By Daniel J. Schulte, J.D.
MDA Legal Counsel
Published in the October 2007 issue of the Journal
Question: A patient was unsatisfied with my services. Then she posted an account of her experience in my office on an Internet blog! These comments are linked or show up on popular Web sites (Yahoo, Google, Mapquest etc.) when the name of my practice is searched. The patient's comments are false and slanderous. Can I sue this patient for defamation?
Answer: Not easily — and your damages will be limited and perhaps difficult to prove. Under Michigan law as a private individual (versus a "public figure") seeking to prove and recover for defamation you will have the burden to prove that:
- a false and defamatory statement was made;
- an unprivileged publication of the false and defamatory statement occurred to a third party;
- the false and defamatory statement was made deliberately or at least negligently; and
- you suffered damages as a result.
Not all defamatory statements are actionable. A "defamatory" statement is any statement that tends to harm your reputation by lowering the community's estimation of you or that deters others from associating with you. To be actionable the defamatory statement must be both false and be reasonably interpreted as a statement of actual fact about you. Statements of opinion, parody, hyperbole, etc., are not statements of actual fact and are not actionable. Thus, if this patient said you "committed malpractice" your claim might be dismissed by a court as mere opinion, since the patient is not a dentist and not capable of knowing what malpractice actually is.
Similarly, statements like "he was the worst dentist I ever saw" or "he is the worst dentist in town" would likely be dismissed as opinion. On the other hand, statements such as "he drilled the wrong tooth" or "set my bridge work upside down," would be considered objective statements of fact that are defamatory, and if false would be actionable.
The publication to a third party here seems clear. Michigan law recognizes certain privileges which immunize the speaker from liability for defamation. An example would be statements made during the course of judicial or legislative proceedings. But there is no privilege that would apply to a patient making defamatory statements about a dentist.
Assuming that the statements made by your patient are false and defamatory statements of actual fact, the question becomes what damages you are allowed, to recover, if any. This will depend on whether the statement was made by the patient knowing it was false, or if the statement was made negligently (i.e., without reasonably investigating the truthfulness of the statement). If the statement was made by the patient knowing that it was false, you are allowed to seek recovery of your actual damages (including lost business, reputation, etc.). If the patient made the statement negligently, you are limited to recovery of only your economic damages (i.e., lost business).
There are, in most cases, significant difficulties in proving damages in defamation cases. You would have to demonstrate that patients are leaving the practice and/or new patients are not coming to your practice as a result of the defamation. Proving damage to your reputation is even more difficult and is usually measured in terms of lost business. Have patients left the practice since this patient made the statements online? What is the stated reason for them leaving? Will they testify that they left as a result of the defamatory statement? If not, are you willing to compel their testimony?
As you can see, plaintiffs in these cases face an uphill battle meeting the burden of proof that the complained of statement is one of actual fact, and then that they have been economically damaged as a result. Your time and money may be better spent communicating with this (and all other) patients and doing what you can to make her satisfied. Convincing the patient to remove the statement or to publish a retraction would be more valuable to you than a judgment in most cases.