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

AD
AD