It’s difficult for doctors to prevail in defamation lawsuits against patients who post nasty online reviews. It’s not impossible. Just difficult.
To prevail, the doctor must demonstrate the statement was false, disseminated to an audience, and damaged reputation. Finally, if the court rules it was not a false statement, just an opinion, the doctor will lose.
What makes this even more challenging is that sometimes the patient can assert a defense under Anti-SLAPP at the get go. Under such a law, the patient will state the rich doctor is filing a frivolous defamation claim to bully the patient into silence. Particularly, if the matter is one of public concern.
Then, the doctor needs to go back and demonstrate that there is indeed a prima facie case of defamation, proving all the elements asserted in the filing. If the doctor gets skunked in making this case, in some states, he will have to pay the patient’s attorney’s fees.
With anti-SLAPP, the case is somewhat “tried” before all of the facts are on the table. Anti-SLAPP provides a strong disincentive to file a defamation lawsuit. Anti-SLAPP is the main reason one should vet the details of a case with a seasoned defamation lawyer before going to war.
Not all states have anti-SLAPP statutes.
Minnesota used to have an anti-SLAPP law. In 2017, its Supreme Court ruled its anti-SLAPP unconstitutional. Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623, 635-36 (Minn. 2017). The Minnesota legislature replaced the anti-SLAPP with UPEPA (Uniform Public Expression Participation Act).
So many acronyms. I know. I know.
- Protection of free speech: UPEPA protects a person’s exercise of the right to freedom of speech, press, assembly, petition, and association on matters of public concern.
- Streamlined dismissal process: It allows a defendant to file a special motion to dismiss the case early on.
- Expedited proceedings: If the motion is filed, it halts all other proceedings in the lawsuit, including discovery, until the motion is decided.
- Burden of proof: The burden of proof shifts to the plaintiff to establish a valid claim at an early stage, or the defendant can show they are entitled to judgment as a matter of law.
- Attorney’s fees: If the defendant wins the anti-SLAPP motion, they are entitled to recover their court costs and attorney’s fees.
As with the prior anti-SLAPP law, UPEPA provides protections to those who want to use forums to vent. Which brings us to J and D Dental, et al versus Liya Hou.
J and D Dental (along with Dr. Jennifer Herbet) took care of a patient, Liya Hou. In 2023, J and D performed two fillings.
About a month later, in January 2024, Hou returned to J&D Dental for a crown on a different tooth. In February 2024, Hou called J&D Dental and reported “discomfort related to the fillings.” She informed J&D Dental that her new dentist stated that the work performed by J&D Dental “needed to be re-done.” In March 2024, Hou emailed J&D Dental and requested compensation for the work that her new dentist said “needed to be redone.”
Following additional correspondence between the parties, J&D Dental offered to refund Hou’s insurance company for payments related to the fillings and crown, so long as she released all claims against J&D Dental. The next day, Hou responded that, in addition to these refunds, she sought compensation of $2,000 “for the negative outcomes and risks [she] bear[s]” resulting from her treatment at J&D Dental. Hou identified two options to resolve the dispute: (1) a refund of $1,278.94 to her insurance company and compensation of $2,000 paid to her; or (2) both amounts paid directly to her to “self-pay for the new crown on tooth 4 to expedite the treatment procedure without insurance coverage.” Hou stated that if J&D Dental did not fulfill her request, she would “start to take actions, including but not limited to sharing [her] negative outcomes on social media,” including via submission of Google reviews. Hou and J&D Dental did not resolve this dispute.
Next, the patient posted a negative Google review. See below. (Hou suggested the practice had actually solicited reviews from patients):
I want to give a negative rating! Anyone who cares about their dental health should avoid this practice! I was fooled by the 5-star rating and chose J&D Dental and [the dentist] has damaged three of my teeth! My treatment involved fillings on teeth 8 & 9 and a crown on tooth 4, which not only failed to solve the problems but led to more serious dental issues. Subsequent evaluations by multiple respected dentists have confirmed that the work performed was substandard, with fillings and the crown poorly executed and sealed, leaving open margins susceptible to bacterial infiltration and posing a significant risk of severe complications. I initially reported significant discomfort in my front teeth following fillings on teeth 8 & 9. Despite this, [the dentist], with a dismissive attitude, failed to address my concerns before proceeding with a crown on tooth 4. The treatments needed for teeth 8 and 9, which include enlarging the fillings, will compromise the structural integrity of these teeth, making them more susceptible to future issues. Additionally, replacing the current crown on tooth 4 carries risks such as root fracture and the necessity for an implant. I deeply regret choosing J&D Dental, as the physical and structural damage caused by [the dentist] to my teeth is permanent!
This “went legal” quickly. J&D Dental’s attorney sent a demand letter / cease and desist.
This was followed by seven similar new reviews, mostly the same as the original review. The main distinction being a new sentence was added, “J&D Dental “threaten[ed] to take legal action after [she] shared [her] true experience[.]”
J&D Dental filed a complaint in district court, asserting that Hou’s reviews are defamatory because they are “untrue and unsupported” and that Hou has a “history of posting defamatory Google reviews.” In her answer, Hou asserted that her statements in the review are true and that her statements “related to a matter of substantial public interest and concern.”
Importantly, Hou posited that her statements “related to a matter of substantial public interest and concern.” These are key statements to take advantage of UPEPA. Arguing that she has a right under UPEPA to alert the world to a matter of public concern. If she prevailed under UPEPA, the practice would likely have to pay the patient’s attorneys’ fees. And the practice’s case would be shuttered.
Hou lost in the lower court. She appealed to Minnesota appellate court.
Hou argues that the district court erred as a matter of law in concluding that J&D Dental’s lawsuit did not fall within the protections of UPEPA because her speech—on which the lawsuit is based—is not “on a matter of public concern.”
This argument requires us to interpret UPEPA, and particularly to determine what the statute means when it refers to speech on a matter of public concern.
Well, what IS speech that is a “matter of public concern?”
Speech on a “matter of public concern” has taken on a special meaning. In Snyder v. Phelps, the United States Supreme Court stated:
Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. 562 U.S. 443, 453 (2011)
There is no simple answer. But the process of analysis
[takes] into consideration “the content, form, and context of the speech. No single factor is ‘dispositive;’ rather, courts should ‘evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.’”
So, “what was said” – content…In that prong, the court ruled against Hou.
The district court concluded that Hou’s posts are “very specific to her alleged dispute” with J&D Dental, did not “address any broader issue” other than this dispute, and did not “impact a broader issue in the community at large.” The district court then stated that “[t]o the extent Hou asserts the posts are ‘warnings’ to the broader public, the Court is not convinced that this interpretation of the communications is warranted from the content, where it was posted and the lack of any further discussion generated in relation to the communication.”
Hou argues that the content of her speech is on a matter of public concern because “she joined and participated in an ongoing public discussion concerning J&D Dental’s practice.” Hou argues her “intent was clear: to spread awareness in the community,” “to assist others in making health-related decisions,” and to “promot[e] accountability and transparency in dentistry.” J&D Dental argues that the content of Hou’s speech is so dissimilar to that in Freborg that it cannot involve a matter of public concern….
The majority of Hou’s speech recounts an individual grievance about her personal experience at J&D Dental, making this case more like those in which the Supreme Court has determined speech was not on a matter of public concern…
For example, Hou did not connect her experience directly to a community or broader movement and did not set forth a detailed explanation of her motives.
Although courts in other jurisdictions have concluded that certain speech related to healthcare and healthcare providers involved matters of public concern, our close review of those cases reveals that the speech at issue was not limited to a personal grievance with a particular provider but instead reached matters of broader public import. See, e.g., Carver v. Bonds, 37 Cal. Rptr. 3d 480, 493 (Cal. Ct. App. 2005) (concluding that article warning readers not to rely on doctors’ ostensible experience in treating professional athletes and telling a “‘a cautionary tale’ of plaintiff exaggerating” such experience “served as a warning against plaintiff’s method of self-promotion, and were provided along with other information to assist patients in choosing doctors,” and therefore involved a matter of public concern); Gilbert v. Sykes, 53 Cal. Rptr. 3d 752, 758, 761-62 (Cal. Ct. App. 2007) (determining that cosmetic surgery patient’s website contained speech on a matter of public concern under California’s anti-SLAPP statute because website was not limited to patient’s individual interactions with treating physician and contributed to public discourse about undergoing cosmetic surgery with advice, information, and a contact page where readers could share their own experience along with information and warning signs in the selection of cosmetic surgeons); …
And more.
The court concluded that most of WHAT was said was a personal grievance, and it was not clear the broader public had much to learn from the specifics of the dispute.
We conclude that the “overall thrust and dominant theme” of Hou’s speech was to discuss her personal grievance with J&D Dental and not to speak “to broader public issues” or discuss “a matter of public import.” Freborg, 995 N.W.2d at 387 (quoting Snyder, 562 U.S. at 448). Thus, the content of Hou’s speech does not favor concluding that her speech is on a matter of public concern.
Next, what about the form of Hou’s speech?
Here the court ruled in Hou’s favor. She used the internet to voice her opinion. That was sufficient to prevail on form.
We see no principled basis to conclude otherwise here. Hou used a digital public forum, not unlike the speaker in Freborg, where she posted her review for public consumption. As in Freborg, it appears that Hou “specifically chose this modern public square as a way for her message ‘to reach as broad a public audience as possible.’” 995 N.W.2d at 389 (quoting Snyder, 562 U.S. at 454). And J&D Dental asserted in its complaint that the allegedly “defamatory review was posted publicly and was therefore published to people and entities online.”
Finally, what about the context of Hou’s speech? In the tie-breaker, the court ruled against Hou.
We conclude that this factor favors a determination that Hou’s speech is not on a matter of public concern for two reasons. First, her speech did not connect her experience to broader public issues like those set forth in Freborg or Maethner, or those described in the authorities cited by Hou from foreign jurisdictions. And second, the record does not reflect any discourse, conversation, or connection between Hou’s reviews and other business reviews. While there is some indication in the record of reactions to Hou’s reviews, the record does not reflect the extent to which the reviews created or furthered any dialogue. In the absence of such evidence, and given that the dominant theme of the speech here is confined to the relationship between the two parties, we cannot conclude that this factor favors a determination that Hou’s speech is on a matter of public concern.
Hou asserts we should consider that J&D Dental solicited her feedback on Google reviews and that she made her review in light of other reviews of J&D Dental expressing similar problems. And J&D Dental argues that the “context” of Hou’s review—her requests for compensation from J&D Dental—supports the conclusion that her speech is not on a matter of public concern. We are not persuaded that under Freborg, either of these considerations is germane to our analysis of the “context” of Hou’s review. And we are not persuaded that these are pertinent considerations in determining whether the speech at issue is on a matter of public concern.
This appellate case was never about whether any of the posts were defamatory (false). The appellate court ruled on solely whether the reviews were a matter of public concern. And entitled the patient to a review under UPEPA. Had the court ruled otherwise, then the practice would have had to next demonstrate that a prima facie case of defamation had been filed. But neither the lower court nor the appellate court ruled on that.
In November 2025, I could not find the offending review on Google. As to whether the practice will continue forward in its quest for full justice, I do not know. While the practice prevailed in fighting back against UPEPA, it’s not clear whether it will prevail in proving and collecting damages for alleged defamation.
What do you think?
