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LEGAL EASE
Internet defamation
and your practice
By George F. “Rick” Evans Jr.
Do you ever stop to wonder whether things were so much sim-
pler for your colleagues 60 years ago? Managed care hadn’t been
invented yet. Deep gouges in physician reimbursement hadn’t been
invented yet. Neither had the Internet. And with the Internet has
come the opportunity for individuals to make known to the entire
world their two cents regarding your skills as a physician.
There are many ways to do it: Twitter, Facebook, blogs, self-cre-
ated websites and, of course, let’s not forget Angie’s List, Yelp and even in the wireless, ethereal world of the Internet. In Kinney’s
other comparable sites. Your patient is peeved because he sat 30
minutes longer in your reception area than he wanted. Or she
thinks your bill was too high. Or he didn’t like the fact he couldn’t And he had the right to obtain a court order requiring that those
get an appointment within 10 minutes of calling your front desk.
Or she thinks you’re a quack because you couldn’t diagnose some
obscure problem on the first visit.
Now those patients can broadcast their comments to the world.
When your prospective new patients Google you, what might they
find? Or what about a prospective new employer you’d like to work
for? Or the bank you’re hoping will give you a business loan? Or
the other doctors in town who you hope will send you some refer-
rals? What does the Google machine serve up to them when they
type in your name?
Until recently, lawyers were pretty much relegated to telling ag-
grieved physicians to take two aspirins and call them in the morn-
ing. There wasn’t much to be done. After all, we live in a country
founded on the premise of freedom of speech. Courts were loathe
to intervene. That might not have been a big deal 60 years ago. A
disgruntled patient could only shout his insults so far. But the In-
ternet changed all that.
So, what can you do if you’re the victim of Internet bad-
mouthing? Thanks to Robert Kinney, now you’ve got something
more meaty than “take two aspirins and call me in the morning.”
You’ve got a legal remedy with teeth. Here’s the background.
Kinney was a recruiter for a firm. He left and set up his own re-
cruiting firm. His jilted employer sought revenge by posting on a
website statements about Kinney which, suffice it to say, were less
than flattering. Kinney sued and ultimately, only after going all
the way to the Texas Supreme Court, won. That decision is now
the law of the land for Texans.
The court held that freedom of speech is not absolute and does
not protect an abuse of that right. Freedom of speech can’t shield
a person from the consequences of making false and defamatory
statements about another. The court recognized that this is true
case, he had the right to sue his former employer for defamation
because of what had been broadcast to the world on the website.
statements be removed from the Internet. The court recognized
damages that he could recover included things such as lost income,
damage to reputation, mental anguish and, if the statements were
made maliciously, punitive damages, too.
Now, all this said, here are the limits to what the court said. First,
the offensive statements must be defamatory. That means they must
be untrue statements of fact. If they are true, well, then you’re out
of luck and deservedly so because they are true and you deserve them.
If they are just opinions, as distinguished from a statement of fact,
you’re also out of luck. After all, people are entitled to have and share
opinions. For example, it would be OK to say, “I think the food at
McDonalds tastes bad,” but not OK to say, “The food at McDonalds
contains horsemeat,” unless you could prove that was true. So, your
patient can tweet or blog their opinion that they thought you were
curt or expensive or slow, but, unless it’s true, they couldn’t say you
groped them, discriminated against them because they were of a cer-
tain age, race or sex, overbilled them and so on.
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