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).
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