BuzzFeed News: This Dentist Might Sue You For Posting A Negative Review

Yelp’s Warning: This Dentist Might Sue You For Posting A Negative Review 

Leticia Miranda 

BuzzFeed News 

July 25, 2016

After suffering through tooth pain for some time, Mary Rohs decided to see a dentist. Rohs, a New York resident, scheduled an appointment at Advanced NYC Endodontics with Dr. Nima Dayani on July 16, 2015, to treat the pain.

More than a year later, the fallout from that routine appointment — a negative Yelp review by Rohs, and a lawsuit by Dayani claiming the review was defamatory — continues. And today, Yelp itself got involved, placing a new “consumer alert” on Dr. Dayani’s Yelp page, warning that his business may be “issuing questionable legal threats against reviewers.”

“Consumers have the right to share their opinions about their experiences with businesses,” Yelp said in a blog post announcing the new alerts. “But there will always be a small handful of businesses who mistakenly think it’s a good idea to threaten consumers who exercise their free speech rights.”

Court records say Rohs showed up to Dayani’s office around 11 a.m., filled out intake forms, and was shown into an exam room about 20 minutes later, where she had additional X-rays taken of her mouth.

According to Dayani’s timeline of her visit, Rohs spent about two hours at the office. He argues that he was treating other patients while Rohs sat in the exam room, but he made sure to discuss her dental history in length and take additional X-rays to check out her complaints about cold sensitivity. “By the end of her visit, she had two concurrent definitive diagnoses,” said Dayani in an affidavit. “They were discussed with her and a plan of treatment was formulated.”

But in a Yelp review dated July 27, 2015, Rohs described a frustrating experience. She complained about the “absurdly long wait” at the end of which she said Dayani couldn’t come to some clear diagnosis. “Of the total TWO HOURS FIFTEEN MINUTES I was there, I think I was speaking to Dr. Dayani for about 30 minutes of that whole time,” she wrote. “The rest was spent in his chair, without being offered a water or a magazine.” To make matters worse, she adds, “he couldn’t help determine what was bothering me. I left with a mouth full of pain and a recommendation to see my dentist for a possible cavity.”

Dayani, who says he gets plenty of positive and negative feedback on Yelp and is comfortable with both, says the claims by Rohs weren’t simply a negative review. He alleges her comments amount to defamation, and he sued Rohs two days after the review was posted. It’s an accusation the dentist has levied against at least four previous patients who have written negative reviews about his practice, according to a BuzzFeed News review of court records.

Dayani said false negative reviews like Rohs’ have harmed his practice over time. He said he laid off one part-time staff member because of a drop in business. “[Rohs] accused me of malpractice by saying I didn’t diagnose her,” he said. “When you are publicly accusing someone of malpractice, you are damaging their reputation.”

Rohs declined to comment to BuzzFeed News because the lawsuit is ongoing.

It’s likely that Rohs, like millions of Yelp users, had no idea that a negative review could land her in court. But as online reviews become more critical to companies looking for new business, people have become increasingly vulnerable to such lawsuits, which can chill free speech, consumer advocates told BuzzFeed News.

“When you as a consumer share your honest opinion in some type of public way on Yelp or otherwise, it can mean negative reviews,” Yelp’s vice president of public policy, Luther Lowe, told BuzzFeed News. “Businesses, rather than responding diplomatically or using feedback to improve operations, go out and hire a lawyer wagering that the consumer who wrote this review is more likely to pull the review off than hire a defense attorney and defend themselves. By merely threatening, it doesn’t take going to court to bully the person in order for that business to censor the user.”

The consumer alert Yelp put on Dayani’s page Monday is the third time the company has placed such a warning, Yelp spokesperson Hannah Cheesman told BuzzFeed News.

The company placed its first legal alert on a Texas pet sitting business called Prestigious Pets in May. The pet sitting company sued a customer for violating the company’s nondisparagement, or “gag,” clause when she posted a negative review about the company’s care for her fish.

Superior Moving & Storage in Florida was hit with a legal alert on its page in June after it sued one of its previous customers for defamation. Both cases are ongoing.

Lowe said that businesses sometimes include so-called gag clauses into their terms of service contracts. When the contract is signed, the consumer gives up their ability to publicly criticize the company. Other companies include contract clauses that prohibit consumers from saying anything publicly at all about the company, while others, like Dr. Dayani, may allege defamation and libel in court based on the negative review.

Yelp’s rollout of the consumer alerts comes as Congress considers two bills designed to protect consumers from being sued for posting negative reviews online. California and Maryland are currently the only two states that prohibit the inclusion of gag clauses in contracts.

The “Right to Yelp Bill,” also called the Consumer Review Fairness Act, would ban gag clauses from business contracts, while the SPEAK FREE Act would allow consumers slapped with a lawsuit over an online review to dismiss the claims early on in court. But as the two bills, which have received bipartisan support, make their way through Congress, individual consumers are left to fend for themselves, with few legal precedents for such cases.

“We don’t have a lot of cases to point to so we don’t know how judges view them,” said Paul Levy, an attorney with Public Citizen and defense counsel in the Prestigious Pets case, told BuzzFeed News. “The question becomes did the person who signed the contract understand what they were giving away and did they understand they were giving away free speech? The second point is that it’s so unfair that it’s not able to be enforced.”

In two such cases, the suing companies never appeared in court to back up their claims. A Utah couple sued KlearGear in 2012, claiming they did not owe a debt for violating its terms of service by writing a negative review, but the company never appeared in court and couple received a default judgment including over $300,000 in damages. In 2014, a Wisconsin woman a lawsuit against Accessory Outlet after they demanded she pay $250 for violating its terms of sale. The company never appeared in court to defend its claims.

In one case, a dentist, who faced a class-action lawsuit by former patients who signed a gag clause to receive care, moved abroad before she could defend her breach of contract claims in court in 2012.

“The harms generally aren’t harms that are enforced in court,” Scott Michelman, a senior staff attorney with the American Civil Liberties Union who has previously defended consumers in four gag-clause cases, told BuzzFeed News. “Instead they are the harms of the consumers that are bullied by corporations in taking down critical reviews and also the harms of consumers who are chilled by these clauses from expressing their opinions.”

Yelp has found itself at the center of a similar lawsuit in California where a personal injury law firm sued a former client after she posted three reviews criticizing the company. Hassell Law Group accused Ava Bird of defamation after she refused to remove “factual inaccuracies and defamatory remarks” from Yelp reviews she posted in January, February, and April 2013. A lower court sided with the law firm in 2014 and required Bird to take down the comments. When she refused, the court held Yelp responsible for removing the comments. In June, an appeals court agreed that Yelp must remove the comments, but the company has yet to comply, arguing it is a third party in the case.

Dayani has sued at least four previous patients over online reviews, according to a BuzzFeed review of New York County Civil court records through 2012. He sued a patient in 2012 for defamation and $75,000 in damages for writing a negative review on Yelp. The man removed the review after he was slapped with the lawsuit. Neither the patient nor Dayani appeared in court and the case was dismissed.

In June 2013, Dayani sued another patient claiming $50,000 in damages after he posted a review on Yelp complaining that the dentist had overcharged him for a root canal. The patient and Dayani settled the claim in August 2013.

Dayani sued a Yelp reviewer in November 2012 who he said used a fake name to post a negative review about her experience where she called him “rude, callous, abhorrent.” Dayani claimed the review amounted to $25,000 in damages. The defendant, “Jane Doe,” never responded to his complaint.

In June 2015, Dayani sued a woman who wrote a Google review claiming that he suggested she should undergo two root canals during a visit. She said she sought out a second opinion from another dentist who gave her a cavity filling and replaced a crown, which treated her tooth pain. “I am so happy that I didn’t get treated in this place,” she wrote. “If I did, I would have paid more than three thousand dollars for the treatment that I didn’t need at all.” Dayani is seeking a total of $100,000 from the woman for damages, according to court records.

Dayani does have a number of good reviews online from people who have described him as “thorough and knowledgeable.” “After doing a lot of research I chose Dr. Dayani,” said one Yelp reviewer called Eva H. “I couldn’t be happier. He is gentle, thorough, and highly professional. His staff is excellent. He is the best and I felt as relaxed as I will ever be at a dental appointment.”

Dayani insists that he only goes after online reviewers who post false information. He offered BuzzFeed News the opportunity to visit his office and review records related to the cases where he has sued patients to prove their allegations are false. BuzzFeed News declined.

He said he has adjusted his practice and opened a larger office after reading a number of negative reviews, including an emergency patient who complained in a one-star Google review about a long wait time at his office. However, the review does not appear to be online anymore.

When asked if he believes the lawsuits escalate a situation that could be resolved through other means than litigation, he insisted that he believes in free speech but draws the line at falsehoods. “When somebody writes lies about you with intent to deliver a damage to you and livelihood, that is defamatory,” he said. “I’m not Halliburton. A lie can do tremendous damage and can come at the expense of doctors and staff.” “If there are people out there doing it out of spite and not willing to correct a known lie, let an impartial judge decide,” he added. “I’m encouraging anyone to write a comment they think is correct and justifiable.”

Dayani and Rohs are scheduled to appear in court on Nov. 30.

SOURCE

Dr. Nima Dayani

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Lawsuits By Doctor and Dentist Over Patients’ Reviews Dismissed

SEPTEMBER 29, 2012

“Lawsuits By Doctor and Dentist Over Patients’ Reviews Dismissed”

Eric P. Robinson, Blog Law Online

A doctor in New York and a dentist in Oregon have both found out that it may not be easy to sue for libel over online reviews of their services, after their separate lawsuits were both dismissed. And it turns out that most of the dentists and doctors who have sued over online reviews have reached similar results.

In the New York case, doctor Trilby J. Tener sued over a comment posted to the physician review website Vitals. The comment, posted April 12, 2009, stated that “Dr. Tener is a terrible doctor. She is mentally unstable and has poor skills. Stay far away!!!”

Dr. Tener discovered the comment when she did a Google search for herself on May 28, 2009. But she did not file suit until April 8, 2010, four days before the expiration of the one-year statute of limitations (running from the day when the statement was initially posted). She then attempted to amend the complaint on June 8, 2010 to change the named defendant, claiming that it took that long to determine who was responsible for the posting.

Discovery in that case lead to an appellate decision, after Dr. Tener’s efforts to obtain electronically-stored records from a hospital, in an attempt to identify the poster. The records were deleted through normal business operation. Calling it “our first opportunity” to address the issue, the appellate court noted that “[electronically stored information] is difficult to destroy permanently. Deletion usually only makes the data more difficult to access,” and held that  against non-parties must utilize a cost-benefit analysis weighing the cost of retrieving the information against the value of the sought-for information. See Tener v. Cremer, 89 A.D.3d 75, 931 N.Y.S.2d 552 (N.Y. App. Div., 1st Dept. 2011).

That ruling raised the ire of the trial court because the “trial record” before the appellate court differed from that record that had been before the trial court when it made its initial decision in the discovery dispute. The problem turned out to be a clerical error in the trial court when the case was passed from one judge to another, that Dr. Tener’s attorney did not correct.

Ruling on a defense motion to dismiss after the appellate decision, the trial court chided the plaintiff and her attorney for appealing rather than attempting to correct the record, and for not being diligent about identifying the proper defendant prior to filing suit. The court then proceeded to dismiss the suit on statute of limitations grounds, and also wrote that “even if this action was found to be timely, dismissal is warranted for failure to state a cause of action, as the alleged defamatory statements are statements of opinion, and, thus, are not actionable.”  Tener v. Cremer, 2012 NY Slip Op 32022(U) (N.Y. Sup. Ct., N.Y. County July 16, 2012).

Meanwhile, an Oregon court dismissed a lawsuit by a Lake Oswego, Oregon dentist over reviews that a former patient posted on Yelp.com, DoctorOogle.com and Google. Circuit Court Judge Judith Matarazzo dismissed the lawsuit under the state’s anti-SLAPP law on Sept. 5.

Such statutes, adopted in 28 states, the District of Columbia, and one U.S. territory (and by common law in two more states), allow for easy dismissal of libel and similar lawsuits that are primarily aimed at limiting discussion of public issues. (See the DMLP Legal Guide for more on anti-SLAPP laws.)

These cases stand as data points showing growing trend. According to this list of lawsuits (pdf) brought by doctors and dentists over online reviews of their services compiled by Eric Goldman of Santa Clara School of Law, physicians have not been very successful in such suits. Several suits have been dismissed under anti-SLAPP statutes. See Gilbert v. Sykes, 53 Cal. Rptr. 3d 752 (Cal. App. Ct. 2007); Kim v. IAC/InterActive Corp., 2008 WL 3906427 (Cal. App. Ct. 2008); Wong v. Jing, 189 Cal. App. 4th 1354 (Cal. App. Ct. 2010); Rahbar v. Batoon, No. CGC-09-492145 (Cal. Super., San Francisco filed Sept. 2, 2009), No. CGC-10-502884 (Cal. Super., San Francisco filed August 20, 2010), and No. CGC-11-515742 (Cal. Super., San Francisco filed Sept. 8, 2011). (In one case, the court declined to dismiss a doctor’s lawsuit under Maine’s anti-SLAPP law, finding that the plaintiff was likely to be able to prove that the patient fabricated the story posted on the review site. See Lynch v. Christie, 2011 WL 3920154 (D. Me. Sept. 7, 2011), appeal dismissed, No. 11-2172 (1st Cir. 2011).)

Others have been dismissed under section 230 of the Commmunications Decency Act. Other cases were withdrawn, and some settled.

None of the cases actually ended with court awards to the doctors.

SOURCE

Doctor Lawsuits

Dentist Mo Saleh

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