Many health professionals have concerns about postings made about them on rating websites like RateMDs. A recent case heard in Kingston, Ontario dealt with defamatory comments written about a doctor on the popular website RateMDs.com.
A medical negligence case was brought against a surgeon following the death of a patient. An Ontario doctor acted as an expert in that case, providing evidence supporting the position that the surgeon was not negligent. The negligence case was then dismissed.
For approximately a year and a half after his expert testimony, the doctor became aware that the brother of the deceased patient in the negligence case was posting defamatory comments about him, primarily on RateMDs.com. Despite never having been a patient of the doctor, the brother posted that the doctor was “arrogant”, “thin-skinned”, a “ding bat”, “rude”, “conceited”, a “bully”, had a “disturbing” appearance and was a “threat to patient safety”. The doctor commenced a defamation case against the brother (the defendant) for posting the comments.
The Defamation Case
The defendant admitted to authorship of 2 of the postings but denied authorship of the other 10 postings. In order to prove authorship, the doctor had to obtain the IP addresses of the postings from RateMDs.com through court subpoenas. The judge determined, based on the IP addresses and recurring words in the postings, that the defendant poster wrote all 12 of the postings.
The judge was also satisfied that the postings were defamatory. In particular, the postings would “lower the reputation” of a doctor in “the estimation of right thinking community members”, and they were derogatory.
The doctor also had to prove that the comments were communicated to a third party (the “publication” element of a defamation case). The judge concluded that the comments had been “published”, noting that: a third party referred to one of the defendant’s postings; the public frequently used RateMDs.com to choose doctors; and the defendant’s evidence that he authored postings to warn prospective patients about the doctor.
A defence to defamation is the “fair comment” defence in that the comment was made on a “matter of public interest” and was “based on fact”. However, the defence can be defeated if the comment was made with “malice”.
The judge concluded that the defendant could not rely on the defence of fair comment noting the lack of truth of the defendant’s postings, including that he falsely portrayed himself as one of the doctor’s patients in certain posts and that he tacitly acknowledged that some of his assertions in the posts were false.
The judge also found that the defendant acted out of malice. He refused to remove the postings, which were malicious, persisted in posting additional comments about the doctor and masqueraded as a patient.
The defendant was ordered to pay the doctor a total of $50,000.00. The judge declined to award punitive damages (a monetary payment which punishes the defendant for purposely vindictive, malicious or harsh behavior) given that the reprehensible conduct was a product of profound grief over the death of his brother and given his view that the interests of justice were served by the total award of $50,000.
The judge also granted a permanent injunction against the poster, preventing him from making any further posts about the doctor. A permanent injunction was granted because the judge concluded that the defendant was motivated by malice and that it seemed likely that there would be further posts if a permanent injunction was not granted.
Health professionals can take legal action regarding defamatory postings in certain circumstances. However, comments that are simply “mean” are not actionable, the comments must “lower the reputation” of the health professional in the eyes of a reasonable person. The health professional must also demonstrate authorship and publication, and the court will consider any defences that the poster might have.
In addition, a website generally will not release information about a poster, including the poster’s IP address, without a court order. Accordingly, health professionals who have been subject to defamatory postings can certainly consider using the judicial system as possible recourse, but they should be mindful of the expense, time, and stress in seeking court relief.
If you have any questions about this decision, potentially defamatory comments, or regulatory proceedings / court proceedings involving health professionals, please contact us.
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