“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We have written extensively on how challenging it is to sue a patient for defamation based on a negative online review. Such a lawsuit will take time, be expensive, and deliver an uncertain outcome. And if it is just a single review, the effort will generally exceed the benefit. Further, it is not even clear that a one-star review, without more, is even considered defamatory.
Defamation is a false fact, communicated to a third party which damages one’s reputation.
A false fact is not an opinion. Opinion is a defense against an allegation of defamation.
Onward to a recent appellate case in Colorado.
Plaintiff Dr. Susan Schroeder and Perfect Skin Dermatology, PC sued “John Doe” alleging defamation and trade libel/product disparagement.
The doctor alleged that in September 2019, she noticed a string of negative reviews on Vitals.com. More than 30 reviews from 2015 to 2018 consisted of similar negative reviews by a “self-verified patient of Dr. Susan S. Schroeder.” Some were just one-star ratings devoid of content. Others
“purported to comment negatively on the ease of making an appointment; the friendliness of the staff; the accuracy of their diagnosis; and/or Dr. Schroeder’s promptness, bedside manner, time spent with the patient, and appropriate follow-up.”
Dr. Schroeder and her practice filed a lawsuit against defendant “John Doe” whom plaintiffs alleged was “an individual, or a group of individuals acting in concert, whose identity, capacity, and residence is unknown to Plaintiffs.”
Plaintiffs further alleged that Doe had “concealed [his] true identity and capacity while masquerading as dozens of patients purporting to express widespread dissatisfaction with the services and care provided by Plaintiffs”; that “the [r]eviews are false and defamatory, do not represent actual customer experiences, complaints, or opinions, and were published with the intent of harassing Plaintiffs and causing injury to their economic interests and otherwise good standing in the community and profession”; and that the reviews had caused plaintiffs to suffer reputational harm, loss of revenue, and other injuries. Based on these allegations, plaintiffs asserted claims for defamation and trade libel/product disparagement.”
And away we go.
Dr. Schroeder and her practice (the Plaintiffs) served subpoenas on Vitals.com to identify IP addresses.
Vitals.com supplied records indicating that twenty-three of the reviews had been uploaded from the same three Comcast IP addresses: ten reviews in 2016 and 2018 from a single IP address; six in 2017 from another IP address within the same limited “net range”; and seven in 2015 and early 2016 from a third IP address.
So, these were probably not 23 patients. Perhaps they represented one patient. Maybe three patients. Most likely one.
Then, Plaintiffs served a subpoena on Comcast to get the actual identity of those who posted the reviews. In other words, Comcast was asked which account(s) was/were assigned those specific IP addresses on the identified dates/times when reviews were posted.
Comcast alerted “John Doe” who filed a motion to quash the subpoena. Meaning, John Doe fought the subpoena. The trial court granted the motion. John Doe temporarily won and remained anonymous.
The Plaintiffs appealed.
One of the arguments John Doe asserted to avoid unmasking was this. The statements (reviews) were just opinions and they were not false statement of fact.
The court responded:
“Statements of pure opinion are constitutionally protected” and, thus, cannot support a libel or defamation claim. But “[t]o be entitled to full constitutional protection, the statement must not contain a provably false factual connotation or, if it does, it must not be such that it could reasonably be interpreted as stating actual facts.” In determining whether a statement is one of pure opinion — and thus constitutionally protected — we consider (1) whether the statement is sufficiently factual to be susceptible of being proved true or false and (2) whether reasonable people would conclude that the assertion is one of fact. In considering the second question, we look to the phrasing, the context, and the circumstances surrounding the publication of the statement.”
The court concluded that whether the reviews were even written by a patient could be demonstrably proven as true or false. If a non-patient posted as a patient, that would be false. Of course.
Further, it was possible the reviews, in aggregate, could be proven demonstrably false.
“And if the reviews purport to have been submitted by different patients (a question we needn’t and don’t resolve at this stage of the case) but in fact they were not, then they may not be protected.”
So, opinions posted by a non-patient, posing as a patient, would not be protected.
Also, opinions posted by one patient, posing as many patients, would not be protected.
In other words, it depends.
John Doe defended again, arguing that one-star ratings, without words, are constitutionally-protected expressions of opinion. The court responded:
“But a series of dozens of reviews, if each purports to have been submitted by a different patient, may communicate an objective, potentially false fact: that the speakers are multiple separate patients who each had a negative patient experience with the provider.”
Throwing everything including the kitchen sink into the defense, John Doe ALSO argued that Plaintiff was precluded from collecting on libel, because she was “libel-proof.”
What’s that?
It’s a widely criticized doctrine which asserts that a plaintiff’s reputation was so damaged prior to the recent publications, that there could not be any incremental damage to reputation based on new publications. It generally applies in cases with plaintiffs who have prior criminal convictions.
The judges rejected this defense.
Doe points to twenty-seven one-star reviews of plaintiffs on the Vitals.com site from 2009 through 2014, predating the reviews at issue in this case. But those negative reviews don’t conclusively establish that plaintiffs’ reputations were so irreparably damaged by prior publications that any further negative comments could not have damaged them any further. See Liberty Lobby, 746 F.2d at 1568; see also Guccione v. Hustler Mag., Inc., 800 F.2d 298, 303 (2d Cir. 1986) (“The libel-proof plaintiff doctrine is to be applied with caution, since few plaintiffs will have so bad a reputation that they are not entitled to obtain redress for defamatory statements, even if their damages cannot be quantified and they receive only nominal damages.)”
And it’s possible John Doe was actually responsible for these earlier negative reviews.
Colorado appellate court has spoken. Now the case goes back to lower court. Comcast will likely have to reveal John Doe(s) identity. Unless it gets appealed again.
What are the take home messages?
- A one-star review by itself, if purported to be by a patient, may be considered defamatory if ultimately proven to be written by a non-patient.
- Multiple one-star reviews, purportedly written by many patients, may be considered defamatory if ultimately proven to be written by one patient.
- Even if a doctor has a prior rotten reputation, it is possible for that bad reputation to be made even worse with new defamatory reviews.
What do you think?
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
I think it would be interesting to see whether the patient is also paid by Yelp to provide reviews. If there is more to this “patient” than just writing negative reviews about the physician, that would establish a habit pattern, and that, too, might prove relevant in court.
Whaddaya think ab out that?
Chag sameach.
JH
Fascinating article with an all-important conclusion: Fake 1-star reviews, by the very nature that they are fake and not from real patients, can be considered defamatory.
Aside from that, the fact that Vitals could see multiple 1-star reviews coming from the same IP address should have told them that these were in all probability fake. Vitals should have removed these reviews before this ever got to the defamation lawsuit stage.
I place most of the blame for the harm caused by fake online reviews (both negative and positive) squarely on the review sites. As I’ve documented time and again on my YouTube channel Fake Review Watch, fake review fraud is rampant, and these tech companies are facilitating it.
Kay Dean
FakeReviewWatch.com
Hi! This is in response to Kay Dean: I completely agree with you. Vitals.com should have seen the patterns. My defendants posted on many sites but seemed to take advantage of vitals.com, in particular, because they allow you to post from the same IP address every thirty days. They are apparently protected from litigation through the Communications Decency Act of 1996. Hopefully my case will bring this issue to the forefront and change some of the ways these sites are run.
This article was posted by a colleague of mine in a closed group on facebook, The Board-Certified Dermatologists (with 4.8K members), and it is blowing up. It strikes a lot of chords for our specialty. It’s about time.
Much of the schmutz that comes from or is facilitated by various social web sites can be repaired by simply making them financially responsible for what they allow to be published.
We all enjoy making fun of lawyers. But whenever lawyers are deliberately kept out of commerce, there is a price to be paid.
This is the argument for free speech, yes. But free speech does not and should not absolve you for taking responsibility for what you say and publish.
Nor should that responsibility be taken away because your industry bribes Congress.
Michael M. Rosenblatt, DPM
A great conversation. Thank you Dr Segal.
You GO DrDerm SS!
The lawyers continue to subvert physicians.
The in-house attorneys with our MedMal carriers represents that going to trial is “better“ than alternative resolution.
They are similar attorneys that advise the AMA. These attorneys would rather be popular at cocktail parties rather than advocate with the government to control these rights-abridging tech companies.
Geez.