Introduction

In the not-too-distant past, doctors were privately rated by their patients via word of mouth with friends, colleagues and family. Most of this opinion sharing remained contained and had little impact on individual physicians and their reputations. Now, however, there are websites devoted to publicly expressing and sharing personal opinions that have an impact on potential patients and their choices concerning who will treat them.

The two services we know of are RateMDs.com and OntarioDoctorDirectory.ca. Both sites allow patients to rate their experiences with their treating doctor anonymously. The categories provide for the rating of several factors including staff, punctuality, helpfulness and knowledge. They also allow a comment to be left for others to read.

We all accept that we are entitled to our opinions. However, when might those opinions become potentially defamatory?

A Recent Case

The Ontario Superior Court of Justice (ONSC) dealt with these issues in Zoutman v. Graham (2019). A physician sued a poster to RateMDs for a series of negative posts he had authored about the plaintiff physician. The writer was the brother of a man who had died following surgery. The deceased’s family had sued the surgeon. The plaintiff was called to testify as an expert for the defence at the trial. He gave his opinion to the court on the care and treatment provided to the deceased. The surgeon was found not to have been negligent by a jury.

The poster was present for the trial. He took to posting his opinion about the plaintiff the day after the plaintiff’s testimony. He admitted to writing the following two posts:

This fellows [sic] misplaced arrogance is surpassed only by his obstinance.  He is definitely the smartest person he has ever met.  Unable to distinguish between sepsis and pyo-myositis, [the doctor’s] claims that neither condition would benefit from the administration of antibiotics.  Dangerous and delusional, this individuals [sic] services should be considered carefully prior to allowing treatment.

[The doctor] provided “expert” opinion in a case where a surgeon was accused of negligence in the death of a 36 year old man who had undergone an elective procedure.  I found him to be arrogant, obstinate and condescending.  He actually claimed he believed he could do a better job determining the cause of death than the pathologist who conducted the autopsy – 12 years after the fact, and without the benefit of any sort of examination (can you say delusional?) The surgeon was found negligent by a jury of peers, listing too many breached to the standard of care to list here.  Endorsing reckless behaviour is dubious business, and I conclude [this doctor] poses a similar threat.  The patient was my brother.

The poster denied having written ten other complained of postings, however, the court concluded that he had authored all of them.

Defamation

A statement is determined to be defamatory or not based on an examination of the natural and ordinary meaning of the words used. The court easily concluded that all of the postings were defamatory as follows:

I have no hesitation in concluding that the language used to describe [the doctor] in the postings would lower the reputation of a doctor in the estimation of right thinking members in the community.  The comments posted … are derogatory and degrading to [the doctor], both personally and professionally.

Some of the postings go to the very core of [the doctor’s] integrity.  He is accused of “reckless behaviour”, “turns to bullying”, and “epitomizes all that is wrong with the health care system in this country”.  Online comments by non-patients which impugn the trustworthiness of a doctor have been held to be defamatory (Sagman v. Belleville Telephone Co of Canada, 2014 ONSC 4183 (CanLII), as have false innuendos created by taking a physician’s comments out of context (Myers v. Canadian Broadcasting Corp, (2001), 2001 CanLII 4874 (ON CA)

A component of defamation is that the defamatory comments must be communicated to a third party. The defendant claimed that there was no way to determine whether any third party had read his posts. The court disagreed, finding that the publication element had been satisfied for the following reasons:

In my view, [the plaintiff] has established publication.  I come to this conclusion taking into account the totality of the circumstances, including:

a.      The comment by an apparent third party on 14 July 2014, referring to [the defendant]’s earlier posting of 27 November 2013;

b.      RateMDs.com and similar physician rating websites are frequently used by the public for the purposes of choosing a physician;

c.      [The defendant]’s evidence that he authored postings to warn prospective patients about [the plaintiff];

d.      [The defendant]’s acknowledgment that he posted the second of the postings that he admits having authored because he found that the first posting had been deleted and was concerned that his message would not be received by the public; and

e.      The prominence of the RateMDs.com and OntarioDoctorDirectory.ca profile in Google searches concerning [the plaintiff].

The cumulative effect of these factors provides ample evidence of publication.

The defendant was ordered to pay damages totalling $50,000 to the plaintiff. This should serve as a caution to individuals posting physician ratings online. Just because a posting is anonymous and can be written by anyone, the consequences of posting defamatory content may result in costly litigation. It is wise to keep the following guidelines in mind when posting a physician review online:

  1. Limit posts to physicians who have actually treated you. In the case at hand, the doctor had served as an expert witness in a trial. This did not provide the defendant with the experience necessary in order to rate the plaintiff in is capacity as a treating physician, which is the purpose of these rating sites.
  2. Keep posts honest and stick to your direct experience with the doctor. Do not exaggerate facts, and be sure to avoid negative innuendo by posting a physician’s comments out of context.

At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in a variety of claims. To find out more about how we can help, contact us online, or at 416-915-4234 to schedule a consultation.

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