California Anti-SLAPP Law Doesn’t Protect Negative Patient Review of Doctor–Premier Brain & Spine v. Cudia

Cudia was a patient of Premier Brain & Spine Institute, Inc., and Edward Rustamzadeh, M.D. In 2019, she reviewed them negatively on Yelp. (This appears to be her Yelp page, and she has an (obviously watered-down) review of the plaintiffs still up). The plaintiffs sued her for defamation and false light. She filed an anti-SLAPP motion. The lower court rejected the motion, and the appeals court agrees.

Issue of Public Interest. Pointing to Woodhill v. Yang (the birthday cake case that was really more about whipping up a cybermob than reviewing a vendor), the court says: “defendant’s online reviews were limited to her interactions with plaintiffs relating to her spinal surgery and post-surgical treatment. The statements in her reviews did not invite or promote public discussion about any broader issue of public interest. Defendant simply left negative reviews after receiving what she believed was neglectful treatment.”

This narrow conception of consumer reviews’ public interest is consistent with the precedent analysis I did a decade ago, where I concluded that “California’s consumer review anti-SLAPP cases appear to make a distinction between a ‘pure’ consumer review solely addressing the vendor’s performance, which isn’t a matter of public concern, and a review that provides additional commentary on other issues, such as how to choose a vendor in that class, which does qualify as a matter of public concern.” If reviewers know about this legal distinction (which, of course, most don’t), it’s easy for them to draft their reviews in a way that qualifies for anti-SLAPP protection.

The defendant argued that her posts related to the quality of medical care, but the court says the precedent required discussing the experiences of multiple patients. On this point, I think the court (and maybe the precedent) are missing something fundamental. If a doctor is doing a bad job, that poses a public health and safety threat. To me, that should categorically be an issue of public interest given the potential stakes. Then again, I feel that way about many consumer reviews of other goods and services, which is why I favor broad inclusion of consumer reviews into a federal anti-SLAPP law.

[On this point, see Creative Care, Inc. v. McEntyre, 2022 WL 3442623 (Cal. App. Ct. August 17, 2022), saying if “a single doctor’s qualifications and competence are a matter of public interest, then an entire facilities’ qualifications and competence surely also so qualify.”]

The defendant also argued that the review was posted on Yelp, a public forum. The court says that alone doesn’t make it an issue of public interest.

Defamatory Statements. Like many consumer reviews, the reviews in question contained obvious hyperbole (such as calling the doctor a “butcher,” which is never really helpful to other consumers but still qualifies a a protected opinion). However, the court says there were some fact claims:

(1) her contention that personal assistant Saito “diagnosed [defendant] over the phone telling [her she] had sciatica and to see [defendant’s] primary care physician”; (2) her contention that Rustamzadeh “swore on [her] first unpaid office visit that [he] would indeed fix [her]”; and (3) her contention that Rustamzadeh “rushed [her] into surgery, without doing a thorough analysis, and [he knew that he] failed as a result.” As each of those statements involve situations where defendant was present, plaintiffs can prove actual malice—i.e., that defendant knew her statement was untrue or that she acted with reckless disregard for its truth—by proving that the statements were false

The defendant correctly alleged that readers online tend to discount the factual veracity of online reviews, but the court says there’s a difference between Craigslist’s “Rants and Raves” section (at issue in a prior precedent) and Yelp. But…is there really?

Thus, the court says the anti-SLAPP motion fails for two independent reasons: the reviews did not address an issue of public interest, and the plaintiffs met their prima facie burden of showing falsity.

For more on doctors’ lawsuits against patients for consumer reviews, see this article.

Case citation: Premier Brain & Spine Institute, Inc. v. Cudia, 2022 WL 3222097 (Cal. App. Ct. Aug. 9, 2022)