Urgent message: People are unlikely to trust their healthcare to a provider with a sullied reputation, so speaking ill of a provider can cost them in terms of patient revenue or future employment opportunities. Understanding the causes and defenses for defamation can help you protect your reputation and your business.

Alan A. Ayers, MBA, MAcc

We live in a nation where the First Amendment should protect “free speech,” particularly among public figures. Yet, Google “defamation lawsuit” and you’ll find the news full of instances in which the ability to share one’s bona fide opinion was met with censure and penalty in the form of civil litigation.

This has also occurred in urgent care as defamation lawsuits have ensnared operators in their capacity as a competitor and employer, as well as patients—many of whom are victims.

  • Can one speak an “opinion” about the quality of a competitor’s services relative to yours?
  • Can an urgent care operation separate itself from a provider who has been charged with (but not convicted of) a crime or regulatory infraction?
  • Can victims of alleged malpractice seek legal recourse including sanctions against a provider?
  • Can patients share their negative experiences with the greater “online” community including on social media and through reviews?

After all, isn’t there a “public interest” in people having complete information about medical providers?

What Is Defamation?

Defamation is defined as “the unprivileged publication of false statements which naturally and proximately result in injury to another.”1 The elements of a cause of action for defamation are:

  1. the defendant published a false statement
  2. about the plaintiff
  3. to a third party and
  4. the falsity of the statement caused injury to the plaintiff2

Note that libel and slander are both acts of defamation. Libel is defaming someone in writing, and slander is defaming them orally. Libel is a malicious defamation, expressed either by printing or by signs or pictures or the like, tending to  sully the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation, or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule.3 To sustain an action for libel, the allegedly defamatory words or images must refer to some ascertained or ascertainable person, and that person must be the plaintiff.4

Slander is a “false and unprivileged oral communication attributing to a person . . . certain unfavorable characteristics or qualities.”3 In other words, slander means any libel communicated by spoken words.5 To prove slander, or oral defamation, a plaintiff must show:

  1. The imputing to another a crime punishable by law
  2. Charging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society
  3. Making charges against another in reference to his trade, office, or profession, calculated to injure him therein or
  4. Uttering any disparaging words productive of special damage which flows naturally therefrom.6

Damage to Reputation

In addition to the definitions above, defamation can be “the invasion of the interest in a reputation and good name.”7,8 A New York federal court has held that a statement that tends to injure another in his or her trade, business, or profession is defamatory per se.9,10

For physicians and medical businesses, specifically, their “reputation” is their stock in trade. People are unlikely to trust their future healthcare to a provider of ill-repute.11-13 Therefore, speaking ill of another provider can cost them in terms of patient revenue or future employment opportunities—especially when the purported defamation entails issues of qualifications, competence, or professional ethics.14,15

Thus, a statement is defamatory per se if it “tend[s] to injure another in his or her trade, business, or profession.”16-18

What are Possible Defenses to a Claim of Defamation?

Truth. Truth is a complete defense to a defamation claim.19-21 In addition, “substantial truth” is an absolute defense to a defamation action in some states.22-24

Privilege. Privilege can be used as a defense in a defamation action.25-27

Opinion. Ordinarily, opinion statements have absolute protection, and are nonactionable since they are not capable of being objectively characterized as true or false.28 For example, the Minnesota Supreme Court held that referring to someone as “a real tool” falls into the category of pure opinion because the term “real tool” cannot be reasonably interpreted as stating a fact and it cannot be proven true or false.29

Consent: If the plaintiff consents to the publication of the statement in question, they can’t claim defamation.

Statutory defenses: Certain defenses are prescribed by law, such as anti-SLAPP (strategic lawsuit against public participation) statutes.30

Reputation Damages

Reputation damages are recoverable but not susceptible to precise calculation, courts have said.31-33 Even so, an award of damages cannot be based on mere speculation that the plaintiff’s reputation suffered.31 “Special damages consist of the loss of something having economic or pecuniary value, which must flow directly from the injury to reputation caused by the defamation and not from the effects of the defamation.”22 Damages must be specific; they must be fully and accurately stated.34 Round figures aren’t enough.22

Note that the average defamation settlement will depend on the specific facts. And although there’s no such thing as an average defamation settlement,” there are several factors that determine a settlement, such as:

  • The nature of the defamatory statements
  • Whether a plaintiff can prove economic damages with bank statements, tax returns, and other financial records
  • Whether a plaintiff can demonstrate actual malice to substantiate punitive damages
  • If a plaintiff uses expert witnesses to establish general damages such as emotional distress and
  • The credibility of each side’s witnesses and evidence

What Can a Provider Do About Defamation to Their Business?

At a bare minimum, a provider may engage an attorney to send a cease-and-desist letter to someone who posts an untruthful review, which may warn others of the risks of such defamatory statements. An urgent care owner who is the victim of online defamation should take a screenshot of the defamatory statements to preserve a record of that evidence. 35

With the help of an attorney, a provider may be able to prove that the statements in a negative online review by a patient are false and constitute defamation. If so, the author may be liable for damages to the provider’s professional reputation. In addition, the urgent care provider may try to contact the review website directly to remove the defamatory statements. While this can prove difficult, providers can address the negative reviews by encouraging legitimate and satisfied patients to post their honest reviews to eventually lose the unfair review in a long list of positive reviews.

Urgent care owners should understand that—as mentioned above—truth is an absolute defense to a defamation claim.36 So, if an urgent care is under investigation for state health regulation violations, and it’s reported truthfully, it is not defamation.37

Let’s look at a few more examples:

If a physician is sued for malpractice, a patient can post the following if it is the truth: “I just filed suit in Minnesota District Court against Dr. Spitz for medical malpractice, docket number 22-87145.” That’s a fact and isn’t defamation.38

If the patient posts, “I sued Dr. Spitz because he’s a lousy doctor and operated on the wrong hip,” the “lousy doctor” would be the patient’s opinion and if the doctor did actually operate on the wrong hip, that also is a fact, so again, no defamation.

However, if the patient says, “Dr. Spitz is blind as a bat and doesn’t know right from left,” that may be actionable because the doctor isn’t, in fact, blind and he does know right from left. As such, the patient published falsities about Dr. Spitz. But again, remember that Dr. Spitz must prove he and/or his reputation were damaged to recover.

Takeaway

Remember, First Amendment “freedom of speech” generally doesn’t apply to falsehoods. That’s called defamation, the defense of which is truth. If a patient, competitor, employee, or someone else publishes a false statement about your urgent care or providers, seek the assistance of an experienced attorney to determine if you have an actionable claim with provable damages.

REFERENCES

  1. Wolfson v Kirk. 273 So.2d 774, 776 (Fla. 4th DCA 1973).
  2. Bass v Rivera, 826 So. 2d 534, 535 (Fla. 2d DCA 2002).
  3. Hoffman v Preston, No. 20-15396, 2022 U.S. App. LEXIS 5237, at *52-53 (9th Cir. Feb. 28, 2022), citing Utah Code. 45-2-2 (2021).
  4. Grimsley v CBS Broad, No. 2:21-cv-4008-DCN, 2022 U.S. Dist. LEXIS 42640, at *5 (D.S.C. Mar. 10, 2022).
  5. Buchi v Powell, No. 2:21-CV-282-TC, 2022 U.S. Dist. LEXIS 36192, at *4 (D. Utah Feb. 28, 2022).
  6. Shibley v Nat’l Bank of Commerce (In re Shibley), No. 19-05229-LRC, 2022 Bankr. LEXIS 276, at *1 (Bankr. N.D. Ga. Feb. 3, 2022), citing O.C.G.A. § 15-5-4(a).
  7. Albert v Loksen, 239 F.3d 256, 265 (2d Cir. 2001).
  8. Biro v Condé Nast, 883 F. Supp. 2d 441, 456 (S.D.N.Y. 2012).
  9. Thompson v Bosswick, 855 F. Supp. 2d 67, 76 (S.D.N.Y. 2012).
  10. Daniels v Am. Airlines Inc., No. 19-CV-3110 (MKB), 2022 U.S. Dist. LEXIS 28956, at *20-21 (E.D.N.Y. Feb. 17, 2022).
  11. Hadley M. Dreibelbis. Social media defamation: a new legal frontier amid the internet wild west. 16 Duke J. Const. Law & Pub. Pol’y 245 (Spring 2021).
  12. Tilley CC. (Re)Categorizing Defamation.94 Tul. L. Rev. 435 (February 2020).
  13. Yost ES. Tweet,post, share…get haled into court? Calder Minimum Contacts Analysis in Social Media Defamation Cases. 73 SMU L. Rev. 693 (Summer 2020).
  14. Gorman v Jacobs, 597 F. Supp. 2d 541, 547 (E.D. Pa. 2009), Id. at 543.
  15. Latner AW. Does calling a colleague physician an “idiot” constitute defamation? MPF. Available at: https://www.empr.com/home/features/does-calling-a-colleague-physician-an-idiot-constitute-defamation/. Accessed March 28, 2022.
  16. Supercom, Ltd. v Sabby Volatility Warrant Master Fund Ltd., 2022 U.S. Dist. LEXIS 29184, at *5-6 (S.D.N.Y. Feb. 17, 2022).
  17. Sundaram v Coverys, 130 F. Supp. 3d 419, 421 (D. Me. 2015), Criminal Acts provision.
  18. Zulkey J. Does your claim arise out of professional services? Professionalliability policiesand Professional Services Exclusions.3 Corp. & Bus. L.J. 161 (2022).
  19. Elconin v Bui. No. D079446, 2022 Cal. App. Unpub. LEXIS 1070, at *8 (Feb. 23, 2022).
  20. James v Lydon.No. 19 C 3366, 2022 U.S. Dist. LEXIS 30625, at *17-18 (N.D. Ill. Feb. 22, 2022).
  21. Noonan v Staples, Inc., 556 F.3d 20, 28 (1st Cir. 2009).
  22. Carey v Carey, 2022 NY Slip Op 50124(N.Y. Sup. Ct. 2022).
  23. Polk Cty. Publ’g Co. v Coleman, No. 09-20-00298-CV, 2021 Tex. App. LEXIS 10188, at *12 (Tex. App. Dec. 30, 2021).
  24. Read v Phx. Newspapers, Inc., 169 Ariz. 353, 355, 819 P.2d 939 (1991).
  25. Bedford v Witte, 318 Mich App 60, 65; 896 NW2d 69 (2016).
  26. Prysak v RL Polk Co, 193 Mich App 1, 15; 483 NW2d 629 (1992).
  27. Vincent Johnson v Mich. Minority Purchasing Council, No. 357979, 2022 Mich. App. LEXIS 1098, at *17 (Mich. App. Mar. 3, 2022).
  28. Mestecky v N.Y.C. Dep’t of Educ., 791 Fed. Appx. 236, 239 (2d Cir. 2019).
  29. McKee v Laurion, 825 N.W.2d 725, 733 (Minn. 2013).
  30. Anti-SLAPP safeguards are designed to “protect individuals from meritless, harassing lawsuits whose purpose is to chill protected expression.” Crowley v Faison, No. 2:21-cv-00778-MCE-JDP, 2022 U.S. Dist. LEXIS 38232, at *9 (E.D. Cal. Mar. 3, 2022).
  31. Anderson v Durant, 550 S.W.3d 605, 621 (Tex. 2018).
  32. Dunn v Kadence Collective, LLC, No. 04-21-00034-CV, 2022 Tex. App. LEXIS 1450, at *17-18 (Tex. App. Mar. 2, 2022).
  33. Maison de France, Ltd. v Mais Oui!, Inc., 126 Wn. App. 34, 54, 108 P.3d 787 (2005); Momah v Bharti, 144 Wash. App. 731, 740 n.3, 182 P.3d 455, 461 (2008).
  34. Drug Research Corp. v Curtis Publ. Co., 7 NY2d 435, 440-441, 166 N.E.2d 319, 199 N.Y.S.2d 33 (1960).
  35. Eimer J. Defamation in the age of social media: A roadmap for healthcare providers. Medical Economics. October 23, 2019. Available at:  https://www.medicaleconomics.com/view/defamation-age-social-media-roadmap-healthcare-providers. Accessed March 28, 2022.
  36. Tm v Mz.326 Mich. App. 227, 242, 926 N.W.2d 900, 910 (2018).
  37. Health department looks into vaccine mandate compliance.Associated Press. November 9, 2021. Available at: https://www.usnews.com/news/best-states/rhode-island/articles/2021-11-09/health-department-looks-into-vaccine-mandate-compliance. Accessed March 28, 2022. 38. Relias Media. What to do when malpractice allegations become defamation. Available at: https://www.reliasmedia.com/articles/147191-what-to-do-when-malpractice-allegations-become-defamation. Accessed March 28, 2022.
Avoiding Defamation Lawsuits in Urgent Care

Alan A. Ayers, MBA, MAcc

President of Experity Networks and is Practice Management Editor of The Journal of Urgent Care Medicine
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