doctors Firing Back At Patients’ Online Critiques

MARCH 31, 2013

“Doctors Firing Back At Patients’ Online Critiques”

Liz Kowalczyk, Boston Globe

During Lyn Votour’s struggle against bone cancer and a cascade of complications, her husband slept with her in the intensive care unit for nine weeks. Back home in Central Massachusetts, he changed her bandages, replaced her feeding tube, and shielded her from debt collectors.

And as she lay dying on the hospital bed in their living room, he snuggled beside her, holding her hand.

They had been married 26 years, and his wife’s death at age 46 overpowered Gary Votour with doubt and rage. He was furious at himself for allowing her to have surgery, during which she had a stroke, at friends who didn’t visit, and at his wife’s neurosurgeon.

Believing that airing his concerns would help him heal, Votour requested a meeting with the surgeon at Brigham and Women’s Hospital. When the surgeon turned him down, Votour’s psychiatrist urged him to write her an “open letter’’ online, detailing his concerns about his wife’s medical care.

He got a response, just not the one he had hoped for.

Last month, the surgeon, Dr. Sagun Tuli, sued Votour and the owner of the website for defamation in Middlesex Superior Court, demanding $100,000 for the damage she said the blog post had done to her career. Her lawyer, David Rich of Boston, said Votour’s blog popped up on the first page of Google search results for Tuli, who now works at MetroWest Medical Center in Framingham. Votour has since removed the blog post.

“It’s difficult to believe we have a legal system that allows people to be sued for expressing their grief,’’ Votour said in an interview.

Lyn Votour was diagnosed with a rare bone cancer after an accident in 2005.

Tuli’s lawsuit is part of a gathering wave of claims brought by doctors against former patients, and sometimes their relatives, over negative ratings and reviews they have posted on the Internet, lawyers say.

Not only have personal blogs proliferated, but consumer sites such as Yelp and Angie’s List allow patients to rate and comment on their physicians. These sites are viewed by thousands of people who increasingly rely on them to choose doctors.

David Ardia, codirector of the Center for Media Law and Policy at the University of North Carolina, said the Internet “has realigned the power structure that existed between doctors and patients,’’ giving patients far more influence than they have ever had. “The Web is just chock-full of people commenting on their experiences. Doctors have reacted with a great deal of hostility toward this.’’

A quick perusal of Yelp reveals the kind of comments that are riling doctors. “Fast, Central, Misguided,” said one comment about a Copley Square practice. “Decent for your quick fix med tricks but leaves a bit to be desired in taking the time to truly understand the ailment.”

Wrote another commenter about a Fenway office: “I feel much more like a number than a human being there.”

The Digital Media Project at Harvard University tracks lawsuits filed against patients and others for online comments. Its website includes seven such cases filed over the past five years or so, though it’s not a comprehensive list. In some, patients took down their negative comments. In others, judges dismissed the suit, ruling that patients’ comments were protected under the First Amendment guarantee of free speech.

In one 2011 case, Dr. Aaron Filler, a neurosurgeon, sued a former patient in a Los Angeles court for posting negative comments about him on rating sites such as RateMDs.com, including that he posed an unusually high risk of death to patients. A judge dismissed Filler’s suit, deciding that the patient was exercising free speech on a public issue, and ordered the doctor to pay $50,000 in legal fees.

Doctors feel they are at a disadvantage in responding to negative reviews because medical privacy laws forbid them from discussing a patient’s care in public — a limitation that hotels, restaurants, and other often-rated businesses and professionals don’t face. They also worry that their explanations could be used against them in a malpractice suit — although a new Massachusetts law protects doctors’ apologies.

Dr. Richard Aghababian, president of the Massachusetts Medical Society, believes rating websites present a skewed picture of doctors because patients are more likely to post about negative experiences — even though they may be rare. “For surgeons, their reputation is very important,” he said. “We don’t want to discourage them from taking on really tough cases because they don’t want to ruin their ratings.’’

Companies have cropped up to help doctors fight back. Physicians Reputation Defender specializes in disputing negative online ratings. Medical Justice gathers reviews from a doctor’s patients and posts them on the Internet.

Ultimately, some doctors file lawsuits to try to protect their names, despite what Ardia calls “the reputational cost’’ of going to court, a step that often brings even more attention to the negative review.

While the rating sites are generally immune from libel claims, said Sandra Baron, executive director of the Media Law Resource Center in New York, individuals who post comments are not. In general for a doctor to win such a suit, she said, the statements made by the patient have to be shown to be false and to have hurt the doctor’s reputation.

Most lawsuits filed by doctors against patients or their families arise from a soured relationship, and that certainly seems true for the Votours and Tuli.

In March 2005, Lyn Votour was driving to her job counseling troubled youth when her car skidded on black ice and crashed. An ambulance rushed her to a local hospital, and tests on her neck eventually discovered a rare bone cancer unrelated to the accident.

An oncologist at Brigham referred her to Tuli to have some of her vertebrae removed, a complicated and rare operation. During a second surgery, Votour suffered a stroke that paralyzed the left side of her body.

The Votours and Tuli seemed to work well together at first. Tuli, for example, supported allowing Gary Votour to sleep in the ICU for an extended period, an unusual practice.

But after Lyn Votour was discharged to Spaulding Rehabilitation Hospital, the couple’s relationship with Tuli deteriorated, according to Gary Votour. His wife was eventually discharged to the couple’s home in Barre in July 2006 with a feeding tube and a breathing tube.

More than two years later, depressed and in pain, she asked her husband to remove her feeding tube, he said. Soon she stopped talking, he wrote on the blog, except for “one brief lucid moment when she thanked me for letting her go and made me promise to move on with my life and try to find happiness again.’’ She died days later, in October 2008.

“I was not doing well with grief,’’ he said in an interview. “I wanted to go back and talk to Dr. Tuli about some questions that were bothering me. I really wanted to ask her why don’t doctors follow up after discharge. I wanted to understand why doctors just wash their hands after discharge.’’

Votour contacted a patient advocate at the Brigham, who said she would arrange a meeting. But the advocate called back and said Tuli had declined to meet, Votour said.

Rich, her attorney, said a Brigham lawyer told Tuli not to meet with Votour.

A hospital spokeswoman, Erin McDonough, said in a written statement that a log kept by the patient advocate “documents that Dr. Tuli indicated that she was not comfortable meeting with Mr. Votour. The hospital’s records clearly indicate it was her decision.’’ The hospital lawyer said she never spoke to Tuli about Votour’s request, McDonough said.

Frustrated, Votour put up his blog in March 2010 and e-mailed a link to Tuli and other Brigham staff who had cared for his wife.

In his post, Votour criticized Tuli for not visiting his wife at Spaulding, according to a copy of the blog included in the lawsuit. He wrote that the surgeon called their home once after her discharge but did not offer to help coordinate her care, and that Spaulding doctors and others urged him to file a lawsuit against Tuli. At another point, he said he lost his wife “not to cancer but to indifference and egotism.’’

In the lawsuit, Tuli said these statements are false and defamatory. In written comments, Rich said that patient privacy laws prevent Tuli from discussing the reasons for the stroke, but according to the blog, she told the Votours it was caused by a preexisting tear in the heart.

Rich wrote that Votour completely misunderstood how discharge planning works at large hospitals. Tuli, Rich said, did not have privileges to treat his wife at another hospital and they lived too far away for her to provide follow-up care.

Rich said Tuli was surprised by the blog, because Votour had previously written e-mails complimenting her care of his wife. After Lyn Votour’s stroke, Tuli “spent 12 hours with Votour and was completely responsive and sympathetic,’’ Rich said.

Tuli, who won a $1.6 million jury award against the Brigham and the chief of neurosurgery in 2009 for gender discrimination, left the hospital in 2011.

Rich called the lawsuit a last resort — lawyers for Tuli initially asked Gary Votour to take down his blog in 2010. Votour took down the blog in February. He said his client hopes to “work out some amicable solution.’’ But she wants Votour to sign an agreement not to write about her again — something he has refused to do.

People have expressed concern to Tuli about what they read on Votour’s blog, Rich said, and some have certainly been dissuaded from seeking her out as a surgeon. “If you are thinking of hiring someone or working with someone, the first thing you do is Google her name,’’ he said.

In the end, Ardia said, doctors will not find satisfaction through the courts, but by using the Internet to their advantage — encouraging happy patients to write online reviews and trying to address the concerns of those who are not. “The ultimate solution is engagement and realizing that not every patient is going to be happy.’’

Votour, who still owes $25,000 to credit card companies for expenses related to his wife’s care, has moved to Columbia, S.C., where he earned a master’s degree in hospital administration. He now works as a patient advocacy consultant. He named his company Fierce Advocacy.

SOURCE

Other Doctor Defamation Lawsuits

Boston Globe: “Doctors, Patients Battle Over Online Critiques”

SEPTEMBER 26, 2013

“Doctors, Patients Battle Over Online Critiques”

By Liz Kowalczyk, Boston Globe

Earlier this year, I wrote a story about Gary Votour’s legal battle with neurosurgeon Dr. Sagun Tuli. Votour’s wife, Lyn, died of complications from bone cancer and soon after, he blogged about his dissatisfaction with the medical care Tuli had given her.

Tuli filed a $100,000 defamation lawsuit against him in Middlesex Superior Court in February.

Given the fervent reader interest in Votour’s situation, I want to provide an update on the case, as well as on another lawsuit I mentioned in my April story. It was brought by California neurosurgeon Dr. Aaron Filler against a former patient in 2011.

Most notably, Votour—who owes thousands of dollars in credit card debt for expenses related to Lyn’s illness—was taken under the wing of major Boston lawfirm Wilmer Hale, which agreed to represent him free of charge. The case was moved to federal court in Boston and Votour’s attorney, Adam Hornstine, has filed a motion to dismiss Tuli’s lawsuit.

The firm believes the case may have broader implications: Among other reasons, Hornstine has filed a potential challenge with the court and Attorney General Martha Coakley’s office to a state law that can hold people liable for making true statements under certain circumstances, which he argues is unconstitutional.

“It’s an affirmative defense protecting my right to free speech,’’ said Votour, who said he posted the blog because Tuli refused to meet with him to answer questions about a stroke his wife suffered during surgery.

While Votour took down his blog in February, he said settlement talks with Tuli have failed so far.

Tuli’s attorney, David Rich, said he could not comment on the case. But he told me last Spring that Votour’s criticisms were false and that the blog damaged his client’s career.

Her lawsuit is part of a wave of claims brought by doctors against former patients, and sometimes their relatives, over negative ratings and reviews they have posted on the Internet. These reviews have shifted the balance of power among doctors and patients. And while some lawyers say doctors only draw more attention to negative comments by suing over them, Filler said sometimes a physician needs to take strong action.

He sued a former patient in a Los Angeles court for posting negative comments about him on rating sites such as RateMDs.com, including “stating falsely that information she has seen suggested Dr. Filler posed an unusually high risk of death to patients,’’ according to his complaint.

Dr. Filler says he brought the case in part because none of his patients had died. While a judge dismissed Filler’s original suit, he said in a recent interview that he was able to get the patient, Susan Walker, to remove her comments and that additional litigation is pending. (In fact, the comment about risk of death was posted again by the patient from another site.) The comments “caused huge harm because there are hundreds of people suffering in pain right now’’ because they are too afraid to seek care from him, he said.

“My message is that physicians should respond to these things,’’ he said. “I don’t think you should be falsely accused of murder and take it. It was shouting fire in a crowded theater.’’

Walker’s attorney did not immediately respond to a request for comment.

Source

Other Doctor Lawsuits

Lawsuits By Doctor and Dentist Over Patients’ Reviews Dismissed

SEPTEMBER 29, 2012

“Lawsuits By Doctor and Dentist Over Patients’ Reviews Dismissed”

Eric P. Robinson, Blog Law Online

A doctor in New York and a dentist in Oregon have both found out that it may not be easy to sue for libel over online reviews of their services, after their separate lawsuits were both dismissed. And it turns out that most of the dentists and doctors who have sued over online reviews have reached similar results.

In the New York case, doctor Trilby J. Tener sued over a comment posted to the physician review website Vitals. The comment, posted April 12, 2009, stated that “Dr. Tener is a terrible doctor. She is mentally unstable and has poor skills. Stay far away!!!”

Dr. Tener discovered the comment when she did a Google search for herself on May 28, 2009. But she did not file suit until April 8, 2010, four days before the expiration of the one-year statute of limitations (running from the day when the statement was initially posted). She then attempted to amend the complaint on June 8, 2010 to change the named defendant, claiming that it took that long to determine who was responsible for the posting.

Discovery in that case lead to an appellate decision, after Dr. Tener’s efforts to obtain electronically-stored records from a hospital, in an attempt to identify the poster. The records were deleted through normal business operation. Calling it “our first opportunity” to address the issue, the appellate court noted that “[electronically stored information] is difficult to destroy permanently. Deletion usually only makes the data more difficult to access,” and held that  against non-parties must utilize a cost-benefit analysis weighing the cost of retrieving the information against the value of the sought-for information. See Tener v. Cremer, 89 A.D.3d 75, 931 N.Y.S.2d 552 (N.Y. App. Div., 1st Dept. 2011).

That ruling raised the ire of the trial court because the “trial record” before the appellate court differed from that record that had been before the trial court when it made its initial decision in the discovery dispute. The problem turned out to be a clerical error in the trial court when the case was passed from one judge to another, that Dr. Tener’s attorney did not correct.

Ruling on a defense motion to dismiss after the appellate decision, the trial court chided the plaintiff and her attorney for appealing rather than attempting to correct the record, and for not being diligent about identifying the proper defendant prior to filing suit. The court then proceeded to dismiss the suit on statute of limitations grounds, and also wrote that “even if this action was found to be timely, dismissal is warranted for failure to state a cause of action, as the alleged defamatory statements are statements of opinion, and, thus, are not actionable.”  Tener v. Cremer, 2012 NY Slip Op 32022(U) (N.Y. Sup. Ct., N.Y. County July 16, 2012).

Meanwhile, an Oregon court dismissed a lawsuit by a Lake Oswego, Oregon dentist over reviews that a former patient posted on Yelp.com, DoctorOogle.com and Google. Circuit Court Judge Judith Matarazzo dismissed the lawsuit under the state’s anti-SLAPP law on Sept. 5.

Such statutes, adopted in 28 states, the District of Columbia, and one U.S. territory (and by common law in two more states), allow for easy dismissal of libel and similar lawsuits that are primarily aimed at limiting discussion of public issues. (See the DMLP Legal Guide for more on anti-SLAPP laws.)

These cases stand as data points showing growing trend. According to this list of lawsuits (pdf) brought by doctors and dentists over online reviews of their services compiled by Eric Goldman of Santa Clara School of Law, physicians have not been very successful in such suits. Several suits have been dismissed under anti-SLAPP statutes. See Gilbert v. Sykes, 53 Cal. Rptr. 3d 752 (Cal. App. Ct. 2007); Kim v. IAC/InterActive Corp., 2008 WL 3906427 (Cal. App. Ct. 2008); Wong v. Jing, 189 Cal. App. 4th 1354 (Cal. App. Ct. 2010); Rahbar v. Batoon, No. CGC-09-492145 (Cal. Super., San Francisco filed Sept. 2, 2009), No. CGC-10-502884 (Cal. Super., San Francisco filed August 20, 2010), and No. CGC-11-515742 (Cal. Super., San Francisco filed Sept. 8, 2011). (In one case, the court declined to dismiss a doctor’s lawsuit under Maine’s anti-SLAPP law, finding that the plaintiff was likely to be able to prove that the patient fabricated the story posted on the review site. See Lynch v. Christie, 2011 WL 3920154 (D. Me. Sept. 7, 2011), appeal dismissed, No. 11-2172 (1st Cir. 2011).)

Others have been dismissed under section 230 of the Commmunications Decency Act. Other cases were withdrawn, and some settled.

None of the cases actually ended with court awards to the doctors.

SOURCE

Doctor Lawsuits

Dentist Mo Saleh

More Dentist Lawsuits

Another Service Provider Loses A Libel Lawsuit Against A Client

May 16, 2014

“Another Service Provider Loses A Libel Lawsuit Against A Client”

Eugene Volokh, The Volokh Conspiracy

From Tuesday’s decision in Loftus v. Nazari (E.D. Ky. May 13, 2014):

This is an unusual libel case in which a doctor has sued her patient. The patient posted comments on opinion websites complaining of the results of surgery the doctor had performed on her….

The plaintiffs are Dr. Jean Loftus, M.D., a plastic surgeon, and the professional corporation under the aegis of which she practices. The defendant is Catherine Nazari, a patient of Dr. Loftus, who underwent plastic surgery by her in 2006, consisting of breast implants, a breast lift, an arm lift on both arms, and a “tummy tuck.”

In 2010, Ms. Nazari posted three statements on opinion websites complaining of the results of the surgery. These postings, quoted in full, are as follows:

A posting on http://www.vitals.com that read:

I had Plastic surgery done by Dr. Jean Loftus only to be left with permanent nerve damage in both arms (arm lift) severe abdominal pain (tummy tuck) horrible scars and disfigured in both breast [sic] (breast implants, breast lift)as [sic] a result of her mistakes. As a result of the surgeries preformed [sic] by Dr. Loftus I was left having to file for Total Disability. To err is human, but she like all doctors should be held accountable for their actions. Where are the ethics in America when Doctors cover up for Doctors knowing that horrible mistakes were made? I hope that she can live with herself knowing what she has done.

A posting on http://www.newsvine.com that read:

I had plastic surgery due too [sic] losing a lot of weight and was not happy with the sagging skin I was left with. I thought that if I had the surgery It would raise my self confiedence [sic] and improve my appearance. If I could go back in time, I would not have done it. I had breast implants and a Breast lift and was left with horrible scars and disfigurement, a tummy tuck that left me with severe abdominal pain that is still present today, I had arm [sic] lift in both arms that caused permanent nerve damage in both arms and there [sic] nothing that a consumer can do. All of my surgeries were preformed [sic] the same day by a Dr. Jean Loftus in Ft. Wright, KY. 99% of all medical malpractice cases never make it to a hearing, let alone a trial. I have filed complaints with the U.S. Attorney in Washington, DC and they referred me to the Ohio Medical Board to file a complaint. I also filed a lawsuit with Bob Handleman in Columbus, OH only to have nothing done and my case was dismissed without prejudice. On October 22, 2010 I received a letter from the Ohio Medical Board that NO disciplinary actions would be taken regarding Dr. Loftus. I guess it is true what Ralph Nader says on his site, that State Medical Boards are like FOXES GUARDING THE HENS. These doctors should be held accountable for their mistakes and not be covered up. A posting on the website http://www.buskia.com that read:

I had plastic surgery done by Dr. Jean Loftus of Ft. Wright, KY only to be left with permanent nerve damage in both arms (arm lift), severe abdominal pain (tummy tuck) and horrible scars and disfigurement on both breasts (breast implants and breast lift)., [sic] and my medical records were stolen from a friend and colleague of hers, Dr. Rank O. Dawson a plastic surgeon of Cincinnati, OH. I filed a complaint with the Ohio Medical Board and nothing was done. I had an attorney from Columbus, OH Mr. Bob Handleman and he did nothing. My case was dismissed without prejudice. [sic] I was told by several lawyers that 99% of medical malpractice cases never even make it to trial or even a hearing … so if you don’t have lots of money … your [sic] wasting your time.

To facilitate discussion, these postings may be broken down in essence to the following assertions:

  1. Ms. Nazari suffers from scars, disfigurements, and pain, which she attributes to Dr. Loftus’s improperly performing the surgery.
  2. Ms. Nazari filed a malpractice action and a complaint with the Ohio Medical Board, which came to naught.
  3. Ms. Nazari states that making such filings are useless because the system is rigged against complaining patients, and there is a conspiracy among the medical profession, the court system and regulatory bodies.
  4. Her medical records were stolen….

[A]ll of Ms. Nazari’s statements concerning the allegedly poor results of her surgery are protected opinion, because they do not imply the existence of undisclosed facts. 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. These are all the facts she adduces; she does not imply the existence of any undisclosed facts. The reader of the postings may decide for himself or herself whether the opinions should be accepted, or are an example of the logical fallacy known as post hoc ergo propter hoc.

The statements concerning the futility of suing doctors or filing complaints against them before regulatory boards are also clearly opinion. Moreover, they are not “of and concerning” Dr. Loftus. Neither is the statement about stolen records.

Further, it must be taken into account that the statements by Ms. Nazari were posted on opinion websites; therefore, the natural tendency would be to infer that they are opinion. Cf. Seaton v. TripAdvisor, LLC, 728 F.3d 592 (6th Cir.2013).

Dr. Loftus’s proffer of medical experts rebutting Ms. Nazari’s assertions is irrelevant; her statements are still protected opinion.

Note that the court seems to be implicitly assuming that the purely factual statements about Nazari’s condition (that she did have plastic surgery done by Loftus, and that she does now have permanent nerve damages, scars, and the like) are accurate — I assume because the parties agreed that these were indeed accurate. Of course, if someone has never been treated by Loftus, or has been treated by her and is now fine, and writes, “Dr. Loftus treated me and now I’m a paraplegic because of she did,” that would indeed be libelous statements of fact about what the writer is actually suffering from, not expressions of opinion about what caused the writer’s suffering.

The court also rejected Nazari’s counterclaims, including for defamation and invasion of privacy.

Source

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

Other Doctor Defamation Lawsuits

 

North Little Rock Neurosurgeon Sues Former Patient For Defamation

SURGICAL PATIENT DEMANDS ERROR DISCLOSURE 

Jessica Hauser 

Log Cabin Democrat 

February 12, 2015 

A Conway man protesting outside a medical practice Thursday on Dave Ward Drive said he wants new legislation for patients’ rights to know when damage to structure occurs during surgery.

James Blazier said he can no longer operate his business efficiently after Dr. James Calhoun of Central Arkansas Neurosurgery inserted a screw in his vertebra to support his cervical spine. He said the screw was inserted so low that it could not support his spine, causing him to collapse unexpectedly four months after returning to work as a printing press electrical technician.

“He should have told me,” Blazier said. “I went back to see him to discuss the screw. I asked him if it was part of the problem and why he didn’t tell me. He didn’t answer the question and told me to get physical therapy.”

In correspondence to Representative French Hill and Senators John Boozman and Tom Cotton, Blazier wrote that he looked up and to the left and experienced sharp pain, numbness and loss of some function. He said he has not been the same since this happened.

Attorney Tre Kitchens, who represents Calhoun, said Calhoun visited with Blazier many times, and Blazier is trying to smear his name. “Mr. Blazier is unhappy. I hate that for him and I’m sorry, but my client did nothing wrong,” Kitchens said. “Mr. Blazier did not exercise his legal rights. If there had been a legal claim, he would have had an opportunity to have his case heard in court. But this was years ago and it’s now two years outside of the statute of limitations.”

Blazier said the statute expired while he sought medical assistance from other neurosurgeons, all of whom declined to interfere with another physician’s care on the basis of “professional courtesy.”

He said he also contacted injury attorneys who told him a screw in the neck is not medical malpractice.

“If it had been a case, someone would have taken it,” Kitchens said. He said the Arkansas Medical Board investigated the incident after being contacted by Blazier and found no evidence of violation of the Arkansas Medical Practices Act. The board closed the case.

“[Calhoun] responded to the complaint with a letter in which he stated that one of his colleagues looked at the x-ray and agreed with him that the vertebra was not fractured. Case closed,” Blazier said. He said Calhoun was not required to identify the colleague or provide any evidence.

Kevin O’Dwyer, attorney for the Arkansas State Medical Board, said such a letter would probably not be enough evidence to close an investigation. He said this sounded more like a quality of care complaint, but he was not familiar with specifics of the situation. “Typically, we ask the doctor to respond. Sometimes we ask them to provide medical documents. The board looks at a case in light of burden of proof – did the activity rise to gross negligence or ignorant malpratice?” O’Dwyer said.

Blazier said there will be more protests in the coming weeks in Conway and North Little Rock.

Source

March 21, 2015

“North Little Rock Neurosurgeon Sues Former Patient For Defamation”

Jessica Hauser, Log Cabin Democrat

A North Little Rock neurosurgeon is suing a former patient for defamation after the patient protested and distributed pages of negative comments about him at his Conway location on Dave Ward Drive.

Dr. James Calhoun of Central Arkansas Neurosurgery has filed a lawsuit against James Blazier, requesting a jury trial and compensatory damages for the toll his actions have taken on the physician’s practice.

“This man is going around lying and slandering and defaming [Calhoun] and hurting his practice when he has done nothing wrong. We’ve given him every opportunity to stop, and he won’t,” said Attorney Tre Kitchens, who represents Calhoun. He said the lawsuit is a response to not only the protest, but also to the damage that Blazier has caused Calhoun’s practice as a result of contacting patients with false claims about the neurosurgeon.

The documents filed in Pulaski County Circuit Court read that Blazier made false claims about a procedure Calhoun performed on his C6-7 and C5-6 vertebrae to the Log Cabin Democrat, citizens who witnessed the protest, patients in the waiting room of Calhoun’s office, Representative French Hill, and Senators John Boozman and Tom Cotton.

Blazier said one of the vertebra was broken, but Calhoun said he and another neurosurgeon agreed that an X-ray of the area showed no breakage.

“In today’s world, people feel emboldened to say whatever they want, and that’s not the law,” Kitchens said. “You can’t defame somebody, you can’t run your mouth about something that’s not true, and there are consequences for those actions.”

Blazier filed a complaint with the Arkansas Medical Board on Feb. 1, 2013, requesting an investigation into the matter. According to a document from the board, members of the board addressed the complaint at their meeting on April 4 and 5, 2013, and they found no evidence of violation of the Arkansas Medical Practices Act.

Blazier said he asked other neurosurgeons to interpret the X-ray, but each physician he contacted declined to interfere on another physician’s care on the basis of “professional courtesy.”

“I’m glad for a jury trial,” said Blazier, a U.S. Navy veteran. “I’ve been waiting a long time to get in front of the right people. I’m just thankful to the U.S. taxpayers who made it possible for me to get care from the Department of Veterans Affairs. They’ve gotten me to where I am now.”

He said he has contacted Sen. Jason Rapert regarding legislation requiring physicians to disclose errors made during medical procedures, extending the statute of limitations for filing malpractice suits and changing policies on medical licensing in Arkansas.

“I don’t think he has any business practicing medicine in Arkansas given his history,” he said.

According to a stipulated order signed by Calhoun, Calhoun surrendered his Oregon medical license in 2004 after pleading guilty to a class A misdemeanor harassment charge.

“What happened over a decade ago in another state has nothing to do with Mr. Blazier,” Kitchens said. “My client has worked very hard to build his reputation here, and he’s a good doctor. He’s a caring doctor. Now we have to take measures to preserve that reputation.”

A motion hearing has been set for April 2 in Pulaski County Circuit Court.

SOURCE

Other Doctors Who Have Sued Patients

The Republic: Internet Opens Door To Free Speech That Can Get Expensive

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The above image by Charles Fincher may be purchased at http://www.lawcomix.com/bp.10/06.07.10.html


April 25, 2014

“Internet Opens Door To Free Speech That Can Get Expensive”

Peter Corbett, The Republic

 Sherry Petta did not like the results of two surgeries to reshape her nose and a laser procedure to smooth her face more than six years ago. The 51-year-old Scottsdale businesswoman and jazz-piano entertainer was so angry that she posted remarks on consumer websites to complain about her rhinoplasty and treatment at the Desert Palm Surgical Group, a Scottsdale practice of Dr. Albert Carlotti and Dr. Michelle Cabret-Carlotti.

The Carlottis’ attorneys filed a defamation complaint and won a $12 million judgment in 2011 against Petta, who has since lost her home and filed for bankruptcy as she struggles to pay her debt.

“My life and emotions have been turned upside down,” Petta said in a recent interview.

She is appealing the Maricopa County Superior Court jury verdict, asserting that truth is a defense for her comments and that the Carlottis did not prove the more-than-$1 million loss of income they claimed was the result of Petta’s online complaints.

“I’m volunteering now for a dog-rescue group, working 30 to 40 hours,” said Petta, who previously had a business selling promotional products. “There is no point in doing a lot of work since my pay is taken from me.”

Petta’s case is an extreme example of defamation cases that have surfaced in the digital age as websites give consumers a chance to share their often-anonymous complaints to a wider audience. The online posts, sometimes accurate and sometimes false and defamatory, have put businesses, doctors and other professionals in a harsh and unwelcome spotlight.

Attorneys are finding no shortage of plaintiffs and defendants in defamation cases as the courts struggle to balance free-speech rights with legal protections from false claims.

The Valley, with ties to a number of controversial websites, is at ground zero of this shifting legal landscape.

Ripoff Report is based in Tempe and the Dirty started as DirtyScottsdale.com in 2007.

The Dirty gossip site was on the losing end of a $338,000 defamation judgment in Kentucky last year in federal court that is under appeal.

San Francisco-based Yelp, a consumer-review site at the center of a closely watched Virginia case, has a presence here with several hundred employees at its downtown Scottsdale office.

Plus, the top domain-name registrar, GoDaddy, is based in Scottsdale.

For legal purposes, a website exists where it is registered. That allows attorneys to file claims here against unknown defendants if GoDaddy is the registrar for a website that included a defamatory post. GoDaddy requires a court order to provide information about an anonymous person posting on a website that it hosts.

“If Delaware is the capital of corporate law, then Arizona is the new capital of Internet law,” said Jordan Rose of the Rose Law Group in Scottsdale.

Christopher Ingle and Logan Elia, who developed a specialty in Internet-related defamation cases, cyberpiracy and cybersquatting over the past three years, joined the Rose Law Group in January to further develop that niche. They specialize in finding the identity of people who make false allegations and typically can get search engines like Google and Microsoft to de-index or remove links to defamatory statements, Ingle said. “You can do a lot of damage with the Internet,” he said.

Ingle is working with Matthew Kelly and Kevin McCoy to represent the Carlottis and Desert Palm Surgical Group on Petta’s appeal of the 2011 jury verdict.

Attorney Ryan Lorenz of Clark Hill, representing Petta, said the case is set for oral arguments before a three-judge panel of the Arizona Court of Appeals. Petta’s comments about the Carlottis are either true or legally protected opinions, Lorenz said.

In many instances, a defamation defendant will admit that his or her Internet post was false in an out-of-court settlement, Ingle said. That stipulation allows the attorney to get a court order that he or she can use to request that Google and Microsoft, which runs the Bing and Yahoo search engines, no longer link to a defamatory post. Ingle said in most cases, Google and Microsoft will de-index the post and the defamatory comments no longer will come up in searches. However, the website that hosted the comments is not required to remove the posts.

Section 230 of the Communications Decency Act of 1996 protects website publishers from defamation claims for comments made by others on their sites, and they are not required to remove the posts.

In an October 2013 case, three former employees of Natural Health Research Inc. made false claims against the company on Ripoff Report. Ingle sued on behalf of Natural Health, operating as the Diet Doc, and won a default judgment in March against the defendants.

Those garden-variety defamation cases do not bring financial windfalls. “I tell my clients this is not going to be a claim where you’re going to get a lot of money in a judgment,” said Ingle, adding that the point is to restore the plaintiff’s reputation and eliminate links to the offensive comments in search engines. The comments still will be found on sites such as the Ripoff Report.

Ripoff Report is operated by Fountain Hills resident Ed Magedson, who said more than 3 million consumer complaints have been posted over the past 16 years on his site. “The biggest and best thing (about Ripoff Report) is that consumers have a way to speak out,” Magedson said. “It used to be buyer beware, but in the 21st century, it’s seller beware.” Magedson is a lightning rod for complaints from businesses and individuals targeted in Ripoff Report postings. He has been widely vilified and seems to relish his role as an antagonist. “Do consumers lie sometimes? Yes. Do businesses lie?” Magedson said. “The truth is probably somewhere in between.”  Ingle, who has often tangled with Magedson and his attorneys, calls Ripoff Report a “defamation engine.”

Others have alleged that Magedson uses Ripoff Report to force businesses to pay him for favorable treatment on his site. He denies those allegations, saying that businesses have offered him $500 to $50,000 to remove one report. “That’s nice in theory, but it’s just not the way the site works,” Magedson said.

Xcentric Ventures LLC, the parent company of Ripoff Report, makes its money from advertising, a corporate advocacy program and an arbitration service it offers, said Maria Speth, Magedson’s attorney.

Ripoff Report investigates the business practices of companies that pay for the corporate advocacy program and works to try to resolve consumer complaints with the companies, Speth said. Companies that opt for arbitration agree to pay $2,000. Half of that fee goes to the independent arbitrator, who reviews the veracity of the Ripoff Report complaints that were posted, she said. If there are false statements, only those remarks are removed from the site; the rest of the post is left intact, Speth explained.

Paul Levy, an attorney for Public Citizen, a non-profit group that does not accept corporate or government funding, questions the validity of the corporate responsibility programs offered by sites such as Ripoff Report and Pissed Consumer. They claim to analyze a company’s business practices, but it appears they just bury the online criticism with an abundance of praise, Levy said. “Many of these (consumer sites) are within their rights. Others are sleazy,” he said. “I have to admit I’m skeptical.”

Levy is representing Yelp in a 2012 Virginia case involving seven anonymous reviews that were critical of Hadeed Carpet Cleaning Inc. Owner Joe Hadeed checked his customer database and could not match them with the negative reviewers that posted on Yelp. Hadeed asked the court to force Yelp to disclose the identity of the anonymous reviewers.  Both a lower court and Virginia Court of Appeals ordered Yelp to disclose the identities of the reviewers. That ruling has been appealed to the Virginia Supreme Court.

Levy said the First Amendment protects anonymous speech, and Hadeed has not presented enough evidence to overturn those protections, which are in place to prevent retaliation. He said he has spoken with four of the seven anonymous reviewers and they are legitimate customers with legitimate complaints against Hadeed. “Hadeed is seizing on the controversy to amplify his extortion claim against Yelp,” Levy said.

Yelp has been accused of strong-arming businesses to advertise on Yelp or expect a slew of negative reviews. The Federal Trade Commission disclosed last month that it received 2,046 complaints about Yelp in the previous five years. The complaint information was released in response to a Wall Street Journal Freedom of Information Act request.

Yelp had an average of 102 million unique, monthly visitors in the first quarter of 2013, and its contributors have posted 39 million local business reviews, according to court records.

“I don’t see any substantial basis that Yelp is engaged in extortion,” Levy said. It’s unclear when the Virginia Supreme Court will hold a hearing on the case, he said.

In the case of the Dirty, a federal district court in Kentucky denied editor Nik Richie’s immunity claim under the Communication Decency Act. The court ruled that the Dirty encouraged defamatory content. Richie, a former Scottsdale resident now living in Orange County, Calif., added his own comment to a post about a Cincinnati Bengals cheerleader, who was also a high-school teacher. One of the posts said the cheerleader had slept with all of the Bengals players and another said she likely had two sexually transmitted diseases. Richie’s comment was: “Why are high school teachers freaks in the sack?”

Judge William Bertelsman allowed the case to go forward. In his ruling, he wrote: “These postings and others like them were invited and encouraged by the defendants by using the name ‘Dirty.com’ for the website and inciting the viewers of the site to form a loose organization dubbed ‘the Dirty Army,’ which was urged to have ‘a war mentality’ against anyone who dared to object to having their character assassinated.”

The Electronic Freedom Foundation and other free-speech advocates filed an amicus brief supporting the Dirty‘s appeal. “In short, since 1996 the law has been very clear: Website owners are not legally responsible for content posted by their users,” said David Gingras, a Phoenix attorney representing the Dirty. “In our case, the trial judge said that this protection will be lost if a website owner does anything to screen or review content from users.”

The appeal is scheduled to be heard May 1 in Cincinnati with a decision likely in a few months, he said.

Meanwhile, no date has been set on Petta’s appeal of her $12 million judgment from 2011 that included $1 million in punitive damages.

COMMENTS

David Drexler: This is really a comment for the author of this article: I caught the story of the Carlotti 12M Judgement tonight for the first time in this article and accompanying video. After reading this article, I could not understand how a case even made it to the jury if all the Plaintiff did was comment on websites about her dissatisfaction with the result of surgery. I was initially thinking that Defendant did not present the best defense and was overrun by a more well funded law firm. Someone reading this article would be under the impression that if you post a negative comment about your experience with a doctor on a review website that it equates to defamation. Because other web sources rely heavily on the AZ Rep reporting of local stories–the same generalities on this story were re-posted numerous times even going back to other stories on the case over the past 2 years. It took a bit of research to finally find an article to learn exactly what defendant did for the Court to allow this case to go to the jury. One older article specified that Defendant broadcast that Plaintiff was not board certified, was under investigation by the medical board and contacted Plaintiff’s patients and claimed the same. These are critical elements because they cross from an opinion on treatment to inaccurate false statements. You don’t want readers to mislead into thinking that just posting a negative review on a website review site is dangerous because these review sites are an important tool for consumers to use to make decisions on whether or not to use a service. There are some poor practitioners in every discipline and you have to do your own due diligence. You can’t rely on regulatory bodies–by that time it is too late. You want people to be candid about their experiences and provide as much detail as possible.

Sherry Petta: Mr. Drexler, my reviews on these doctors were accurate. The doctors’ board certification WAS NOT recognized by the Arizona Medical Board. Their certification, in fact, is recognized by the Dental Board, and I did not have a dental procedure by them; and one of the two doctors is not even a licensed dentist in this state. Therefore, at the time of my posts, my statements were indeed accurate and truthful. And unfortunately, these are very well-funded doctors whose attorneys were not at all honest in court (attorneys are not under oath), nor were the doctors truthful in court. Further, my reviews on line were live for approximately three weeks before I was forced to remove them, and there is absolutely no way that a three week website can cause such damage. The doctors did not provide any evidence of damages, the case is being appealed, AND unfortunately, these days, doctors, because of their excessive wealth, do bully patients with litigation threats and have negative reviews removed. I have encountered many patients who have been hurt by the doctors who hurt me. The exact time frame these doctors allege a decline in income is exactly in line with the fall of the economy. It is also in line with the number of other patients whom they’ve hurt, and their over-abundance of lawsuits which is very reflective of their character and reputation.

David Drexler: While I am not in your jurisdiction, one of the things that has concerned me over the years generally in the medical profession are Doctors reaching out of their certified specialty and residence training. We have seen this a lot over the years with various specialists like ENT and Dermatology moving beyond their residency training and into the purview of Board Certified Plastic Surgeons. I would feel more comfortable if only Board Certified Plastic Surgeons were performing Plastic Surgery. It is a very hard and lengthy residency/training. I wrote in primarily because Yelp is a extremely important consumer tool–it’s one of the critical applications that helps the consumers to make choices and sometimes important decisions in their life. I do want to see lawsuits or threat thereof prevent folks from detailing an accurate consumer experience. In my jurisdiction–California, I have learned of at least a couple of doctors that have hired marketing companies to manage their feedback on Yelp and Facebook. In one instance the marketing representative posted a positive review of the doctor even though he represented him and never obtained any professional medical services from him.

Sherry Petta: David Drexler , thank you for your note. Regarding yelp, they are, in my opinion, worthless. The doctors who hurt me have hurt many patients. I’ve met some of them, and have read posts from others on line. Yelp deems any negative reviews on these two doctors as “not recommended” and moves them to an area where they are unlikely seen.

Then, only two positive reviews remain for these two doctors. The doctor(s) often posts flattering commentary about herself (she has multiple aliases on line), and/or she uses one of her employee’s names and posts on line as well. This means of reviewing the doctors is of zero benefit to patients, and in fact, is the complete opposite.

I have had a good number of patients of these doctors contact me since I became “news,” saying that they wish my reviews had remained, and maybe they wouldn’t have been hurt by these doctors.

Yelp should be ashamed of themselves. Either they are so poor, period, as a review site, or they allow themselves to be manipulated by these doctors (which I believe is the case), that they now REMOVE any negative posts about the doctors. It is absolutely inexcusable in America that we have lost our freedom of speech.

Pray for me that my appeal will result in my favor and that the tables will turn so that others will not have to suffer the way I have, and so that I can have freedom from these people who have been tormenting me for years.

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