Dr Imbetter Thanheis was sued by Dr Hadit Uptohere for slander, intentional infliction of emotional distress, and intentional interference with economic relations, claiming that Dr Thanheis said that Dr Uptohere (1) is not a certified orthodontist, (2) is a general dentist doing orthodontics, (3) is incompetent and a complete idiot, (4) was one of Dr Thanheis’s best referral sources because Dr Uptohere’s patients were always coming in to fix the mistakes that he made, (5) performs many procedures that are extremely dangerous and unsafe (6) does not care about his patients, (7) wants to perform as much orthodontics as he can, (8) is all about the money, (9) has significantly injured several patients, and (10) is just plain negligent when it comes to performing orthodontics. These are essentially the facts of Cheski v Dardashti, an unpublished opinion from the Court of Appeals of California, 2nd Appellate District (2010). The only difference is that, in Cheski, the parties were plastic surgeons and the claims related to plastic surgical procedures.
The way the lawsuit came to be was that Dr Uptohere had had it up to here because Dr Thanheis was trashing his reputation to patients and testifying against him in several malpractice actions. To prove his case, he sent an “undercover patient” to the office of Dr Thanheis, where the statements were ostensibly made. Once the slander suit was filed, Dr Thanheis tried to have the suit quashed by using California’s anti-SLAPP statute, claiming that Dr Uptohere initiated the suit in retaliation for Dr Thanheis’s participation on behalf of the patients who were suing Dr Uptohere. Dr Thanheis asserted that the statements were protected because they were made in connection with an issue under consideration or review in a legally authorized official proceeding: the malpractice actions.
The way the statute works is that, if the defendant makes the required showing, the burden then shifts to the plaintiff to demonstrate that he has a reasonable probability of prevailing on any part of his claim against the defendant. This supposedly shows that the cause of action claimed was not without merit. Dr Thanheis argued that the comments were protected speech under Section 425.16, subsection (e), because “the statements concerned an issue of public interest and of common interest, were made in furtherance of [his] right of free speech, and were ancillary to [his] conduct in connection with pending malpractice actions” against Dr Uptohere, since Dr Thanheis was testifying against him. The initial trial court ruled against Dr Thanheis, thus allowing Dr Uptohere’s suit to go forward.
According to the statute, protected activities are defined as:
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
In disagreeing with Dr Thanheis, the appellate court said that the statements were made during a confidential consultation with 1 patient. In addition, the statements were not made in any legal proceeding or public forum. Dr Thanheis also claimed that because the merits of plastic surgery are a subject that has garnered national attention and are the focus of widespread public interest, Dr Uptohere, because of his advertisements concerning the benefits of his ministrations, has status as a “limited purpose public figure.” The court disagreed with this argument as well.
For actions to come under the public-interest requirement of the statute, they would have to “encourage participation by all segments of our society in vigorous public debate related to issues of public interest.” The court noted that the statements were made in the context of a private consultation rather than a public forum, and were certainly not made to encourage “vigorous public debate.” In summary, the decision of the trial court was upheld, allowing Dr Uptohere’s suit to move forward.
Commentary
Every risk-management educator will tell you that a main reason for a malpractice suit is that 1 doctor says something bad about another doctor, instigating the perception in the patient’s mind that he or she was a victim of malpractice. Our Principles of Ethics and Advisory Opinions clearly state the following guidelines related to this matter: l-E, “It is unethical to propound a specific technique, philosophy, training or ability as superior without acknowledging that each orthodontist uses different techniques based on training and experience”; l-F, “Patients should be informed of their oral health status without disparaging comments about the patient’s prior treatment which are not supported by known facts”; IV,“Members shall be honest with patients, colleagues and third parties”; V, “Members shall ensure that their public statements . . . are not false, deceptive or misleading in any material respect”; and V-A, “Statements should be avoided that contain a representation or implication regarding the quality of orthodontic or other health care services, which (a) suggest superiority relative to other practitioners.”
Our code aside, we really must learn what to say and how to say it. It is 1 thing if you witness a patient who has suffered an injury because of outright negligence perpetrated by a colleague. It is quite something else to have philosophical, diagnostic, or mechanotherapeutic differences with professional brethren and turn those differences into an “I’m better than he or she is” scenario, throwing in a little denigration and character assassination for seasoning when what is really called for is merely learning how to speak professionally.
So, how are we supposed to deal with this scenario? Simply tell the patient that “this is what I see, this is what you need, this is what I want to do, this is what it will cost, and this is how long it will take.” When the patient asks “well, why didn’t he . . .?” you are to respond that “this is what I see, this is what you need, this is what I want to do, this is what it will cost, and this is how long it will take.” When the patient next asks “well, couldn’t he have . . .?” you say “this is what I see, this is what you need, this is what I want to do, this is what it will cost, and this is how long it will take.” When next the patient says “but I was told that . . . ” you once again utter the all too familiar mantra “this is what I see, this is what you need, this is what I want to do, this is what it will cost, and this is how long it will take.” You don’t need to and shouldn’t say anything more. Think about it, if you are the one being sued for having made the comments noted earlier, even if you win at trial, how you will be portrayed publicly is not how you want to be perceived in your community. Nobody likes trash-talking doctors. My grandfather used to say all the time that “a fish that keeps his mouth shut never gets into trouble.” Hmmm.
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