Pejorative Statements By Former Patient Are Not Defamatory, But Protected Opinion

Richard Raysman is a Partner in our New York office.

It is fair to say that doctors trade on their reputations more so than most other professionals. When one relies on the doctor to ensure his or her health, and occasionally save a life, the import of such a choice often precipitates extensive research into the background of a physician. Moreover, a sizable amount of medical procedures or other types of treatment cost significant sums. As a result, it behooves consumers to apply extra scrutiny ex ante to those medical professionals with whom a relationship may soon commence. The views of others who were once similarly situated can in some cases be determinative to the decision of a prospective patient, and therefore cases often arise in which medical professionals take legal actions against those who have besmirched their reputation.

In Loftus v. Nazari, No. 2:10-cv-279, 2014 WL 1908812 (E.D. Ky. 2014), a plastic surgeon (Loftus), likely to preserve or buttress his professional reputation, sued a former patient for libel, defamation, and tortuous business interference. Specifically, Loftus sued the defendant (Nazari) after the latter posted a trio of statements online that expressed dissatisfaction with the plastic surgery she received from Loftus. Nazari had received breast implants, a breast lift, an arm lift on both arms, and a "tummy tuck." As a result of these procedures, Nazari alleged she suffered from permanent nerve damage, abdominal pain, scarring and disfiguration. She detailed these infirmities on three separate websites and filed a complaint with the Ohio Medical Board.

Loftus responded to Nazari's criticisms with the instant suit that sought relief based on allegations of defamation and tortious business interference. Even though Kentucky law states that allegations about a physician's ability to do the job are defamatory per se, and the falsity...