What to Do When Malpractice Allegations Become Defamation

revenues” as a year-over-year change obligated to be reimbursed by other “Any sort of reporting program in net patient care operating income, sources. needs to take all of this into account. which is equal to patient care revenue • Recipients of between $10,000 Providers may need to recalculate for the year minus patient care- and $499,999 in aggregated their lost revenues and need to be sure related expenses for the same year. Provider Relief Fund payments will to document everything,” Macre says. This is a significant change from report healthcare-related expenses “Audits are likely, especially if a larger the previous FAQ, which was less attributable to coronavirus in two amount of funds was taken. Account- definite, referring to “lost revenues” aggregated categories: General and ing needs to be done carefully and in as any revenue a healthcare provider administrative expenses, and other a well-documented manner.” n loses due to COVID-19, without healthcare-related expenses. Those incorporating expenses. Recipients who received $500,000 or more SOURCE who relied on this prior guidance in payments need to provide more • Heather Macre, JD, Director, need to review and evaluate the effect detailed information. Fennemore Craig, Phoenix . Phone: of the modified definition. • Entities that received more (602) 916-5396 . Email: hmacre@ • Eligible expenses should be than $750,000 in Provider Relief fennemorelaw .com . reported, but only to the extent Fund payments are subject to audit the expense is not reimbursed or requirements.

edical malpractice litigation before the initiation of legal action Defamation is especially difficult Mcan get ugly, with passionate or they are made outside the broad to prove with statements made in plaintiffs and indignant clinicians scope of the litigation itself. court. There usually is a privilege or hospital administrators firing off for statements in court, including heated accusations and insults. But Court Statements pleadings, because society wants where is the line where a malpractice people not to be afraid to speak allegation becomes defamation? Hard to Challenge truthfully, says John A. Lynch, Jr., What can be done when that JD, professor of law at the University happens? “If the statements are made of Baltimore. However, there may be TV star Terry Dubrow, MD, publicly and sufficiently outside a civil remedy for abuse of process or filed a defamation lawsuit after a what the court sees as being part malicious prosecution if the lawyer patient sued him for $10 million. and parcel of the malpractice case, maintains a groundless suit, he says. The suit alleges a former patient’s the court could see the defamatory The standard for when a lawyer lawyer made defaming comments statements as actionable,” Michel should tell a client that he or she has about Dubrow to a newspaper. The explains. “Trying to find that no case is quite high, Lynch notes. attorney called the surgeon’s work line is difficult. I would say that The judgment that a lawyer has acted “incredibly incompetent,” among if these types of statements are tortiously in alleging malpractice is other accusations. (More information not something necessary for the made in hindsight, so the lawyer is is available at: https://pge.sx/2Il2w4i.) litigation, then an attorney should given considerable margin for error. Proving defamation in such a case be hesitant about making statements The definition of “defamation” -en can be difficult, saysCarol Michel, like that.” compasses false statements of fact that JD, partner with Weinberg Wheeler If that line is crossed, Michel says may injure someone’s occupational or Hudgins Gunn & Dial in Atlanta. the healthcare organization should professional reputation, explains Eric Courts generally give broad leeway be cautious in responding. A defama- Easton, JD, professor of law emeritus regarding statements connected to tion lawsuit may give greater public at the University of Baltimore. a legal filing, she says. It can be less awareness to the original comments, “In my view, any allegation clear when these are statements made she notes. of medical malpractice may be

138 | HEALTHCARE RISK MANAGEMENTTM / December 2020 actionable in a libel suit by the “Notably, there are many nuances determination on the malpractice practitioner. Of course, the fact that to defamation claims, as most claim,” she says. “For example, when a statement is defamatory in no way states have defamation statutes, the defamation is about the quality guarantees the plaintiff’s success,” which vary in how they define the of medical care, the truth of that Easton says. “Indeed, defamation is elements, defenses, potentially statement may be established by only one of several elements that a recoverable damages, and filing the jury’s finding as to whether the plaintiff must prove even to make a limitations,” Greene explains. “As doctor met the applicable standard of prima facie case.” the law of defamation varies by state, care in caring for the patient in the The others are publication to a understanding your state’s defamation malpractice case.” third party and identification of the statutes is important to evaluating When a defendant individual or plaintiff, falsity, fault, and injury, the merits of a potential claim for organization seems to be the victim Easton says. Even then, there is a defamation.” of defamation, responding with a shield for the defendant. When a Typically, opinions and factually lawsuit may not be the best option, lawyer is the defendant, the obvious accurate statements are not actionable Greene says. Clinicians and hospitals defense is privilege, although that as defamation, Greene explains. should consider filing defamation typically applies to statements made Opinions are protected when they suits against patients only as a last in court, not to the media, Easton cannot reasonably be interpreted as resort. explains. a statement of fact and cannot be determined to be true or false, she Can Be Hard to Prove Many Forms adds. Although truth often is a defense of Defamation to a defamation claim, under some Proof of the elements necessary state laws, truth may not be a defense to recover for a defamation claim There are many potential areas in to written defamation where actual can be complicated by HIPAA and healthcare where defamation claims malice is proven, Greene says. When state patient confidentiality laws, and can arise, says Elizabeth L.B. Greene, public figures, which may include litigation can be expensive, Greene JD, partner with Mirick O’Connell in some doctors, claim defamation, they explains. If a clinician or hospital Worcester, MA. must prove actual malice to recover believes a patient or their representa- Defamation by a patient or damages. “Actual malice” often is tive’s statement is defamatory, it is their representative relative to the defined as knowledge of falsity or advisable to consult with counsel care received or not received from reckless disregard for the truth. experienced to assist with assess- a doctor or hospital is commonly “When a defamation claim is ing all potential options, including understood to be a false statement of related to allegations of medical the merits and risks of filing suit for fact, published to a third party. This malpractice, the assessment of the defamation. is harmful to the reputation of the merits of the defamation claim “It is best to exercise caution in doctor or hospital, Greene says. may be tied to the fact-finder’s responding to allegedly defamatory statements, consult with counsel regarding whether the statements are EXECUTIVE SUMMARY considered opinion or defamation under your state’s law, and the Some claims made regarding a medical malpractice allegation could amount best approach for responding if to defamation . It can be a difficult choice whether to pursue a defamation the statements are considered lawsuit . defamation,” Greene says. “Prior • Many statements from attorneys regarding malpractice claims are protected to filing suit against a patient for and do not amount to defamation . defamation, a physician or hospital • Statements made to the media generally are less protected than statements will want to consider whether a made in court or as part of court filings . meeting or other communication • Unfounded statements posted online by patients can be defamatory . It is with the dissatisfied patient could possible to pursue litigation and request the statements be removed . lead to resolution of a potential misunderstanding and, potentially,

138 | HEALTHCARE RISK MANAGEMENTTM / December 2020 HEALTHCARE RISK MANAGEMENTTM / December 2020 | 139 a retraction of the defamatory some patients from making allegedly of malpractice that are patently false statement.” defamatory statements, she says. can be the basis of a defamation In many instances, evaluating the A malpractice claim has to be action,” Kallish says. “For example, harm that is or may be caused by the based in good faith, meaning the we have represented many physicians defamatory statement is important, plaintiff believes he or she was whose patients have publicly posted as pursuing a claim for defamation harmed by the negligence of the completely false allegations on the potentially will inflame the dissatisfied physician or the hospital, notes internet, such as an orthopedic patient and can increase the public’s Marc H. Kallish, JD, shareholder surgeon who was accused of awareness of the allegedly defamatory with Roetzel & Andress in Chicago. operating on the wrong leg of a statement, Greene explains. Before filing a malpractice lawsuit patient, as well as a physician who Providers and hospitals also should in Illinois, the plaintiff must submit was accused of misdiagnosing a be mindful of the statute of limita- a certificate stating the matter was patient’s cancer, leading to the tions for defamation claims in their reviewed by a licensed physician patient’s death. In those cases, the state. “However, at times, after con- and the physician has certified the allegations were completely false sultation with counsel and analysis of “potential” for malpractice exists, he and nonprivileged, so we sued the the issues, the only way for a physi- says. patients for defamation, and took cian or hospital to defend their repu- Typically, if a plaintiff files the legal action to get the postings taken tation is to bring a claim for defama- allegations in a court pleading in down.” tion,” Greene says. “If the defamatory compliance with the requirement Just as individuals can bring statements are sufficiently egregious, of Illinois state law, he or she likely defamation suits, so can corporation depending on the applicable state will be immune from a defamation or other entities, Kallish notes. statute, the doctor or hospital may action, Kallish says. also recover for punitive damages.” In general, a well-pled malpractice Damages Assessed case in a civil action immunizes the Good Faith Can plaintiff from a defamation act, Kall- by Court ish says. Furthermore, otherwise de- Protect Statements famatory statements may be shielded If claims prevail, showing the from suit if they are “conditionally statements are false, proving the Greene notes some hospitals and privileged,” which applies to situa- clinician or hospital sustained medical groups post all government- tions in which some interest of the reputational harm, damages are required satisfaction survey responses person who publishes the defama- assumed, says Andrew Clott, JD, patients fill out once a certain number tory matter is involved; situations in associate with Roetzel & Andress of reviews are received for a provider. which some interest of the person to in Chicago. However, a court Providing a place for patients to sub- whom the matter is published or of still must assess damages in some mit feedback and voice any concerns some other third person is involved; monetary amount so loss of business close in time to their visit may create or situations in which a recognized or reputation is considered when opportunities to address the patient’s interest of the public is concerned. formulating a monetary award, he care-related concerns and prevent “Nevertheless, public statements says.

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140 | HEALTHCARE RISK MANAGEMENTTM / December 2020 For example, Illinois recognizes situations must be dealt with on a whether the statements are pertinent two types of defamation claims: case-by-case basis.” and material to the litigation. per se and per quod. In a per se In New York, that protection action, the statement’s defamatory Difficult with Attorneys appears in Sec. 74 of the New York character is considered so “obvious Civil Rights Law and reads, in part, and apparent on its face” that “injury “A civil action cannot be maintained Pursuing a defamation claim to the plaintiff’s reputation may against any person, firm, or corpora- against an attorney may be more be presumed,” Clott explains. This tion, for the publication of a fair and difficult than the same claim against a means the plaintiff does not have true report of any judicial proceed- former patient, says David Richman, to prove damages because they are ing, legislative proceeding, or other JD, partner with Rivkin Radler in assumed. official proceeding, or for any heading Uniondale, NY. Attorneys’ stock Under Illinois law, “words that of the report which is a fair and true and trade are their words, he says. impute an inability to perform or headnote of the statement published. They are consequently afforded more a want of integrity in the discharge This section does not apply to a libel of duties of office or employment” contained in any other matter added fall under the per se category of by any person concerned in the pub- defamation. False statements by THIS LIMITED lication; or in the report of anything a patient against a doctor relating IMMUNITY said or done at the time and place of to his medical treatment would be GENERALLY WILL such a proceeding which was not a those which “impute an inability COME INTO part thereof.” (The code is available at: to perform” his duties as a doctor, https://bit.ly/3lDgJrL.) meaning they would be considered PLAY WHEN THE “The reasoning behind this defamation per se, Clott says. ATTORNEY MAKES protection is a policy recognizing “We have handled several situa- COMMENTS the need for vigorous representation tions where patients or competitors of one’s client and the assumption have posted false claims of mal- ABOUT A that, as officers of the court, counsel practice and bad care on healthcare CLIENT’S will act in a manner consistent with websites where the physician had a ADVERSARY TO that responsibility, even if those reasonable basis to believe the state- A LISTENER, actions and words are not true and ment was false and it was hurting sound personal in nature,” Richman their inflow of patients. We pursued LIKE THE MEDIA, explains. defamation action or sent cease and OUTSIDE OF THE This protection is available to at- desist letters. We have won these COURTROOM. torneys for words spoken outside of cases and gotten damage awards or an actual legal proceeding, although settlements,” Clott explains. “We it is generally regarded as less abso- also have had success getting the latitude to use those words when lute and therefore subject to some false, damaging materials pulled from commenting on another individual conditions. This limited immunity rating websites. Often, postings on than someone not representing a generally will come into play when rating websites are anonymous, which client in matters that tend to be the attorney makes comments about complicates pursuing redress against adversarial in nature, Richman says. a client’s adversary to a listener, like false posters.” In the context of words spoken the media, outside of the courtroom, In those cases, Clott’s firm has before the court or in a judicial or Richman says. used the court’s subpoena powers quasi-judicial proceeding, attorneys The question of propriety will to obtain URL identification are accorded absolute immunity first turn on whether the context of information of posters from websites against a suit for defamation even the statement was central or ancillary and other means of identifying a if those statements are proven to be to the litigation, he explains. If potential defamer. false, malicious, or made with ill will, ancillary, as it usually is when an “In some scenarios, it is worth Richman explains. Many states have attorney speaks with the media, the pursuing, and in other instances, it is codified this protection. The only question of propriety will turn on better to ignore,” Clott says. “These test these statements must survive is whether the statement was made with

140 | HEALTHCARE RISK MANAGEMENTTM / December 2020 HEALTHCARE RISK MANAGEMENTTM / December 2020 | 141 “actual malice.” But even there the statements were untruthful, Richman figures that the other party was question of whether the statement says. incompetent or unfit will be deemed was defamatory has to clear several “Where the lines become blurred to be defamatory per se, meaning hurdles that examine the context of for attorneys and the courts weighing that the statement is presumed to be the statement. defamation claims against attorneys harmful to the person about whom “If, for example, the statement in this context is whether and/or to the statement is made,” Richman was made in response to a comment what extent the statements relate to explains. by or on behalf of the adversary, allegations made in the complaint,” This analysis applies whether the response, though sounding he says. “If claims, using the Dubrow the attorney is commenting about defamatory, will likely be given situation, are simply echoes of the a layperson or one connected with greater leeway,” Richman says. allegations of malpractice — such as the healthcare industry, be it a “If a statement was made by one ‘he ruined my client’s life,’ ‘he was physician, nurse, hospital, or medical party about the circumstances grossly incompetent,’ ‘he turned my office or clinic, he says. For hospitals of the underlying litigation, the client’s life upside down’ — it is more or medical care providers on the response, calling the adversary a liar likely than not that the plaintiff in receiving end of what might be and defending oneself against the an ensuing defamation claim will not viewed as defamatory statements, the perceived lie, would generally not be prevail.” decision of what to do in response, viewed as defamatory.” Should the public figure if anything, should rest, in part, on The question becomes even more protection be lost, the court’s analysis a balance between the benefit to complicated when the allegedly of the attorney’s statements will be be gained by pursuing a claim vs. defamed party is a public figure. In based on a more traditional standard refraining from a response, Richman the Dubrow case, the plastic surgeon of proof for defamation, including says. is a well-known TV personality and whether the statement was false As always, the context is impor- therefore would be viewed as a public and whether the statement was an tant. If the statement is untethered to figure, Richman says. unprivileged communication to third a court or quasi-judicial proceeding, parties, Richman says. What sets the grounds for pursuing a claim may Actual Malice these types of claims apart from most be more justified, Richman says. But other litigable claims is the burden of again, context is everything, as is the a Big Hurdle proof shifts from the person who was question of the perceived harm. defamed to the person making the “Has the statement or is the Consequently, while the statement. The one made the remark statement likely to impact business statements by counsel to the media will bear the burden of proving or reputation? If so, is the damage would seem to be clearly harmful to the statement was not defamatory, short- or long-lived?” Richman asks. the doctor’s reputation, the standard provided the plaintiff has met his or “The analysis should also consider the of proof to be met must establish her burden in the initial pleading. chances of success at trial, as the vast the defendant/defamer acted with “If the statement is not previously majority of defamation suits wind “actual malice” — that is, that he or stated in a pleading or filing with up in favor of the alleged defaming she knew or should have known the the court, claims against non-public party, particular if the one making

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142 | HEALTHCARE RISK MANAGEMENTTM / December 2020 the statement is an attorney and Emeritus, University of Baltimore . Law, University of Baltimore . Phone: the comments are arguably related Phone: (410) 837-4874 . (410) 837-4629 . Email: jlynch@ubalt . to actual or anticipated litigation • Elizabeth L.B. Greene, JD, Partner, edu . arising out of a failed doctor-patient Mirick O’Connell, Worcester, MA . • Carol Michel, JD, Partner, Weinberg relationship.” n Phone: (508) 860-1514 . Email: Wheeler Hudgens Gunn & Dial, egreene@mirickoconnell .com . Atlanta . Phone: (404) 832-9510 . SOURCES • Marc H. Kallish, JD, Shareholder, Email: cmichel@wwhgd .com . • Andrew Clott, JD, Associate, Roetzel Roetzel & Andress, Chicago . Phone: • David Richman, JD, Partner, Rivkin & Andress, Chicago . Phone: (312) (312) 582-1604 . Email: mkallish@ Radler, Uniondale, NY . Phone: (516) 582-1654 . Email: aclott@ralaw .com . ralaw .com . 357-3120 . Email: david .richman@ • Eric Easton, JD, Professor of Law • John A. Lynch Jr., JD, Professor of rivkin .com .

Online Ratings Pose Risk of Defamation, May Need Response

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

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