If a patient posts a negative review of you or your practice after a visit, there are six key elements you need to prove for it to truly be defamatory.
In 2010, Dennis Laurion brought his father to a Minnesota hospital following a stroke. He found the bedside manner of the treating neurologist, David McKee, rude. After his father was discharged, Laurion posted several negative online comments about his interaction with McKee. In response to the posts, McKee took an unusual step: He sued Laurion for defamation. After four years of litigation, however, the doctor's lawsuit was dismissed. He had lost.
There are dozens of websites where people like Laurion can post online reviews of doctors. Search for "review doctors," and you will find sites such as Healthgrades, ZocDoc, and RateMDs. On RateMDs, for example, doctors are rated on staff, punctuality, helpfulness, and knowledge. Each of the websites allows users to post open-ended comments about the doctor as well. These online comments can pose a serious danger to a doctor's reputation.
If you think prospective patients are not relying on online review sites, think again. According to a 2012 study published in the Journal of the American Medical Association, 59 percent of individuals seeking a physician for themselves found online reviews of doctors to be "somewhat" or "very" important when choosing a doctor. There can be little doubt that online reviews affect your practice, both positively and negatively.
These review websites can provide a trove of helpful information to potential patients. But what if the reviews are false? What if a patient posts misleading statements about your practice or your medical skills? What if negative reviews lead to a decline in new patients or loss of current patients from your practice? What can you do?
One option is to sue for defamation, just as McKee did. Before you take this step, however, you should understand the benefits and risks of doing so. This post is the first in a series exploring how physicians can respond to negative online reviews. We will examine what steps can be taken before suing for defamation, the risks involved in suing a patient for defamation and some of the barriers to winning a defamation case, including the challenges of proving damages.
For now, let's start with the basics. What is defamation? Defamation is a broad term that includes both slander (when the defamatory words are spoken) and libel (when the defamatory words are written). So, if your patient smears your reputation during a community meeting, you may have a slander claim. If he does so in a post on RateMDs, then you may have a libel claim. They both fall under the legal cause of action for "defamation."
Winning a Defamation Case: 6 Key Elements
To win a defamation case, you must prove six things:
1. There is a "published" statement. This means only that the "speaker" (who will be the defendant) made the statement to at least one other person. It is a very low barrier and easy to prove.
2. The defamatory statement is about you. This is usually not an issue because the speaker will identify the doctor by name. As long as a reader could identify the doctor by the words used in the statement (for example: the "senior doctor in the dermatology practice in the Harris Building in Topeka"), then you have proven this element.
3. The statement is false. A true statement is never defamatory.
4. The statement is a statement offact, not opinion. This element is usually the hardest one to prove. The First Amendment protects patients who are only expressing their opinions or merely insulting someone. So, it is not defamation if someone posts that you have a "rude bedside manner" or possess "terrible surgical skills" or are an "idiot."
5. The speaker was either negligent in making the statement or acted with malice, depending on the type of case. "Malice" in this context means that speaker knew the statement was false or recklessly disregarded the truth of the statement. For example, if a speaker wrote that "Dr. John Doe does not have a medical license," after visiting the doctor's office and seeing the framed license on the wall, this would satisfy the malice standard.
6. You suffered some provable damages. The harm must have been caused by the defamation and not any other reason. This can be difficult to prove in the online review context.
Each part of a defamation claim can present an independent obstacle to success in court. In the next post, we will explore the steps you can take to remove a negative review from a website, either through obtaining a court order in a defamation lawsuit or by contacting the website and patient directly.
Sara Kropfhas been a trial lawyer for over 15 years and handles both civil litigation and white-collar criminal defense. She was a partner at a large, international firm before founding Law Office of Sara Kropf in 2013. She is licensed in Washington, D.C., Maryland, and Virginia, and has handled cases across the country. Sara was lead counsel in a landmark defamation case involving defamatory reviews on Yelp.. She can be reached at email@example.com.