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:

1. The defendant published — or publicly spoke — a false statement of fact;
2. The false statement of fact was about the dentist;
3. 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:

1. 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.
2. 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.