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Neurologists Sue for Defamation

Avitzur, Orly, MD

doi: 10.1097/01.NT.0000388432.70086.c5
DEPARTMENTS: Legal-Ease

It began much like any other hospital visit with a neurology consult that had been requested on a patient who had suffered a stroke. The patient's son was unhappy with the way his father was treated, though he never discussed his concerns directly with the neurologist. Within days, the son's complaint escalated to a full-blown war, with letters sent to at least 10 medical organizations including the AAN and the American Neurological Association, and four physician-rating Web sites, followed by a defamation lawsuit, newspaper headlines, and national television exposure.

David McKee, MD, the Duluth, MN, neurologist, said he first learned of the family member's grievance when a long-time patient came to his office and remarked, “I can't believe what I read about you on the Internet today!” Before this happened, Dr. McKee was only vaguely aware that patient ratings Web sites existed. For the first time, he Googled his own name, and was stunned by what he discovered.

“An awful review popped up immediately, and within minutes, I found three nearly identical others,” he recalled. Dr. McKee said he soon learned, that over the course of recent weeks, his patient's son had written an additional 14 letters of complaint to physicians, hospitals, as well as county, state, and national medical societies, and the Minnesota Board of Medical Practice. The son also contacted a reporter at the local newspaper and tried to get the local television stations to take an interest, drafting a total of 20 letters.

“The situation became much worse after the newspaper article came out,” Dr. McKee said. “I have a son in college, but three daughters, aged 10, 13, and 16 at home, and their friends found out through their parents. The children were very upset and felt blindsided…it was very unsettling.”

Dr. McKee, who described the complaints as inaccurate and unfair, said that when his lawyer requested that the patient's son stop his campaign, he escalated to more serious complaints instead. The neurologist decided to sue for defamation, seeking in excess of $50,000 for damages including harm to reputation, emotional distress, pain and suffering, and a similar amount for interference with business.

In the defamation lawsuit that ensued, Dr. McKee's complaint outlined, among other things, that the plaintiff falsely accused him of “blaming the patient” for the loss of his time, “scowling,” as well treating the family member as a “task and charting assignment” and without dignity.

“It's a matter of principle for me,” said Dr. McKee, whose case is still pending. “In days past, a disgruntled family member might have complained, but now with the Internet, someone can actually do damage to your career,” he concluded.

But the price of acting on principle can be too great for some. One neurologist, who spoke to Neurology Today on the grounds of anonymity about ultimately dropping his defamation lawsuit against his employer-hospital, said, “The entire series of events was very traumatic. The defamation was clearly a part of that, however, their initial actions, the media coverage and the tremendous sense of loss was (and is) the focus of much of my emotional turmoil. The action of suing the hospital was somewhat cathartic, although ultimately not terribly productive.”

He advised that those contemplating suing for defamation first make sure that there is at least one individual who will stand up for you and verify that they received information that was inflammatory and/or defaming. “If, as in my case, the individuals who could verify the hospital's role in propagating defaming information are themselves fearful of their job, the effort to bring a suit can be futile,” he said.

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DEFINING DEFAMATION

Defamation (of character) is defined as the act of making false statements to a third party, which damages a person's reputation. If the defamatory statement is printed or broadcast via the media it is considered libel and, if only oral, it is slander.

“Physicians considering defamation lawsuits must prove that the statements were false and not purely opinion,” said Daniel Larriviere, MD, JD, assistant professor of neurology at the University of Virginia and chair of the AAN Ethics, Law and Humanities Committee. “It's even trickier if an opinion references fact, and requires an attorney to tell if you have a legitimate claim. Even then, defamation lawsuits are much more difficult to prognosticate than medical malpractice lawsuits.”

In fact, in another recent case involving a neurologist, a newspaper printed a story with the headline “Gross Mistake” alleging misdiagnosis of amyotrophic lateral sclerosis (ALS) in a patient later determined to have a dystonia. The neurologist, who explained that ALS had only been mentioned in the differential diagnosis, was never contacted by the writer, and sued the newspaper publisher for defamation of character after it had refused to retract or correct the article.

DR. DAN LARRIVIERE:

DR. DAN LARRIVIERE:

The defense attorney for the publisher argued, however, that it appeared to be a matter of trade libel — charges that require a higher burden of proof —because there were damages claimed to the practice. Although the judge agreed that from a moral perspective, the word “misdiagnose” should not have been used in the story, he granted the newspaper's motion to dismiss because malice, necessary to establish trade libel, could not be established. The judge did state, however, that use of the term “misdiagnose” was a “substantially false statement.”

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COMPLAINTS ON THE INTERNET

Fortunately, media stories are fairly uncommon. What's become alarmingly common, however, is the tendency for disgruntled patients to turn to the Web to voice their gripes, as Dr. McKee learned. “These sites tend to give a very biased, very selective view,” he observed. “Having now trolled around the Web sites looking up physicians in a sort of anecdotal experiment — to see what's out there about people I consider the best and worst physicians — there's absolutely no correlation between my opinion and the ratings,” he concluded.

“These days, anyone with a mouse, an Internet connection, and a grudge can sign onto a physician rating site,” said former neurosurgeon Jeffrey Segal, MD, JD, founder and CEO of Medical Justice Services, an organization created to protect physicians' reputations. “This can be a patient or someone posing as a patient, such as a disgruntled employee, ex-spouse, or competitor,” he warned. “What makes the Web postings exceptionally frustrating is that physicians are forbidden from responding due to HIPAA laws.” In addition, he said, Section 230 of the Communications Decency Act grants interactive online services of all types, including news Web sites, blogs, forums, and listservs, broad immunity from certain types of legal liability stemming from content created by others.

Medical Justice advises its members to have patients sign an agreement that gives doctors the copyright to patient posts. This allows physicians to instruct sites to take down false or fraudulent posts cleverly utilizing the Digital Millennium Copyright Act notice-and-takedown safe harbor provisions. The company also supplies a robot service that crawls rating sites to detect what's being said about member physicians and alerts them of new posts.

Dr. Larriviere believes that these types of agreements may hamper the physician-patient relationship if patients who are asked to sign them conclude that the physician may have something to hide. He pointed out that courts may take a jaundiced view of these agreements because of the unequal bargaining power that exists between the physician and the patient. The Medical Justice's agreement has yet to be challenged in court, however.

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WHAT TO DO IF YOU THINK YOU'VE BEEN DEFAMED

  • Take some time to reflect. Do not underestimate the expense, time, effort, emotional toll and uncertain results that will result if you decide to sue.
  • If you intend to pursue legal action, hire an attorney experienced in defamation suits.
  • If the offending remarks are posted on an Internet site, contact the site owner first to request that the comments be removed.
  • Recognize that lawsuits will increase the likelihood of widespread media attention.
  • Create your own Web site; it gives you the opportunity to present accurate information about yourself and your practice; when patients Google your name it will likely come up before the ratings sites.
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INSURER TIERED PHYSICIAN RANKINGS: A NOVEL TWIST OF DEFAMATION

The judicial system is weighing in on another novel twist of defamation, which asserts that some physician rankings by insurance companies are inaccurate and defamatory, causing both patients and physicians to be defrauded and harmed.

In 2008, the Massachusetts Medical Society (MMS) filed a defamation lawsuit, one of five claims, against Group Insurance Commission (GIC) for its capricious ranking of physicians. GIC is the agency that oversees health insurance for thousands of public employees. The lawsuit stated that physicians have been defamed by the GIC program that ranks (“tiers”) individual physicians in one of three tiers, using various cost and quality measures.

Patients are charged higher co-pays when treated by doctors assigned to the lower two tiers, or forced to change physicians. The MMS believes that the GIC rankings use inaccurate, unreliable, and invalid tools and data. While other medical societies including the Washington State Medical Society and the Fairfield County Medical Society, have filed suits to halt flawed ranking programs, the MMS suit against GIC is the first to include defamation in its allegations.

Linda Y. Buchwald, MD, chief of neurology at Mount Auburn Hospital, a Harvard Medical School affiliated community hospital in Cambridge, MA, and a multiple sclerosis (MS) specialist, contends that her ranking — tier III, the lowest — failed to take into account the advanced medical status of her patients who tend to require multiple specialists including nurses, rehabilitation experts, psychiatrists, physical therapists, occupational therapists and social workers. All this care is assigned to her name when tier ranks are calculated, and in effect, she, like other physicians who take care of sicker, more complex patients, are negatively impacted by their willingness to treat seriously ill patients.

“Rankings are based on an attribution system,” Dr. Buchwald explained. “If your patient requires a $46,000 power chair, or any service, supply or test, even when ordered by other providers unbeknownst to you, it's allocated towards your costs,” she explained. This system is entirely cost-based, and their architects did not include any adjustment for risk or case mix, she said. Dr. Buchwald also contends that the tiering program is discriminatory against sicker and more disabled patients and represents a perverse incentive program, which is illegal under state and federal protection laws.

Dr. Buchwald is most appalled by a letter she said was distributed to all GIC beneficiaries, including hers, that advised that they might find a more ‘caring and efficient’ doctor, concurring that this constituted defamation of character. This case as well as Dr. McKee's, has yet to be tried in court. (See www.neurotodayonline.com for an earlier Neurology Today article on the tiering system, “Neurologists Challenge Insurers' Flawed ‘Tiering’ Systems: Seeking Input and Transparency,” Sept. 4, 2008.)

©2010 American Academy of Neurology