Tuesday, December 28, 2010

California Court of Appeal Allows Dentist To Sue Writers Of Negative Yelp Review For Libel

A common question we receive from our professional clients such as doctors and health care providers is what they can do when there is a negative review online -- whether it be Google, Yelp or other websites.  

Often common sense applies, contacting the patient or customer, offering to address the issue or solve the problem, posting a response on the website outlining those attempts, and other tactics that will not alienate the readers of these sites.

Suing the Internet host is not an option under the facts of most cases since the federal communications Decency Act immunizes Yelp and other Internet sites from libel lawsuits stemming from user comments. 

A recent case in California upheld dentist Yvonne Wong's right to sue the man who posted a negative review on Yelp for libel and his wife.  The Court held in Wong v. Jing that the lower court properly dismissed claims for intentional and negligent infliction of emotional distress filed by Dr. Wong.

Dr. Wong alleged that she properly advised the couple, prior to filling their son’s cavity in 2006, that she would use a silver amalgam filling containing mercury, and that she examined the child again in 2008 and found more cavities. But after consulting another dentist, she alleged, the couple published “slanderous complaints” on Yelp.com and other websites, false claiming that she did not tell them about the mercury, misdiagnosed the son’s case, and improperly used a general anesthetic. 

Dr. Wong alleged the couple knew those claims were false. The Yelp review, a copy of which was attached to the complaint, suggesting that Wong should be avoided “like a disease;” that she worked “really fast” and caused the son to be “light headed for several hours;” that the new dentist discovered seven cavities; that Wong used laughing gas, “which was the cause of my son’s dizziness” and “harms a kid’s nerve system” and that she used “silver amalgams” containing a trace of mercury. 

As for Dr. Wong's defamation claim, the Court held that the dentist showed a prima facie case based on her sworn statements that she disclosed that the amalgam contained mercury, that she properly diagnosed the case, and that she did not use a general anesthetic or otherwise engage in unprofessional conduct, all contrary to Jing’s assertions. 

With respect to the emotional distress claims, however, the Court of Appeal upheld their dismissal. The Opinion stated that Jing’s statements, he said, fall short of the “high bar” that California sets on such claims, and could not have caused Dr. Wong to suffer “severe, lasting, or enduring” mental harm. 

Attorney Notes:  What happens now to this case? It gets sent back to the Santa Clara Superior Court and discovery and litigation proceeds. Litigation is one tool that a professional or business owner can use with respect to reviews that rise to the level of libel. However, filing a lawsuit and going through the extensive motion and appeal process which happened in this case can be costly.

We have guided clients through this process since licensed professionals need to act cautiously since disputes with patients or clients can lead to Board complaints. Anything that is written or spoken to a client or patient needs to be viewed through that lens. An analysis of the cost benefit analysis is also helpful. The Internet has turned everyone into a potential instant critic.

We refer some of our clients to "reputation management" consultants who understand the best way to drive negative reviews and encourage our clients to deal intelligently with social media and the Internet. The funds are often best spent there and on marketing rather than on litigation against reviewers. It is very frustrating especially when some of the "reviews" are false by competitors. 

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation or to discuss this post.  

The firm focuses its practice on the representation of licensed professionals (including dentists), individuals and businesses in civil, business, administrative and criminal proceedings. Our website is: http://www.greenassoc.com/


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