In the not-too-distant past, doctors were privately rated by their patients via word of mouth with friends, colleagues and family. Most of this opinion sharing remained contained and had little impact on individual physicians and their reputations. Now, however, there are websites devoted to publicly expressing and sharing personal opinions that have an impact on potential patients and their choices concerning who will treat them.
The two services we know of are RateMDs.com and OntarioDoctorDirectory.ca. Both sites allow patients to rate their experiences with their treating doctor anonymously. The categories provide for the rating of several factors including staff, punctuality, helpfulness and knowledge. They also allow a comment to be left for others to read.
We all accept that we are entitled to our opinions. However, when might those opinions become potentially defamatory?
The Ontario Superior Court of Justice (ONSC) dealt with these issues in Zoutman v. Graham (2019). A physician sued a poster to RateMDs for a series of negative posts he had authored about the plaintiff physician. The writer was the brother of a man who had died following surgery. The deceased’s family had sued the surgeon. The plaintiff was called to testify as an expert for the defence at the trial. He gave his opinion to the court on the care and treatment provided to the deceased. The surgeon was found not to have been negligent by a jury.
The poster was present for the trial. He took to posting his opinion about the plaintiff the day after the plaintiff's testimony. He admitted to writing the following two posts:
This fellows <sic> misplaced arrogance is surpassed only by his obstinance. He is definitely the smartest person he has ever met. Unable to distinguish between sepsis and pyo-myositis,
claims that neither condition would benefit from the administration of antibiotics. Dangerous and delusional, this individuals <sic> services should be considered carefully prior to allowing treatment.
provided “expert” opinion in a case where a surgeon was accused of negligence in the death of a 36 year old man who had undergone an elective procedure. I found him to be arrogant, obstinate and condescending. He actually claimed he believed he could do a better job determining the cause of death than the pathologist who conducted the autopsy – 12 years after the fact, and without the benefit of any sort of examination (can you say delusional?) The surgeon was found negligent by a jury of peers, listing too many breached to the standard of care to list here. Endorsing reckless behaviour is dubious business, and I conclude poses a similar threat. The patient was my brother.
The poster denied having written ten other complained of postings, however, the court concluded that he had authored all of them.
A statement is determined to be defamatory or not based on an examination of the natural and ordinary meaning of the words used. The court easily concluded that all of the postings were defamatory as follows:
I have no hesitation in concluding that the language used to describe
in the postings would lower the reputation of a doctor in the estimation of right thinking members in the community. The comments posted ... are derogatory and degrading to , both personally and professionally.
Some of the postings go to the very core of
integrity. He is accused of “reckless behaviour”, “turns to bullying”, and “epitomizes all that is wrong with the health care system in this country”. Online comments by non-patients which impugn the trustworthiness of a doctor have been held to be defamatory (Sagman v. Belleville Telephone Co of Canada,2014 ONSC 4183 (CanLII), as have false innuendos created by taking a physician’s comments out of context (Myers v. Canadian Broadcasting Corp,(2001), 2001 CanLII 4874 (ON CA).
A component of defamation is that the defamatory comments must be communicated to a third party. The defendant claimed that there was no way to determine whether any third party had read his posts. The court disagreed, finding that the publication element had been satisfied for the following reasons:
In my view,
has established publication. I come to this conclusion taking into account the totality of the circumstances, including:
a. The comment by an apparent third party on 14 July 2014, referring to
’s earlier posting of 27 November 2013;
b. RateMDs.com and similar physician rating websites are frequently used by the public for the purposes of choosing a physician;
’s evidence that he authored postings to warn prospective patients about ;
’s acknowledgment that he posted the second of the postings that he admits having authored because he found that the first posting had been deleted and was concerned that his message would not be received by the public; and
e. The prominence of the RateMDs.com and OntarioDoctorDirectory.ca profile in Google searches concerning
The cumulative effect of these factors provides ample evidence of publication.
The defendant was ordered to pay damages totalling $50,000 to the plaintiff. This should serve as a caution to individuals posting physician ratings online. Just because a posting is anonymous and can be written by anyone, the consequences of posting defamatory content may result in costly litigation. It is wise to keep the following guidelines in mind when posting a physician review online:
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In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.