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:
At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in a variety of claims. To find out more about how we can help, contact us online, or at 416-915-4234to schedule a consultation.
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.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).