Monthly Archives: February 2015

Doctor v. Doctor Defamation: Malpractice Suit Leads To Job Insecurity

doctor v. doctor defamation case study
Many doctor v. doctor defamation lawsuits arise from malpractice lawsuits.

Do doctors sue each other for defamation? You bet your stethoscope they do. And the root incident is recurrently a malpractice lawsuit. So, let’s take a look at a recent doctor-on-doctor defamation case, and then review a few slander and libel law basics that often apply in medical defamation claims.

Two Doctors + Two Opinions = One Professional Blowup

The roots of this case stretch back five years. At the time, Dr. David Gillis was an emergency room doctor at Indian River Medical Center (IRMC), and Dr. Pranay Ramdev was a vascular surgeon at Lawnwood Medical Center (LMC). Being in relatively close proximity, the two hospitals regularly engaged in patient exchanges.

The Incident That Resulted In A Malpractice Suit

In 2011, Catherine Bollman arrived at Indian River Medical Center’s emergency room; Dr. Gillis was on call. She needed an immediate leg surgery; if not, death was probable.

Doctors determined that patient Bollman would best be served at Lawnwood, so Gillis called the facility and asked Dr. Pranay Ramdev – a vascular surgeon – to perform the surgery. According to reports, Gillis rang Lawnwood twice for confirmation.

But instead of performing the leg surgery, Ramdev left; Other Lawnwood doctors amputated Bollman’s leg; she died several days later from complications. Her husband filed a wrongful death/malpractice lawsuit against Drs. Gillis and Ramdev.

Eventually, Dr. Gillis was dismissed from the malpractice lawsuit. Ramdev wasn’t. In vain, he argued that he wasn’t the vascular surgeon on call that night, and, for this reason, not obligated to stay. In the end, Dr. Ramdev settled out of court and allegedly vowed to ruin Gillis, purportedly proclaiming:

“I will make it my life’s mission to prevent Dr. Gillis from ever working at this hospital again, as well as at Sebastian River Medical Center and Lawnwood Medical Center.”

In the wake of the incident, Ramdev supposedly characterized Gillis as “an unethical and incompetent physician” that deserved to lose his job.

Fast forward a few months.

Another patient with vascular complications arrived at IRMC and had to be transported to Lawnwood. Again, Gillis and Ramdev were the two doctors on each end. When Dr. Gillis called over to confirm, Dr. Ramdev refused to speak directly to his colleague, instead enlisting an intermediary to relay messages. This time, however, Ramdev didn’t leave; he stayed and operated.

But, according to the nurse on duty that day, Ramdev allegedly “badgered the patient’s husband and inquired … how [Gillis] had examined the patient.” In addition, and again according to the claim, Ramdev asked a nurse to add a negative comment about Gillis to the patient file. The nurse didn’t comply, though, because she didn’t witness Gillis’ patient exam.

How The Defamation Suit Came About

Around the time of these incidents, the Indian River Medical Center was in the midst of an administrative transition. Reassignments and replacements were rampant. Some of the staff formally asked to stay at the hospital, and Gillis was one of those people. But alas, hospital administrators opted not to renew his contract.

So, Gillis applied at Ramdev’s hospital, Lawnwood, and was offered a position.

After settling in at Lawnwood, Gillis learned that Ramdev had allegedly launched an “anti-Gillis” campaign at the facility.

Fed up with Ramdev’s supposed reputation ruining rampage, Gillis decided to file a professional defamation lawsuit. Curiously though, at the time of this writing, Gillis appears to be employed at Lawnwood. Nevertheless, he’s moving forward with his doctor slander lawsuit.

Does Dr. Gillis have a chance at winning this doctor v. doctor defamation claim? Let’s review.

To Win A Professional Defamation Lawsuit, Doctors Must Prove…

To win defamation lawsuits, plaintiffs must convince jurists that the statements under review are:

  1. About them;
  2. Verifiable false statements of fact; and
  3. Materially injurious to the plaintiffs’ reputations or businesses;

In addition, defamation plaintiffs must prove that the defendants:

  1. Published or broadcast the statements; and
  2. Acted either negligently or with actual malice, in distributing the material;

In this case, Dr. Gillis must prove that:

  1. Dr. Ramdev made false statements of fact about Dr. Gillis;
  2. Ramdev’s statement resulted in material harm for Gillis; and
  3. Dr. Ramdev acted negligently in relaying the information.

Privilege and Negligence

The facts in Gillis v. Ramdev are straightforward. So, the lawyers probably won’t waste time arguing obscure legal concepts. But they will undoubtedly debate “privilege” and “negligence” during the course of this action.

Privilege

Privilege, legally speaking, is a protective relationship, under the cover of which parties can share information and rumor without fear of liability. For example, doctors and patients enjoy doctor-patient privileges; attorneys and their clients are protected via attorney-client privilege; husbands and wives cannot be forced to testify against each other.

In the overwhelming majority of doctor-on-doctor defamation lawsuits, privilege plays a part. Statements uttered or written in peer reviews are often privileged; they’re also commonly the root of medical defamation claims.

In Gillis v. Ramdev, defense lawyers will undoubtedly argue that privilege existed between Ramdev and the recording nurse. But will it work? Maybe. On one hand, doctors and nurses do enjoy some professional privileges. On the other hand, since the nurse refused to comply with the doctor’s wishes, the privilege defense may not work.

Negligence

Proving negligence is, perhaps, the highest hurdle for defamation plaintiffs. To win slander and libel lawsuits, plaintiffs must prove that the defendants acted in spite of contradictory evidence or proper due diligence.

In Gillis v. Ramdev, however, negligence may be easy to prove. Remember, Ramdev knew the judge dismissed Gillis from the malpractice lawsuit, which effectively absolves Gillis of any professional wrongdoing in that instance. But, Ramdev allegedly continued to besmirch Gillis in a professional capacity, calling him “’an unethical and incompetent physician,’” who had ‘lied’ in the Bollman lawsuit.”

Speak With A Doctor Defamation Attorney

Kelly / Warner works with medical professionals facing reputation challenges – both online and off. Call or message today to learn more about your doctor defamation legal options.

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Fair Use Storm, Ranger Exec Scorns: The MMPR Copyright Battle

MMPR fair use copyright case
Who will emerge victorious in the Might Morphin Power Rangers Fair Use Legal Battle?

What do you get when Dawson Leery becomes the Darth Vader of a dystopian Power Rangers universe? A bad-ass fanfic video is what.

Produced by Adi Shankar; written and directed by Joseph Kahn; the 14-minute film — starring Katee Sackoff and James Van Der Beek — sheds the Power Rangers of their bubble gum sheen. The result? A de-sweetened depiction even David Fincher could love.

The Internet sure loves it.

But the Power Rangers’ copyright holder – Haim Saban of SCG Power Rangers LLC — wants to quash the viral fun, by way of a DMCA take down notice.

Does Saban have a valid copyright claim? Is Kahn’s short film a perfectly legal, satirical work within the lines of fair use?

Fair Use & The Power Rangers Copyright Battle

The United States fair use doctrine allows for the reproduction of copyrighted works in certain situations, like:

  • reviews,
  • commentary,
  • satirical expressions, and
  • teaching.

Fair use is one of the most popular – and effective – defenses against copyright infringement claims. And it sounds like Kahn studied up on his intellectual property law before releasing the film, as he explained:

“Every image in Power/Rangers is original footage. Nothing was pre-existing. There is no copyrighted footage in the short. I am not making any money on it and I refuse to accept any from anyone. It was not even Kickstarted, I paid for it myself. This was made to be given away for free. It is just as if I drew a pic of Power Rangers on a napkin and I gave it to my friend. Is it illegal to give pic I drew of a character on a napkin to someone for free? No.”

Essentially, Kahn is saying that his film is a commentary on the Power Rangers franchise, and, therefore, protected under the fair use umbrella.

The Argument Against Fair Use

Reasonable People Wouldn’t “Get It”

If this situation erupts into a lawsuit, Saban’s attorneys will undoubtedly argue that Kahn’s film is not fair use. The lawyers may claim that since the production value is so high, a “reasonable person” would assume it’s an official release, authorized by the MMPR copyright holders.

The crux of this argument relies on the ever elusive “reasonable person.” Asserting that a “reasonable person” would not understand Kahn’s rendition as parody or satire is a stretch, though, since the original MMPR franchise was a ubiquitous part of pop culture for nearly a decade. It may have been corny, but it was everywhere – and it was the opposite of “dark and gritty,” both literally and figuratively.

Not Transformative

Saban’s lawyers may also go the “not transformative enough” route. Historically, the more transformative a work of parody is, the more likely a judge is to deem it fair use. Since Kahn’s film is in the same medium as the original series, Team MMPR may try to argue that it’s too similar to the original.

Rights of the Copyright Holder

There’s also the question of how much control copyright owners should wield. The courts must deal with this question on a case-by-case basis since intellectual property rulings are largely dependent on context.

Satire, Parody and The Power Rangers Copyright Battle

Kahn’s Power Rangers film is a parody wrapped in satire – a fact that bolsters the fair use claim.

Parody v. Satire

Both parody and satire are considered free speech expressions, and are legal in the United States. What’s the difference between the two?

Parody involves the manipulation of existing works, usually for comedic effect. Similarly, but not exactly, satire is exaggerated commentary on a frustrating or hypocritical issue.

The original MMPR was more “after school special” than “violence bacchanalia.” So, when considering Kahn’s film, it’s reasonable to describe it as a parody of MMPR, in the same way that Weird Al Yankovic’s “Eat It” is a parody of Michael Jackson’s “Beat It.” By presenting corrupted versions of the characters, Kahn argued, and we agree, that his work is a commentary on both the absurdity of the original Power Rangers, in addition to Hollywood’s obsession with re-packaged ultra-violence.

In responses to the press, Kahn also touched on the parody/satire angle, asserting:

“Power/Rangers is meant as a satire, taking Hollywood’s ‘Dark and gritty’ reboot mania as far as it could go. The dark and gritty reboot thing is such a cliché that the intention was not only to make it dark and gritty but make it even darker and grittier than you could possibly imagine, hence the brains, the blood and the violence and the sex.”

DMCA Takedowns and The Power Rangers Copyright Battle

Enacted in 1998, the Digital Millennium Copyright Act outlines the federal rules for various Internet intellectual property issues, including a process for removing infringing content from the Web.

When faced with a DMCA takedown notice, some websites blink and remove the contested content immediately, regardless of the claim’s validity. Other websites, however, don’t comply unless they feel the requests are solid, and not the machinations of copyright trolls.

In this instance, for some still unknown reason, Vimeo opted to remove Kahn’s film. In response to an inquiry as to why site executives decided to remove the Power Rangers’ video, a Vimeo spokesperson explained:

“…as a host for user-generated content we are fully compliant with the notice and takedown provisions of the Digital Millennium Copyright Act. It looks like your video was removed due to a copyright infringement claim by: Tim Quinlan, SCG Power Rangers LLC.”

We must wait to see how this Power Rangers fanfic copyright bout resolves. It’ll be interesting to see if Lionsgate Films (who is currently working on a development deal with Saban) bodyslams in the ring. The movie studios are in the long war to eradicate online piracy, but is the fanfic line one that entertainment executives don’t want to cross? After all, engaged fans keep a whole lot of franchises in the green.

Kahn said he’ll “keep [the video] there until he gets a cease and desist.” So, grab some popcorn, because it is “legal morphing time!” Kahn’s Power Rangers satire may have only taken seven days to film, but the resulting fair use battle will probably last a lot longer.

Trade Libel Example: Parigi v. Puma Lawsuit

trade libel example lawsuit and lawyer
Summary of an unfair competition lawsuit involving trade secret and trade libel claims.

In This Blog Post:

Defamation lawsuits aren’t exclusively matters of personal scorn and trash-talk. More often than not, libel and slander suits are nuanced, business law battles.

A recent legal tussle between Puma SE (“Puma”) and the Parigi Group Ltd. (“Parigi”) illustrates how defamation and trade secret torts can be leveraged in unfair competition lawsuits.

Background: Longstanding Licensing Agreement

The backbone of this trade libel example lawsuit is a longstanding licensing agreement.

For over ten years, Puma and Parigi enjoyed an amicable business relationship. A mutually beneficial agreement, Puma licensed its marks to Parigi, who then manufactured child-sized versions of Puma’s tracksuits and sportswear.

The Breakup: Longstanding Licensing Deal Broken Without Much Notice

The proverbial $#!+ hit the legal fan when Puma allegedly started *cheating* with United Legwear and Apparel Co. (“United”) behind Parigi’s back. According to Parigi, not only did Puma initiate clandestine talks with United, but executives from the fashion conglomerate supposedly bad-mouthed Parigi to several influential department stores. According to reports:

“’Puma intentionally and fraudulently made repeated misrepresentations to Parigi that Puma intended to renew the parties’ more than 10-year-long license agreement.’ It also alleges that Puma disclosed trade secrets and proprietary business information to United Legwear & Apparel Co. and tried to discredit Parigi among retailers such as Bloomingdale’s and Macy’s.”

Puma spokespeople swear that company representatives did nothing untoward, and the company is looking “forward to presenting [their] case.”

Trade Libel Example Case: Licensing Partner Problems

Full disclosure, we’ve not yet read the entire Parigi v. Puma filing. But judging from available reports, the crux of the lawsuit appears to be binary, in that the suit addresses both trade libel and trade secret issues.

Generally speaking, trade libel is the unfair disparagement of a product, service or business. (Read more about trade libel here.) Conversely, trade secrets are confidential, quasi-intellectual property holdings. (Read more about trade secrets here.)

In this case, Parigi is arguing:

Trade Secret Claim: Puma violated a trade secret agreement with Parigi by sharing information with United, before formally inking the deal.

Trade Libel / Defamation Claim: Puma executives purposefully and negligently spoke disparagingly of Parigi to executives at several department stores.

In Parigi v. Puma, the former insists the latter wasn’t forthcoming about its intentions to terminate a contract. Puma’s alleged reticence to renew the contract, however, isn’t the legal issue anchoring this case; it’s simply the branch on which the actual unfair competition claims — trade libel and trade secret misappropriation — were hung.

Puma and Parigi are two big business players in the fashion world. So, expect this lawsuit to be well-fought and long-lasting. In the words of Parigi spokesperson:

“We will see some very ugly things. Puma’s a major name in the industry, and my client’s a major name in the industry, and they’re going to war.”

Questions For A Business Defamation Lawyer?

Kelly / Warner handles all manners of business law issues, including trade libel and business defamation. If you need an attorney to review documents, we can. Need startup legal counsel? We’ve got the answers. Are you interested in pursuing a lawsuit? We go the extra mile — which is why we win.

Pick up the phone or shoot us a message. Let’s start solving your Internet and business law needs.

More trade libel example lawsuits? Head over here.

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List of California Online Privacy Laws

California online privacy law and lawyer
List of California Online Privacy Laws

California welcomed 2015 with a slew of new online privacy laws. If you run a commercial website – or otherwise collect personal data about users – there’s a good chance you’re beholden to California’s online privacy laws.

But why? You don’t operate out of California, right?

Wrong.

California’s online privacy laws aren’t only for websites and companies based in California, but apply to any and all commercial websites or apps available for use to California residents.

Below is a list of California’s latest digital privacy statutes. The state’s Online Privacy Protection Act law is still in effect, also. To speak with an Internet lawyer about an online privacy legal audit, head over here.

List of California Online Privacy Bills That Became Law In 2015

Privacy Rights for California Minors in the Digital World Senate Bill No. 568

Digitally marketing firearms, tobacco or alcoholic beverages to Californian’s minors is no longer legal. Neither is compiling personally identifiable information about people aged 17 and younger, nor enabling other people to do so. Think of SB 568 as “COPPA for teenagers.”

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB568

Data Breach Notification Amendments Assembly Bill No. 1710

Assembly Bill No. 1710 broadened the liability for data brokers holding (“own or license”) information on Californian residents. Specifically, the new law requires data brokers to:

“…implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure.”

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1710

Patient Medical Breach Notification Period Extension Assembly Bill 1755

Most of the 2015 California online privacy laws tighten restrictions, but AB 1755 does the opposite. Known as the Medical Information Breach Notification Bill – it extended the notification grace period for patient data breaches from 5 to 15 days.

In addition, AB 1755 allows for email as an acceptable method of patient contact and notification. The law does stipulate, however, that email cannot be used unless the patient gives consent.
https://legiscan.com/CA/text/AB1755/id/1038495<

Pupil Records Privacy; 3rd-party contracts; digital storage services and digital educational software Assembly Bill No. 1584

In not so many words, Assembly Bill No. 1584 allows “educational agencies” (e.g., school districts, universities, etc.) to finally put both feet in the 21st century by granting leeway to contract cloud computing programs on a mass scale.

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1584

Pupil Records and Social Media Assembly Bill No. 1442

Another online privacy law protecting students, AB 1442 focuses on social media data. If school representatives collect information about students’ social media accounts, they’re not allowed to sell it, rent it or use it in an unauthorized manner. The law goes so far as to give “destruction instructions” for student social media account information inadvertently (or purposefully) collected.

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1442

Student Online Personal Information Protection Act Senate Bill No. 1177

Another student-focused online privacy law, Senate Bill No. 1177 addresses advertising in educational software. Essentially, the new law prohibits marketers from a) using in-app, targeted advertising and b) building student profiles using information gathered via software and platforms used in schools and other educational institutions. The law also calls for on-demand information deletion under certain circumstances.

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB1177

Consult With An Online Privacy Lawyer

Kelly / Warner attorneys intimately understand the parameters of both state and federal online privacy laws and regulations. If you run a website in the U.S., there’s a significant chance you’re beholden to not only California online privacy laws – foreign (yep, foreign) statutes, too. If you have an online business presence, get a privacy audit with an experienced Internet lawyer. It won’t cost much – and definitely less than the fines you’ll avoid. Get in touch today.

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hyper 6 internet lawyer testimonialI wouldn’t trust anyone else. Kelly Warner has helped me with all the legal aspects of hyper6.com and did a fantastic job. He’s very knowledgeable about Internet law and the hosting industry.

Difference Between United States and Canadian Defamation Law

difference between united states and canadian
*New June 2015 Update Below*

Canadian and U.S. Defamation Law: Polar Opposites?

What’s a difference between U.S. and Canadian defamation law?

People credit the U.S. for having the most defendant-friendly slander and libel laws in the English-speaking world, whereas Canada’s defamation laws are sometimes described as the most plaintiff-friendly.

But other differences distinguish the neighboring nations’ takes on slander and libel – especially when it comes to Internet defamation.

Online Defamation Lawsuit Case Study: Suck Site Target v. Hosting Company

Canadian Andy Lehrer filed a small claims motion in Ontario against hosting company EasyDNS. Why? An adversary of Andy’s had created a disparaging website about Andy. EasyDNS happened to host the website. Even though EasyDNS had nothing to do with the creation of the “suck site,” he asked the company to take it down.

EasyDNS didn’t comply.

Instead, EasyDNS explained to Lehrer that, in this instance, without a court order, they wouldn’t take it down. After all, it’s not a hosting company’s responsibility to determine what is and isn’t libel.

So, what did Lehrer do in response to EasyDNS’ refusal? He added more “counts” to his defamation lawsuit. Lehrer’s reasoning? Since EasyDNS posted a blog entry about the lawsuit, Lehrer is arguing that doing so is not only illegal, but punitively egregious. (For this tactic to work, there would have to be publicly withheld facts that make a huge difference in the case.)

Section 230 of the CDA: The Big Difference Between United States and Canadian Defamation Law

In the U.S., this online defamation lawsuit against the ISP (which we’re differentiating out from Lehrer’s claim against his original detractor, Rourke) wouldn’t make it past round one. Why? Section 230 of the CDA.

Legalese and limited exceptions aside, Section 230 of the CDA states that website operators cannot be held responsible for libelous third-party content. To wit, Section 230 is why Facebook and GoDaddy aren’t successfully sued for every act of online defamation committed by users on their respective platforms.

Difference Between United States and Canadian Law Means  EasyDNS Will Go To Court;Wouldn’t Happen In The U.S.

Since a Canadian court is handling this case, EasyDNS must expend time and resources explaining to a judge: EasyDNS is not the content author or editor and shouldn’t be held responsible for defamation.

To be clear: It’ll be shocking if a Canadian court sides with Andy and saddles EasyDNS with damages for not taking down the anti-Lehrer website. Canada and U.S. law books may not be doppelgangers, but it’s not North Korea above the 41st parallel. Canadians care about free speech as much as Americans.

What is different, though, is that EasyDNS has to expend significant resources to quash the case. In the United States, this online defamation lawsuit wouldn’t have passed the proverbial bouncer.

June 2015 Update

Andy Lehrer won his defamation claim against his original adversary, Tim Rourke. And according to the EasyDNS blog, the hosting company plans to move forward with a takedown against the offending website, now that there is a legitimate court ruling on the matter (which is all the company wanted in hand before complying with the takedown request). From EasyDNS’ Website:

After some initial confusion as to whether there was actually anything for easyDNS to do (Rourke had already removed the pages that inspired the lawsuit), we have received adequate clarification and in keeping with our Terms of Service and our Settlement with Mr. Lerhrer we have proceeded with a takedown against the causepimps.ca website.

To clarify, this blog post was not about Lehrer’s dealings with his original detractor. Instead, it dealt with Lehrer’s defamation claims against EasyDNS, the hosting company. Moreover, we used the case as a vehicle to illustrate a significant difference between Canadian online defamation law and U.S. online defamation law.

Consult An Internet Defamation Lawyer

Kelly / Warner Law handles international and online defamation issues. We have assisted many a Canadian—and hosting company — with their cross-border slander and libel challenges. If you’ve got a defamation question or issue, get in touch today.

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