LEGALLY DUMB

5e7a4-defamation

DECEMBER 14, 2011

“Should a Doctor or Dentist Sue a Patient for Bad-Mouth Comments?”

Stewart Gandolf, Healthcare Success

If a professional reputation is to be protected at all costs, should a healthcare provider file a lawsuit against a patient for a negative online review?

From time to time we see news items about doctors or dentists who threaten legal action against patients. But suing a patient for a negative comment (or comments) is likely to be a bad idea. In fact, it just might be the worst thing to do.

We can sympathize with a practitioner’s frustration and outright anger. Negative comments and online reviews can be untrue, unkind and one sided. What’s more, we’ve never met a doctor, dentist, physician, surgeon or other healthcare provider who isn’t fiercely protective of his or her personal and professional reputation.

Their reputation—real or perceived, in person or online—is the sum of everything they do. And from a physician marketing perspective, their personal and practice reputation is at the heart of their brand and branding message. It’s no wonder that healthcare providers—doctors in particular—are highly sensitive and sometimes nearly fanatical about any and all reflections on their reputation.

We’re not offering legal advice here, but we discussed the concept of online comments with our friend and noted healthcare attorney Stephen Kaufman. He told us, “Sometimes I can convince the website to pull the [offending] comment.  Sometimes, we write a reply. But I have never sued, and I’m hard-pressed to imagine a circumstance where I would recommend doing so.”

And while a lawsuit may “feel” justified, there are good reasons to reconsider the temptation for a dentist or physician to “strike back” in court. From a healthcare public relations and marketing perspective.

The “doctor-sues-patient” story is likely to grab much more media attention than the original patient review. A small local story can suddenly go national. It’s the PR equivalent to throwing gasoline on embers. It’s going to ignite a flash fire with an explosive downside and not much of an upside.

The general public is likely to identify with–and sympathize with–the patient, not the doctor. Other doctors might quietly commiserate a little, but in the larger “court of public opinion” the doctor may be seen as the villain for starting a fight.

The Internet Search Engines will also take notice. Any ensuing controversy about the lawsuit will itself capture high page rankings and will continue to appear in Google search results—and overshadow any positive marketing efforts—perhaps for years.

And then there are the legal costs, the prospect of counter claims and the drain on personal and professional time and resources.

Our comments here do not refer to the merits of any specific situation, and it’s always a good idea to seek professional legal counsel regarding your situation. Physician-rating websites and online reviews and commentary provide patients with a channel to publish their feelings—good, bad or otherwise—about physician performance.

A study published in the Journal of General Internal Medicine found the majority of such reviews (88%) to be positive, six percent were neutral and six percent were negative.

In our experience, the concept of a healthcare provider suing a patient for an “unfriendly” review should be approached with considerable care. It’s likely to be a “legally dumb” healthcare marketing and PR move.

Stewart Gandolf  is CEO of Healthcare Success Strategies, a medical marketing and health care advertising agency. He is also a frequent writer and speaker.

SOURCE

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

In Rahbar v. Batoon, California Supreme Court Declined To Revive A Dentist’s Lawsuit Against A Patient Who Had Posted A Negative Online Review

JANUARY 16, 2013

“Defamation Cases Illustrate Dangers Of Suing Over Critical Internet Reviews”

Arent Fox, Lexology

 In Rahbar v. Batoon, the California Supreme Court declined to revive a dentist’s lawsuit against a patient who had posted a negative online review on Yelp.com. See No. S206889 (Cal. Jan. 3, 2013). The patient, Jennifer Batoon, posted her critical review in August 2008, writing “DON’T GO HERE. MOST PAINFUL DENTIST EVER.” and voicing her displeasure with her dentist’s treatment choices, billing practices, and communication skills. In September 2009, the dentist, Gelareh Rahbar, sued her former patient in San Francisco Superior Court, pleading claims of defamation and invasion of privacy based on the Yelp review.

The defendant ultimately moved to strike these claims under California’s anti-SLAPP (i.e., “Strategic Lawsuit Against Public Participation”) statute, which provides “a cause of action against a person arising from any act of that person in the furtherance of the person’s right of petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” See Cal. Civ. Proc. Code § 425.16. The San Francisco Superior court granted the motion and awarded Batoon $43,035 in attorney fees. Rahbar did not appeal this decision, but instead filed a second lawsuit in August 2010 based on Batoon’s 2008 Yelp review. Again, the defendant filed an anti-SLAPP motion, and the court ruled she was entitled to fees. The plaintiff appealed this decision, and in October 2012, the California Court of Appeal affirmed the trial court’s grant of the special motion to strike and award of attorneys fees to the defendant. See Rahbar v. Batoon, No. A132294 (Cal. Ct. App. Oct. 16, 2012). On January 3, 2013, during its weekly meeting, the California Supreme Court rejected, without comment, Rahbar’s request to challenge the award.

The advent of the Internet has created a new forum for customers to chronicle their purchasing experiences or express their feelings toward service providers, and, in many cases, companies may feel that former customers have been unfairly, or deceptively, critical of their goods or services. Nevertheless, companies should tread carefully when considering legal action against former customers or clients who post unfavorable reviews on the Internet, especially in states like California that have strong anti-SLAPP statutes. In this context, rushing into court can result in an embarrassing defeat, or worse, costly awards under a state’s anti-SLAPP statute.

Dr. Rahbar denies these allegations and contends that both reviewers are lying about her in retaliation because she sent their overdue accounts to collection agencies. Most of the other 41 patients who have reviewed Dr. Rahbar on Yelp give her good marks; her cumulative rating is four stars out of a possible five. But she says these criticisms were devastating.

“I’ve suffered tremendously emotionally because of this,” she told DrBicuspid.com. “I have nothing against online review sites, but I don’t agree with defamatory speech.” She said Yelp advertising representatives had approached her with an offer to prominently display a favorable review in exchange for a monthly fee, an offer that felt to her “like extortion.”

Source

Source

Two California Dentists Sue Posters Of Harsh Reviews

January 5, 2010

The Complex Legal And Marketing Challenges Dentists Face As They Navigate The New Frontiers Of Social Media

Dr Bicuspid

San Francisco dentist Gelareh Rahbar, D.D.S., is suing two patients for their harsh comments about her on the consumer review Web site Yelp.com.

One reviewer, Jennifer Batoon, accuses Dr. Rahbar of placing an oversize crown where only an inlay was needed. “She didn’t get the job done right,” wrote Batoon. “I’m forced to carry around these sad reminders of her shoddy work my whole life.”

A second reviewer, Stevonne R. (whose last name was identified by Dr. Rahbar’s attorney as Ratliff), writes that the “painful, costly deep tissue cleaning they talked me into was unnecessary and she was simply trying to get into my pockets.” “I’ve suffered tremendously emotionally because of this.”

The cases illustrate the complex legal and marketing challenges dentists face as they navigate the new frontiers of social media. Comments that might once have been aired briefly across backyard fences or around office water coolers are now publicly and indefinitely on display.

Dr. Rahbar denies the allegations and contends that both reviewers are lying about her in retaliation because she sent their overdue accounts to collection agencies. Most of the other 41 patients who have reviewed Dr. Rahbar on Yelp give her good marks; her cumulative rating is four stars out of a possible five. But she says these criticisms were devastating.  “I’ve suffered tremendously emotionally because of this,” she told DrBicuspid.com. “I have nothing against online review sites, but I don’t agree with defamatory speech.” She said Yelp advertising representatives had approached her with an offer to prominently display a favorable review in exchange for a monthly fee, an offer that felt to her “like extortion.”

Dr. Rahbar faces tough legal hurdles in her quest for vindication. Yelp is protected by the U.S. Communications Decency Act of 1996, which holds operators of Web sites harmless for statements posted on their sites by third parties. Yvonne Wong, D.D.S., a Foster City dentist, dropped her suit against Yelp last year after becoming aware of this law. Dr. Rahbar has not sued Yelp.com itself.

And in pursuing their reviewers, both dentists must overcome a second barrier. California and some other states have prohibited lawsuits aimed simply at harassing or intimidating people who want to exercise legitimate free speech. California’s laws governing strategic lawsuits against public participation (SLAPP) give judges the right to dismiss lawsuits that don’t seem likely to prevail on their merits.

A public interest law firm, the California Anti-SLAPP Project, is providing a pro-bono defense of both Batoon and Dr. Wong’s reviewers, Tai Jing and Jia Ma, arguing that their Yelp reviews are protected by the SLAPP law.

In the first round, the California Superior Court in Santa Clara ruled that Dr. Wong’s case should not be dismissed on SLAPP grounds, but Tai Jing and Jia Ma have appealed.

Even if Dr. Wong and Dr. Rahbar ultimately prevail on the SLAPP question, their battles could begin anew with the effort to prove that the reviewers’ comments meet the legal definition of defamation; they must show that the statements were false and that they were injured by them.

The California Superior Court in San Francisco has tentatively upheld Batoon’s SLAPP defense, but Dr. Rahbar’s attorney, Eric Nordskog of San Francisco, is asking for reconsideration on procedural grounds.

Nordskog said Ratliff has not responded to the complaint, so he expects a judgment against her. On Yelp, Stevonne R. claims to have paid her bill in full and accuses Dr. Rahbar of sending her account to a collections agency in retaliation for her negative review.

DrBicuspid.com could not reach either Batoon or Ratliff for comment. In a statement filed with the court by Batoon on her own behalf, she argued that her online review was truthful. “Defendant will need to obtain additional dentistry work in order to correct work done by Plaintiff on a simple filling,” she wrote.

Regardless of the legal outcome, the cases highlight the frustration dentists and business owners sometimes feel when faced with online reviews. Like Dr. Rahbar, many have complained that Yelp seems to be asking them for money to influence the way reviews are displayed.

“Anyone can log on anonymously and say stuff that’s totally not true,” said Dr. Rahbar. Yelp has become so popular in its headquarter city, San Francisco, and other big cities that dentists can’t ignore it, she said. Dr. Rahbar herself paid Yelp $200 a month in 2004 and 2005 for online advertising. She canceled because she was unhappy with reviews she considered defamatory, and after that, her Yelp reviews got even worse, she said. In addition, positive reviews of her disappeared from the site and negative ones became more prominent, she said.

Late last year, she yielded to the solicitation from the site’s ad sales team and is now paying $500 a month. The principle advantage she gains is the right to choose a review that is displayed at the top of the results when someone searches under her name on Yelp, said Dr. Rahbar. She explains that this is important because the first few lines of this review typically appear in Google searches under her name.

Contacted by DrBicuspid.com, Yelp spokesperson Stephanie Ichinose acknowledged that advertisers can select a review that appears at the top of their search page. But she noted that the review is identified as “One of the Business’ Favorite Reviews” and that the statement “This business is a Yelp sponsor” appears on the review. Other than selecting this one review, businesses can’t influence the order of reviews or which ones disappear from the site, no matter how much they pay, she said.

So what does influence the display of reviews? The order is affected by how recently the review is posted and by the votes of users (users can indicate whether a review is “useful,” “funny,” or “cool”). But the order of reviews is also affected by “a variety of other factors,” said Ichinose. “We don’t disclose the specifics because then it starts to open up the gates to how to game the system.”

Business owners sometimes solicit favorable reviews or even hire people to write them, according to Yelp CEO Jeremy Stoppelman. In fact, in her review of Dr. Rahbar, Batoon accuses her of posting “dummy” positive reviews of her own practice.

For the same reasons, Yelp also won’t disclose the factors that determine what reviews it deletes from the page associated with a business. It is possible for users and business owners to report reviews that don’t meet the site’s guidelines, such as reviews by people with conflicts of interest or personal attacks. But other factors also play a role. “The algorithm is looking for patterns of abuse,” said Ichinose. “I can’t say very much more.”

She said the site does not attempt to verify the accuracy of the millions of reviews posted. She also noted that “we’re not a site that’s about anonymous reviews” because you can look at the profiles of reviewers to see how often they have posted and what other reviews they’ve written, getting a sense of their tastes and personality. “The more you use it, the more you appreciate the community.”

So what should dentists and other business owners do if they feel they’ve been libeled? They can contact the reviewers privately though Yelp. Yelp advises a conciliatory “let-me-see-how-I-can-fix-it” letter that might coax the reviewer to update to a more positive review.

Dentists can also opt to respond publicly (as Dr. Rahbar has to some of her critics) in an attempt to set the record straight, or to file a lawsuit, which even Nordskog warns is an expensive option, unlikely to produce a financial payoff. (He suggests that small claims court might be more cost-effective, especially in localities where mediation services are offered.) Or they can pay to get their favorite review at the top of the order.

SOURCE

ACP INTERNIST: “Physicians Who Sue Patients Don’t Get What They Want”

MAY 2, 2011

“Physicians Who Sue Patients Don’t Get What They Want”

ACP Internist

A physician claiming he was defamed online by a former patient’s son lost his court case after the judge dismissed the suit. The case illustrates the perils of suing when a patient criticizes a physician online.

The judge in the case said that the patient’s son expressed emotional responses to his father’s care on the Internet, but that’s allowed in society. And, the judge wrote, expressing it on the Internet doesn’t make the opinions more defamatory.

Patient feedback via the Internet can be negative, anonymous, and even unfair, and physicians often sue to protect carefully cultivated professional reputations. For example, plastic surgeon Kimberly Henry, MD, is pursuing by their online aliases 12 defendants who posted critical comments. That case is ongoing.

The case in Minnesota was against one known defendant, the son of a patient who alleged that neurosurgeon (sic) David McKee, MD, became upset in consulting with the family about the patient’s condition, and that McKee didn’t treat the patient with dignity.

The lawsuit alleged that the son complained to 19 medical and professional societies, government agencies at all levels, the hospital and to other physicians (as well as posted Internet comments using several aliases).

The neurologist told the Duluth News Tribune that, “I’ll make the observation that every one of those organizations that was required to make an official decision or take an official action either determined that the statement that he made was so ludicrous that it required no response from me at all or decided that his complaint had no merit.”

But the judge decided that physician’s complaints didn’t merit a jury’s consideration.

“In modern society, there needs to be some give and take, some ability for parties to air their differences,” the judge wrote. “Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory.”

The outcomes for physicians who sue patients for online reviews can be mixed, at best. California dentist Gelareh Rahbar, DDS, sued a former patient who described a procedure as “mouth torture.” But a judge tossed the suit under the state’s anti-SLAPP law, which stands for Strategic Lawsuit Against Public Participation–any attempt to use the courts to squelch allowed free speech. The dentist had to pay $43,000 for his patient’s legal fees.

SOURCE

Comments:

Anonymous said: The judge’s order has been publicly posted.

Ryan DuBosar said: In an update to this post, the physician involved has filed an appeal to the dismissal of his suit, claiming that the alleged defamation by his former patient’s son not only continued, but increased.

Reddit Reader said: The Minnesota Court Of Appeals has scheduled David McKee MD v Dennis Laurion for a hearing by a panel of three judges. The oral hearing will be November 10, 2011, at 10:00 AM in the Sixth District Court House of Duluth.

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case