Doctors defamed – New actions available

Michael Gorton AM and Matthew Munro

In recent years there has been increased activity of patients and others placing comments and reviews of doctors on social media and websites, especially “Review Your Doctor” websites.

Recent cases expand the basis on which doctors can sue where defamatory and untrue material is published against them.

The Supreme Court of NSW has recently held a patient accountable for posting dishonest comments online about a surgeon’s professional conduct. Cosmetic surgeon Mr T has been awarded $530,000 in damages after the Court held that he suffered reputational harm as a result of two defamatory reviews written by one of his patients.

Mr T specialises in cosmetic and reconstructive surgeries. He has also performed microsurgery for cancer patients and worked with victims of serious burns, maxillofacial and hand trauma. The comments, posted as a review on Google, falsely claimed that Mr T acted improperly, incompetently, and charged for a buccal fat extraction procedure which he had not performed. The original review was posted in September 2017 and remained online for three weeks before being removed. The patient re-published the comments one year later, less than two weeks after the Court had granted an injunction to prevent her from doing so.

The case was heard by Justice Rothman who, in 2017, awarded $480,000 in damages to Dr M, an orthopaedic surgeon who had been subject to similar vitriolic sentiment online. In his decision, Justice Rothman held that the allegations against Mr T were ‘plainly untrue’. He accepted Mr T post-operative notes as evidence that he performed the procedure and had advised the patient on the importance of attending follow up appointments. The patient not only failed to attend the subsequent appointments but she was also absent from Court on the date of the hearing.

The surgeons in both cases were ideal plaintiffs for a defamation suit as they were subject to particularly malicious behaviour which directly targeted their reputation. Justice Rothman held that the reviews lowered Mr T’s reputation in the minds of ordinary members of the community. The review contained serious allegations that went directly to the heart of doctor’s reputation as a surgeon and had a measurable impact upon the success of his business. Justice Rothman relied upon evidence which showed a 24 per cent reduction in traffic to the doctor’s website in the six days after the publication of the initial review. He found an inference that the comments had caused this downward trend.

Doctors should also be aware that the publication of false and malicious rhetoric online may constitute injurious falsehood. This claim is harder to prove as it requires the false statement to be malicious and cause actual damage. The Court held that the patient’s conduct was malicious and that the reduction in traffic to Mr T’s website was actual damage which would either manifest immediately or in the future.

The award of $530,000 plus interest was calculated was based on Mr T’s hurt feelings and the damage to his reputation. The Court considered the accusations caused him more than significant distress. The patient’s malice was manifested by her failure to apologise and her failure to withdraw the comments until she was forced to.

Under New South Wales defamation legislation, damages cannot be awarded as a punishment. This is also reflected in the equivalent Victorian legislation. As Mr T suffered actual damage, aggravated damages were awarded to compensate him for the exceptional harm he sustained. Practitioners should note that as in New South Wales, the Victorian legislation nominates a cap on the amount of damages which may be awarded. Although the limit for non-economic loss is capped at $398,500 in New South Wales, the judge was able to award more because the additional damages were aggravated by the more than significant distress caused.

Mr T was not only awarded damages and costs, but the Court also enforced a permanent injunction to prevent the patient from re-publishing the defamatory review. This remedy may be the most effective method of vindicating the rights of a professional who has been defamed. It is also of practical importance for practitioners who bring an action against patients without the money to pay the amount of damages awarded.

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Marika Hubble-Marriott, Principal in Russell Kennedy’s Dispute Resolution team, has recently written an article highlighting the legal and reputational issues which can arise and the ways in which your business and brand can be susceptible to damage and disruption - Managing reputation and online reviews in an era of fake news, keyboard warriors and troll farms.

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