Risk Management Reporter: What About Suing Patients?

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

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

 

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

“CALIFORNIA LAWYER: Online Libel Claims Abound”

JUNE 2009

“Online Libel Claims Abound”

June D. Bell, CALIFORNIA LAWYER

 Since its founding in 2005, Yelp.com—a website where consumers review everything from cappuccinos to car mechanics—has published more than 5 million write-ups of local merchants. But in the past twelve months its online reviews have also triggered at least three defamation lawsuits.

Positive reviews can attract new customers—but negative reviews may inspire the subjects to head to court. One suit, waged by a chiropractor who was poorly reviewed on Yelp, settled in mediation earlier this year, and a second suit, filed last year by a pediatric dentist, is pending on appeal. A third case, also involving a dentist, settled last year after a superior court judge in San Francisco, where Yelp is based, granted the defendant’s anti-SLAPP (Strategic Lawsuits Against Public Participation) motion. California attorneys, meanwhile, say they’re fielding an increasing number of calls from angry business owners seeking recourse.

“It shouldn’t come as a surprise, due to the sheer increase in popularity of these sites in the past year,” says Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation, a nonprofit civil liberties law firm in San Francisco that specializes in high-tech legal issues.

Suing the host sites for their user-generated content is, of course, fruitless: Section 230 of the federal Communications Decency Act (CDA) shields the sites from defamation suits as long as they didn’t create the objectionable materials.

The aggrieved parties, however, can and do go after the reviewers (known as posters) who publish their opinions online. Legally, posters have plenty of leeway – as long as they don’t cross the line into defamation, says Karl Kronenberger, a partner at San Francisco’s Kronenberger Burgoyne who represents businesses in such matters. And California’s anti-SLAPP law shields people who speak out on issues of public interest—a protection that broadly extends to consumer matters.

In addition to being difficult to prove and win, allegations of online defamation can also backfire: A stray negative posting may fade into obscurity, but a lawsuit over it can provoke exactly the kind of negative publicity that business owners are desperate to avoid, notes Mark Lemley, who teaches Internet law at Stanford Law School and is a partner at Durie Tangri Lemley Roberts & Kent in San Francisco.

This is a key reason many experts advise that, whenever possible, attorneys should help their clients settle such matters. In fact, Yelp is among the sites that try to mediate between merchants and consumers by hooking them up to smooth out their differences. And in April, Yelp followed sites such as Trip Advisor and eBay by letting merchants respond online to negative feedback.

In the meantime, the smartest strategy for merchants who’ve suffered a withering critique may be to rally patrons to post rave reviews. “The answer to negative speech, especially online, isn’t to try to silence people,” Zimmerman says, “but to encourage more speech.”

FULL ARTICLE

BRAVERMAN V. YELP

DENTISTS WHO SUE FOR DEFAMATION

Kimberly HENRY, MD

Jean LOFTUS, MD

Sagun TULI, MD

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

 

Dr. Jean Loftus’ Defamation Case Dismissed

MAY 23, 2014

“Plastic surgeon’s defamation case thrown out”

Lisa Hutson, FOX19, Covington, Kentucky

Catherine Nazari of Greendale, Ind. said she posted negative reviews of her plastic surgeon online after she suffered horrible scars and disfigurement from her procedures. That surgeon — Dr. Jean Loftus of Fort Wright — took her to court for those comments but the outcome was something neither one of them expected. “I had breast implants, breast lift, arm lift and a tummy tuck all in the same day,” said Nazari, 54.

Nazari said she underwent plastic surgery in 2006 to remedy loose skin caused by losing weight but what she woke up to was not what she expected. “My hands were numb. I had no feeling in my arms or my hands and she said it was due to the surgery, that it would come back in time but it never did,” she said. Unsightly scars and permanent nerve damage Nazari says are the results of that surgery. Soon after, she took to the Internet to warn others about her plastic surgeon. “I just wanted people to know. Be diligent. Do your research,” she said.

But Loftus has a different view. “I can’t stand by and let someone say absolutely false, disparaging, untrue statements, blatant defamatory accusations about me,” Loftus said. Loftus said the comments Nazari posted online about her practice were not negative reviews. They were lies. She said Nazari had a previous nerve condition that is causing her medical problems. Her incisions were not even deep enough to reach her nerves according to Loftus. That is when she decided to sue Nazari for defamation. “I did not file this suit to make money or to win an award. I filed this suit to bring out the truth,” Loftus said.

But a U.S. District Court judge in Covington did not agree and dismissed the doctor’s defamation claim and Nazari’s counterclaims citing under the 1st Amendment, Nazari had a right to her opinion.

Local defamation attorney Rob Linneman isn’t surprised. “This outcome is the outcome most constitutional scholars would have predicted. The consideration that is given to most 1st Amendment cases is what effect will it have on other people who would make comments if we punish this person for making this comment,” Linneman said.

Loftus disagrees. “It gives everybody the lead way to say whatever they want about anything they want and essentially hide behind the 1st Amendment,” Loftus said, noting she is most concerned about the precedent her case has set.

Though she is still unhappy with her procedures, Nazari is glad the legal fight is over. “My whole life has been disrupted because of all of this,” she said.

Nazari filed a medical malpractice suit against  Loftus but the case was thrown out. No medical expert could support her claims that the problems she is experiencing are a result of plastic surgery.

Source

Analysis of Loftus V. Nazari

June 19, 2014

“Plastic Surgery Practice investigates the real meaning behind Loftus v Nazari”

 William Payton and Alayna Zayas, Plastic Surgury Practice

“Horrible scars.” “Permanent nerve damage.” “Disfigured.” Patients have every right to describe your surgical results in such terms on Internet review sites. Or so it would appear, if a ruling handed down in federal court last month is deemed instructive to other courts. Loftus v Nazari (ED Ky, May 13, 2014) echoes numerous rulings against service providers who have filed libel suits against the authors of negative customer reviews posted online.

Loftus v Nazari is not the first such case to be lost by a surgeon, and it won’t be the last. It may be a hard pill for doctors to swallow, but it also highlights how important it is for doctors to familiarize themselves with the principles of defamation and liability, to avoid filing costly and wasteful lawsuits.

Richard M. Escoffery, an Atlanta-based attorney who helps his clients proactively manage online consumer reviews and address reputation attacks, believes the court conducted a fairly routine analysis to determine whether the statements at issue were defamatory or protected opinion. While not a watershed decision, he says, “What makes the case of interest is that these statements were made online, and the court recognized ‘[i]n the present Internet age’ that opinions made online have some social utility.”

In 2006, Jean Loftus, MD, a plastic surgeon with practices in Cincinnati and Fort Wright, Ky, performed an arm lift, abdominoplasty, breast augmentation with implants, and breast lift on Catherine Nazari. Unhappy with the results, Nazari posted negative reviews on three separate websites. Most notably, Nazari stated, “I had plastic surgery done by Dr Jean Loftus only to be left with permanent nerve damage in both arms, severe abdominal pain, horrible scars, and disfigurement in both breasts as a result of her mistakes.”

In response to Nazari’s posts, Dr Loftus filed a lawsuit for defamation and interference with future business prospects. Nazari filed counterclaims for defamation, invasion of privacy, malicious prosecution, and intentional infliction of emotional distress. The court dismissed all claims on summary judgment, meaning the court did not think there was enough evidence to warrant a trial for any of the claims.

The crux of the case is the defamation claim against Nazari. Defamation is an intentionally false statement which is publicly spoken (slander) or written (libel) that damages another person’s reputation. In general, to establish defamation, a plaintiff has to show: (1) there was a false statement; (2) the statement was communicated to a third party; (3) the statement was negligently or intentionally made without reason to believe it was true; and (4) the plaintiff’s reputation was harmed. Courts will assess the circumstances surrounding the statement and consider its effect upon the average reader or listener.

The court surmised, “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.”

” What is more, the court recognized that because the postings were made on ‘opinion websites,’ one would logically presume they were her opinion. “It’s an example of how application of the same law in the context of social media/the Internet can produce somewhat different results,” Escoffery explains.

Litigating a defamation claim is expensive, risky, and almost always a last resort. “Is it worth it to sue? Probably not,” says Joseph Niamtu III, DMD, a Virginia-based cosmetic facial surgeon who teaches fellow surgeons about managing their reputations online. “If you try to fight fire with fire, it will probably backfire.”

Escoffery agrees. Even if a physician prevails in a defamation case, “What’s the value of an uncollectable judgment? Winning a lawsuit might not be worth the cost if the defendant doesn’t have deep pockets,” he says.

Paradoxically, the publicity surrounding a defamation case may bring unwanted attention to the very information the physician sought to be suppressed. Lastly, potential plaintiffs should be aware of anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes. If applicable, the court might dismiss a physician’s claims and award attorney’s fees to the defendant.

“We might take from this case that some courts are less likely to find statements to be defamatory if they are made in this, rather than another, context,” Escoffery says. In today’s online environment, cosmetic surgeons have no choice but to prevent bad reviews, address them when they happen, and, if all else fails, accept them and move on.

William Payton and  Alayna Zayas are contributing writers for Plastic Surgery Practice magazine. They can be reached via PSPeditor@allied360.com.

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