MEDIA POST: Dentist Yvonne Wong Must Pay Legal Fees Of Lawsuit Defendant

MAY 17, 2011

“Dentist Who Sued Yelp Must Pay Legal Fees”

By Wendy Davis, MEDIA POST

A dentist who sued Yelp and two reviewers for a negative post has herself been ordered to pay almost $81,000 under a California law that protects people’s right to discuss matters of public interest.

The ruling, issued last week by Santa Clara Superior Court Judge Peter Kirwan, directs dentist Yvonne Wong to pay attorneys’ fees and legal costs to Yelp, as well as Tai Jing and Jia Ma, parents of a 6-year-old patient of Wong’s.

The case dates to January of 2009, when Wong sued Yelp as well as Tai Jing, and his wife, Jia Ma, about a bad review on the site. Wong alleged that the couple wrote that their son was left lightheaded from laughing gas administered by Wong, and that he received a filling containing mercury.

Wong said those statements libeled her and caused her emotional distress; she argued that the post implied that she had not informed Jing and his wife ahead of time that the filling would contain mercury.

A California appellate court ruled last year that Yelp was entitled to dismissal under the state’s anti-SLAPP (strategic lawsuit against public participation) statute, because the post furthered discussion on issues of public interest. The court wrote that the review concerned the controversy surrounding mercury in dental fillings, and therefore was subject to the anti-SLAPP law.

Yelp was probably also immune from liability under the federal Communications Decency Act, which says that sites are not legally responsible for defamation by users. But that law, unlike California’s anti-SLAPP statute, does not provide for defendants to recover legal fees.

Ma also convinced the California appellate court that she was entitled to dismissal of all claims under the anti-SLAPP law, given that Wong presented no evidence showing that Ma authored the post.

As for Jing, the court ruled that Wong’s claims of emotional distress should be dismissed under the state’s anti-SLAPP law because Wong did not allege that her emotional upset caused by the review was severe or long-lasting. But the appeals court allowed Wong’s libel claim against Jing to proceed to trial. That count is still pending.

Nonetheless, the appellate ruling in favor of Yelp and Ma on all claims, and on Jing for the emotional distress claim, set the stage for all three to argue that Wong owed them attorneys’ fees. California’s anti-SLAPP law says that a person who brings a suit that violates the law must pay the defendant’s legal bills.

Yelp and the parents said they had incurred legal bills of  $113,620, but Kirwan knocked the fee award down to $80,714.

The California law is aimed at discouraging people from filing lawsuits that could discourage others from speaking about controversial matters. But California Anti-SLAPP Project attorney Paul Clifford, who represents Yelp and the parents, says that people continue to bring questionable cases stemming from online reviews despite the law. “Some people don’t get the message,” he says. “We still get people calling us regularly involving Yelp reviews.”

Clifford says that his organization has represented Yelp in at least four lawsuits. At least two others — also brought by dentists — have resulted in anti-SLAPP dismissals and orders requiring the dentists to pay attorneys’ fees, he says.

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DOCTOR BASE: “What Not To Do With A Negative Review Part II”

MAY 23, 2011

“What Not To Do With A Negative Review Part II”

Mike Haverhals, DOCTOR BASE

Last year we told you about a dentist, Dr. Yvonne Wong, who filed a lawsuit against both Yelp & her own patient over the negative review the patient posted online. This week, we almost titled this post “We should start charging $80k for access to the DoctorBase blog.” Don’t worry, we’d never charge anyone for access to the truth. But, here’s why we’d even make such a statement:

  • As far back as 2009, we explained how a lawsuit against Yelp would be fruitless since they were only the provider (and not the publisher) which gives them immunity under the Communications Decency Act. Accordingly, the judge dismissed Dr. Wong’s lawsuit against Yelp.
  • We again explained how anti-SLAPP protections give patients rights against being sued for leaving online reviews. Accordingly, the judge dismissed Dr. Wong’s lawsuit against her own patients.
  • In the same post, we also touched on the Streisand-effect, where attempting to stifle free speech online can backfire horribly in the form of a whole lot of bad press. Try typing “dentist yvonne wong” into Google and you’ll find Google Instant suggesting “dentist yvonne wong yelp” – which returns a page of search results about the doctor’s lawsuit against her own patients.

Well, it got even worse for Dr. Wong. The judge ruled that, because the lawsuits had no legal standing, Dr. Wong would have to cover the legal fees of the defendants named in her lawsuits. That’s right, in addition to having the lawsuits dismissed & her own legal fees, she now has to pay an additional $80,714.

Let’s recap: Don’t sue your patients!!!

Instead of getting litigious over an occasional negative review, get proactive with your positive reviews. With the time Dr. Wong spent on fruitless lawsuits, she could have amassed enough positive reviews from her happy patients to never have to worry about another negative review again.

FULL ARTICLE

DOCTOR BASE: “What Not To Do With A Negative Review”

Doctor David McKee

SEPTEMBER 6, 2010

“What Not To Do With A Negative Review”

Mike Haverhals, DOCTOR BASE

We get a lot of questions about what to do about the dreaded negative review if-and-when it rears its ugly head. Obviously, the first thing you should do is contact the patient privately to resolve the issue. More often than not, these issues can be easily resolved when the doctor takes the time to listen to the patient’s concerns. In the event that you can’t resolve the problem at hand, the next thing to do is even simpler – do nothing. The truth is, a negative isn’t the worst thing ever – unless you make it the worst thing ever.

You could reply publicly to the review, dragging yourself down into a online mud-slinging contest & potentially violating HIPAA laws by disclosing the patient’s Protected Health Information in an attempt to defend yourself.

You can always threaten to sue the review site, incurring a massive legal bill for nothing since review sites are only ‘content providers’ and not legally responsible for what users post.

You could also threaten to sue the reviewer, again incurring a massive legal bill for nothing since the lawsuit will be thrown out under the anti-SLAPP law. (The law barring any “Strategic Lawsuit Against Public Participation.)

Unfortunately, all of these approaches will also serve to do you more harm than good. It’s something we online geeks refer to as the “Streisand Effect.” When Streisand took legal action to force the removal of online images of her beachfront property from a website documenting the California Coastline, what resulted was even more publicity around the images, along with negative publicity around Streisand’s attempt to censor the photographer. (Which failed, as the lawsuit was thrown out under anti-SLAPP laws.) Don’t fall into the same trap.

Simply let it go. Instead, focus on getting more positive reviews online to drastically outweigh the occasional negative one. Like we always tell doctors – people don’t expect perfection, they do expect honesty. When potential patients find out you’re trying to muzzle your exiting patients, they’ll go elsewhere looking for an honest doctor. One who’s confident enough in their own abilities not to be concerned with covering up a negative review.

FULL ARTICLE

David McKee, MD, v. Dennis K. Laurion

Yvonne Wong, DDS, v. Tai Jing

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

Wong V. Jing Reversed By Sixth Appellate District

NOVEMBER 9, 2010

“Wong V. Jing”

THE RECORDER

 The Sixth Appellate District reversed an order and remanded. The court held that a dentist’s declaration regarding her treatment of a young patient demonstrated a probability of success in her libel action based on a derogatory website Yelp review posted by the patient’s father; the trial court nonetheless erred in failing to grant a special motion to strike as to the patient’s mother, whose declaration showed that she had no part in posting the review.

Pediatric dentist Yvonne Wong treated the young son of Tai Jing and Jia Ma. Jing posted a negative review of Wong on the website Yelp. When Wong was unable to get the negative review removed from the site, she sued Jing, Ma, and Yelp for libel per se and intentional and negligent infliction of emotional distress.

Jing, Ma and Yelp filed a special motion to strike the complaint under the anti-SLAPP statute.

In response, Wong declared that she had advised and treated the couple’s son properly. In particular, in response to Jing’s allegation in the review that she used mercury fillings without advising Jing and Ma of the danger, Wong declared that she had provided Ma with detailed written fact sheets concerning the filling materials available and had obtained Ma’s written consent to use mercury fillings. In response to Jing’s allegation that Wong had “rushed” her treatment of the child and, to that end, had used a harmful general anesthetic, Wong declared that she had used nitrous oxide because the child was afraid of needles. Further, she declared that such use of nitrous oxide was approved by the American Dental Association. Finally, in response to Jing’s allegation that she misdiagnosed the boy by failing to discover numerous cavities, Wong declared that, at the time of the boy’s final appointment, she had recommended that the family return so that she could take further x-rays. They failed to do so.

In reply, Jing declared that he posted the review without consulting Ma and without her knowledge. Ma declared that she did not learn of the review until long after it was posted.

Before hearing on the defendants’ motion, Wong voluntarily dismissed Yelp from the lawsuit.

The trial court denied the motion to strike, finding that although the defendants had shown that Wong’s lawsuit arose from protected speech, Wong had succeeded in showing a probability of success on the merits.

The court of appeal reversed and remanded, holding that the trial court erred in part in denying the motion to strike.

The court agreed with the trial court that Wong demonstrated a probability of success on the merits with regard to her cause of action for libel. Given Wong’s evidence, a jury could reasonably find that Jing’s review falsely implied she had failed to warn and advise the family regarding filling materials, had misdiagnosed the child, and had exposed him to harm through her use of a general anesthetic, and that such implication was defamatory. Further, the defendants’ showing did not conclusively negate or preclude such findings. The trial court thus properly denied the special motion to strike the cause of action for libel.

The court reached a different conclusion, however, with regard to Wong’s causes of action for intentional and negligent infliction of emotional distress. She declared only that the Yelp posting had caused her “to lose sleep, have stomach upset and generalized anxiety.” Such an emotional reaction to being professionally criticized in a Yelp review, however unjustified or defamatory that criticism might have been, did not constitute the sort of severe emotional distress of such lasting and enduring quality that no reasonable person should be expected to endure. Wong thus failed to make a prima facie showing of probable success on her cause of action for intentional or negligent infliction of emotional distress because the evidence of her response to the posting, if believed, did not constitute “severe” or “serious” emotional distress.

Further, as to Ma, the defendants’ declarations showed that Ma had no part in the Yelp posting, and Wong did not refute this showing. Accordingly, the special motion to strike should have been granted as to Ma with regard to all three causes of action.

Finally, the court held that Yelp had the right to appeal the trial court’s ruling, despite having been dismissed from the lawsuit. Jing, Ma, and Yelp filed a joint anti-SLAPP motion. Although Wong dismissed Yelp before the hearing on the motion, Yelp remained a party to the motion because it would have been entitled to fees had the defendants prevailed. Thus, as a party to the motion, Yelp was entitled to appeal from the order denying the motion and seek reversal in order to pursue attorney fees.

FULL ARTICLE