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?

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 over 50 combined years of 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.