Jeff Segal, MD, JD, FACS
It’s a strange world of language in which skating on thin ice can get you into hot water. ~ Franklin P. Jones
It’s almost irresistible. A prospective patient comes to your office. The prospect says her friend just had surgery performed by your competitor. The prospect asks you about the same procedure. Should you tell the patient:
- the competitor is in a different specialty and not licensed to perform that surgery;
- the competitor is incompetent and a complete idiot;
- you have had many patients come to your office to fix the mistakes the competitor made;
- the competitor does not care about his patients, wants to perform as many surgeries as possible and is all about the money;
- the competitor has killed two patients; and
- the competitor is totally negligent in performing surgery.
When seen in this light, the answer is obvious. These allegations formed the basis of a lawsuit filed by one surgeon against another: Cheski v. Dardashti.
The background – as documented in an appellate decision:
Three of Cheski’s patients filed medical malpractice suits against him. Dardashti had provided corrective services to the three patients after the allegedly negligent surgeries by Cheski. She produced medical records of her treatment of the three patients in response to deposition subpoenas served on her by Cheski. Ultimately, each of the suits was dismissed on procedural grounds.
While the lawsuits were pending, Cinthya Morales (Morales) conducted an undercover investigation at Dardashti’s office. Morales was hired to perform investigative services to determine independently whether or not Dardashti was making defamatory statements to third parties regarding Cheski.
Morales met with Dardashti at an appointment she had previously scheduled, saying that she was interested in obtaining breast augmentation surgery. She told Dardashti that a friend of hers had recently had this type of surgery performed by Cheski who operated through the belly button for breast augmentation. She then asked if Dardashti performed the procedure; Dardashti said she did not do so. Then, without any further questions or prompting by Morales, Dardashti volunteered the statements at the core of this action, which Cheski subsequently filed.
Dardashti’s initial defense was procedural: that her statements were protected by something known as anti-SLAPP statute. This statute is designed to protect free speech. The argument goes: If people always have to worry their words will land them in court, free speech will be chilled.
Several caveats, though. Not all speech is protected by the anti-SLAPP statute. One category of protection: the statements must be made in a place open to the public or a public forum in connection with an issue of public interest.
The appellate court ruled that the alleged statements were made during a confidential consultation with a single patient. In other words, Dardashian’s alleged statements were not protected by the anti-SLAPP statute.
Lessons: If you truly believe a competitor is dangerous, alert authorities empowered to take action. Such actions, if made in good faith, are generally protected. If you believe a particular procedure is highly risky, you should be able to give your opinion on the procedure. But, be careful about what you say to individual patients about your competitor. If the patient is an investigator on your competitor’s payroll…..be prepared for some unexpected legal expenses.