A respected plastic and reconstructive surgeon found himself
in an untenable position after facing a patient’s social media tirade that brought
him “hatred, ridicule and contempt” in defamatory and malicious online posts.
The surgeon member was awarded $450,000 in damages in the
Federal Court of Australia after the patient was found guilty of defaming him and
“gravely injured his character and reputation as a plastic and reconstructive
The Federal Court said the importance of vindication could
not be underestimated when assessing damages in this case and the sum awarded must
be at least the minimum necessary to signal to the public the vindication of the
Surgeon declines to operate
The patient consulted with the surgeon on several occasions to
perform a revision procedure. After being contacted by the plastic surgeon who had
performed the original surgery, the member considered he was unlikely to meet
the patient’s expectations and it was therefore in both their interests not to
proceed with the surgery. Although the patient had completed the necessary
paperwork for the surgeon to perform the surgery, ultimately, he decided not to
operate and refunded the fees she had paid.
The patient considered the discussion between the surgeon and
her previous surgeon to be a breach of confidentiality and complained to the Office
of the Australian Information Commissioner and Health Care Complaints
Commission. Both the complaints were dismissed.
Patient unleashes online campaign
The patient responded by unleashing an internet campaign of malicious
and negative reviews against the surgeon, which were published anonymously or
using false names.
The patient was responsible for defamatory publications, which
outlined her interactions with the surgeon but “in an entirely distorted and
misleading way,” the court said. The most extreme publication was a dedicated
WordPress site containing images of botched plastic surgery cases, which were not
of the patient or any patient the surgeon had treated. It also included
photographs of the surgeon with negative superimposed words. The court described
the reviews in this publication as “fabricated, factually inaccurate and false.”
In an attempt to bring the matter to a conclusion, the surgeon agreed to pay $3,000 towards the patient’s cost of undergoing revision surgery. The patient was required to sign a deed of
release which specified that she agreed not to disparage the surgeon in any
form in the media or on social media, including online review sites. The patient
signed the deed and then posted further negative reviews in breach of the
agreement. The online campaign continued despite the surgeon successfully
applying for an Apprehended Personal Violence Order (APVO) against the patient.
At this point, the patient was no longer traceable by police,
but her email address was still active.
Defending the surgeon’s reputation
The key legal aspects of the case focused on identifying the
author of the posts and trying to personally serve the patient. Ultimately, the court deemed that the patient had been served via her email address. Based on the evidence, the court was
satisfied the patient was responsible for publishing all the relevant online
The court accepted evidence that prior to the campaign, the
surgeon’s personal and professional reputation was impeccable, and his online
reviews were overwhelmingly positive. However, as a result of the online abuse,
his workload declined, and his five-star Google review rating fell to 3.5 stars.
The patient failed to appear at the hearing and was never
found by police.
Decision in favour of surgeon
The court found the damage to the surgeon’s reputation was
“substantial and extensive” and he was able to prove the patient had defamed him.
The surgeon was awarded $450,000 in compensatory and
aggravated damages. The court found that an award for aggravated damages was
warranted due to the excessive, baseless and malicious nature of the
publications, which were calculated to cause maximum damage to the surgeon, the
patient’s decision to publish the material anonymously, and her decision to
disappear rather than defend her actions in court.
The patient was also ordered to pay the surgeon’s court costs
and permanently banned from republishing or publishing more false reviews.
Unfortunately, since the patient has disappeared, it is
unlikely any money will be recovered.
Although this decision was made in favour of the surgeon, the
law in this area is complex and successful
defamation actions are rare.
In our experience, defamation suits involving anonymous
complaints can be costly and are often difficult to prove. They can also attract significant media
attention which can result in defamatory comments being republished,
potentially damaging the doctor’s reputation further and exacerbating the
significant impact that legal proceedings can have.
If you are concerned about
potentially defamatory statements made about you, we advise obtaining prompt
advice as time limits apply to bringing a defamation action.
Not continuing the doctor-patient relationship
Sometimes, doctors have no option
but to end the relationship with a patient. You can choose not to continue the doctor-patient
relationship if you consider it to be in the patient’s best interests or, if
the therapeutic relationship has become untenable for you.
If you are unwilling to continue treating a private patient,
you are not compelled to do so. The key is to recognise when it is appropriate
to cease treating a patient and to know how to do it without breaching your
legal and professional obligations.
When ending the relationship, you should aim to communicate
in person with the patient while being sensitive to the patient’s feelings so
they don’t see this as a personal rejection.
Patients may feel that your proposal not to proceed with
treating them means that they are being abandoned. It is important to make it
clear that it does not mean “no treatment” or “no care”.
If you have concerns that 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 Product Disclosure
Statement, which is available at www.avant.org.au
or by contacting us on 1800 128 268.
to end the doctor-patient relationship.