Tools
Defamation
Definition/Introduction
Professional ethics guide the healthcare staff in their interactions with patients, providers, co-staff, and business associates. However, there is a need for guidance on the best practices for the professional conduct of physicians and healthcare personnel in the digital environment. As new social networking platforms gain acceptance, professionalism must be applied in this new setting. In particular, ready access to online platforms leads to instantaneous feedback and comments from patients, healthcare workers, and health providers. In particular, issues of defamation have steadily risen. Defamation usually involves the publication, without any justification, of a derogatory or false statement regarding another individual or party. Defamation may either be slander or libel. Libel is a defamatory statement in writing or other visible forms, whereas slander is a spoken defamatory statement.[1] A defamatory statement has the potential to injure the reputation of another individual, which may lower the affected person's opinion in society, resulting in him or her being disliked, hated, ridiculed, feared, or scorned. In most cases, the defamed person almost always claims that it resulted in a loss of income.
Defamation was not historically considered a big issue in the healthcare industry. However, the rise of social media has resulted in a corresponding increase in defamation cases. Cyber defamation is defamation using digital media, most commonly the Internet. Healthcare workers who post or make negative comments about other patients or healthcare workers can face serious legal action. There have already been many reported cases involving healthcare professionals in which allegations of defamation have been raised. This topic discusses defamation and presents several cases in the healthcare industry.
What are Defamation and Cyber Defamation?
People can write or say anything on the internet. Lawyers and potential litigants know the amount of money the court system awards in defamation cases. In several recent cases, litigants have been awarded millions of dollars because of defamation, and these awards are expected to continue. Since defamation immediately downgrades the individual's, the practice's, or the patient's reputation, loss of income may result immediately. Therefore, these cases are heard by the court system without much delay.[2][3][4][5] Defamation and cyber defamation in the healthcare industry are illustrated in the following cases.
-
After a nurse resigned, her supervising manager wrote defamatory statements in a letter of reference. She mentioned that the nurse was unstable. The nurse could not get another job, but she filed a suit when she found out what the letter of reference stated. She did not have a history of mental illness. She wanted a part-time job to look after her mother, who was ill. Adherence to the guidelines set by professional ethics would have avoided this suit and many other suits.
-
A parent was questioned about suspected sexual abuse, and 1 of the nurses, thinking that the parent would not hear, remarked that the father looked like an abuser. The parent went to a lawyer, and the nurse was charged with defamation of character and HIPAA violation. The child had not been sexually abused. Professionalism dictates that clinical facts and clinical data should evidence opinions. In this case, no evidence exists to support the conclusion.
-
During an internal hospital review, a nurse made negative remarks about 2 of her colleagues, claiming they were most likely stealing leftover medications. The colleagues filed a lawsuit claiming defamation of character. The hospital settled out of court. There was no evidence that any medication had ever been reported stolen.
-
A doctor was wrongfully dismissed, and the employer stated that the doctor had committed malicious acts. The doctor filed a wrongful dismissal and defamation of character lawsuit. The hospital had to rehire the doctor and settle for an undisclosed amount. The person in human resources who made the information public was fired.
-
A manager called in a nurse and berated her for releasing patient information to her colleagues, a false allegation. The manager claimed that the nurse was untrustworthy and unreliable. The nurse filed a lawsuit for defamation of character. It was later proven that another co-worker had released the patient's information. The manager was assigned another position.
-
A nurse educator told her colleagues that 1 of the nursing students was lazy and cheating in the exams. The information was hearsay, and the student filed a lawsuit against the nursing instructor and was awarded a lump sum. The nursing manager was assigned other duties. Administrators must be careful when gathering evidence before jumping to conclusions. An adequate investigation of the parties involved in the alleged offense should have been carried out.
-
A senior surgeon wrote up a surgery resident for negligence during the patient's care and said the resident was unfit to be a surgeon. The surgery resident filed suit that his character was defamed and that there was no evidence to substantiate what the surgeon had written. The case went to trial, and the resident won. The court was told that a complication had occurred during surgery, but the surgeon was always present, and he controlled the events in the operating room. The hospital and the surgeon had to pay a huge penalty and court fees. The resident completed his training; the surgeon’s privileges were curtailed.
Although it may seem that countering these defamation charges takes time and money, a healthcare professional's reputation is often the most valuable asset they have.
Case Studies on Cyber Defamation
Case 1. A cosmetic surgeon learns that someone has anonymously been posting negative reviews online. The review suggests that this cosmetic surgeon is a bad surgeon with deceptive practice, never follows up with patients, and cuts corners in surgery, which results in many complications for the patient. This defamation can have tragic consequences and quickly ruin the professional’s name and character; furthermore, it can lead to a drop in the surgeon's business. In time, the surgeon notes that patient numbers and income are declining.
Consequently, the surgeon may have to change his or her practice. However, if these reviews are untrue, the surgeon can file suit for defamation. The surgeon must prove that none of the alleged complaints are true in court. They can do this by providing facts, including patient reviews, how they manage their clinical practice, and presenting complication rates. They can present testimonials from many patients who are satisfied with their surgery. This seems simple, but fighting defamation cases requires an enormous amount of time and money.
Case 2. A 33-year-old female underwent elective breast augmentation and botulinum toxin injections 2 weeks ago. After the dressing came off, she was not satisfied with the result. The surgeon had told her she had to wait until the swelling and edema subsided. Only then would she see the cosmetic benefits. The patient went on social media and posted negative reviews about the surgeon. She claimed she had suffered major complications from breast augmentation and that the surgeon ignored her. She suggested that other patients not visit this surgeon for cosmetic surgery because he was reluctant to see her after the surgery. Her opinion was that the surgeon was not skilled and incompetent. The surgeon came across the review on Yelp and filed a lawsuit for defamation. In court, the surgeon had the appointment book, pre-and post-surgery photos, and all the communications between himself and the patient. The surgeon claimed in court that he never neglected the patient, asked her to follow up, and waited for the swelling to subside before she saw the cosmetic result. She instead defamed him on social media, and the jury sided with him. The surgeon also claimed that this false statement about him has resulted in a decline in new patients seeking surgery. The patient lost the lawsuit and paid the surgeon over $300,000 in damages.
Issues of Concern
Register For Free And Read The Full Article
Search engine and full access to all medical articles- 10 free questions in your specialty
- Free CME/CE Activities
- Free daily question in your email
- Save favorite articles to your dashboard
- Emails offering discounts
Learn more about a Subscription to StatPearls Point-of-Care
Issues of Concern
Why are defamation cases on the rise?
Many people are compelled to speak out about things they see as unfair or unjust. Furthermore, with the availability of social media, instead of speaking about their observations and feelings, people write what they think and feel online, where nothing is private. While social media can help improve medical practice, generate a positive reputation, and increase referrals, at the same time, social media is also used by former patients, disgruntled or unhappy patients, competitors, former employees, or others who can quickly destroy the reputation of a business.[3] Two things that have increased the risk of defamation are the mobile phone and the internet. These days, when people are not busy writing their thoughts in cyberspace, they are verbally expressing themselves on their digital devices. Not all comments rise to the level of defamation; healthcare workers should understand that they have legal rights and that not all statements are a violation. The same applies to consumers. While some patients may defame healthcare workers, sometimes healthcare workers also defame patients. Healthcare workers are especially sensitive to negative comments made by their patients because not only do these comments hurt psychologically, but they can also ruin a business.
Unfortunately, healthcare workers may quickly jump to litigation when they see negative comments. However, it is important to understand that not every comment is defamatory, and some of the comments are opinions. For example, when a patient reports that his or her healthcare worker is careless because he or she is always rushing around the clinic, they are only expressing an opinion. The courts try to differentiate between an opinion and a fact. On the other hand, when a patient makes a statement like, "I think that Doctor X looks like a pedophile," it may sound like an opinion, but it can be considered defamation.
What is "defamation per se?"
In some cases, defamation may be considered "defamation per se," meaning that the statement is false at face value. Examples of defamation per se, as applied to healthcare workers, are statements like falsely accusing someone of a crime. Examples include someone saying that a healthcare worker has been indicted for healthcare fraud, a healthcare worker saying that a patient transmitted a sexually transmitted infection to their child, or a patient stating that the healthcare worker has lost his/her medical or nursing license.[4] Defamation per se can damage a healthcare worker's reputation by saying false things, like he or she lost his license when it is not true. The defamation may lead to losing patients and, consequently, income. All the healthcare provider must prove is that he never lost his license. In most defamation cases, the litigant wins once the truth comes out.
Where are defamatory comments usually posted?
Patients generally post complaints about doctors on Healthgrades, Yelp, and ratemds.com. Once a comment is posted on these websites, physicians cannot reply or identify the individual posting the comments. On the other hand, when comments are posted on Twitter or Facebook, the healthcare worker can quickly identify the individual who posted the comments. Some physicians feel they must reply to negative comments, but the reply must fall within the constraints of HIPAA; otherwise, they can be punished for violating the privacy act. People can post comments anywhere online and, in many cases, write under a fictitious name. When this happens, it is often impossible to know who the author is, and most websites do not reveal the names of their users. Going to court can be costly.
Clinical Significance
How Healthcare Workers Can Protect Their Practice and Reputation
Patients today view the practice of medicine as a business; thus, healthcare professionals should remember the adage, "The customer is always right."[5] To prevent negative, false, or misleading information from being posted, published in newspapers, or circulated orally, the healthcare staff must uphold professionalism in their conduct with everyone they encounter. To address a negative comment or feedback on cyberspace, common responses of healthcare staff are ignoring the comment, contacting the critic, requesting the service provider to remove or take down the comment, rebutting the statement in the same or different online forum, and filing a legal action. The following principles are recommended as guides in responding to negative comments:
- Regularly check out sites like Ratemds, Yelp, Facebook, and others to determine what is being posted about the clinic, the staff, and the service provided. Determine who is posting the material and their main complaint. On some websites like YouTube, Google, or Facebook, one can set up alerts to receive a notification of each posting or comment. This counters the problem before it becomes widespread.
- No matter how negative the comment is, do not reply immediately to the complaint. There are hundreds of instances where business owners have replied to their customers and regretted it. The best advice is to take a timeout, calm down, and then decide on a response.
- If the professional knows the person posting or circulating comments, communicating with the person privately to resolve the issue may be 1 way to do so. Limit the interaction online because, in general, the public may not be sympathetic to healthcare professionals.
- If one chooses to reply, the tone should not be condescending, argumentative, or rude. The first step is to clarify and summarize the facts. Offer to help the patient with a follow-up visit to clear up any misunderstanding or miscommunication. Do not post any medically related information about the patient. This is a HIPAA violation that carries greater penalties than defamation.
- If a person believes they have been unjustly defamed, it is best to seek assistance from legal counsel. There are many rules and regulations for responding to defamation, but suing patients may create public animosity and can irreversibly harm a practice. In most cases, businesses resort to suing the customer for defamation, which generates harmful publicity. A great deal of thought must be given before resorting to litigation.
- Legal Advice: Many attorneys specialize in defamation cases. In most states, the statute of limitations to sue for defamation is 12 months from publication. A lawyer's advice is valuable when seriously contemplating legal action.
- If an individual's statement is extremely negative or inflammatory, one should first follow the rules of the social network's platform on dispute resolution. For example, one may want to write to Facebook, Yelp, or Twitter to complain about the posting. The social media site often does not allow defamatory statements to be posted on its platform. Litigation may be the next step if this does not resolve the issue.
- Educate employees: When someone posts negative comments about a medical worker or a practice, the first thought is to write back. However, all employees should be cautioned against writing back. Public opinion may support the patient. Keep calm and give it some thought. Discuss the plan of action with employees. Usually, a healthcare establishment can never fight customers and win online. All healthcare staff should know that the whole practice can be held responsible for any defamatory remarks made by any staff member, including non-healthcare staff. So, educate your workers on communicating with patients and other healthcare workers. Always be mindful of HIPAA regulations.
- Watch what you say: Healthcare workers may not be aware that even communication with a patient about other patients or doctors can lead to a case of defamation. Be professional and limit any conversation to what is medically important. Do not degrade other healthcare workers in front of patients, and do not say negative things about patients to others.
- Healthcare workers are often asked to write patient reports for referrals or consults. It is important to keep statements based on facts and refrain from making any other comments beyond the clinical issue of relevance. Problems are more likely to arise when a comment extends beyond objective clinical opinions and becomes critically judgmental of another healthcare worker. Because of the intense rivalry between healthcare workers and patients, there may also be ongoing personal or professional animosity. Thus, any negative comment fueled by animosity can quickly lead to escalation to a defamation lawsuit. When writing reports, read over the letter and omit anything that ridicules others.
Nursing, Allied Health, and Interprofessional Team Interventions
What does it take to prove defamation in court?
While many people say or write things about others, in most cases, these comments are opinions and not defamatory statements. Three key features that must be proven in court to win a case of defamation include the following:
- What does the communication itself convey to the public? Does it tarnish or damage the reputation of the individual concerned? A verbal or written statement can sometimes be deemed defamatory, even if the author does not intend to defame another person.
- Does the communication lack any justification? If it is outright false, it can be considered defamatory.
- Where is the communication published? In most defamation cases, the communication must be published in a public forum or conveyed as a message to a third party. Today, the most common method of defamation is social media.
Nursing, Allied Health, and Interprofessional Team Monitoring
Advice for healthcare workers for communicating on social media
Because many healthcare workers now take to the media to write about their encounters with patients, here are some precautionary warnings:
- Some healthcare systems do not tolerate communication of patient encounters on social media. Termination is the risk that health workers face when they post on social media. If you decide to post about a bad experience with a patient, co-worker, or provider, you do so at your own risk.
- Never rush to reply to any negative comments on social media.
- HIPAA rules and regulations must always be in mind.
- When responding to patients, be as professional as possible.
- If you have had a negative experience as a physician with another patient, doctor, or business, remember courtesy, respect, and empathy before expressing your opinion in any forum.
- If you have facts supporting your argument, link them to external sources. When you state something, mention that it is an opinion, not a fact.
- Rely upon publicly disclosed and valid information that can contain factual material.
- If you want to post something negative and are not sure if you would be held liable for defamation, do not post it.
- If you are accused of posting a defamatory statement, delete it. This tactic not only saves you money but also preserves your reputation.
- Finally, when writing anything, remain on the side of truth and facts; this is the best defense against defamation.
References
Silberman MJ. Back to Basics: The Importance of Patient Respect. AANA journal. 2015 Oct:83(5):312-5 [PubMed PMID: 26638451]
Hall-Lipsy E, Malanga S. Defamation lawsuits: academic sword or shield? EMBO molecular medicine. 2017 Dec:9(12):1623-1625. doi: 10.15252/emmm.201708489. Epub [PubMed PMID: 29038313]
Sivaraman G, Heffernan A. Getting sued in 140 characters or less. The Queensland nurse. 2015 Dec:34(6):28-9 [PubMed PMID: 27149759]
McConnell CR. Exchanging honest employment references: avoiding the traps of defamation and negligent hiring. The health care manager. 2015 Jan-Mar:34(1):81-90. doi: 10.1097/HCM.0000000000000041. Epub [PubMed PMID: 25627859]
Dyer O. Researcher who had job offer withdrawn sues anonymous commentator for defamation. BMJ (Clinical research ed.). 2014 Nov 14:349():g6840. doi: 10.1136/bmj.g6840. Epub 2014 Nov 14 [PubMed PMID: 25398408]
Level 3 (low-level) evidence