January 5, 2010
“The Complex Legal And Marketing Challenges Dentists Face As They Navigate The New Frontiers Of Social Medicine”
San Francisco dentist Gelareh Rahbar, D.D.S., is suing two patients for their harsh comments about her on the consumer review Web site Yelp.com.
One reviewer, Jennifer Batoon, accuses Dr. Rahbar of placing an oversize crown where only an inlay was needed. “She didn’t get the job done right,” wrote Batoon. “I’m forced to carry around these sad reminders of her shoddy work my whole life.”
A second reviewer, Stevonne R. (whose last name was identified by Dr. Rahbar’s attorney as Ratliff), writes that the “painful, costly deep tissue cleaning they talked me into was unnecessary and she was simply trying to get into my pockets.” “I’ve suffered tremendously emotionally because of this.”
Dr. Rahbar faces tough legal hurdles in her quest for vindication. Yelp is protected by the U.S. Communications Decency Act of 1996, which holds operators of Web sites harmless for statements posted on their sites by third parties. Yvonne Wong, D.D.S., a Foster City dentist, dropped her suit against Yelp last year after becoming aware of this law. Dr. Rahbar has not sued Yelp.com itself.
And in pursuing their reviewers, both dentists must overcome a second barrier. California and some other states have prohibited lawsuits aimed simply at harassing or intimidating people who want to exercise legitimate free speech. California’s laws governing strategic lawsuits against public participation (SLAPP) give judges the right to dismiss lawsuits that don’t seem likely to prevail on their merits.
A public interest law firm, the California Anti-SLAPP Project, is providing a pro-bono defense of both Batoon and Dr. Wong’s reviewers, Tai Jing and Jia Ma, arguing that their Yelp reviews are protected by the SLAPP law.
Even if Dr. Wong and Dr. Rahbar ultimately prevail on the SLAPP question, their battles could begin anew with the effort to prove that the reviewers’ comments meet the legal definition of defamation; they must show that the statements were false and that they were injured by them.
NOVEMBER 9, 2010
“Wong V. Jing”
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.
MAY 2, 2011
“Physicians who sue patients don’t get what they want”
A physician claiming he was defamed online by a former patient’s son lost his court case after the judge dismissed the suit. The case illustrates the perils of suing when a patient criticizes a physician online. The case in Minnesota was against one known defendant, the son of a patient who alleged that neurosurgeon David McKee, MD, became upset in consulting with the family about the patient’s condition, and that Dr. McKee didn’t treat the patient with dignity.
Patient feedback via the Internet can be negative, anonymous, and even unfair, and physicians often sue to protect carefully cultivated professional reputations. For example, plastic surgeon Kimberly Henry, MD, is pursuing by their online aliases 12 defendants who posted critical comments. That case is ongoing.
The outcomes for physicians who sue patients for online reviews can be mixed, at best. California dentist Gelareh Rahbar, DDS, sued a former patient who described a procedure as “mouth torture.” But a judge tossed the suit under the state’s anti-SLAPP law, which stands for Strategic Lawsuit Against Public Participation–any attempt to use the courts to squelch allowed free speech. The dentist had to pay $43,000 for his patient’s legal fees.
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.
MAY 19, 2001
“Judge Tosses Suit Over Bad Review Of Doctor’s Work”
ON POINT NEWS
A Minnesota judge has boosted free-speech protections for online commentary by finding a neurologist cannot sue a patient’s son over criticisms of his bedside manner that allegedly damaged his professional reputation.
Dennis Laurion posted comments on doctor rating websites in which he vented about how Dr. David McKee of Duluth, Minn., treated his father while performing a neurological examination on him. Kenneth Laurion, 84, was recovering from a stroke at a hospital. At one point in the examination, Dennis Laurion wrote, McKee said “it doesn’t matter” when someone mentioned that the patient’s gown had come open, exposing his backside.
Courts in California have allowed similar defamation cases to proceed, ruling that free-speech protections only apply to online criticism of medical professionals that “goes beyond a particular interaction between the parties and implicates matters of public concern that can affect many people.” Wong v. Jing, 189 Cal.App.4th 1354 (2010).
But St. Louis County District Court Judge Eric L. Hylden took a refreshingly direct approach in summarily dismissing McKee’s defamation lawsuit. “Taken as a whole, the statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by his physician,” he said in a recent decision. He also suggested that Internet postings are as deserving of protection as other forms of speech: In modern society, there needs to be some give and take, some ability for parties to air their differences. Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this kind any more or less defamatory.
In the Wong case, a patient told Yelp readers that they should avoid pediatric dentist Dr. Yvonne Wong “like a disease.” Admittedly, the criticisms of Wong were more harshly-worded than those of Dr. McKee. But courts should follow Hylden’s sensible lead and protect the online expression of opinion about medical professionals.
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.
JANUARY 16, 2013
“Defamation Cases Illustrate Dangers Of Suing Over Critical Internet Reviews”
Arent Fox, Lexology
In Rahbar v. Batoon, the California Supreme Court declined to revive a dentist’s lawsuit against a patient who had posted a negative online review on Yelp.com. See No. S206889 (Cal. Jan. 3, 2013). The patient, Jennifer Batoon, posted her critical review in August 2008, writing “DON’T GO HERE. MOST PAINFUL DENTIST EVER.” and voicing her displeasure with her dentist’s treatment choices, billing practices, and communication skills. In September 2009, the dentist, Gelareh Rahbar, sued her former patient in San Francisco Superior Court, pleading claims of defamation and invasion of privacy based on the Yelp review.
The defendant ultimately moved to strike these claims under California’s anti-SLAPP (i.e., “Strategic Lawsuit Against Public Participation”) statute, which provides “a cause of action against a person arising from any act of that person in the furtherance of the person’s right of petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” See Cal. Civ. Proc. Code § 425.16. The San Francisco Superior court granted the motion and awarded Batoon $43,035 in attorney fees. Rahbar did not appeal this decision, but instead filed a second lawsuit in August 2010 based on Batoon’s 2008 Yelp review. Again, the defendant filed an anti-SLAPP motion, and the court ruled she was entitled to fees. The plaintiff appealed this decision, and in October 2012, the California Court of Appeal affirmed the trial court’s grant of the special motion to strike and award of attorneys fees to the defendant. See Rahbar v. Batoon, No. A132294 (Cal. Ct. App. Oct. 16, 2012). On January 3, 2013, during its weekly meeting, the California Supreme Court rejected, without comment, Rahbar’s request to challenge the award.
AUGUST 22, 2013
“The Perils Of Fighting Negative Online Reviews In The Courts”
Case Study: Yvonne Wong, DDS
Dr. Larry Emmott, DDS, EMMOTT ON TECHNOLOGY
Online user reviews have become incredibly powerful. Unfortunately the system as it now stands is deeply flawed, ripe for abuse, inherently corrupt. Professionals, especially dentists, are prime targets with virtually no legal protection. As a dental professional your reputation is golden, it is a large part of the value of your practice. Anything that damages that reputation can have significant financial, professional and even legal consequences.
In the past if you had an unhappy patient, and even good dentists will have unhappy patients, he or she might complain to one person at work or a neighbor. At most a handful of people would hear the rant. Today if they post on Google or Yelp, hundreds of people will see it including every potential new patient who Googles your office to find the phone number and address.
If you are the victim of a false or malicious review can you seek a legal remedy? So far the answer is no, the courts both the legal courts and the court of public opinion have clearly come down on the side of the reviewer and against the dentist. Attempts by dentists to protect themselves with legal intervention have led to disaster.
As reported in the ADA News and elsewhere in 2009 Dr. Yvonne Wong a pediatric dentist filed a defamation lawsuit against a patient’s parents and Yelp. In her opinion the Yelp review was false and defamatory. The first court to rule was the court of public opinion. Do you think the typical person reading about this incident was sympathetic to the dentist? Do you think they thought oh, this poor dentist is being lied about? No, the typical response based on media comments was she must be a horrible dentist if she has to sue her patients not to say bad things about her.
Next the state courts ruled and not only did they dismiss the suit but ordered Dr. Wong to pay Yelp and the parents over $80,000 in court costs and fees.
AUGUST 22, 2013
“The Perils Of Fighting Negative Online Reviews In The Courts”
Case Study: Stacy Mahknevich, DDS
Dr. Larry Emmott, DDS, EMMOTT ON TECHNOLOGY
Dr. Stacy Makhnevich, a dentist from New York, contracted with a firm called “Medical Justice” that assured her their contract would protect her from malicious online reviews. Eventually she received what she thought was an unfair patient review and attempted to enforce the agreement. However far from forcing the patient to back down he turned around and sued her with the aid of a “public interest” organization the Public Citizen Litigation Group willing to push the matter. Then the media piled on, the story was picked up by over 200 news outlets including MSNBC, CBS, the Washington Post and Yahoo. She was crucified.
Now a year later a story at Ars Technica reports that Dr. Makhnevich has disappeared. Her lawyers have been unable to get in touch with her, she has closed her business, and her lawyers are looking to withdraw from the case.
I have no idea if the patient review was fair or not. I have no idea how good a dentist Dr. Makhnevich is. The negative review had more to do with billing and insurance than with quality of care. I have no idea if she was maligned and lied about. The sad truth is that none of that matters now; she has been driven from the profession by an online review and her attempts to protect herself.
This issue is far from over. There are numerous suits still pending against review sites such as Yelp. One Texas dentist even threatened a patient with criminal charges over a negative review. We need to strike a balance between free speech, providing accurate information to consumers and the right to protect ourselves from false and malicious attacks. The future is coming and it will be amazing!
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.