Consider strength of case before suing for defamation

It took three years of financial and emotional suffering, but oral and maxillofacial surgeon Albert Carlotti III finally won his battle against online attacks from a patient with a $12 million defamation verdict in his favor in December 2011. In another recent victory for doctors who say they've been defamed online, an appeals court ruled that neurologist David McKee may sue a former patient's son for defamation, reversing a dismissal by a trial court.

The details of both cases are outlined in a report from American Medical News, which highlights the rulings as a possible turning point from the helplessness many physicians have experienced in fighting harmful posts from patients.

"It gives physicians hope that somebody went out there and actually took this head-on," Matthew J. Kelly, Carlotti's attorney, said. "A lot of physicians and professionals feel constrained by their professional obligations to keep quiet. This gives them hope that there is a change in attitude over what will be protected by the First Amendment."

Nonetheless, a recent Medscape Today warns physicians that suing for defamation remains an expensive and risky proposition. For example, in the case of California plastic surgeon Jonathan Sykes, the physician's status as a "limited-purpose public figure" caused a court to dismiss his lawsuit against the person who created a website criticizing him and his work. According to the article, Sykes ended up paying upwards of six figures in his own plus the patient's legal fees, while the website stayed online and continued to generate more negative publicity.

To up the chances that a defamation lawsuit will be worth the time and effort, physicians should first ensure that they truly have a case, the article noted. In general, defamation statutes require a plaintiff to prove that the defendant made a defamatory statement that a reasonable person would find harmful to reputation, that the statement was shared, that the statement was false and that the plaintiff experienced damages of reputation as a result of the statement. In addition, if the plaintiff physician is considered a public figure, he or she additionally must prove that the defendant made the defamatory statement with "actual malice," which means the speaker knows the statement is false or acts with reckless disregard for the truth. Finally, physicians should be aware that patients' attorneys may try to get defamation suits dismissed under anti-SLAPP (Strategic Lawsuit Against Public Participation) laws, which are intended to prevent plaintiffs from using defamation suits to cut off legitimate public comment.

To learn more:
- read the article from American Medical News
- see the article from Medscape Today

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