Defamation of Character in healthcare

[Jackstephan]

In the US there are many paths to performing cosmetic surgery. A surgeon can be trained to perform cosmetic surgery as a: plastic surgeon, oral and maxillofacial surgeon, Otolaryngologist, general surgeon, opthamologist, and dermatologist. To perform cosmetic surgery most of these specialties require extra fellowships after graduation.

Unfortunately driven by greed, most plastic surgeons feel entitled to having a monopoly in cosmetic surgery and often slander other fields. In specific, there are certain public websites where plastic surgeons continue to state that they are "the only surgeons trained to perform cosmetic surgery" and that getting cosmetic surgery from other specialist "will result in botched surgery". Those are 100% false claims and there is no evidence to support their claims.

Basically they are scaring the public and making them think that plastic surgeons are the only ones trained to do cosmetic surgery and that everyone else will botch their surgery. This slander ofcourse harms the competition.

Do other medical specialists have a case?

 

[tranquility]

I don't think that would be a small enough group. (That's assuming the comments were even defamatory in the first place.)

 

[cbg]

Nope. That is clearly opinion and not defamatory.

 

[Jackstephan]

Nope. That is clearly opinion and not defamatory.

I guess I meant Libel. According to California Code Libel is:



California Code of Civil Procedure Section 45: Definition of Libel

45.Libel is a false and unprivileged publication by writing,

printing, picture, effigy, or other fixed representation to the eye,

which exposes any person to hatred, contempt, ridicule, or obloquy,

or which causes him to be shunned or avoided, or which has a tendency

to injure him in his occupation.




California Code of Civil Procedure Section 45(a): Libel Damages




45a. A libel which is defamatory of the plaintiff without the

necessity of explanatory matter, such as an inducement, innuendo or

other extrinsic fact, is said to be a libel on its face. Defamatory

language not libelous on its face is not actionable unless the

plaintiff alleges and proves that he has suffered special damage as a

proximate result thereof. Special damage is defined in Section 48a

of this code.


WHy would plastic surgeons attacking other surgeons not be considered libel?

 

[cbg]

I stand by my answer. It's still opinion.

 

[quincy]

I disagree with cbg. It would be slanderous (or libelous, if written) to say a surgeon would "botch" plastic surgery unless the surgeon is a cosmetic surgeon. And it would be slanderous (or libelous, if written) to say that all surgeons but cosmetic surgeons would botch any plastic surgery they attempted. This is not "pure" opinion. It states a fact and this fact can be proved false.

However, tranquility is correct. You cannot successfully sue an individual for defamation for making a defamatory comment about a large group of people, with a large group generally defined as any group of individuals numbering over 25 people (although there have been rare defamation suits involving the defamation of larger groups - see Brady v Ottawa Newspapers, Inc, 84 A.D. 2d 236, 445 NYS 2d 786, 1981, for an example of a 53-member-group libel action).

All elements of defamation must be met before a suit can hope to be successful. These elements include, one, that there is the publishing of a defamatory statement and, two, that it is made to a third person and, three, it is communicated with either negligence or malice and, four, reputational injury results. The final, fifth, element required for a defamation suit is that there has been specific identification of the individual bringing suit. Identification is an important element in defamation and, without this identification, any defamatory statement made would not be actionable.

I can, therefore, safely say that all lawyers are incompetent. I can also narrow that group down a bit and say all lawyers in California are incompetent, or all lawyers in San Francisco are incompetent. Again, no successful suit can arise from that type of statement, even though the statement can be viewed as defamatory and can be proved a false statement. Unless, say, the city is one where only two or three lawyers practice, and where defaming this group of unnamed lawyers still sufficiently identifies to another or others each individual, defaming a group does not identify sufficiently the members of the group individually, and it is this individual identification that can give rise to compensable reputational injury.

Once a group is narrowed down to an easily identifiable group of individuals, a defamation suit beomes possible.

So, to answer your question, the other medical specialists may have been defamed by the comments, but a defamation suit initiated by any one of the medical specialists (or by the group of medical specialists as a whole) cannot arise from the defamatory comments unless the comments can be shown to target an identified or identifiable specialist in particular (or a few in particular).

 

[Jackstephan]

Quincy thank you for your reply. I believe that all 5 elements that you speak of have been met. 1. There is publishing of many defamatory statements. I have copied and pasted some below. 2. THese statements are made to patients requesting advice in a public forum that millions of people read. 3. Theses statements are negligent and mailicious. 4. It damages the reputation of the party they attack. 5. The individuals making these claims are doctors with their full name, profiles, addresses and pictures posted and made public.

Here are the examples of a couple copied and pasted statements:

"Don't go to someone who claims to be board certified in Cosmetic Surgery. There is no such recognized board. Anyone with a medical license can send in some money and claim to be a board certified cosmetic surgeon without any training." --> absolutely untrue to become board certified in cosmetic surgery you need to do a fellowship and pass an exam issued by the board.


"Now there is certainly an overlap between specialities, for example - both plastic surgeons and ENT physicians are trained to perform rhinoplasties. But There is no reason that an oral surgeon should be performing anything other than oral surgery, unless he or she takes the requisite training to be a plastic surgeon."--> absolutely not true. The field is called oral and maxillofacial surgery and cosmetic surgery is part of their training


"In other words, your local "Cosmetic Surgeon" may be an Emergency Room physician who, after buying the latest and greatest laser, now calls himself a Cosmetic Surgeon." --> in order to be a board certified cosmetic surgeon you need to do a cosmetic fellowship after completing residency in the following specialties: general surgery, plastic surgery, ENT, oral and maxillofacial surgery, obstetrics and gynecology, opthamology


"Cosmetic surgeon" "Aesthetic surgeon" are wastebasket terms that anybody can use, even a doctor trained yesterday at the worst medical school in the country who finished at the bottom of his class. Weekend course not even required to use those terms.

 

[Jackstephan]

Quincy thank you for your reply. I believe that all 5 elements that you speak of have been met. 1. There is publishing of many defamatory statements. I have copied and pasted some below. 2. THese statements are made to patients requesting advice in a public forum that millions of people read. 3. Theses statements are negligent and mailicious. 4. It damages the reputation of the party they attack. 5. The individuals making these claims are doctors with their full name, profiles, addresses and pictures posted and made public.

Here are the copied and pasted statements:

"Don't go to someone who claims to be board certified in Cosmetic Surgery. There is no such recognized board. Anyone with a medical license can send in some money and claim to be a board certified cosmetic surgeon without any training." --> absolutely untrue to become board certified in cosmetic surgery you need to do a fellowship and pass an exam issued by the board.


"Now there is certainly an overlap between specialities, for example - both plastic surgeons and ENT physicians are trained to perform rhinoplasties. But There is no reason that an oral surgeon should be performing anything other than oral surgery, unless he or she takes the requisite training to be a plastic surgeon."--> absolutely not true. The field is called oral and maxillofacial surgery and cosmetic surgery is part of their training


"In other words, your local "Cosmetic Surgeon" may be an Emergency Room physician who, after buying the latest and greatest laser, now calls himself a Cosmetic Surgeon." --> in order to be a board certified cosmetic surgeon you need to do a cosmetic fellowship after completing residency in the following specialties: general surgery, plastic surgery, ENT, oral and maxillofacial surgery, obstetrics and gynecology, opthamology

 

[quincy]

It appears that this group is too large to allow for it (or any one of its members) to sue successfully for defamation, unless the locality of the "local cosmetic surgeon" is specifically named.

There could, however, be false advertising (unfair competition) claims to consider.

Any individual or entity that makes misleading or false statements about either its own services or the services of another can (potentially) be sued. A suit can (potentially) be successful if it can be shown there was an intent by this individual or entity to deceive its targeted audience, or a substantial portion of the targeted audience was deceived by the false or misleading statements.

The deception must be such that there is a likelihood of influencing someone or others in their decision to acquire services based on the statements, or there is a likelihood that an individual or an entity, about which the false or misleading statements are seen to be directed, will be harmed by the statements.

A consultation with an attorney in one's own area is always wise, for a review of all of the facts and for a discussion of the legal options that may be available to pursue. There are both federal laws and laws specific to each state that should be considered.

 

[The Occultist]

5. The individuals making these claims are doctors with their full name, profiles, addresses and pictures posted and made public.

I think you misunderstood what Quincy was telling you. He's not saying that the group who is making the false allegations need to be identifiable, he's saying that those allegedly being defamed (such as yourself) needs to be identified by those doing the "defaming".

 

[cbg]

And while I grant that Quincy knows more about this than I do, I am still not convinced that this is not opinion, or that any specific doctor's reputation has been damaged.

 

[quincy]

I agree, cbg, that it does not appear that any doctor has been sufficiently identified in the statements that were made to allow for a successful defamation suit against the publisher of the statements (although a review of the publications and all of the facts would be necessary to determine this better).

However, I disagree with you that what has been said is opinion. The statements that were made were statements of fact.

Opinion (when pure) does not state or imply fact and cannot be proved true or false. An example: "I think the opthomologist is the best person to perform my eye surgery." That does not state any fact, or imply that the opthomologist is more capable or better qualified than any other doctor. It is pure opinion.

Compare that opinion to this statement of fact (which is either provably true or provably false and, if false, could potentially lead to a defamation suit): "I think the opthomologist is the best person to perform my eye surgery because the other doctor is not trained to perform the surgery and will botch it up, even though he says he is board certified. There is no board."

Even though the statements Jackstephan provided in his posts are ones that were made about a large group, this does not make the statements opinion and this does not make the statements any less defamatory. If these same statements were made about a smaller group, where some or all of the individuals in the group could legitimately be seen by others as the specific target of the words, a defamation suit could be pursued with a chance of success.

It is only the size of the group mentioned in Jackstephan's post that hinders the ability of any of the doctors to pursue a successful defamation suit against the publisher of the statements.

Plaintiffs must be able to show that defamatory statements refer to them. This can be done even when a Plaintiff is not specifically named, if a description or circumstances lead a reader to a specific individual (or individuals). But in this described situation, there has been no identification - a required element for defamation - because the statements target all of the members of a large group of doctors and not any one in particular.