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Not All Threats Patients Make Are Equal

07/16/18 11:26 AM

Patients may be unhappy with their doctor for a variety of reasons. Dialogue solves most of them.

But, sometimes this angst escalates. It culminates in a threat.

All threats are not equal in the eyes of the law.

A common threat is “Give me my money back and I will not slam you online.” Or “Pay another surgeon to fix your mess and I will not slam you online.”  Or do a free procedure on me and I will not slam you online.”

See a pattern here?

I am frequently asked, “Isn’t this extortion?”

Yes.

Extortion is a criminal offense. Its elements vary state by state and the offense goes by many different names.

In general, extortion is gaining of property or money by force or threat of violence, property damage, harm to reputation, or unfavorable government action. Extortion criminalizes behavior that might otherwise be legal. For example, it is legal to slam someone online, provided the account is truthful and not defamatory. And even if it is not truthful and is defamatory, slamming someone online is typically still not a criminal offense. But, once a person ties the threat of negative commentary online to a demand for money, wallah, that may be extortion.

Wait, there’s more. In some states, such as California, there is also a civil remedy for extortion. A civil remedy means you can sue the perpetrator for damages. In contrast, in a criminal case, the “remedy” is asking the district attorney to investigate and file charges. 

OK, what about a threat to take you to court unless you do something, such as tender a refund to a patient? Is that extortion?

No.

Going to court is a remedy that the legal system considers kosher. No surprise there. Threatening to sue someone would generally not be considered extortion.

One more threat. What if a patient or their attorney threatens to file a complaint to the Medical Board or a government agency unless you pay them a sum of money? Such a threat is against public policy. Patients are not free to leverage state action to personally profit. Filing a complaint to the Medical Board is supposed to protect the public. Not fill a piggy bank. Further, if an attorney makes such a threat, that is considered an ethical violation which could trigger a complaint to the Bar.

Not all threats are equal in the eyes of the law. Some threats could terminate in criminal sanctions against the perpetrator. Other threats may end in a disciplinary complaint by the state Bar. And other threats may end up, as expected, with you as a defendant in court. Knowing the difference can help you determine the best way to proceed strategically.

What do you think?

Posted by Medical Justice | in Legal | 1 Comment »

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JOSEPH HORTON

How would you go about documenting the extortion? Obviously if there’s a written demand, it would amount to a confession. If it’s just verbal, though, would you go so far as to require a written agreement that they agree not to slime you/sue you/report you to a Board/etc. if you refund a fee? That, too, would be a confession, if accepted.

If you gave them money in order to get the signature, would you be able to recover the money? Or is a digital recording in a one-party state a better idea?