The risk of defamation increases with the proliferation of online rating services in the medical industry, says Marc H. Kallish, JD, shareholder with Roetzel & Andress in Chicago.
“There is a significant distinction between defamation and opinion. For example, if a patient of a hospital posts or makes a public statement that they believe the care at a particular hospital or clinic is ‘sub-standard,’ ‘impersonal,’ or ‘not the best,’ this would likely be construed as opinion and not actionable as defamation,” Kallish explains. “However, if the patient says, ‘I went to particular hospital and they operated on the wrong leg’ when this never happened, or the hospital ‘misdiagnosed my appendicitis,’ but the patient never went to the hospital for this condition, the hospital could have a defamation action against the patient.”
Another scenario is where the patient actually went to the hospital and received treatment but ultimately experienced a bad outcome. The patient’s public statements about this may be protected if made in a legal pleading, Kallish says.
In these scenarios, truth is an absolute defense to a defamation action, Kallish says. Consider a patient who presents to a hospital emergency department complaining about symptoms that sound like a heart attack. However, the patient is discharged without treatment, and suffers a massive heart attack at home. This patient may publicly accuse the hospital of malpractice and post this story on the internet, Kallish says.
The hospital could dispute that they did anything wrong and pursue a defamation action against the patient. In defense, the patient may claim it was true the hospital committed malpractice in its treatment. If proven in a defamation action brought by the hospital, the patient would prevail, Kallish says.
“If the patient proves malpractice occurred, truth is a total defense to defamation action,” he says. “On the other hand, if it is proven that the hospital met the standard of care, even though the facts posted by the patient were substantially true, the patient may be subject to damages for defamation.”