In a past post, Internet Defamation Claims on the Rise as Online Reviews Impact the Bottom Line, we discussed web-based rating services and the rise of internet defamation claims. Internet reviews are rampant in the healthcare industry, and medical professionals are often the subject of online reviews as patients share positive and negative feedback about care and treatment. Some individuals are permitted to respond to online criticism, however, medical professionals may be constrained by ethical obligations and federal privacy laws to not reveal patient information. So what can or should a doctor do – sue for defamation, ignore social media altogether, or actively manage their online reputation? I guess that depending upon the circumstance – it may be one or all three practices. We will be discussing these options in the next few posts.
As to whether to take legal action, the Minnesota Supreme Court has weighed in on one such internet defamation case by a physician against a patient’s son. In David McKee, M.D., vs. Dennis Laurion, the Supreme Court concluded that none of the statements posted online by the patient’s son, Laurion, regarding Dr. McKee’s care amounted to defamation. The court dismissed the defamation lawsuit – that is Dr. McKee gained nothing from bringing the legal action. So what were the allegedly defamatory statements?
Following Dr. McKee’s examination of his father, Dennis Laurion posted the following statements on various “rate-your-doctor” websites:
1. Dr. McKee said he had to “spend time finding out if you [Kenneth Laurion] were transferred or died.”
2. Dr.McKee said, “44% of hemorrhagic strokes die within 30 days. I guess this is the better option.”
3. Dr. McKee said, “Therapist? You [Kenneth Laurion] don’t need therapy.”
4. Dr. McKee said, “[I]t doesn’t matter” that the patient’s gown did not cover his backside.
5. Dr. McKee strode out of the room without talking to the patient’s family.
6. A nurse, not affiliated with the examination of Kenneth Laurion, told Dennis Laurion that Dr. McKee was a “real tool.”
In Statements 1, 2 and 4, the Supreme Court held the statements were essentially true – that is, they were so close to what Dr. McKee admitted he said that any “minor inaccuracies” could not satisfy the falsity element of defamation. Truth is a defense to defamation.
In Statements 3 and 5, the Court found that nothing published by Dennis Laurion actually lowered Dr. McKee’s reputation in the community. The statements were, therefore, harmless and not capable of conveying any defamatory meaning. Finally, with respect to Statement 6, whether Dr. McKee is a “real tool”, the Supreme Court concluded this statement, whether by Laurion or someone else, amounted to an opinion – a statement that cannot be reasonably interpreted as stating a fact, or a statement that cannot be proved true or false (also a defense to a defamation claim). The Minnesota Supreme Court referred to the “real tool” statement as mere name calling with no real intent to defame anyone.
In other jurisdictions, it has been a mixed bag of success for internet defamation claims. An Arizona cosmetic surgeon won a $12 million internet defamation suit against a former disgruntled patient. As a result of the three year legal battle, Dr. Albert Carlotti III, suffered deteriorating health, lost hundreds of patients from his practice, and was forced to sell his home. “I was dealing with somebody who had the intent on destroying us professionally, personally and on every level.” Dr. Carlotti told American Medical News, Doctors win redress in online defamation suits. “I went from a very successful surgeon to pretty much out of business.” The disgruntled patient created her own website and claimed Dr. Carlotti was not board-certified and under state investigation. The patient also obtained the telephone numbers for the doctor’s patients, called them, and asserted the same allegations. Records, however, revealed that Dr. Carlotti had received no disciplinary action and was certified by the American Board of Oral and Maxillofacial Surgery.
When talking to American Medical News, Dr. Carlotti’s attorney applauded the verdict noting “[a] lot of physicians and professionals feel constrained by their professional obligation to keep quiet. This gives them hope that there is a change in attitude over what will be protected by the First Amendment.” Dr. Carlotti could not agree more – “It’s amazing what one person with some basic computer skills can do.” “As I stand here in the ashes of my victory, the focus is on how I rebuild and how low is it going to take?”
Bottom line – whether a defamation claim is successful or not, there is no question that online reviews can impact how the public views the care provided by medical professionals. We will evaluate other options for healthcare professionals when responding to negative reviews in the next post.
If an individual medical professional or a medical clinic is unsure whether an online review amounts to defamation, seeking legal guidance can help. What are your thoughts? Should there be limits to what a patient can post online? As always, we welcome your input.
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Teresa is the Chair of Fredrikson’s Non-Competes and Trade Secrets Group, and an MSBA Certified Labor and Employment Law Specialist. She counsels business clients on risk management and policy development relating to employee use of technology, and also litigates their business and employment disputes. Teresa trains, writes and lectures extensively on legal issues arising from business use of technology and social media.