Lawyers, is this defamation of character?

[Rick Lee]

A co-worker just posted that she's received a letter from her dentist's lawyer threatening a lawsuit for defamation of character if she does not take down the poor review she wrote on Yelp.com. Is this for real? I've written some pretty bad reviews of hotels and I've read much worse ones. Never heard of someone getting sued for it. This is Austin, TX.

[Jagshund]

Hmmm. No replies from anyone that matters means I get a chance to step in with my outhouse law. I say that if she can back up her claims, it's nothing to worry about. Have a link to her review?

[1990C4S]

I believe the dentist has two hurdles, a) proving the statements are false and then b) proving that he suffered damages as a result of the the false statements.

Her best defence is a). But it is not crazy, unlikely perhaps, but not crazy.

[RWebb]

see if her state has any laws re SLAPP suits - strategic lawsuits against public participation; she'll have to prove it was public participation...

also, does she have any assets he can get if he does win??

safest thing is to have her take down the comments and then have them mysteriously appear in similar form from somebody who is judgment proof

[Rick Lee]

Ok, just learned a little more. This was actually in VA. Co-worker now lives in TX, but still goes back to VA and DC for work and follow-up care. She was badly injured as a pedestrian a while back, hit in a crosswalk in DC by a car and had facial trauma. I last saw her in April and she looked great (she is hot and no, I'm not posting photos), no sign at all of any injury. But then I didn't look closely inside her mouth.

Here is her Yelp review with my edits.

I had root canals performed by Dr. X and would recommend him highly.

However, I had a terrible experience in the continuation of my dental treatment (trauma) with Dr. Y from Blank Blank Dental. While she was initially very sweet, she later refused treatment and had me in tears. She was negligent with my case and told me "I know this is NOT fair to you but I have a reputation to protect". She refused to treat me any further because she was not sure that she could leave my gums looking at 100% and didn't want my mouth to be associated with her name.

I had to search all over town for a Dr that would take me mid-treatment. I highly recommend Dr. B in Anytown. She is absolutely excellent and the most caring dentist you will ever find. She truly cares about her patients. She would even stay after hours to finish working on my crowns.

Bottom line: Dr Y's priority is not you.

[stomachmonkey]

There is a mix of fact and emotion in her review.

Get rid of the emotional stuff like the Bottom Line.

[RWebb]

She was negligent with my case - is problematic

can she afford an attorney in her state (I'm not even sure which one now)?
- either to defend her
- or to consult with

easiest thing is to take it down or modify it (as galling as that may be to her)

[1990C4S]

Originally Posted by stomachmonkey

Get rid of the emotional stuff like the Bottom Line.

I would say just the opposite, get rid of the 'factual' accusations:

She was negligent with my case - can your friend prove this? The word of a layperson (patient) versus a professional (dentist) won't cut it. Your friend is putting herself in a position where she might have to prove this assertion in court.

and told me "I know this is NOT fair to you but I have a reputation to protect". - same issue, by using quotes she is representing these to be the dentist's words verbatim. Not a good idea.

Change it to more "feeling based"- "I never felt like I was Dr. Y's top priority", " I felt that she was more interested in her reputation than my health". "I felt Dr. X was more interested in helping me." These statements are difficult for a lawyer to challenge.

I will say two things in the dentists defence:

1. She/he has a right to not treat a person knowing full well that they can't return the person to 100%. A frequent outcome in these cases is a lawsuit against the dentist.

2. We have no idea if the statements by the patient are true, but it is clear that a posting like this could be the basis for damages. A letter from her lawyer is not entirely unreasonable. It gives the person that posted a chance to reconsider their statements.

Time for Dentist90 to chime in and correct me.

[Pazuzu]

Originally Posted by Rick Lee

A co-worker just posted that she's received a letter from her dentist's lawyer threatening a lawsuit for defamation of character if she does not take down the poor review she wrote on Yelp.com. Is this for real? I've written some pretty bad reviews of hotels and I've read much worse ones. Never heard of someone getting sued for it. This is Austin, TX.

This might be partially Yelp's fault too. They've been in the legal circles lately...apparently they are not above taking some extra money from businesses to make sure that their reviews are positive, and will help pressure bad reviewers to change or delete their reviews. That's what happens when you let kids play adult games in the business world...

[MRM]

I've thought long and hard on this and finally have the answer. In a purely academic sense, Yes, maybe.

Here's the analysis. As was pointed out above, the negligence claim is problematic. So are the quotes. If what was in quotes was a paraphrase and is not an actual quote, it could be a problem. But the real issue is with the claim of negligence.

Negligence is a legal term of art. By using that term, she is saying that the doctor breached a professional duty to her. That's probably not what she meant to say, she probably just meant that the doctor gave her poor service that could have been prevented with more care, but she's basically accused the doctor of malpractice without saying why, other than that the doc refused to treat her. She then had to go all over town to find a doc who would treat her, which suggests that the first doc is in good company. Dentists usually don't have a duty to treat anyone who walks in the door; they can turn down patients if they want. Maybe the doc didn't want to do work on an accident case knowing that she could be called as a witness. Lots of MDs refuse to get involved with cases where they might be called as witnesses, simply because they don't want the hassle.

OK, so that's the academic answer. I'll eagerly await Dueller's grade of my answer. As a practical matter, no lawsuit could realistically come of this on line review. The doc would have to prove the statement was untrue, which means the doc would have to prove that she was not negligent in handling the case. I don't think anyone, no matter how good they want to keep their reputation, really wants to go into court and argue whether they were negligent with a client's care. "I was not negligent" sounds too much like "I am not a crook". And at the end of the day the doc gets what? The review deleted, a nominal dollar in damages?

Final answer: tell friend to toss the letter and not think anything more about it. But maybe she should chose her words with more care next time.

Rick, have you ever noticed that things happen around you that never happen to anyone else?

[Groesbeck Hurricane]

I played an attorney in a school play a couple of times (truly, I did!!!!) so this should make me qualified to respond ;-)


People who love to litigate will litigate no matter what. Dr who lost their license for patients who died while under their direct care (I'm not joking here) tried to sue my Wife and tried to take her to the medical board for properly diagnosing their patient who was having a stroke. Other doctor prescribed pain killers and sent patient home, Wife (Dr.) got them to emergency room, they lived. (The other Dr. was party to more than six other actions at that time.)


How about:


I had root canals performed by Dr. X and would recommend him highly.

Dr. Y from Blank Blank Dental was, in my opinion, initially very professional. However, further discussions with Dr. Y left me with the impression she was not as interested in treating my extensive injuries as she was interested in her own reputation as a Dentist.

A new search for a dentist brought me to Dr. B. I would highly recommend Dr. B in Anytown. It is my opinion she is absolutely excellent and the most caring dentist you will ever find. Dr. B spent extra time with me, explained the procedures, and I am satisfied with the results.


NOW: do we add a sentence about Dr. Y threatening to sue if we did not remove negative comments??? That would be an interesting turn of events and rather factual.


Dr. Y has threatened me with litigation if I did not remove my negative comments from this forum. I have, therefore, redacted my statements in order to avoid expensive litigation to prove my point of view.

[McLovin]

Originally Posted by MRM

\

OK, so that's the academic answer. I'll eagerly await Dueller's grade of my answer. As a practical matter, no lawsuit could realistically come of this on line review. The doc would have to prove the statement was untrue, which means the doc would have to prove that she was not negligent in handling the case. I don't think anyone, no matter how good they want to keep their reputation, really wants to go into court and argue whether they were negligent with a client's care. "I was not negligent" sounds too much like "I am not a crook". And at the end of the day the doc gets what? The review deleted, a nominal dollar in damages?

Final answer: tell friend to toss the letter and not think anything more about it. But maybe she should chose her words with more care next time.

I'd give that answer an "F!"

"As a practical matter, no lawsuit could realistically come of this on line review."

???

As a practical matter, a lawsuit very realistically could come out of it. All that's needed for a lawsuit is a form complaint and a minor filing fee. The dentist may do it, just to put pressure on her, esp. if he feels he is in a financially superior position and could get her to fold easily. (Which wouldn't be a bad strategy - when served with a complaint, chances are great that your friend would simply take down the post, rather than pay even a $1000 retainer to a lawyer to start defending).

Any lawyer worth his salt would give a simple piece of advice in 2 minutes: Just delete the post and move on with your life. The post is of no value to your friend, gets her nothing, and is not worth even a 2% chance of downside risk.

[Rick Lee]

Originally Posted by MRM

Rick, have you ever noticed that things happen around you that never happen to anyone else?

Not really. This happened 2500 miles from me to a co-worker I see maybe once or twice a year. I'm pretty far removed from this. I just saw her mention it on Facebook and thought I'd throw it out there. She has lawyers in the family and should have no problem getting the advice she needs.

[dentist90]

Luckily I've never been in this situation. It seems to me that the patient posting the complaint felt abandoned mid-treatment. I do not understand the dentist's comment about not restoring to 100% therefore not wanting to go any further. Many (most) treatment decisions involve some sort of compromise. If the doctor says we can only get you back to 80% of what you used to have and the patient accepts that, then that is your goal. If the patient doesn't accept that then she should seek another opinion. It is abandonment (and malpractice) to begin treatment and leave it unfinished without (i)being available for emergencies while (ii) making an appropriate referral.
I have no idea what the details of this situation are, but one should be careful posting/writing the phrase "negligent with my care". That statement clearly suggests a breach of duty. If the patient had certain expectations that the doctor didn't think she could meet there is no negligence in refusing to treat (just don't start it and quit, however!). My gut feeling is that this dentist cherry-picks her cases for the best or easiest results, but there isn't enough detail in the story to make any kind of judgement on this. It doesn't sound right that the patient had to search all over town for someone to continue her treatment. BUT... if this patient had a legitimate claim of abandonment the appropriate place to deal with this is thru a formal complaint to the dentists licensing body, not thru some public forum. She is certainly free to say how she felt, but if she chooses to use the term "negligent" publicly I guess she should be prepared to back it up... legally.

Disclaimer: I am not a lawyer, nor did I stay at a Holiday Inn last night!

[1990C4S]

Originally Posted by Groesbeck Hurricane

I had root canals performed by Dr. X and would recommend him highly.

Dr. Y from Blank Blank Dental was, in my opinion, initially very professional. However, further discussions with Dr. Y left me with the impression she was not as interested in treating my extensive injuries as she was interested in her own reputation as a Dentist.

A new search for a dentist brought me to Dr. B. I would highly recommend Dr. B in Anytown. It is my opinion she is absolutely excellent and the most caring dentist you will ever find. Dr. B spent extra time with me, explained the procedures, and I am satisfied with the results.

Followed by a true statement: "I previously posted some negative comments about Dr. Y on this website. As requested by Dr. Y's lawyer those comments have been removed."

[Aurel]

Here in New Jersey, there is no problem posting any bad review online. Here is a sampling from my previous dentist, who was taken to court by the state for medicaire and insurance fraud. He got out of it with no charges because he repaid most the victims before the trial, including us. But the reviews are still there...

Just a sample out of many:
Dr. Marc Weber - Whitehouse Dental Associates | Rip-off Report #209807

Then the lawsuit:
State of New Jersey

Then the outcome (I say he is guilty as charged and got very lucky).
Red Bank dentist, wife cleared of fraud and conspiracy charges | APP.com | Asbury Park Press

[Dantilla]

She should simply ad: "In my opinion" to her comments.

[RWebb]

She sure does not want to become a "Defamer in the Hands of an Angry Dentist"

- my apologies to Jonathan Edwards

and, no, I'm not an Anti-Dentite

[cgarr]

You may remember this one, I don't know how it turned out. I guess you need to know when to fold them?

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