What do you think when you hear or read the word “privilege”? Do you picture a person with F.U. money? Or maybe visions of royal bodies dance in your head. Answers vary, but when it comes to 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 often dictates 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. In cases where a dentist is suing for slander or libel related to their professional capacities, the dentist most prove that:
- The defendant published — or publicly spoke — a false statement of fact;
- The false statement of fact was about the dentist doing the suing;
- Financial harm befell the dentist as a result of the statements under review.
Opinion Is Not Defamatory!
The #1 mistake dentists make is filing defamation lawsuits in response to opinions. Under United States law, opinion is not defamatory. So, if one of your…shall we say, difficult…patients decides to go on an online rant rampage, but only says things like, “I do like this dentist at all!” or “I do think people should go to Dr. X”, you probably won’t succeed with a libel or slander claim.
If, however, someone says that you overcharged them, or did have the proper credentials, or made any other false statement of fact, there is a decent chance you have the 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 deal with statements made at a medical board review. It’s also common for privilege to play a part in cases dealing with employment references.
So, what, exactly, is privilege as it relates to the tort of defamation? Basically, there are 2 types of legal privilege that usually come up in defamation lawsuits involving dentists:
- Reporter Privilege – Journalists (increasingly includes bloggers in many jurisdictions) are allowed to report “facts” from their 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 a dentist 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 his 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 dentist because the court decided his comments about psychiatry were privileged. Additionally, in the written opinion, 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 one of the most 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 being considered for defamation 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, though, 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 amongst the defendants.
Contact A Dentist Defamation Attorney
Over the years, Kelly Warner Law has worked on many dentist defamation lawsuits. If you are a dentist looking to take action over a detrimental online review, or whether you’re being sued by a dentist because of a bad online review, our Internet libel team can help. Get in touch today to begin the conversation.