January 8, 2015
“Another Failed Doctor Lawsuit Against A Patient For Online Reviews–Brandner v. Molonguet”
Eric Goldman, Technology And Marketing Law Blog
This is another lawsuit by a doctor over a patient’s negative online reviews. Dr. Brandner is an oral surgeon in Louisiana. In 2005, he treated Molonguet. Molonguet protested Brandner’s fees, but a court ruled for Brandner. In response to that court loss, Molonguet allegedly began an aggressive harassment campaign against Brandner as well as a patient who wrote a positive review of Brandner.
Brandner sued Molonguet in 2013. For purposes of Molonguet’s motion to dismiss, the court assumed the following allegations were true: “Molonguet posted on the internet false statements about Dr. Brandner’s treatment of him…Molonguet posted the false statements with the sole intent of harming Dr. Brandner; and as a result of Molonguet’s actions, Dr. Brandner’s reputation has been harmed.”
On appeal, Molonguet won several helpful points on his motion to dismiss, including a good application of the statute of limitations for defamation and harassment. However, his biggest win came via Louisiana’s pretty broad anti-SLAPP law. Molonguet had allegedly said the following online:
Dr. Brandner had cut or nipped a nerve in his mouth; statements indicating his belief that Dr. Brandner had billed Molonguet for services he never received; and suggestions to others that they check the CPT codes under which Dr. Brandner billed for services.
Without a lot of discussion, the court says these statements relate to a matter of public concern. (In contrast, my 2011 analysis of consumers reviews as a matter of public concern was more mixed). Thus, the burden shifted to Brandner to make his case, but Molonguet prepared the case well. He provided good support for the nerve nipping; and he had two independents review of the medical bills that gave him sufficient grounds for his assertions to overcome allegations of defamatory malice. Thus, Brandner’s case couldn’t survive the anti-SLAPP heightened pleading requirements. Due to Brandner’s anti-SLAPP loss, I believe Brandner will have to pay Molonguet’s attorneys’ fees. This ruling is a great illustration of the power of anti-SLAPP laws and how they can provide extra breathing room for free speech.
I’ve been tracking doctor vs. patient lawsuits over online reviews for a while, and the numbers are clear: doctors rarely win. Yet the cases keep coming, so I guess the optimism bias remains strong among doctors.