If you spend enough time putting stuff on the internet, you will eventually:
1. Say something about someone that just ain’t true;
2. Get a few details wrong about a person, or a situation involving that person; or
3. State an opinion about someone, which that person finds objectionable.
Any of these could result in the threat of a defamation suit, but only #1 has any real chance of going badly for you. Regardless, you have to respond if someone doesn’t like something you wrote and subsequently accuses you of libel. (I know of what I speak. Just trust me.) You even have to respond if someone accuses you of slander because of something you wrote, and pointing at that person while laughing is not a sufficient response.
Ken White of Popehat fame has compiled a helpful list of steps to take if you receive any sort of notice, even an incoherent or delusional one, accusing you of any sort of defamation. It is not legal advice, because legal advice is. not. free, but it’s very helpful nonetheless.
I’d like to know what people think of this.
Dr. A makes serious errors during an operation. He also commits healthcare fraud (claiming that he provided post-op care, when he was actually on vacation 120 miles away). The patient tries very politely to work with Dr. A (not accusing, not blaming, etc). Not only does Dr. A refuse to provide corrective treatment (“I’m not going to waste my breath over a whole lot of nothing”), but he refuses to refer the patient to a different surgeon. His secretary leaves a message for the patient, saying, “You can’t come here anymore” – not even a 10 or 30-day grace period of emergency care, which is required in most states.
After staggering around with surgical complications, the patient eventually finds a surgeon who will perform a corrective procedure. Afterwards, the patient (Dr. B) writes articles in scholarly medical journals (including the premier journal in Dr. A’s field): a case report describing the surgical error that occurred, the advantages and disadvantages of various diagnostic techniques, and the need for surgical correction; and several articles about physician misconduct (healthcare fraud, falsifying medical records, patient neglect/abandonment, etc). The articles never mention Dr. A’s name, institution, or any other identifying information. Everything in articles is true and verifiable.
After the articles are published, Dr. B (the patient) sends copies to Dr. A and writes, “I gave you multiple chances to take care of this quickly and quietly. I didn’t want to have to expose your incompetence and irresponsibility publicly, but you gave me no choice. The editors of these journals—truly a jury of your peers—have ruled that you were wrong and I’m right.”
Dr. A has no idea whether Dr. B ever revealed Dr. A’s identity in draft copies of the articles or in any correspondence with the journal editors. The statement “the editors…have ruled that you were wrong” could imply that the editors know that Dr. A was the original surgeon, but it could mean (more indirectly) that they ruled that the behavior described in the paper was “wrong.”
If Dr. A files a defamation suit against Dr. B (“He’s telling the whole surgical community that I’m a lousy surgeon and a disgusting human being!”), how strong or weak is his case? There’s nothing in the articles that would substantiate his claim – they don’t identify him. He could try to compel the journal’s editors to provide copies of all documents pertaining to the articles, to see whether his name appears in any of them. However, by doing so, he _is_ now revealing his identity to the editors; if none of the drafts contain his name, but the editors see his request asking to see those documents, then they can probably deduce that he was the original surgeon.
Most importantly, all the statements (draft and final) are TRUE, so it doesn’t seem like Dr. A is likely to prevail. However, he could file a suit purely out of spite, desire to intimidate, etc.
Dr. B also reports the misconduct to the medical board, licensing board, and hospital accreditation body. Those documents include Dr. A’s name, but doesn’t Dr. B have “qualified privilege” in such a case? If Dr. B is acting in good faith to report him to the licensing and regulatory bodies—and again, all of the statements are true—then Dr. A doesn’t have a leg to stand on, does he?
Dr. A also doesn’t know whether Dr. B is filing a medical malpractice suit (answer is no). I’m guessing that his attorney(s) would strongly advise against taking any action against Dr. B, because such action might strengthen a malpractice suit.