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…
Here’s a sample of typical recent consultation discussions…
- Safely responding to negative online reviews…
- 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 understand the impulse. Someone said something ugly about you. It might be a patient. Another doctor, perhaps. They said it publicly. Online. You want to even the score. Sue them. Teach them a lesson.
There is no shortage of attorneys willing to take your cash to help you in your mission.
Before jumping off the cliff, ask your attorney this one question. “Can I be burned under anti-SLAPP?”
If your attorney answers, “What’s that?’ or “Huh?”, don’t walk away. Run.
We’ll answer that question for you.
SLAPP stands for Strategic Lawsuit Against Public Participation.
Anti-SLAPP are laws designed to prevent people from filing SLAPP lawsuits. In other words, Anti-SLAPP is designed to prevent Strategic Lawsuit Against Public Participations.
Confusing? Read on.
SLAPP can be a lawsuit alleging defamation (in a prototypical example, a doctor filing a lawsuit against a patient for a nasty online review). The real aim in SLAPP is stifling speech, not addressing a wrong. If a plaintiff (in this case, the doctor) CAN prove actual defamation, that is not SLAPP. But if there is no legal defamation, and a well-heeled plaintiff is just hoping the defendant will not have the funds to defend, and he can be bullied into taking their negative review down, that could be SLAPP.
The first step in determining whether SLAPP applies is analyzing whether a doctor has a bona fide case for defamation. Defamation is a false statement made to a third party that damages reputation. Defenses against allegations of defamation include the statement was an opinion, hyperbole, or privileged.
Let’s look at some examples.
If the patient proves his statement was an opinion, or not a false statement of fact, the patient will win. The patient will successfully defend. What is fact and what is opinion can be a hair-splitting exercise.
Examples of allegations that fail to support a defamation claim include where a patient rates his subjective assessment of the physician’s priorities, values, or demeanor, or where the patient relates an emotional reaction to treatment received. Applying the opinion and hyperbole factors, an Ohio court held that a patient’s statement that the dentist’s office “‘billed my insurance company for the same thing they billed me for'” was not privileged opinion, as this fact was (1) based upon firsthand knowledge, (2) readily verifiable, and (3) a reasonable viewer would assume this statement was true.[1]
Conversely, the same Ohio court simultaneously held other statements made by the patient alleging that the dentist’s office “doesn’t care about the customer or the patient,” and that “they care about their money” were statements of protected opinion, because (1) the statements were intended to elicit an emotional response from the reader, (2) the characterizations were subjective and thus not readily verifiable, and (3) a reasonable viewer would only have believed that these descriptions reflected a disgruntled patient’s opinion about the treatment received.
Next, a surgeon sued the ABC television network over a hidden camera investigation into his surgical record. The report had been broadcast on the television program “20/20.” The plaintiff-doctor argued that statements made during the program by a former patient concerning her subjective assessment of her own pain and fear were verifiably false, as medically she was never at risk of dying, and her condition was typical of other similarly situated patients. However, the court ruled the statements protected opinion.[2]
Dr. Fowler argues that [his former patient]’s statements that she was “in such pain, I was just screaming. And my friends were concerned that I was not going to survive it” were false because [the patient] was not suffering more than other liposuction patients, she was not at risk of dying, and her friends were not concerned for her survival. Yet Dr. Fowler’s evidence does not demonstrate the falsity of the statements.
[The patient]’s statement that she was “in such pain, I was just screaming. And my friends were concerned that I was not going to survive it” is a statement made by [the patient] concerning her own condition. Dr. Fowler does not provide any evidence that her statements are not true. Moreover, Defendants have submitted affidavits from two of [her] friends who attest to the fact that [she] was moaning and screaming in pain and that they were concerned she was not going to survive the infection.
If the statement is considered protected opinion, the plaintiff (in this case, the doctor) loses.
What about hyperbolic statements? Are they considered protected opinions?
The internet has become a clearinghouse for hyperbole and exaggeration. Because the internet has THAT reputation, statements that may be close calls are treated as protected subjective opinion. The following are statements on a single rating site that likely would be treated as hyperbolic exaggeration and unlikely to yield a monetary award for defamation had a suit been filed.
“I felt like I’d been raped when she finished with me.”
“He is the worst Plastic Surgeon other than the New York butcher.”
“This guy is a criminal.”
“He is an outrageous, arrogant, horrible person who should be in jail.”
“Dr. XXX is the ABSOLUTE WORST doctor there is.”
“He probably got his degree from some foreign country. Stay away from [this] medical prostitute.”
Now back to our original topic, anti-SLAPP, and why it’s important for your attorney to know the status of anti-SLAPP laws of YOUR state.
Anti-SLAPP are state statutes focused on preventing SLAPP lawsuits. Some states, such as California, Texas, and more recently, New York, have robust anti-SLAPP provisions. Florida also has a reasonably strong anti-SLAPP statute. Other states have none at all. So, this varies from state to state. Also, there is no federal anti-SLAPP statute. A successful anti-SLAPP defense shuts the underlying defamation lawsuit down early in the case and may makes the plaintiff, in this case, the doctor, pay the other sides’ legal fees. Ouch.
If a doctor is considering a defamation case with questionable merits against a patient, and the doctor practices in a state with strong anti-SLAPP laws, the first question to ask your attorney is the likelihood of losing the case quickly and being forced to pay the other side’s legal fees. Being unprepared for such an unpleasant surprise would justifiably transfer your anger with the patient to your lawyer.
There are two things thing worse than being insulted online. Paying for your attorney’s education, only to lose a defamation case you may file. And getting burned with anti-SLAPP and having to pay the legal fees of the patient who just insulted you.
Finally, there are better, more predictable, and more cost-effective ways to manage being insulted online. Medical Justice is equipped to help you defend your online reputation. Use the tool below or visit our consultation page to schedule a consultation with our Founder and CEO, Jeff Segal, MD, JD.
What do you think? Let us know your thoughts in the comments below.
[1] Fuchs et. al. V. Scripps Howard Broadcasting Company et. al.,170 Ohio App. 3d at 679, 868 N.E.2d 1024 (2006).
[2] Fowler v. Capital Cities/ABC, Inc., 2002 WL 31230802, at *6 (N.D. Tex. 2002) (unreported).
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…
Learn how Medical Justice can protect you from medico-legal mayhem…
Take Advantage of Our Review Monitoring Service
With eMerit, we help you automate review collection and posting to improve your online reputation.
Consult with a Medico-Legal Expert
Medical Justice Founder and CEO, Jeff Segal, MD, JD and our expert team provide consultations to doctors in need of guidance.
Meet the Experts Driving Medical Justice
Our Executive Team walks with our member doctors until their medico-legal obstacles are resolved.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
