Retired Air Force colonel David Antoon agreed to pay $100 to settle what were once felony charges for emailing his former Cleveland Clinic surgeon articles the doctor found threatening and posting a list on Yelp of all the surgeries the urologist had scheduled at the same time as the one that left Antoon incontinent and impotent a decade ago.
He faced up to a year in prison.
Antoon's 10-year crusade against the Cleveland Clinic and his urologist is unusual for its length and intensity, as is the extent to which Cleveland Clinic urologist Jihad Kaouk was able to convince police and prosecutors to advocate on his behalf.
Antoon's plea deal last week comes as others in medical community aggressively combat negative social media posts, casting a pall over one of the few ways prospective patients can get unvarnished opinions of doctors.
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Among recent cases:
• Cleveland physician Bahman Guyuron is suing a former patient for defamation for posting negative reviews on Yelp and other sites about her nose job. Guyuron's attorney Steve Friedman notes that while the First Amendment protects patients' rights to post their opinions, "our position is she did far beyond that (and) deliberately made false factual statements." A settlement mediation is slated for early August and a trial is set for late August if no agreement is reached.
• Jazz singer Sherry Petta used her own website and doctor-rating sites to criticize a Scottsdale, Ariz., medical practice over her nasal tip surgery, laser treatment and other procedures. Her doctors, Albert Carlotti and Michelle Cabret-Carlotti, successfully sued for defamation. They won a $12 million jury award that was later vacated on appeal. Petta claimed the court judgment forced her to sell a house and file bankruptcy. The parties would not discuss the case and jointly asked for it to be dismissed in 2016, but declined to explain why.
• A Michigan hospital sued an elderly patient’s two daughters and a granddaughter recently over a Facebook post and for picketing in front of the hospital they said mistreated the late Eleanor Pound. The operator of Kalkaska Memorial Health Center sued Aliza Morse, Carol Pound and Diane Pound for defamation, tortious interference and invasion of privacy.
Petta's attorney, Ryan Lorenz, says consumers need to know there can be consequences if they post factually incorrect information. Lorenz, who has represented both consumers and businesses on cases involving online comments, added that consumers are allowed to offer opinions that do not address factual points.
“Make sure what you are saying is true – it has to be truthful,” he says.
"It would be great if the regulators of hospitals and doctors were more diligent about responding to harm to patients but they’re not, so people have turned to other people," says Lisa McGiffert, former head of Consumer Reports' Safe Patient Project. "This is what happens when your system of oversight is failing patients."
As doctors and hospitals throw their considerable resources behind legal fights, some patients face huge legal bills for posting them and other consumers face their own challenges trying to get a straight story.
Experts say that doctors take on extra risk when they resort to suing a patient.
Doctors typically can’t successfully sue third-party websites such as Yelp that allow consumer comments, but they can sue patients over reviews.
Even so, "you can win (a case) and still not win,” said Eric Goldman, a professor at Santa Clara University's law school.
Goldman, who has tracked about two dozen cases of doctors suing patients over online reviews, says physicians rarely win the cases, and in some cases, must pay the patients’ legal fees.
Physician-patient confidentiality rules complicate options for doctors, Goldman says, but they can respond to factually incorrect reviews if the patient agrees to waive confidentiality and publicly discuss the case.
The comments being challenged legally are typically those that were left online. Many medical review sites will remove posts they deem offensive or threatening to doctors, as many of Antoon or other Kaouk patients were. Yelp only removes reviews that violate the consumer website's terms of service.
Patients should also first bring up complaints directly to the doctor or other medical provider, says Edward Hopkins, an attorney who represented Carlotti, Cabret-Carlotti and their medical practice for part of the case. Other options could include reporting a doctor to state oversight agencies, consulting with an attorney or filing complaints with a state attorneys' general office.