An orthopaedic surgeon has been awarded $480,000 in damages for defamation after ‘continual vilification’ through a website and social media by a patient and the patient’s brother.
Described by the court as ‘highly respected, ’the orthopaedic surgeon, who has led pioneering work with prosthetic limbs, sued the defendants for defamation last year after performing a hip arthroscopy on the disgruntled patient in 2010 and taking out Apprehended Violence Orders.
The Supreme Court described the defendants’ online attack as a ‘most vicious and vituperative series of publications’ that vilified the surgeon. The defamatory material included a fake website which was similar to the surgeon’s legitimate business website, and claims of professional negligence and moral culpability. The website included a photograph of the surgeon and linked to a video called ‘Dr… the Butcher.’
Similar material was posted on a public Facebook page, YouTube and Pinterest, including a ‘Wanted’ poster portraying the surgeon, images of grotesque monsters and the same video posted to YouTube headed ‘The unaccountability of surgeon Dr [the orthopaedic surgeon] for his medical negligence.’
In December last year, a default judgement was entered in favour of the surgeon when the defendants did not attend the hearing to defend the allegations.
Patient suit for medical negligence dismissed
In 2011, the patient sued the surgeon for medical negligence alleging that his pudendal nerves had been damaged during the surgery.
The court heard that the surgeon had advised the patient of the risks of surgery, including the risk of pudendal nerve damage. The procedure went as planned, but the patient flew to Thailand against advice that he not fly so soon after surgery.
Upon his return, the patient complained of loss of sensation in his penis and scrotal area, and a loss of sexual function. The surgeon sent the patient for specialist testing which showed no evidence of nerve injury. As the appointments continued, the patient became increasingly hostile and aggressive towards the surgeon. Threats by the patient and his brother escalated in person and through phone calls, with the patient’s brother threatening to kill the surgeon.
In 2014, the patient’s case was dismissed and the patient was ordered to pay the surgeon’s costs. The court found that ‘There was no evidence of any negligence or wrongdoing on the part of the plaintiff. On the contrary, the hip arthroscopy was successful and the testing reveals no other injury.’
That same year, a complaint to the Health Care Complaints Commission (HCCC) from the patient was also dismissed.
After the medical negligence suit and HCCC complaint were dismissed, the patient’s calls and text messages became more frequent and intimidating, and included demands for money and death threats to the surgeon and their family.
The defamation decision
In assessing the damages, the court noted that the defendants had not apologised for the publications and failed to remove the publications despite reasonable requests to do so before the case was heard. The court also considered the grapevine effect of the publications and that the allegations centred on the surgeon’s capacity in their chosen profession.
The court said, ‘This is more significant, in circumstances where [the orthopaedic surgeon’s] reputation is extremely high or at the highest possible level. Further, [their] good reputation, particularly in a leading and novel process, the acceptance of which depends upon the reputation of the plaintiff and the process, is essential and these imputations are extraordinarily damaging’.
The court awarded the surgeon $480,000 in damages for defamation, plus interest. Proposed orders were made requiring the defendants to remove the defamatory material and refrain from republishing it.
Removal of comments
Social media and online doctor rating sites are increasingly being used by people to air their views about the services they have received. There are a few steps doctors can take if you receive negative patient comments online:
- You can write to the patient directly asking them to remove the online comment.
- If a patient is anonymous, you can request the website administrator to remove the comment. You can also flag the comment on the site as inappropriate.
- You can also check the website’s code of conduct and advise the administrator if there is a breach.
For more strategies, read our article ‘When patients slam you online, here’s what to do.’ or download our factsheet ‘Reacting to unwanted feedback.’
If the actions taken are not acceptable to you, the remaining option is to consider instituting defamation proceedings. The law in this area is complex and it is advisable to obtain prompt advice from a defamation lawyer as time limits apply to bringing a defamation action.
A word of warning: successful defamation actions are rare. In our experience, defamation suits, particularly those involving doctors, attract significant media attention. This can result in the defamatory comments being republished, potentially damaging the doctor’s reputation further and exacerbating the significant impact that legal proceedings can have on the parties. Furthermore, defamation suits are usually costly.
What does your policy cover?
If you have been defamed by your patient or anyone who is not a healthcare professional, Avant can help you pursue a case of defamation against them. Under Avant’s Practitioner Indemnity Insurance Policy,* members are covered for up to $150,000 for legal costs to pursue the matter, subject to a $20,000 deductible.
*IMPORTANT: Professional indemnity insurance products are issued by Avant Insurance Limited, ABN 82 003 707 471, AFSL 238 765. The information provided here is general advice only. You should consider the appropriateness of the advice having regard to your own objectives, financial situation and needs before deciding to purchase or continuing to hold a policy with us. For full details including the terms, conditions, and exclusions that apply, please read and consider the policy wording and PDS, which is available at www.avant.org.au or by contacting us on 1800 128 268.
If you are involved in a complaint, your response can be crucial to its resolution. Showing empathy after adverse incidents is important to avoid bad feedback.
If you have a serious complaint such as the one above, you can email us at: firstname.lastname@example.org or call our Medico-legal Advisory Service (MLAS) on 1800 128 268 for expert advice, 24/7 in emergencies.
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