Mid-Atlantic Health Law TOPICS

A version of this article was published in The Daily Record on May 14, 2015.

Doctors may often find themselves on the wrong end of a patient review. In fact, one Kentucky physician took the unusual step of suing a patient who posted a series of comments critical of the care she received.

A. The Facts

In 2010, Catherine Nazari, a plastic surgeon patient of Dr. Jean Loftus, posted three statements on different opinion websites complaining about the results of a 2006 surgery.

In essence, the posts asserted that: (1) Ms. Nazari suffered from scars, disfigurement and pain that she attributes to Dr. Loftus' improper performance of the surgery; (2) Ms. Nazari filed a malpractice action and complaint with the Ohio Medical Board, both of which came to naught; (3) it is useless to make such filings because a conspiracy among the medical profession, the courts and licensing boards rigs the system against complaining patients, and (4) her medical records were conveniently stolen by someone.

In response, Dr. Loftus filed suit asserting defamation and intentional interference with prospective business relationships.

B. The Law

Because defamation is a creature of state law, the precise requirements vary state to state. In Kentucky, Dr. Loftus needed to prove that the assertion made against her was false, communicated to a third party, made without reason to believe it to be true and that it damaged her reputation.

In May, 2014, the United States District Court ruled that all of Ms. Nazari's statements concerning the poor results from her surgery were opinion. Moreover, except in special situations that did not apply in this case, opinions cannot be the basis of a defamation suit.

Ms. Nazari asserted she had the surgery, now suffers from the unfortunate conditions she described in the postings, and that she believes her bad consequences resulted from Dr. Loftus' negligence -- all of which, the court ruled, are her opinion.

The bottom line is that opinion is protected if the reader of the opinion is in as good a position as the author of the opinion to judge whether the conclusion is correct, no matter how unjustified or unreasonable the opinions may be. Indeed -- the more hyperbolic or outrageous, the more courts are likely to protect it.

The court ruled that the statements concerning the futility of suing doctors or filing complaints against them before licensing boards are also clear opinion about the medical profession and the government in general, and cannot be interpreted as statements about Dr. Loftus, personally. Neither is the statement about stolen records.

The court also took notice that the statements were posted on opinion websites stating that, in light of the context, the natural tendency would be to infer that they are opinion. The court further held that expert evidence rebutting the negligence claim presented by Dr. Loftus was irrelevant against Ms. Nazari's protected opinion.

Dr. Loftus' claim for intentional interference with prospective business relationships met with a similar fate, since an interference action must fail if it relies on a defamatory posting that is, in the end, protected as the free expression of opinion, again regardless of how unreasonable or unjustified the opinion.
Moreover, the fact that websites exist permitting opinion postings, infers a social utility to such sites. Therefore society's interests in permitting opinion posts tilts the scale in favor of Ms. Nazari's right to express herself.

C. The Problem

Although health care review sites are increasingly popular, a 2011 study conducted by the Pew Research Center's Internet & American Life Project indicates that they do not appear to have much influence on health care decisions -- at least not yet. And, despite physicians' concern over the validity of review sites, most physician reviews are positive or neutral, and not negative.

Still, the sting of negative reviews elicits strong reactions from physicians. Online comments are often anonymous, and, therefore, their validity cannot be verified. Is the poster truly a patient or a disgruntled employee or competitor? Are the comments misleading or an unfair reflection of the patient having been non-compliant, or not having the medical knowledge necessary to post meaningful comments?

Also, a prospective patient might visit the site with a negative review and not those with positive ones, skewing the reader's opinion. Moreover, in responding to a negative review, a physician must respect the complaining patient's privacy. Nevertheless, the reach of a negative review is global in a matter of minutes, and websites hosting opinions do not have responsibility for the posts, making it difficult to compel their removal.

D. Conclusion

Litigation is expensive and, as Dr. Loftus learned, risky. Disgruntled patients have a variety of affirmative defenses and counterclaims at their disposal as well as anti-SLAPP (Strategic Lawsuits Against Public Participation) laws to curb physician lawsuits.

Moreover, if Dr. Loftus had prevailed, what would she have gained? Unless Nazari had deep pockets, most likely nothing more than an uncollectable judgment, and definitely a lot of publicity bringing unwanted attention to the very same information she sought to suppress.

In today's online environment, a better approach would likely be to embrace reviews, and use strategies for effectively responding on-line to unfavorable ones, as well as developing a thicker skin.