Doctor Can’t Win Default Judgment Over Patient’s Yelp Review–Mirza v. Amar
This is another entry in my decade-long coverage of doctors suing patients for online reviews. The plaintiff is a Botox provider. The defendant-patient wrote a critical review on Yelp. The doctor sued the patient for defamation and related claims. The patient did not appear in court, seemingly setting up the doctor for a slam-dunk win. Yet, the court denied the plaintiff even without the patient mounting any defense. Let’s take a look at the reasons why:
As usual, the court adjusts the applicable legal standard to reflect the publication venue of an online consumer review website, which is notoriously filled with grumbly reviews:
Because Yelp reviews are used by consumers to provide their positive or negative opinions of businesses, the context strongly signals to readers that the review merely reflects the writer’s opinion….Defendant’s language is full of opinion and hyperbole and, to the extent that any isolated statement within the review might be construed as factual, when the review is read as a whole and in context, the message conveyed is merely the negative but protected opinion of a disgruntled customer.
The court addresses several specific statements to explain why they aren’t actionable:
Fugazi. Fugazi translates to “fake,” and the defendant accused the doctor of using “fugazzi fillers.” The court responds:
“fugazzi” is slang and strikes me as the type of loose, figurative or hyperbolic statement that is not generally actionable. Moreover, the context of the statement adequately signals to readers that this is just defendant’s opinion as a disgruntled customer.
Not a Real Doctor. The defendant said the doctor isn’t real or reputable. The court responds:
the statements that Dr. Mirza is not a “real” doctor are unactionable figurative and hyperbolic statements, even if they are deprecating to plaintiffs. Defendant is not implying that she has undisclosed knowledge that Dr. Mirza, in fact, is not a licensed physician, and no reasonable reader would interpret the statements in that way. Instead, the context demonstrates that these are figurative statements meant to highlight defendant’s dissatisfaction with Dr. Mirza and the procedure he performed on her.
Sociopath. As for the statement that the doctor is a “sociopath,” the judge responds: “although it is certainly a hostile statement, it is not actionable defamation. Instead, it is unactionable hyperbole and fiery rhetoric.” The court continues:
Defendant writes, ‘LMAO! He tried suing me for a million dollars because of my review…. Too funny. Loser. In your dreams.’ She tells him that he should get ‘some serious psychological help instead of suing people who don’t like your crappy service and attitude.’ Given the context and the fiery and excessive language, no reasonable audience could conclude that defendant’s statement about Dr. Mirza’s mental health has any basis in fact”
COVID Noncompliance. The patient said the doctor was operating in violation of COVID shutdown rules. The court responds:
Although this isolated statement is technically one of fact that is capable of being proven true or false, the context of the statement again mitigates against a finding of defamation. This statement was made at the end of a new Yelp review that is best described as a two-paragraph rant about Dr. Mirza, his business, and this suit…The review demonstrates defendant’s significant hostility towards Dr. Mirza. But looking at “the content of the whole communication, its tone and apparent purpose” – namely, to criticize Dr. Mirza for suing authors of negative reviews – no reasonable reader could view the post as expressing any facts about plaintiffs
The Streisand Effect Redux. The court concludes:
defendant’s posts probably disclose a lot more about her than they do about plaintiffs. This is clearly someone with an axe to grind and I do not believe any reasonable reader could give her posts any credit. It would unduly raise her platform to elevate her philippics to the level of defamation.
This restates the Streisand Effect. By bringing the lawsuit, the doctor elevated the visibility of comments that should have died from obscurity.
More generally, this ruling is another data point challenging the wisdom of doctors suing patients for their online reviews. Doctors rarely benefit from such lawsuits. Here, the doctor spent money on legal fees, which gave unwanted extra visibility to negative comments, when the court case wasn’t close. In light of New York’s updated anti-SLAPP law, lawsuits like this could become even more expensive for doctors. Furthermore, lawsuits against patients have an omnipresent risk of maturing into malpractice counterclaims or a battle before the medical licensing board. Unfortunately, far too many doctors ignore these lessons and instead choose to learn first-hand why it’s not a good idea to sue patients for their reviews.
[UPDATE: This ruling may affect our understanding of Hassell v. Bird, where a lawyer got a default defamation judgment over a Yelp review. I wonder if a court today would have granted that default judgment in light of our evolving understanding about the rough-and-tumble nature of consumer review services.]
Case citation: Mirza v. Amar, 2021 WL 148403 (E.D.N.Y. Jan. 15, 2021)
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