Depp v Heard sheds light on physician defamation lawsuits

The Johnny Depp-Amber Heard trial has brought defamation to the fore. In their countervailing lawsuits, the stars sued each other for defamation. Depp likely prevailed because he won three counts vs Heard’s one count of defamation by Depp’s lawyers, and he landed a much larger settlement ($10 million vs Heard’s $2 million).^[]

Depp’s win, however, was likely Pyrrhic because intimate and potentially embarrassing details of his life—including drug misuse, violence, and sex—were shared with the world.^[] After all, Depp played Disney’s popular character, Captain Jack Sparrow.

And as with the Depp-Heard imbroglio, even a win in the courtroom can represent a loss in real life.

Defining defamation

In an exhaustive treatment of defamation, StatPearls relates probably everything a physician would like to know about the topic.^[]

Defamation commonly entails unjustified publication of derogatory/false statements relating to another individual/party. It can take two iterations: libel or slander. Libel is made in visible forms, whereas slander is spoken.

Defamatory statements can damage reputations, leading to disdain, hatred, ridicule, and fear by the public. Notably, it can result in a loss of income.

“Defamation was not historically considered to be a big issue in the healthcare industry,” according to the authors. “However, the rise of social media has resulted in a corresponding increase in defamation cases. Cyber defamation is defamation using digital media, most commonly the internet.”

“Healthcare workers who post or make negative comments about other patients/healthcare workers can face serious legal action,” the authors continued.

Winning defamation suits

Most of the time, when one person says or writes something about another person, this constitutes an opinion and not defamation. Defamation must prove the following:

• The communication damages the individual’s reputation.

• It’s unfounded, unactual, or unjustified.

• It’s been published in a public forum or relayed to the public.

Although Americans have always been inclined to call out injustice, the rise in defamation litigation can be attributed to more people having access to smartphones and the internet.

For physicians, social media is a double-edged sword. Positive statements from happy patients can boost their standing and generate referrals. But posts from unhappy patients, colleagues, or employees are bad for business and can destroy reputations.

Defamation in action

Defamation can come in many forms. The StatPearl authors run through several scenarios, including the following:

• In a letter of recommendation, a nurse wrote that another nurse (with no history of mental illness) was “unstable.”

• In an internal hospital meeting, one nurse claimed that two others were stealing leftover medication. They weren’t. The hospital ended up settling.

• A physician was wrongfully terminated from his job by an employer who publicly claimed he was committing malicious acts. He filed a suit claiming wrongful dismissal and defamation of character. The hospital settled for an undisclosed amount, and the HR employee who made the information public was terminated.

• After a failed surgery, an attending wrote up a resident for negligent patient care, stating the resident was “unfit” to be a surgeon. The resident sued for defamation of character, claiming there was no evidence to support this statement. The case went to trial, and although a complication occurred during surgery, the senior surgeon was present at all times and led the surgery. The resident won, the hospital had to pay court fees and a large penalty, and the senior surgeon’s privileges were limited.

• A 33-year old patient underwent breast augmentation and Botox injections. When the dressings were removed, she was unhappy with the results. The physician told her that she needed to wait until the edema subsided. Instead, she went online and claimed that the surgeon botched the surgery, stating that he was incompetent. The surgeon sued for defamation and provided records of their communications and photos from before, during, and after. He claimed that the patient’s comments hurt his practice and finances. He ended up winning more than $300,000 from the client.

As detailed in an article published in EMBO Molecular Medicine, a prominent Harvard researcher was sued for defamation based on a peer-reviewed study that in part demonstrated a nutritional supplement maker was using amphetamine isomers in its products.^[]

Although the Harvard researcher won in court, he lost in real life, facing a protracted court battle and financial uncertainty because Harvard could only cover some of the projected losses.

The supplement manufacturer used this as an opportunity to send a chilling message to the academic community. The CEO stated that he hoped “the long and costly legal battle will scare away other academics from investigating the supplement industry.”

Protecting yourself

Clearly, avoiding a defamation suit is a top priority for physicians. According to the StatPearls article authors, the following steps can be taken to protect yourself against social media attacks:

• Regularly check sites like Yelp, Facebook, and Google for negative reviews of you or your practice. You can even set up an alert from Google Alerts for keywords like your name or practice name. Try to identify the problem as quickly as possible before it spreads.

• Stay cool and don’t impulsively respond to negative online comments. Carefully plan your next steps. Instruct your employees not to respond publicly, either.

• Limit online interaction to avoid public exposure. Remember that the public may not sympathize with physicians or other healthcare workers. If you know the person posting the comment, try to contact them and address and resolve the issue privately. By addressing concerns, you may get the poster toy agree to remove the comment, and they may no longer harbor ill will, and thus you may avoid costly litigation.

• If you do respond, be calm, cool, and collected. Don’t get angry or unhinged. Offer to follow up with the person and resolve any issues in the clinic. Don’t disclose any private medical information, as a HIPAA fine carries higher penalties than defamation.

• If the comments are highly negative, notify the social network for review and possible removal. Facebook, Yelp, or Twitter all offer such recourse.

• If all these steps don’t work, retain a lawyer who specializes in defamation.

When writing a referral, for instance, don’t make subjective comments. Instead, provide objective clinical opinions based on facts. Remember that even your own colleagues can report you for defamation.

“Because of the intense rivalry between healthcare workers for patients, there may also be ongoing personal or professional animosity. Thus, any negative comment fueled by the animosity can quickly lead to escalation to a defamation lawsuit," the authors wrote.

Keep in mind that disgruntled patients often make damaging statements on not just one social media site, but across many. Sometimes there are fake reviews posted by people or groups who were never your patients. These can be concerted efforts to undermine a physician or practice.

Some reviews may be threatening to the physician and result in criminal action. Provide documentation of all these potential scenarios to a lawyer.^[] In cases of harassment or physical threats, immediately contact the authorities.