August 01, 2014
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Careless physician criticism of a colleague can cause legal trouble

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Physicians are high-achieving individuals, and are recognized and respected by society as professionals. Surgeons, in particular, have the reputation of being competitive and driven towards perfection. In fact, the practice of surgery demands such attributes, and patients may seek these in their surgeons. In many communities, competition between surgeons for increased practice size and attendant revenues is a fact of life. Like other professionals, surgeons may advertise their services, keep abreast of the latest developments in their field, and promote certain skills and procedures on their websites and other forums to gain more business.

It accepted that complications can occur in the hands of all surgeons, and that even the best surgeon is not immune to criticism by some patients, and even medical malpractice claims arising from the inevitable adverse outcomes. Disgruntled patients can choose to switch physicians because of poor communication, the occurrence of an unpleasant outcome or other reasons. In part, because of this reason, it is not uncommon for physicians to see the complications of other surgical practices in one’s office. When the care provided, or the technical details of an operation are different from what one would do in practice, it is tempting to criticize the other provider. However, as the legal proceedings related to Cheski v. Dardashti illustrate, the urge to criticize a competitor surgeon in front of a patient may have serious repercussions.

Background

Roya Dardashti, MD, was a licensed surgeon specializing in plastic and cosmetic surgery in southern California. Dardashti performed breast augmentation surgery in her practice, but she chose not to perform a variant of the operation called “trans-umbilical breast augmentation,” believing it to be too risky.

B. Sonny Bal

B. Sonny Bal

Like Dardashti, Peter Cheski, MD, was also a board-certified, licensed surgeon who provided care in facial, plastic and reconstructive surgery, in the same geographic area. The two physicians were competitors. As it turned out, three of Cheski’s patients had filed medical malpractice claims against him. Each of these disgruntled patients later sought care from Dardashti, and alleging negligent surgery by her competitor, Cheski became worried that Dardashti may be critical of him towards his former patients. During the pendency of the three lawsuits (which were ultimately dismissed on procedural grounds), an independent investigator was hired to see if Dardashti was criticizing her competitor, Cheski, in front of patients.

The independent investigator posed as a patient and obtained an appointment with Dardashti, claiming that she was interested in obtaining breast augmentation surgery. The investigator told Dardashti a friend had recently had breast augmentation done by a Cheski who had used an approach through the belly button. The investigator, posing as patient, then asked Dardashti if she performed that same procedure, and Dardashti explained she did not. Then, without further prompting, Dardashti offered several comments that were critical of Cheski. Among other things, Dardashti alleged Cheski was not a licensed plastic surgeon, but was instead an otolaryngologist. Dardashti said Cheski did not have a license to perform breast augmentation surgery, that he was incompetent and did not care for his patients, and that he performed negligent surgery, hoping to make money. There were other similar comments that painted Cheski in an unflattering light to the investigator.

Based on this, Cheski filed a lawsuit against Dardashti for slander, intentional infliction of emotional distress and intentional interference with business relations. When served with the lawsuit, Dardashti filed a motion to strike Cheski’s complaint, citing California’s Strategic Lawsuits Against Public Participation (SLAPP) statute.

California SLAPP Law

Dardashti claimed Cheski was filing a SLAPP against her, disguising the claim as a defamation and slander action. SLAPPs are lawsuits filed against people or an organization because they have exercised their First Amendment right to free speech or to petition the government. The law was enacted, in part, to facilitate recovery by SLAPP victims of their damages through a “SLAPP-back” or malicious prosecution action against the SLAPP filers and their attorneys, after the underlying SLAPP lawsuit had been dismissed.

Lawrence H. Brenner

Lawrence H. Brenner

In filing the anti-SLAPP motion to strike Chesti’s complaint, Dardashti relied on her own declaration, her attorney’s declaration, and a request for judicial notice by the appeals court of the negligence actions filed against Chesti by his three patients, and a 2003 disciplinary action filed against Chesti with the Medical Board of California. In other words, Dardashti relied on the grounds that her criticism of Chesti concerned a public issue, that addressed common interest and safety concerns, and that the criticism was offered consistent with her free speech rights.

The trial court was not impressed with Dardashti’s rationale for criticizing her competitor, and dismissed her anti-SLAPP motion. On appeal, the Court of Appeal, Second District, California, explained the workings of the anti-SLAPP statute, and upheld the decision of the trial court, allowing Cheski’s legal actions against Dardashti to proceed. The court said Dardashti made the defamatory statements during a confidential consultation with a single patient, i.e., the undercover investigator. Those statements, according to the court, did not qualify as statements made in legal proceedings or a public forum under relevant sections of the anti-SLAPP statutes, as Dardashti had claimed.

In the appeal, Dardashti further claimed her derogatory statements were made in furtherance of a public interest, i.e., safety of a specific breast augmentation procedure, and that Cheski was a limited public figure for the purpose of the anti-SLAPP statute. Again, the court disagreed. The public interest requirement of the statute was designed to promote a vigorous public debate about matters of public interest, but here, the court noted that there was one surgeon involved, Chesti, and on his performance of one specific breast augmentation procedure using the umbilical approach. While statements about the procedure in question could have been made by Chesti to several patients, and even offered on a website, the court countered that Dardashti’s defamatory remarks were made in a limited forum, i.e., private and confidential consultation with one patient, who happened to be a hired investigator.

To summarize the legal proceedings, Dardashti could not successfully invoke public safety, public interest or protected speech in supporting her criticism of a colleague’s professional conduct concerning a breast augmentation procedure. The court upheld the trial court’s decision to deny the anti-SLAPP challenge to Cheski’s lawsuit based on defamation and slander. Details of further resolution of the underlying litigation are unpublished. The significance of the legal proceedings is that California law recognized and sustained a legal action on the part of an aggrieved physician who believed, based on evidence collected from one undercover agent, that a colleague was criticizing his professional conduct before a single patient.

Physician criticism of colleagues is not a new phenomenon, but it has recently attracted interest. Thus, in its 2013 Malpractice Report, Medscape reported that physician criticism of a colleague’s care before patients and families was identified as a major reason for medical malpractice lawsuits by the physicians surveyed. In her study on the issue, author Susan H. McDaniel, a family psychologist on the faculty of the University of Rochester School of Medicine and Dentistry, found physicians were willing to criticize one another, sometimes without realizing the extent to which they did.

Discussion

If a colleague is dangerous or engages in improper conduct, the best course of action may be to disclose the information to a review board or other authorities. But, as the above example shows, when talking about a competitor to patients, caution is in order. The California case above was recognized as a valid cause of action against the physician who chose to degrade a fellow physician before a patient, even when the patient was an undercover agent hired to collect damaging information.

Sometimes, patients can view casual comments about previous treatment or decision-making as criticism. Comments such as “I would not have ordered that medication,” or “I would not have operated on that” can be interpreted by patients as negligence on the part of the previous health care provider. The law recognizes that medicine is an art and not a perfect science. Different opinions, schools of thought, treatment formulations, diagnoses and even some errors in judgment, are considered to be part of the ordinary practice of medicine, and the law does not deem them negligent.

All too often, the patient provides incomplete information about previous treatment, and absent such information, it is impossible to fully understand the prior care delivered to the patient or the rationale for such. Communicating with the professional in question before commentary to the patient can help clarify the situation and remove doubts. A reassuring gesture to the anxious patient is that had he/she come to the practice initially, the treatment and outcome would most likely have been no different.

Egregious medical misconduct and negligence should neither be covered up nor excused. But, challenging another health care provider’s treatment and assessment must not be done casually, and should never be done without all facts known. If questions arise, it is best to learn more about the care rendered, and then think and reflect before acting. Expressions of misgivings about prior care and treatments are neither helpful, nor professional. If ever the situation should warrant, concerns about care should be directed toward the attention of one’s colleague first. If satisfactory resolution is not forthcoming and the physician has a genuine concern, then other regulatory bodies, such as the state medical board, county medical society, or a hospital peer-review or quality/safety committee are appropriate forums for criticizing a colleague. As the case of Cheski and Dardashti demonstrates, careless and ill-considered criticism of a colleague can embroil a practitioner in protracted and expensive litigation.

References:
McDaniel SH. J Gen Intern Med. 2013;doi: 10.1007/s11606-013-2499-9.
www.medscape.com/features/slideshow/malpractice-report/public. Accessed July 21, 2014.
For more information:
B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner have no relevant financial disclosures.