Risk Management Reporter: What About Suing Patients?

Standard

August 2015

“What About Suing Patients?”

Risk Management Reporter Volume 34, Number 4, Page 6

Lawsuits against patients, usually related to comments on online ratings and reviews websites, have met with varying results across jurisdictions nationwide. Before considering such a step, providers and their legal counsel should carefully consider cases in their state, such as the ones presented below, to determine if the facts of their case would support a cause of action recognized in the jurisdiction and would be likely to succeed.

Even if legal counsel believes that a potential suit has merit, physicians should consult with risk managers and other advisers regarding the public relations implications of such an effort. Providers may ultimately decide that a lawsuit would draw more attention to a negative review or video posted online than it would garner on its own and could perpetuate a reputation of the provider as “the doctor who sued her patient.” Possibly worse, the plaintiff may respond with a malpractice lawsuit.

Arizona: $12 Million Verdict Overturned

In a case initially decided in 2011, a pair of plastic surgeons sued a former patient for defamation and won a $12 million verdict. In the case, the patient suffered an infection after she received care from the surgeons.

She started a website dedicated to criticizing the two surgeons and questioned their credentials. The surgeons sued her in 2008, and the patient complied with a restraining order to delete the site. At the same time, she launched an extended online campaign criticizing the surgeons on various other websites, lodging professional board complaints, and attending public meetings, all with the intent of hurting the surgeons’ practice.

In suing the patient, the surgeons stated that her online comments and activities had their desired effect, causing such revenue loss as to effectively close their practice.

A jury awarded $11 million in actual damages and $1 million in punitive damages.

An Arizona court of appeals overturned the decision in 2015, writing that the award “shocks the conscience of this court” and finding that the plaintiffs offered insufficient evidence to justify such a large award. Although the appeals court nullified the amount of the award, the court agreed with the trial court that the clinicians were not entitled to summary judgment. The court ordered a new jury trial to determine whether the patient’s statements were actionable opinions or exaggerations that defamed the providers.

Desert Palm Surgical Group v. Petta, No. 1 CA-CV 13-0376 (Ariz. Ct. App. Jan 15, 2015).

Minnesota: Online Posts Not Defamatory

In a case decided in early 2013, the Minnesota Supreme Court declined to compel a patient’s son to remove online posts he had made criticizing a neurologist. The case arose from the neurologist’s examination of a patient in a hospital’s intensive care unit. Prior to the examination, the neurologist had never been involved in the patient’s care and had never met him.

After the exam, during which the patient’s family felt the neurologist’s behavior was “rude and insensitive,” the patient’s son posted on online physician ratings websites that the neurologist was “a real tool” who made insensitive comments about his father’s prognosis and was unsympathetic to concerns about his hospital gown being closed when asking him to get out of bed.

The neurologist sued the patient, claiming that 11 of the statements were defamatory. A trial court dismissed the claims, and the state supreme court upheld the dismissal, noting that many of the alleged statements were truthful and that the remaining statements were pure opinion and could not be considered defamatory under state law.

McKee v. Laurion, No. A11-1154 (Minn. Jan. 30, 2013).

Kentucky: No Evidence Posts Were Knowingly False

In a third case, the U.S. District Court for the Eastern District of Kentucky ruled that a physician could not pursue claims of defamation and tortious interference of business against a patient who posted several negative comments online.

The patient used online review sites to complain about poor results and a series of botched procedures.

The court dismissed the physician’s claims of defamation because it determined the patient’s statements to be protected opinions. Under Kentucky law, opinions may be considered defamatory only if they imply allegations of “undisclosed defamatory facts as the basis for the opinion,” the court said. All of the patient’s comments were found to be protected because they did not imply the existence of any undisclosed facts and were therefore not defamatory.

Because the statements were determined not to be defamatory, the court also dismissed the physician’s claim of tortious interference with business relations. Kentucky law requires proof of fraudulent representation, and the court said there was no evidence that the posts were knowingly false.

 Loftus v. Nazari, Civil Action No. 10-279 (WOB-JGW) (E.D. Ky. May 13, 2013).

See More:

Desert Palm Surgical Group v. Petta

McKee v. Laurion

Loftus v. Nazari

Another Service Provider Loses A Libel Lawsuit Against A Client

Standard

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