Another service provider loses a libel lawsuit against a client

From Tuesday’s decision in Loftus v. Nazari (E.D. Ky. May 13, 2014):

This is an unusual libel case in which a doctor has sued her patient. The patient posted comments on opinion websites complaining of the results of surgery the doctor had performed on her….

The plaintiffs are Dr. Jean Loftus, M.D., a plastic surgeon, and the professional corporation under the aegis of which she practices. The defendant is Catherine Nazari, a patient of Dr. Loftus, who underwent plastic surgery by her in 2006, consisting of breast implants, a breast lift, an arm lift on both arms, and a “tummy tuck.”

In 2010, Ms. Nazari posted three statements on opinion websites complaining of the results of the surgery. These postings, quoted in full, are as follows:

A posting on http://www.vitals.com that read:

I had Plastic surgery done by Dr. Jean Loftus only to be left with permanent nerve damage in both arms (arm lift) severe abdominal pain (tummy tuck) horrible scars and disfigured in both breast [sic] (breast implants, breast lift)as [sic] a result of her mistakes. As a result of the surgeries preformed [sic] by Dr. Loftus I was left having to file for Total Disability. To err is human, but she like all doctors should be held accountable for their actions. Where are the ethics in America when Doctors cover up for Doctors knowing that horrible mistakes were made? I hope that she can live with herself knowing what she has done.

A posting on http://www.newsvine.com that read:

I had plastic surgery due too [sic] losing a lot of weight and was not happy with the sagging skin I was left with. I thought that if I had the surgery It would raise my self confiedence [sic] and improve my appearance. If I could go back in time, I would not have done it. I had breast implants and a Breast lift and was left with horrible scars and disfigurement, a tummy tuck that left me with severe abdominal pain that is still present today, I had arm [sic] lift in both arms that caused permanent nerve damage in both arms and there [sic] nothing that a consumer can do. All of my surgeries were preformed [sic] the same day by a Dr. Jean Loftus in Ft. Wright, KY. 99% of all medical malpractice cases never make it to a hearing, let alone a trial. I have filed complaints with the U.S. Attorney in Washington, DC and they referred me to the Ohio Medical Board to file a complaint. I also filed a lawsuit with Bob Handleman in Columbus, OH only to have nothing done and my case was dismissed without prejudice. On October 22, 2010 I received a letter from the Ohio Medical Board that NO disciplinary actions would be taken regarding Dr. Loftus. I guess it is true what Ralph Nader says on his site, that State Medical Boards are like FOXES GUARDING THE HENS. These doctors should be held accountable for their mistakes and not be covered up.

A posting on the website http://www.buskia.com that read:

I had plastic surgery done by Dr. Jean Loftus of Ft. Wright, KY only to be left with permanent nerve damage in both arms (arm lift), severe abdominal pain (tummy tuck) and horrible scars and disfigurement on both breasts (breast implants and breast lift)., [sic] and my medical records were stolen from a friend and colleague of hers, Dr. Rank O. Dawson a plastic surgeon of Cincinnati, OH. I filed a complaint with the Ohio Medical Board and nothing was done. I had an attorney from Columbus, OH Mr. Bob Handleman and he did nothing. My case was dismissed without prejudice. [sic] I was told by several lawyers that 99% of medical malpractice cases never even make it to trial or even a hearing … so if you don’t have lots of money … your [sic] wasting your time.

To facilitate discussion, these postings may be broken down in essence to the following assertions:

1. Ms. Nazari suffers from scars, disfigurements, and pain, which she attributes to Dr. Loftus’s improperly performing the surgery.

2. Ms. Nazari filed a malpractice action and a complaint with the Ohio Medical Board, which came to naught.

3. Ms. Nazari states that making such filings are useless because the system is rigged against complaining patients, and there is a conspiracy among the medical profession, the court system and regulatory bodies.

4. Her medical records were stolen….

[A]ll of Ms. Nazari’s statements concerning the allegedly poor results of her surgery are protected opinion, because they do not imply the existence of undisclosed facts. Basically, she says she had the surgery, and she has the unfortunate conditions described. Also, in her opinion, they are the result of the surgery, which — also in her opinion — involved negligence on the part of Dr. Loftus. These are all the facts she adduces; she does not imply the existence of any undisclosed facts. The reader of the postings may decide for himself or herself whether the opinions should be accepted, or are an example of the logical fallacy known as post hoc ergo propter hoc.

The statements concerning the futility of suing doctors or filing complaints against them before regulatory boards are also clearly opinion. Moreover, they are not “of and concerning” Dr. Loftus. Neither is the statement about stolen records.

Further, it must be taken into account that the statements by Ms. Nazari were posted on opinion websites; therefore, the natural tendency would be to infer that they are opinion. Cf. Seaton v. TripAdvisor, LLC, 728 F.3d 592 (6th Cir.2013).

Dr. Loftus’s proffer of medical experts rebutting Ms. Nazari’s assertions is irrelevant; her statements are still protected opinion.

Note that the court seems to be implicitly assuming that the purely factual statements about Nazari’s condition (that she did have plastic surgery done by Loftus, and that she does now have permanent nerve damages, scars, and the like) are accurate — I assume because the parties agreed that these were indeed accurate. Of course, if someone has never been treated by Loftus, or has been treated by her and is now fine, and writes, “Dr. Loftus treated me and now I’m a paraplegic because of she did,” that would indeed be libelous statements of fact about what the writer is actually suffering from, not expressions of opinion about what caused the writer’s suffering.

The court also rejected Nazari’s counterclaims, including for defamation and invasion of privacy.

UPDATE: For more on the line between potentially libelous factual assertions and nonactionable opinion, see this follow-up post.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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