Surgeon wins defamation case against patient's online abuse
Tuesday, 21 September 2021
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 surgeon”.
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’s reputation.
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 posts.
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.
Factsheet: How to end the doctor-patient relationship.
*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.