United States: Pejorative Statements By Former Patient Are Not Defamatory, But Protected Opinion

Richard Raysman is a Partner in our New York office.

It is fair to say that doctors trade on their reputations more so than most other professionals. When one relies on the doctor to ensure his or her health, and occasionally save a life, the import of such a choice often precipitates extensive research into the background of a physician. Moreover, a sizable amount of medical procedures or other types of treatment cost significant sums. As a result, it behooves consumers to apply extra scrutiny ex ante to those medical professionals with whom a relationship may soon commence. The views of others who were once similarly situated can in some cases be determinative to the decision of a prospective patient, and therefore cases often arise in which medical professionals take legal actions against those who have besmirched their reputation.

In Loftus v. Nazari, No. 2:10-cv-279, 2014 WL 1908812 (E.D. Ky. 2014), a plastic surgeon (Loftus), likely to preserve or buttress his professional reputation, sued a former patient for libel, defamation, and tortuous business interference. Specifically, Loftus sued the defendant (Nazari) after the latter posted a trio of statements online that expressed dissatisfaction with the plastic surgery she received from Loftus. Nazari had received breast implants, a breast lift, an arm lift on both arms, and a "tummy tuck." As a result of these procedures, Nazari alleged she suffered from permanent nerve damage, abdominal pain, scarring and disfiguration. She detailed these infirmities on three separate websites and filed a complaint with the Ohio Medical Board.

Loftus responded to Nazari's criticisms with the instant suit that sought relief based on allegations of defamation and tortious business interference. Even though Kentucky law states that allegations about a physician's ability to do the job are defamatory per se, and the falsity of such statements is presumed, Loftus did not have a colorable claim for defamation. The statements in question were protected opinion, because they did not imply the existence of undisclosed defamatory facts as the basis for the opinion. Put another way, the statements by Nazari created a situation in which the reader is in as good a position as the author to judge whether the conclusion is correct. Moreover, the fact that Nazari's allegations were posted on opinion websites led to "the natural tendency ... to infer that they are opinion," and thus protected. See Seaton v. Trip Advisor, LLC, 728 F.3d 592 (6th Cir. 2013).

The court also rejected Loftus's claim for tortious business interference. In citing to the pertinent Restatement of Torts factors, the court noted that this cause of action comes into play when (a) the speaker knowingly makes false representations; or (b) the "social interests" in protecting the contractual interests of Loftus would exceed the freedom of Nazari to speak. As there was no indication that Nazari did not honestly believe her opinions, those opinions were not misrepresentations. Similarly, the "social interests" tilted in favor of Nazari insofar as in the "present Internet age" opinion posts provide social utility. To be precise, the court held that opinions posts provide this utility since a host of sites exist designed to provide a forum for these opinions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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