Another Doctor Learns Why It’s Unwise to Sue Patients
Dr. Wilbur Hah is a board-certified cosmetic surgeon in Texas. In 2020, he performed procedures for four patients, Chesson, Gage, Melton, and Robinson (tragically now deceased). All of the patients signed a “Contract of Reasonable Expectations” that restricted “post[ing] any defamatory, derogatory, mean spirited, or negative comments, reviews that is [sic] designed to damage the online reputation regarding Dr. Hah, Dr. Chen-Hah or Beauty MDs, LLC team based on my perception of not having my cosmetic outcome expectations met.” Despite the contract, the defendants allegedly posted negative remarks about Hah’s work online.
Hah sued the four defendants. The defendants filed an anti-SLAPP motion pursuant to Texas’ anti-SLAPP law (the Texas Citizens’ Participation Act (TCPA)). The district court didn’t act on the motions, which acted as a pocket denial. The appeals court reverses, dismisses Hah’s lawsuits, and orders Hah to pay the defendants’ attorneys’ fees.
Matter of Public Concern. “Statements related to a physician’s professional competence and fitness to practice medicine are a subject matter that has consistently been recognized by Texas courts as a matter of public concern…..Other courts have determined that publishing disparaging comments about a medical practice is a communication that constitutes a matter of public concern.” Plus, the TCPA explicitly covers “consumer opinions or commentary, evaluations of consumer complaints, [and] reviews or ratings of businesses.” This is an easy call.
Hah’s Prima Facie Case. Hah’s filings focused on breach of contract, so his other claims weren’t properly alleged. The appeals court says that the contract damages allegation was conclusory and insufficient, so that claim fails too.
What’s Next? For his failed lawsuits, Hah will be writing checks to the defendants’ attorneys. Because he sued four patients, he’ll presumably pay 4x the fees. FAAFO.
Hah’s Contract of Reasonable Expectations sounds like a prima facie Consumer Review Fairness Act violation. It’s unclear if the Consumer Review Fairness Act provides for civil damages. Even if not, the patients could refer the matter to the FTC for potential enforcement. Also, the CRFA declares gag contracts to be “unlawful,” and I wonder if Hah’s commission of an “unlawful” act could impact his medical license.
It’s never appropriate (or legal) for doctors to impose gag contracts on patients. That practice largely stopped in 2011 in the medical community when Medical Justice reversed course and stopped encouraging doctors to use gag contracts; and the CRFA’s passage further sent clear signals to the business community to quit it. To be deploying gag contracts in 2020 and suing over them in 2022 is bonkers.
Second, it’s almost never a good idea for doctors to sue patients. Not only does it exacerbate the Streisand Effect, but it risks malpractice counterclaims and complaints to the licensing board. That’s especially true if the doctor doesn’t have airtight proof of defamation, which Hah didn’t provide to the court (and maybe never had).
Also, the specter of CRFA-related consequences hangs over this case. If the worst thing that happens to Hah here is that he only has to pay the patients’ attorneys’ fees, he should consider himself lucky.
Chesson v. Hah, 2023 WL 5122528 (Tex. Ct. App. Aug. 10, 2023)
Gage v. Hah, 2023 WL 5122500 (Tex. Ct. App. Aug. 10, 2023)
Melton v. Hah, 2023 WL 5122497 (Tex. Ct. App. Aug. 10, 2023)
Robinson v. Hah, 2023 WL 5122503 (Tex. Ct. App. Aug. 10, 2023)