It’s a completely understandable reaction: After a patient posts an online review slamming your practice for poor treatment, you want to fight back so you consider taking legal recourse and file a suit claiming defamation.
Unfortunately, it’s almost always the wrong reaction for the simple reason that a negative review is not necessarily a defamatory one and doctors risk doing more harm than good by failing to understand the distinction. To avoid that unpleasant scenario, we asked Seattle attorney Samantha Schmidt to explain what separates a negative review from a defamatory one:
In order to bring a successful cause of action for defamation, one must show the following: (1) a false statement, (2) an unprivileged communication of the false statement to a third party, (3) fault on the part of the reviewer who made the statement and (4) damages. In the context of a negative review, the reviewer’s opinion (even if negative) does not mean the review is defamatory. For example, “I do not like Dr. X” or “I think Dr. X did not do a good job” are not defamatory statements. A reviewer can be critical and express their opinion about a doctor without the review falling within the realm of defamation.
On the other hand, a review can be considered defamatory if it “tends to harm the reputation” of the person or business being reviewed such that the review “will deter third persons from associating or dealing with” the person or business. For example, if a patient wrote that “Dr. X is being investigated by the medical board for a botched surgery” yet knows it to be untrue, and Dr. X suffered damages as a result, it could make other potential patients not want to use Dr. X’s services. The problem is that it’s exceedingly difficult to succeed in defamation cases for several reasons:
- First, it can be difficult to ascertain whether or not a review is in fact defamatory. The line between whether a negative review is merely the opinion of the reviewer or a defamatory statement can be murky.
- Second, even if the statement is defamatory, in order to have a successful lawsuit, the doctor must show there have been damages. Oftentimes it can be very difficult to quantify the damages suffered as a result of defamation.
- Third, there is also the expense of the lawsuit. Legal fees can quickly add up in any litigation matter and there is also the time a doctor and his or her staff will need to devote to the lawsuit.
Put it all together and it’s clear that suing for defamation over a negative review is rarely the best way to go. In subsequent posts, we’ll look at other aspects of online reviews, including the impact of HIPAA, the role review sites play in the process and better ways to counter such reviews and maintain your good name.
Don’t cry defamation without understanding what it really is While no physician enjoys finding and reading online negative patient reviews about his or her skill, performance or professional demeanor, filing a lawsuit against a patient for defamation may not be the best use of a physician’s time, money and resources.