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Legal recourse: Taking action against defamation on physician-rating sites

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This article is the second installment in a series on Web-based physician rating services. The first installment explored DOs’ overall views of such websites.

Physician-rating websites, many of which allow anonymous postings, make it easy for angry patients, unscrupulous competitors and anyone bearing a grudge “to engage in aggressive character assassination,” notes Al Turner, DO, an osteopathic manipulative medicine specialist in Portland, Ore. Although physicians face more hurdles than do many other types of professionals, DOs and MDs can proactively protect and defend their online reputations, say lawyers with knowledge of Internet libel and health care law.

Because of patient privacy provisions in the Health Insurance Portability and Accountability Act (HIPAA) of 1996, as well as state patient-confidentiality laws, physicians generally cannot publicly repudiate false and injurious comments posted by patients on rating sites.

But if those negative comments meet the criteria for defamation—specifically libel, which applies to the written word—DOs and MDs can and should seek legal recourse, says Gary D. Nissenbaum, JD, the managing principal of the Nissenbaum Law Group, which has offices in Union, N.J., New York City, Philadelphia and Dallas.

“The First Amendment gives Americans the right to free expression in a healthy public debate,” Nissenbaum notes. “But there is no First Amendment right to defame someone.” However, because First Amendment protections are so broad, the courts impose rigorous requirements on individuals to prove they have been defamed, he says.

To satisfy the legal definition of defamation, comments need to be false, communicated to a third party and damaging to the injured party’s reputation. But it isn’t always necessary to prove damages. Victims of one category of defamation—known as per se—do not need to demonstrate that they’ve actually been harmed, points out Nissenbaum, whose firm runs an Internet defamation law blog.

Although the law differs from state to state, variations of libel per se include false allegations that someone committed a heinous crime or is infected with a loathsome disease and false attacks on a person’s professional character or status. False attacks generally are the most actionable for physicians, Nissenbaum observes.

Public figures additionally have to prove malice (willfulness or intent) to make a case for libel, including libel per se. “A physician might be considered a public figure in the community depending on the extent to which that physician has injected himself or herself into the public eye,” Nissenbaum says.

Opinion versus defamation

In his third year of a St. Joseph Mercy Health Center residency in dermatology in Royal Oak, Mich., Christopher A. Messana, JD, DO, points out that courts generally do not consider negative opinions to be defamatory. To be labeled libel, false adverse statements must include verifiable factual errors. “If someone says on a rating site that a physician is a jerk, that would be considered opinion,” Dr. Messana says.

The background of the person disparaging another also comes into play when assessing a case for libel, Dr Messana notes. For example, if someone erroneously posts online that a physician “is schizophrenic,” that statement likely would be considered opinion if the poster is a layman rather than a mental health expert or physician. A layman would not be expected to have a medical understanding of the term schizophrenic, he explains.

Dr. Messana asserts that most of the negative comments he has seen on physician rating sites are not worth redressing. Remarks pertaining to physicians’ lack of punctuality, abrupt bedside manner and rude staff should be considered wake-up calls rather than defamation, he says. “We need to do a better job of recognizing that we are in a customer service profession,” Dr. Messana says. “Such comments are reminders that we need to have excellent communication skills and keep wait times reasonable.”

Physicians should also assess the proportion of their negative and positive reviews, advises Jeffrey Segal, MD, JD, the founder and chief executive officer of Medical Justice, a legal advocacy organization that specializes in protecting physicians from Internet defamation and frivolous malpractice suits. “Don’t freak out over a single negative post on a physician rating site,” Dr. Segal cautions. Having only positive comments on a rating site can look suspicious, as if the reviews were planted by the physician, he notes.

It is the more egregious assaults on physicians’ medical knowledge and integrity that should be addressed, according to Dr. Messana. “If someone falsely assails a physician’s clinical acumen or falsely accuses a physician of molestation or another reprehensible crime, that would be defamation,” he says.

“The first step [after getting slammed online] is to evaluate the comments and the amount of publicity they are likely to receive and make a judgment about how harmful they are and what should be done,” suggests Mitchell L. Marinello, JD, a partner with the Chicago law firm Novack and Macy, in a Q-and-A in the March issue of Smart Business Chicago. “Overreacting to negative comments can create more bad publicity or cause a disgruntled critic to become even more vocal.”

The next step, according to Marinello, is to ask the rating site if it will remove the defamatory comments because sometimes such comments violate a site’s policies.

6 Responses

  1. Stephen Blythe, D.O. on April 4, 2011, 6:45 a.m.

    The idea of a consent or waiver might be the only protection. Even if someone posts false information online, how do you prove it is false without violating patient confidentiality? A waiver as part of a consent to treat should perhaps not only give you the copyright of any online postings, but authorize you to use the patient’s medical records to rebutt any public complaints. The good news is that if you are punctual, polite, and caring and your staff is the same, you will get lots of positive reviews on these sites. Most of the negative reviews, as noted, ate not statements about competency or claims of malpractice, but comments on arrogant or abusive behavior on the part of the physician or staff. As noted, these should serve as a wake-up call. If you have lots of negative postings, you are dong something wrong, and leaving patients unhappy – which means you have a higher risk of being sued. We have to be top notch clinically, but we also have to offer good customer service.

  2. Court Watch on Oct. 19, 2012, 3:16 a.m.

    State Supreme Court Hears Online Doctor Rating Defamation Suit SEP 2012

    Excerpted from Star Tribune, September 4, 2012, Maura Lerner

    Two years ago, a Duluth neurologist, Dr. David McKee, sued the son of an elderly patient for defamation over some negative comments that were posted on rate-your-doctor websites.

    On Tuesday, the state’s top court was asked to decide whether the lawsuit should finally go to trial, after the case was thrown out by a lower court and reinstated on appeal. The lawsuit is one of a growing number of legal battles testing the limits of free speech on the Internet.

    A good portion of the oral arguments were devoted to the meaning of the words that Dennis Laurion, 65, used to describe his family’s encounter with McKee in April, 2010, when Laurion’s father, Kenneth, then 84, was hospitalized with a stroke.

    John Kelly, Laurion’s attorney, noted that Internet sites are a “free for all” for people to share opinions and that his client’s comments were perfectly appropriate. “We have a word, the word ‘tool,’” Kelly told the justices. “When you look at the word, you have to ask: Is it defamatory?” He argued that the phrase, while “it clearly is not a compliment,” is no worse than “calling someone an idiot or a fool.”

    During questioning, some of the justices seemed to agree. “Saying someone’s a ‘real tool’ sounds more like an opinion than a statement of fact,” Justice Christopher Dietzen said. Chief Justice Lorie Skjerven Gildea had a similar reaction. “The point of the post is, ‘This doctor did not treat my father well,’” she said. “I can’t grasp why that wouldn’t be protected opinion.”

    Full Article:
    http://www.startribune.com/printarticle/?id=168552176

  3. Trying Our Patients on Sept. 18, 2013, 5:18 a.m.

    Minnesota high court says online post legally protected
    By STEVE KARNOWSKI, Associated Press

    MINNEAPOLIS (AP) — A man’s online post calling a doctor “a real tool” is protected speech, the Minnesota Supreme Court ruled Wednesday. The state’s highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient’s son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor “a real tool,” slang for stupid or foolish.

    http://bigstory.ap.org/article/minn-high-court-say-online-post-legally-protected

  4. Content Scraper on Sept. 22, 2013, 1:54 a.m.

    Doctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.

    McKee’s lawyer, Marshall Tanick, told the Associated Press that he and McKee plan no further appeals and that they were disappointed with the ruling. “We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse,” Tanick said.

    Marshall Tanick told the Star Tribune that the ruling could present a slippery slope. “This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse,” he said.

    In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

    Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from “an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it’s “an endorsement that statements of opinion are protected under the First Amendment.”

    According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”

    Anfinson was also interviewed by Minnesota Lawyer. He said, “Anyone who knew about the case, who observed the oral arguments, and who knows something about libel law is about as unsurprised with this result as they can be. It’s about as perfunctory and routine as the Supreme Court ever gets. It was a completely straightforward application of long-settled libel-law rules.”

    Anfinson said the case is more significant for social commentary purposes than for its legal analysis, noting that perhaps the justices only accepted the case to fix an error of the Court of Appeals.

    Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. “It’s almost as if things were said around the water cooler or perhaps posted in a letter to the editor,” he said. “I think the principles they worked with are applicable to statements made irrespective of the medium.”

    Commenting about this case on his own blog, February 8, 2013, Aaron Kelly, internet law & defamation law attorney, said “Thanks to the First Amendment, free speech is the law of that land, and that means being able to communicate our views publicly – no matter how offensive.”

    The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”

    Mark A Fischer of Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, said on February 11, 2013, “For those who are under criticism, one of the practical consequences of bringing a defamation action is that more publicity for the accused statements is almost an inevitable result, whether the statements are ultimately found libelous or not. In other words, in weighing the pros and cons of initiating a lawsuit, all potential defamation and privacy claim plaintiffs should consider the rule of Hippocrates applicable to physicians, ‘First do no harm.’”

    In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for online reviews. . . doctors usually lose or voluntarily drop these lawsuits. Indeed, with surprising frequency, doctors end the lawsuit by writing a check to the defendant for the defendant’s attorneys’ fees where the state has a robust anti-SLAPP law. Doctors and other healthcare professionals thinking of suing over online reviews, take note: you’re likely to lose in court, so legal proceedings should be an absolute last-resort option–and even then, they might not be worth pursuing.”

    Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”

  5. Chicago Brick on Jan. 2, 10:28 p.m.

    The Top Lawsuits Of 2013 by Steve Kaplan, December 20, 2013

    Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.

    Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?

    It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”

    But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

    But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”

    The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.

  6. Dennis on Jan. 4, 2:38 p.m.

    Marshall Tanick is STILL saying “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements. The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

    From the American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

    From the Business Insurance Blog: The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

    From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.

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