By David A. Zarett, Esq.Email David
Given the ever-increasing prevalence of social media websites which “rate” physicians (such as Zocdoc and Yelp), it is not unusual for a disgruntled patient to post a negative review regarding a particular doctor. Understandably, any negative review creates consternation for physicians, who fear that the adverse publicity will interfere with their ability to retain and attract patients. This Legal Alert considers the risks physicians might face if they elect to sue patients who publish a negative review given recent changes to the New York anti-SLAPP law.
Unfavorable patient reviews are, unfortunately, becoming a way of life for physicians. Many times, a physician will explore alternatives to neutralize a negative posting. One alternative would be to review the social-media website’s internal policies, which typically contain a process for removing or at least challenging the adverse review under certain delineated circumstances. This alternative sometimes proves successful, but discussion here is beyond the scope of this Legal Alert. A physician might also consider commencing a lawsuit against the web-based, social-media platform for “publishing” the allegedly false posting – which is typically unsuccessful given federal protections available under Section 230 of the United States Communications Decency Act. Discussion of that subject is also beyond the scope of this Legal Alert.
In either case, the physician must take great care to assure patient confidentiality at all times.
A third alternative, which is the subject of this Legal Alert, is for a physician to sue the disgruntled patient who posted the negative review, under a legal theory of defamation, libel, or something similar. Such was the case in a recent lawsuit in the New York State Supreme Court, New York County, Great Wall Medical P.C., et al. v. Michelle Levine(Index No. 157517-2017). (Click here for a copy of the case).
The interesting lesson here is that the Court in Great Wall Medical not only dismissed the physician’s defamation claims, but awarded attorney’s fees to the defendant-patient based upon recent changes to New York’s anti-SLAPP law (Strategic Lawsuit Against Public Participation). Civil Rights Law Section 76-A. Ruling in favor of the patient defendant, the court recognized that the anti-SLAPP law was designed to protect individuals from lawsuits when they engage in public petition or communicate in a forum open to the public. Finding that the defendant-patient’s statements – the negative social media postings – fell within the broad reach of the statute, which the Court applied retroactively, the Court dismissed the plaintiff-physician’s complaint. The Court found that the plaintiff-physician failed to demonstrate by clear and convincing evidence that the defendant-patient made the statements (i.e., the negative postings) knowing that they were false or with reckless disregard with respect to whether the statements were false. The Court also held that the actual malice standard must be determined subjectively, from the perspective of the patient making the statement. While each case in this area of law is fact-specific, the bottom line is that the Court applied a legal standard that was difficult for the physician to overcome.
More significantly, the Court held that the defendant-patient was entitled, under recent amendments to the statute, to an award of costs and attorneys’ fees for defending the lawsuit (which would not be available to a defendant in an ordinary defamation action).
This case reflects that courts may give a great deal of latitude to patients making complaints on social media, and that whenever a physician considers taking action resulting from a negative patient review, great care should be given to assess whether such action could survive a legal challenge, given the strict legal standard applicable under the recent antiSLAPP suit amendments. Failing to do so may not only result in prompt dismissal of the physician’s case, but may also open the physician up to potential liability for the patient-defendant’s attorneys’ fees.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a New York law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, employment counseling and controversies, litigations, arbitrations and administrative proceeding representation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
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