In its opinion dated March 20, 2017, the Ohio Court of Appeals Seventh District (“Appellate Court”) held that the negative online review of a plastic surgeon by a former patient against whom the former patient had obtained a medical malpractice verdict was not actionable for tortious interference with business relations and tortious interference with a contract because the patient had not acted with malice (“The conclusion her statements are true further supports the conclusion the claims are not actionable; [the plastic surgeon] cannot show actual malice”) and her statements in her online review were her opinion and opinions are generally not actionable (“The [online] review does not demonstrate actual malice; the review was based on her experience and opinion … Her review indicates she did not give her consent for the procedures and that led her to conclude [the plastic surgeon] was unscrupulous. The parties agree the word unscrupulous has many definitions. When used in the manner it was used in this review, it invokes the thought that this is the writer’s opinion given the facts as she laid them out. Opinions generally are not actionable.”).
The Appellate Court also held that it was not error for the trial court to have granted a directed verdict to the former patient sua sponte.
The Underlying Medical Malpractice Case
The patient had hired the plastic surgeon to perform plastic surgery on her face in 2010. She sued the plastic surgeon for medical malpractice and medical battery in 2011, and the Ohio medical malpractice jury found that the defendant plastic surgeon had failed to obtain the patient’s informed consent and had committed a medical battery. The Ohio medical malpractice jury awarded damages in the amount of $5,100,000, which was reduced to $600,000 and was paid in September 2013. The plastic surgeon filed an appeal but later voluntarily dismissed his appeal.
In early September 2013, the former patient posted an online review of the plastic surgeon in which she stated, among other things, that the plastic surgeon was not “Board Certified as a PLASTIC SURGEON” and warned others to “stay away from this Unscrupulous Dr.” Then, in late 2014, a potential patient contacted the plastic surgeon about having a procedure on her thighs. The potential patient met with the plastic surgeon for a consultation and subsequently paid for her proposed surgery, but continued to research the plastic surgeon that led her to cancel her surgery and ask for a refund.
The plastic surgeon sued his former patient for tortious interference with business relations and tortious interference with a contract, seeking monetary and injunctive relief, contending that two of the statements in her online review were actionable – the statement about him not being board certified and the statement that he was unscrupulous. The trial court granted a directed verdict to the former patient during the trial, and the plastic surgeon appealed.
The Appellate Court held that the former patient’s statement regarding the plastic surgeon’s Board-certification is correct: he is not an ABMS board certified plastic surgeon; however, he is certified by the ABMS for Otolaryngology and Otolaryngology is defined as “the branch of medicine that combines treatment of the ear, nose and throat,” which, to an ordinary person, means an ENT. Nonetheless, it is a fact that the plastic surgeon is not certified by the ABMS American Board of Plastic Surgery.
The Appellate Court further held that the online review’s “unscrupulous” statement is the former patient’s opinion based on her factual situation with the plastic surgeon, and in her medical malpractice lawsuit against the plastic surgeon she was able to prove he performed surgery on her without her informed consent. Her review indicates she did not give her consent for the procedures and that led her to conclude that the plastic surgeon was unscrupulous. When used in the manner it was used in her online review, it invokes the thought that this is the writer’s opinion given the facts as she laid them out, and opinions generally are not actionable.
The Appellate Court held that the plastic surgeon had failed to show that his former patient had acted with actual malice, which is necessary in order for him to prevail in his lawsuit against his former patient. Actual malice means that the former patient’s statements are false or she acted with reckless disregard as to whether the statements were false. The online review was based on her experience and opinion and therefore her statements did not demonstrate actual malice.
Source Gentile v. Turkoly, 2017-Ohio-1018.
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