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Online Review Patient Contracts Are Unenforceable
Originally Posted: Tuesday, April 7th, 2015
ATTN DENTISTS: If you’re using a patient contract that asserts copyright ownership of online reviews, it’s time to get it updated. Why? Because judges have decided that those types of agreements are no longer enforceable.
Doctor and Dentist Patient Contract That Confer Copyrights of Online Reviews
In the not too distant past, and in an effort to curtail negative online reviews, many dentists used a patient contract with an online copyright clause. Essentially, patients signed away their copyrights to online reviews regarding the dentist’s performance – good or bad.
Because if someone posted a negative review, the dentist could simply submit a DMCA take down request to get the bad evaluation removed from the Web. Some contracts even included a clause asserting a fee for every day the negative review remained online.
Used To Work, But Judges Caught On, And Are Now Putting An End To It
Once patients clued in to the parameters of these “patient copyright contracts,” they rang the caveat emptor alarms. Quickly, and due to lawsuits, judges were able to weigh in on the validity of these contracts.
The Judges’ overwhelming verdicts? These types of patient contracts are not enforceable because, in the United States, you can’t preemptively extinguish someone’s free speech rights.
Patient: 1, Dentist: 0
Recently, a new York court heard a patient v. dentist online review case. Ultimately, the judge ruled that the contract – which claimed copyrights and forbade future negative reviews – was unconstitutional and unenforceable.
In the judge’s exact words:
“[Online copyright control contracts] constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.”
In this case, however, no money will likely exchange hands because three years ago the dentist involved vanished; never to be heard from again.
Speak With A Dentist Defamation Lawyer
Kelly / Warner Law works with both doctors and patients. We’ve helped medical professionals get negative reviews removed from the Internet, and we’ve also assisted patients who’ve been unfairly sued for online defamation over a less-than-glowing missives.
Doctor v. Doctor Defamation: Malpractice Suit Leads To Job Insecurity
Originally Posted: Thursday, February 26th, 2015
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:
Verifiable false statements of fact; and
Materially injurious to the plaintiffs’ reputations or businesses;
In addition, defamation plaintiffs must prove that the defendants:
Published or broadcast the statements; and
Acted either negligently or with actual malice, in distributing the material;
In this case, Dr. Gillis must prove that:
Dr. Ramdev made false statements of fact about Dr. Gillis;
Ramdev’s statement resulted in material harm for Gillis; and
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, 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.
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.
Surgery Defamation: Can Doctors Sue Patients Over Online Reviews?
Originally Posted: Tuesday, July 29th, 2014
Let’s talk about plastic surgery defamation for a few.
You’re a plastic surgeon who recently operated on a woman named Cruella. Faithful to her name, Cruella likes to complain – even when there’s nothing to criticize! And sure enough, Cruella didn’t like your work, (she wanted to look exactly like Angelina Jolie, gosh darn it!) and decided to take her exaggerated gripes online.
Can you sue her for online defamation? What are your chances of success? Let’s explore these questions.
What happens if a patient leaves a scathing online review about your plastic surgery practice?
Statements posted online are fair game for defamation lawsuits. Just because something doesn’t appear in a mainstream media outlet doesn’t mean it can’t be the subject of a libel claim. So yes, you’re absolutely entitled to pursue a defamation lawsuit against a patient who pens a scathing missive on an online review website – like Yelp! or Ripoff Report.
That said, it’s important to understand the difference between defamation and a negative opinion.
A verifiable false statement of fact
A subjective assessment
What is the likelihood of a doctor winning a plastic surgery defamation case against a disgruntled patient?
A plastic surgeon’s chance of winning a defamation lawsuit against a patient has everything to do with the facts of the case. Where most plastic surgeons go wrong is deciding to sue over a negative opinion, instead of a false statement of fact.
Remember, legally speaking, defamation is a lie – not a nasty opinion.
Here’s a quick checklist of what plastic surgeons need to prove in order to win an online defamation:
That you were the subject of the reviewer’s post;
That the post contained a false statement of fact that caused professional harm;
That the defendant negligently or purposefully posted the offending statements.
Plastic Surgery Defamation Case Study: Loftus v. Nazari – A Cautionary Tale For Plastic Surgeons
In 2006, Catherine Nazari walked into the office of Dr. Jean Loftus. She wanted a breast lift, implants, a double arm lift and a “tummy tuck.” Surgery eventually ensued, but Nazari wasn’t happy with the results. In 2010, the disgruntled plastic surgery patient started posting negative comments on several doctor review websites.
A sampling of her disparaging comments:
“only to be left with permanent nerve damage in both arms (arm lift) severe abdominal pain (tummy tuck) horrible scars and disfigured in both breast [sic] (breast implants, breast lift)as [sic] a result of her mistakes. As a result of the surgeries preformed [sic] by Dr. Loftus I was left having to file for Total Disability.”I had plastic surgery due too [sic] losing a lot of weight and was not happy with the sagging skin I was left with. I thought that if I had the surgery It would raise my self confiedence [sic] and improve my appearance. If I could go back in time, I would not have done it. I had breast implants and a Breast lift and was left with horrible scars and disfigurement, a tummy tuck that left me with severe abdominal pain that is still present today, I had arm [sic] lift in both arms that caused permanent nerve damage in both arms and there [sic] nothing that a consumer can do. All of my surgeries were preformed [sic] the same day by a Dr. Jean Loftus in Ft. Wright, KY. 99% of all medical malpractice cases never make it to a hearing, let alone a trial. I have filed complaints with the US Attorney in Washington, DC and they referred me to the Ohio Medical Board to file a complaint. I also filed a lawsuit with Bob Handleman in Columbus, OH only to have nothing done and my case was dismissed without prejudice. On October 22, [*2] 2010 I received a letter from the Ohio Medical Board that NO disciplinary actions would be taken regarding Dr. Loftus. I guess it is true what Ralph Nader says on his site, that State Medical Boards are like FOXES GUARDING THE HENS. These doctors should be held accountable for their mistakes and not be covered up.my medical records were stolen from a friend and colleague of hers, Dr. Rank O. Dawson a plastic surgeon of Cincinnati, OH.
Brutal, right? But believe it or not, the judge ruled that the overwrought missives aren’t defamatory because a “reasonable person” would probably question Nazari’s rants — due to their overt emotionality. Moreover, since the statements appeared on an “opinion website,” the judge opined that it would be “the natural tendency…to infer that they are opinion.”
If Defendants Believe Their Statements Are Truthful, And Can Prove Proper Research, They Can Escape A Defamation Verdict
In most circumstances, if defamation defendants believe their statements to be truthful, and can prove that they engaged in proper fact checking, the defendant will win. In this case, the judge ruled that the defendant genuinely believed her statements to be true, which worked in her favor.
In Loftus v. Nazari, the defendant’s free speech rights trumped the plastic surgeons – and since the Nazari truly believed her statement, it wasn’t deemed defamatory.
Not All Defamation Lawsuits Are Created Equal. Just Because One Person Ducked Damages, Doesn’t Mean You Don’t Have A Viable Case
Does this mean you shouldn’t pursue an online defamation case? Absolutely not. Many plastic surgeons do win – or at the very least succeed in getting disparaging material removed from the Internet.
Do you have a plastic surgery defamation problem? Get in touch with Kelly / Warner Law, today.
Doctor Defamation Case Study: Requested Review /= Defamation
Originally Posted: Thursday, May 22nd, 2014
May this doctor defamation case serve as a cautionary one. The lesson? Don’t sue for defamation over a situation you initiated.
Acrimonious Doctor Departure Results In AAR
Back in 2003, a doctor locked heads with administrators at his medical facility. Ultimately, the doctor quit instead of dealing with the office tension. Judging from available documents, he received a severance package.
Immediately after the doctor left, administrators – in accordance with the facility’s operating procedures – submitted an Adverse Action Report about the doctor’s departure.
Doctor Requests AAR Removal; Denied; Requests Investigation
Fast forward to 2011. The doctor contacted the hospital requesting removal of the AAR.
But the hospital refused.
Undeterred, the doctor went directly to HHS – the company that maintains the AAR database – about removing the AAR.
The rub: HHS won’t remove something just because a doctor asks. Instead, staff members investigate each situation. In this instance, an HHS representative contacted the hospital and asked for a recounting of the events that led to the doctor’s unceremonious departure.
Doctor Unhappy With HHS Investigation Results Sues For Defamation
The hospital complied and related “the sequence of events” to HHS. In the end, the Adverse Action Report stayed put. So, the doctor filed a defamation lawsuit, arguing that the revelation of his situation to HHS constituted defamation.
Judge Rules In Favor Of Hospital
The court, however, wasn’t feeling the doctor’s argument. The judge reasoned that the doctor, technically, requested an investigation; as such, he has no right to financial damages over the information uncovered in said inquiry.
Doctors Do Win Defamation Lawsuits Involving Negative Reviews
Does this mean that every doctor defamation lawsuit centering around a review will turn out the same? Absolutely not. In fact, in this case, it sounds like the hospital told the truth. If the hospital had lied, however, the outcome would have been different.
What Is Considered Lying Under US Defamation Law?
What constitutes lying? Clearly, a false statement of fact is a lie. Additionally, under United States defamation law, there are two other actionable categories of falsity – defamation by omission and defamation by implication.
Speak With A Doctor Defamation Lawyer Today
If you are a doctor, surgeon, nurse or another type of medical professional in need of defamation legal advice, get in touch with Kelly / Warner Law today. We enjoy an excellent rating by independent lawyer review association, Martindale-Hubble; plus, founding partner Aaron Kelly also has a perfect rating on consumer Internet lawyer review website, AVVO.
Don’t wait. In many cases, doctor defamation problems can be solved quickly – especially in instances of online review sites.
Get in touch with the doctor defamation legal team at Kelly / Warner Law today. You have more legal options than you realize.
Poppy Seed Bread Leads To Defamation Lawsuit
Originally Posted: Monday, March 17th, 2014
The milk of the poppy has caused some problems for a new mom in Pennsylvania! All thanks to a few loaves of organic bread from a farmer’s market.
Nurses Single-Out Mother In Labor As Potential Drug Addict
IT programmer Rachel Devore recently had a baby. Like most expectant parents, Devore hoped for a beautiful, drama-free birth. Instead, hospital employees, for all intent and purpose, labeled her a drug addict.
Why did the hospital think Devore may have been indulging in illicit drugs? Apparently, at the hospital where she gave birth, all women must provide urine for a drug test conducted during delivery. Presumably, it’s to screen for unfit parents. In any event, Devore’s test allegedly came back positive for opiates, but she adamantly denied – and continues to deny — any wrongdoing.
Foiled By Poppy Seed Bread
After returning home from the hospital, Devore realized that the bread she had been munching on for several weeks was laden with poppy seeds.
Now, those of you thinking, “Yeah right. She’d have to eat a store’s worth of poppy bread to trigger a false positive,” may want to slow your role, because Devore’s test didn’t come back as a “slam dunk positive,” but instead an “unconfirmed positive.” Moreover, technicians tested the newly born baby for evidence of drug use, and the results came back 100% negative.
“It’s Defamatory To Tell Social Services I Was A Potential Drug Addict!”
Devore and her husband contend that the hospital staff violated doctor-patient confidentiality by handing the results of her drug test over to child protective services, then further defamed them by heavily implying that Devore flunked the drug test and needed to be watched. Moreover, the lawsuit points out that the drug test disclaimer instructed that results “are to be used only for medical purposes. Unconfirmed screening results must not be used for non-medical purposes (e.g. employment testing, legal testing).”
Not only was Devore’s child’s birth marred by the accusations, but the couple was also saddled with a social worker for months after the baby’s birth. And the rotten cherry on top is that a Devore file now exists with Child Welfare Services.
Contact A Medical Defamation Lawyer
Our legal practice has successful handled many medical defamation cases. Traditionally, we assist doctors, nurses, and other medical professionals with slander and libel claims – but we also handle doctor defamation defense in certain circumstances.
When it comes to the law, privilege means that one party has a legal right to engage in a given action, and, as a result, cannot be held liable for said action. When it comes to dentist defamation lawsuits, privilege can dictate who wins and who loses.
First Things First, What is Dentist Defamation?
Before we delve deeper into the legal concept of privilege, let’s first define defamation. In basic terms, defamation occurs when one party publicly lies about another party. When a dentist sues for slander or libel, related to their professional capacities, the dentist must prove that:
The defendant published — or publicly spoke — a false statement of fact;
The false statement of fact was about the dentist;
Financial harm befell the dentist as a result of the statements under review.
Opinion Is Not Defamatory!
The #1 libel mistake dentists make: filing lawsuits in response to negative opinions. Under United States law, opinion is not defamatory. So, if one of your…shall we say…difficult…patients decides to rant online, but only says things like, “I do like this dentist at all!” or “I do think people should go to Dr. X” — winning will be tough.
If, however, someone says that you overcharged them, or didn’t have the proper credentials, or made any other demonstrably false statement of fact, there’s a chance you have a valid dentist defamation lawsuit.
What is Legal Privilege? And What Does It Have To Do With Dentist Defamation?
Over the years, a significant percentage of dentist defamation trials have turned on the question of privilege. The majority of privilege-related defamation suits involving dental professionals involve medical board review statements. It’s also common for privilege to affect employment cases.
So, what, exactly, is privilege as it relates to defamation? Basically, there are 2 types of legal privilege that usually arise in defamation lawsuits involving dentists:
Reporter Privilege – Journalists (including bloggers) are allowed to report “facts” from sources so long as they engage in proper due diligence and convey said facts in a neutral manner, even if the information turns out to be inaccurate.
Qualified Privilege – An individual may be granted qualified privilege if the defamatory statement is “made in the course of an employer’s duties.”
Let’s apply the concept of privilege to real-world libel and slander scenarios dentists may face.
A Medical Review Board Incident
John Doe, DDS has a relationship with a local hospital where he performs oral surgery. When his annual review rolls around, another dental surgeon, Dr. Jane Smith, reports Dr. Doe for improper conduct. Upon hearing of his colleague’s betrayal, John Doe files a defamation lawsuit. Who would win?
Scenario #1: If John Doe’s colleague maliciously made a false statement of fact during the board hearing and Dr. Doe can prove Smith had reason to believe her statements were inaccurate, Doe could win the case.
Scenario #2: If Doe cannot prove that Smith’s statements are false, Smith would probably emerge victorious in our hypothetical dentist v. dentist defamation lawsuit.
Scenario #3: If Smith is under an employment or quasi-legal obligation to report any suspected foul play on the part of her colleagues, even if the information turned out to be false, there is a significant chance that Doe would not be successful in his lawsuit against Smith.
Dentist Defamation Lawsuits Involving Privilege
Ferlito v. Cecola
In a 1982 Louisiana dentist defamation lawsuit, Chetta Tuminello Ferlito sued dentist Dr. Russell E. Cecola. In addition to several other charges, Ferlito claimed defamation because Cecola suggested that she seek out a psychiatrist, plus a few other comments the plaintiff found objectionable. In the end, the verdict came back in favor of the defendant dentist because his comments about psychiatry were privileged. Additionally, the court reminded: “profane language, although disgusting and uncouth, is not defamatory per se.”
Ellenberger v. Espinosa
In 1994, a Court of Appeals in California heard the case of Ellenberger v. Espinosa. Ellenberger, a dentist, filed a defamation lawsuit against one of her patients, in addition to the State of California, over statements made in a Board of Dental Examiners proceeding. Since the statements under review were spoken in the course of a quasi-legal proceeding, the court ultimately ruled they were protected by qualified privilege and, therefore, not defamatory.
Rickenbacker v. Coffey
Rickenbacker v. Coffey is a frequently cited privilege-related dentist defamation lawsuits. The melee started when the defendant dentist, Dr. Harry Rickenbacker, treated Bernard Williams – a patient who’d previously been a patient of Dr. R. Donald Coffey, Jr.
Having experienced some difficulties after seeing Coffey, Williams sought a second opinion with Rickenbacker. Williams ended up suing Coffey for malpractice, and Rickebacker was asked to testify on Williams’ behalf.
Coffey caught wind of Rickenbacker’s involvement. Unimpressed with his colleague’s professional assessment, Coffey sued Rickenbacker for defamation. Specifically, Coffey took umbrage with statements Rickenbacker made when being debriefed by Williams’ attorney.
In the end, the judge sided with Dr. Rickenbacker, deeming everything said in the deposition meeting privileged and, therefore, not defamatory.
McIntosh v. Patridge
McIntosh v. Patridge was a complicated employment case with a small defamation component. Basically, McIntosh sued for unlawful firing and other charges, including a slander claim, because McIntosh felt her superior, Patridge, defamed her professional skills as a hygienist. Since Patridge was McIntosh’s superior, the statements were deemed privileged and, therefore, not slanderous.
Skoblow v. Ameri-Manage, Inc.
In Skoblow v. Ameri-Manage, a dentist sued a bunch of his former co-workers for essentially talking trash about him before his termination. In the end, the suing dentist lost because the judge deemed the conversation between his colleagues to be privileged since it focused on his job performance, which, in these circumstances, was a relevant, professional topic of conversation among the defendants.
Contact A Dentist Defamation Attorney
Over the years, Kelly Warner has worked on many dentist defamation lawsuits. If you are a dentist looking to take action over a detrimental online review or you’re being sued by another dentist, our libel team can help. Get in touch today to begin the conversation.