On a whim, you type your name into an online search engine, curious to see what your patients think of you. You follow a link to a consumer review website, only to discover that the first review begins, “Whatever you do, don’t go here!” and goes downhill from there. Although the posting is anonymous, you recognize the writer’s initials. The case involved a difficult, unappreciative patient who failed to follow your instructions before or after the procedure and paid every bill late.
After hearing your story, a colleague tells about Yvonne Wong, a pediatric dentist practicing in California. When a patient’s parents criticized her treatment on a consumer review website, she sued. Should you do the same?
Your professional reputation may be your most valuable asset, and guarding your reputation against defamation is a familiar problem. As long ago as 1838, the Pennsylvania Supreme Court considered whether a doctor could sue someone for calling him a “butcher” and a “two-penny bleeder.”1
The internet has recently transformed the dimensions of this challenge, by allowing users to spread comments around the world with the click of a mouse. A number of websites, such as Yelp.com and Dr. Oogle.com, encourage patients to post reviews and to rely on others’ comments to select a dentist. Powerful search engines can direct an online audience right to an unhappy patient’s complaints.
Health care practitioners confronted with false online statements about their skill and reputation may have legal recourse. Still, dentists tempted to follow Dr. Wong’s example should understand the obstacles they face in bringing defamation suits, as well as the risks they run by taking matters into their own hands, before entering the legal or online battlefield.
While Dr. Wong’s case is still going through the courts in California, her experience to date as detailed in the public court filings illustrates several of the issues that health care providers can expect to face in an online defamation suit. Dr. Wong encountered a review that began with the warning, “Avoid her like a disease!” The parents of her four-year-old patient went on to state that Dr. Wong worked quickly and implied that, as a result, she had missed seven cavities that another dentist diagnosed six months later. They also blamed their son’s dizziness on Dr. Wong’s use of nitrous oxide and claimed that she exposed their son to mercury, through amalgam fillings, just to save money.
Dr. Wong filed suit against both the patient’s parents and the website that published their comments, Yelp.com, for defamation and infliction of emotional distress.
Knowing When You’ve Been Defamed
There are two types of defamation: slander, a spoken statement, and libel, a published statement, which includes online comments, as well as more traditional forms of printed matter. To win either type of defamation claim, a plaintiff must prove that the defendant made a false statement to a person — other than the plaintiff — that tended to harm the plaintiff’s reputation and community standing.2 In addition, a plaintiff who is a public figure must prove that the defendant made the statement with actual malice, meaning that the defendant knew it was false or recklessly disregarded the truth.
A successful plaintiff can receive damages, and possibly an injunction requiring the defendant to stop making or publishing defamatory statements. Among other things, these damages can include amounts compensating the plaintiff for harm to his or her reputation and suffering and emotional distress, compensation for loss of current business or employment, and punitive damages.3
However, a plaintiff must overcome several legal hurdles to make a successful defamation claim.
Fact vs. Opinion. First, defamation requires a statement of fact, not simply opinion. To determine whether a statement represents an opinion or claim of fact, Minnesota courts consider the context of the statement and whether it is objective enough to be proven true or false. For example, Minnesota courts have ruled statements that an employee “did not have the technical expertise to work on that” or was “rude” and “hard to work with” were not defamatory, because they were too imprecise and vague to be statements of fact.4 In addition, the more exaggerated or emotional the statement, the less likely a court is to treat it as a claim of fact. Name-calling or vulgar language, by itself, is often insufficient to support a defamation claim.
A statement that someone is grossly ignorant, grossly negligent, or generally incompetent in his or her profession is likely to constitute defamation. However, the Minnesota Court of Appeals once ruled that a comment that someone “knew nothing about raising turkeys” was not defamation where the speaker was angry, both parties to the conversation were well aware that the subject of the statement had extensive experience in the field, and the listener did not believe the statement.5 While the court ruled against the plaintiff in that case, the result might be different if the statement were made in writing, to the general public. In addition, it is important to note that courts in Minnesota have not yet addressed any online defamation cases, so it remains an open question as to how the traditional defamation principles will apply in the online setting.
How Low Can They Go?
In one respect, health care providers faced with defamation regarding their care hold one advantage over other plaintiffs: A statement concerning a person’s business, trade, or profession does not require proof of actual damages.6 However, plaintiffs seeking a financial award should still offer evidence to prove the extent of their loss.7
But defendants can mitigate their liability by showing the plaintiff already has a poor reputation, or even defeat the suit by proving that the statement is true. Thus, by filing a lawsuit, plaintiffs make their professional reputations a central element of any defamation case. This fact, plus the novelty of suits based on online comments, means that a health care provider’s decision to file a lawsuit may end up drawing attention to negative comments that might otherwise have gone unnoticed.
Although Dr. Wong’s case will ultimately be decided under California law, the general principles listed above may pose problems for some aspects of Dr. Wong’s defamation case. A court may find the statement “Avoid her like a disease!” to be an opinion, especially because of the exaggerated language and familiar rhetorical device. However dubious the proposition, a court may also find the claim that nitrous oxide “harms” a child and the suggestion that amalgam fillings are dangerous to be an untrained layman’s opinions, and not defamation. It also appears to be true that Dr. Wong treated the patient with nitrous oxide and an amalgam filling. If true, then, the statement that she used these substances, taken alone, is not defamatory. Of course that may be less likely to be the case for the suggestions that Dr. Wong’s quick work missed obvious cavities and that she uses nitrous oxide and amalgam fillings to make her work easier and cheaper.
Other Barriers and Risks
Section 230 Immunity for Web Sites. Other laws may prevent legal action by a dentist for online defamation. Injured parties often have no recourse against those websites who make online defamation possible by providing the forums for such comments. For the most part, websites are protected from defamation claims by section 230 of the federal Communications Decency Act of 1996.8 As long as a website or internet provider did not author the comment, courts are likely to dismiss claims brought against them.9 Moreover, section 230 trumps any state law to the contrary.10
However, one feature of section 230 can benefit those defamed online. The law provides that websites which remove obscene, harassing, or otherwise objectionable comments cannot be sued for doing so.11 Dentists can and should request that websites remove objectionable postings, and can demand an opportunity to respond. However, online responses demand great caution, particularly for health care providers, due to patient health information privacy issues. And if a website refuses such a request, there may be little a dentist can do without filing a suit.
Even with litigation, section 230 may limit health care practitioners to suing the author of defamatory comments, typically an individual who may well be unable to pay a judgment. The immunity section 230 grants to websites also limits a plaintiff’s ability to have defamatory postings removed or to prevent future postings.
Dr. Wong’s experience shows the impact section 230 could have on a party defamed online. Yelp.com initially refused Dr. Wong’s request to remove the negative review. And while the website now allows business to respond to online reviews, it has no obligation to do so. Although Dr. Wong sued Yelp.com, she later agreed to dismiss the website from the case, in recognition that Section 230 was likely to bar her claims. Despite the dismissal, Yelp.com remains involved in the case, in part because of another obstacle to successful defamation suits, California’s “anti-SLAPP” law.
Anti-SLAPP Laws Protect Certain Public Speech
Defamation cases may also encounter “anti-SLAPP” challenges, which can provide for quick dismissal of a suit at the expense of the party that brought it. The term refers to “strategic lawsuits against public participation” - lawsuits designed to intimidate critics and force their silence through the cost of defending against litigation.
Under Minnesota’s anti-SLAPP law, defendants are immune from liability if their statements were designed, in whole or in part, to obtain favorable government action. As soon as an anti-SLAPP motion is filed, other legal proceedings stop. To overcome an anti-SLAPP challenge, a plaintiff must show, by a higher evidentiary standard than is used in the typical civil suit, that the statement does not qualify for immunity. If the plaintiff fails, defendants are entitled to have the lawsuit dismissed and may recover costs and attorney’s fees. In addition, defendants who prove suits were filed to harass or wrongfully injure them can also receive actual and possibly punitive damages.12
Anti-SLAPP motions create one more hurdle for defamation suits to clear, and, at the very least, increase the time and costs required for litigation. While Dr. Wong survived an anti-SLAPP challenge in the trial court, Yelp.com is appealing that decision. The California Court of Appeals will now decide whether the anti-SLAPP law requires Dr. Wong’s case to be dismissed.
Other Options May Cause More Problems Than They Solve
Fighting fire with fire. After considering the risks and costs of a defamation suit, a dentist may think he or she should take matters into his or her own hands (or onto his or her own computer) and respond directly to a negative posting, rather than pursuing legal action against the patient. However, responding directly to a negative blog, tweet, or posting carries its own risks, as detailed below.
Dentists who include details about the patient’s care in an online posting may violate health privacy laws, such as HIPAA or the Minnesota Health Records Act. A provider becomes liable for damages and attorneys’ fees and may face other fines, criminal prosecution, or professional disciplinary actions by disclosing any health information relating to the patient without the patient’s consent.13 In addition, a health care provider who attacks the patient can also be guilty of defamation.
When Dr. Wong first wrote to Yelp.com, she noted that patient privacy laws prevented her from responding directly to the online review, and wisely avoided creating a new legal problem for herself. Her lawsuit, which alleges that the four-year-old patient would not sit still during X-rays and had a strong gag reflex, that the parents never returned for follow-up X-rays, and that she disclosed her intent to use nitrous oxide and amalgam fillings, suggests how she might have liked to respond. While these comments enjoy a limited privilege in a court case, Dr. Wong would be most likely be liable for a breach of patient privacy if she made them online.
Had Dr. Wong replied online with a statement that “Patient complains about or sues every dentist that treats her, anyway,” she might also be sued for defamation. Dentists must keep in mind that responding to defamation with more of the same is no defense. Perhaps just as problematic, an online audience with no perspective on the case is likely to react negatively to such comments by a dentist. While trying to explain your side of the story or simply vent about a difficult patient is an understandable reaction, responding online to a patient’s comment may damage your practice far more than the initial defamation did.
Privacy Agreements. Some health care providers now require their patients to sign a written statement in which the patient agrees not to post any online comments about his or her care. However, practical and legal problems may make this approach unworkable for most dentists. Patients asked to sign such an agreement may object in principle or assume the dentist has a reason to fear criticism — namely, providing poor care. Moreover, courts may refuse to enforce such agreements, since they arguably require patients to surrender rights of free speech and raise issues of censorship. Privacy agreements of this type have not yet been reviewed by a Minnesota court, so it is difficult to predict whether or not this type of agreement would be upheld in a legal challenge.
An Ounce of Prevention
Ultimately, the simplest way to guard your reputation is to ensure that patients are pleased with their care. Dentists should take time to ensure that patients understand the treatment they are receiving and keep the lines of communication open between dentist and patient. It is always advisable to have patients sign written acknowledgments of specific aspects of their treatment, like the use of nitrous oxide and amalgam fillings at issue in Dr. Wong’s case. Dentists should carefully document patient complaints, their office’s response, and any follow-up action.
Of course, these approaches will not work in every situation. Despite the obstacles discussed above, in some cases the only option for dealing with a disgruntled patient who takes a dispute online is to file suit. Dentists confronted with stubborn, unfair e-attacks should consider discussing the situation with an attorney.
The obstacles to bringing a successful defamation case are significant, and the time and expense required for lawsuits may make litigation an inappropriate solution for some situations. Accordingly, the best defense against online attacks may be a good offense.
NOTE: This article provided for purposes of general information only, and is not intended to create an attorney-client relationship or as legal advice for a specific situation.
1. Foster v. Small, 3 Whart. 138 (Pa. 1838).
2. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). For dentists seeking to bringing defamation claims, the audience must also be someone other than the Board of Dentistry. Under Minnesota law, a party cannot be sued for defamation simply by making a report to the Board. Minn. Stat. § 150A.14, subd. 1.
3. Longbehn v. Schoenrock, 727 N.W.2d 153, 160-62 (Minn. Ct. App. 2007). See also Advanced Training Systems, Inc. v. Caswell Equipment Co., Inc., 352 N.W.2d 1, 11
4. Schibursky v. International Bus. Machs. Corp., 820 F. Supp. 1169, 1181-82 (D. Minn. 1993); Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn. Ct. App. 1995).
5. Harman v. Heartland Food Co., 614 N.W.2d 236, 241 (Minn. Ct. App. 2000).
6. Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn. 1977).
7. Longbehn, 727 N.W.2d at 162-63.
8. 47 U.S.C. § 230(c)(1).
9. See, e.g., Steele v. Mengelkoch, 2008 WL 2966529, *1-2 (Minn. Ct. App. Aug. 5, 2008) (unpublished).
10. 47 U.S.C. § 230(e)(2).
11. 47 U.S.C. § 230(c)(2).
12. Minn. Stat. §§ 554.02 - 554.04.
13. 42 U.S.C. §§ 1320d-5(a); 1320d-6; 45 C.F.R. § 164.502(a); Minn. Stat. §§ 144.291, subd. 2(c); 144.293, subd. 2; 144.298, subd. 1, 2
*Angela M. Lutz Amann is legal counsel for the Minnesota Dental Association and a shareholder in the law firm of LeVander, Gillen & Miller, P.A., located in South St. Paul, Minnesota.
**David B. Gates is an associate attorney at the firm. They can be reached at (651)451-1831 or email@example.com or firstname.lastname@example.org