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Healthcare patients today are akin to consumers, empowered by choice and information available online. Google and other reviews are ubiquitous and provide patients the ability to carefully scrutinise their prospective healthcare professional.
While constructive feedback can enhance patient care and promote meritocracy, defamatory reviews can unfairly impact medical professionals’ livelihoods and reputations, as patient trust and confidence is paramount. This unfairness can be compounded by the anonymity offered to online reviewers.
Below we review two recent cases in which doctors were defamed by fake reviews and utilised preliminary discovery to identify the trolls, who were revealed to be a former student in one case, and a rival surgeon in another.
Ex-student troll
In Musicki v de Tonnerre [2023] FCA 222, Dr Korana Musicki, a specialist vascular and endovascular surgeon obtained judgment in her favour arising from a Google review posted under the name ‘Dave Cross’, as follows:
“terrible experience, was super keen to get me onto the table but then impossible to get ahold of for follow up, vague about incurred expenses, ended up with a massive bill. had no issues with the surgery but overall negative experience and no followup”
Google initially refused to remove the post or identify the reviewer, which caused Dr Musicki to bring a preliminary discovery application against Google. Through the preliminary discovery process, Dr Musicki was able to identify that ‘Dave Cross’ was in fact a disgruntled former student she had supervised, Dr Erik de Tonnerre.
Dr Musicki was ultimately successful in defamation proceedings, obtaining A$75,000 in damages, as well as her legal costs.
Competitor troll
In Colagrande v Kim [2022] FCA 409, Dr Colagrande, a cosmetic surgeon, had been convicted of sexually assaulting a patient, although this was later quashed. A review was posted on RateMD referencing a report of the conviction, but not the fact that it had been quashed, which stated:
RateMD refused to remove the post, but after issuing a subpoena upon RateMD, Dr Colagrande was able to obtain the IP address of the person who posted the review. Preliminary discovery orders were then obtained against Telstra to reveal the owner of the IP address (Colagrande v Telstra Corporation Ltd [2020] FCA 1595). The IP address belonged to Mrs Anna Min and Dr Kim, a rival cosmetic doctor who practised on the Gold Coast where Dr Colagrande was also based.
Dr Kim and Mrs Min were ultimately ordered to pay Dr Cologrande over A$450,000, plus costs and interest.
Preliminary Discovery
Preliminary discovery may be used to compel the production of documents or information against a party to:
- identify or locate the whereabouts of a prospective defendant; or
- obtain information to determine whether proceedings should be commenced against someone.
In Dr Musicki’s circumstances, the Federal Court ordered that Google give discovery of all documents that were or had been in Google’s possession, power or control relating to the identity of the prospective respondent. The information produced revealed that ‘Dave Cross’ was a pseudonym used by an account with the email address ‘edetonnnerre@me.com’.
An additional step was required by Dr Colagrande, who needed to first obtain the IP address of Dr Kim from RateMd before being able to make an application for preliminary discovery against the internet service provider of this IP address, which revealed that it belonged to Dr Kim.
The Federal Court’s power to make an order for preliminary discovery is found in rule 7.22 of the Federal Court Rules 2011 (Cth). In summary, the Court must be satisfied that:
- there is a right for the prospective applicant to obtain relief against the prospective respondent; and
- the prospective applicant is unable to ascertain the identity of the prospective respondent; and
- another person knows or is likely to know the prospective respondent’s identity or is likely to have control of a document that identifies the prospective respondent.
The Court Rules in various state jurisdictions allow for similar processes.
Should you make a Preliminary Discovery application?
In addition to pursuing the trolls themselves, actions in defamation may also be available against the companies who provide platforms for the trolls and fail to remove their reviews. For example, the applicants in these cases could have also claimed against Google and RateMD.
Section 31A to the uniform defamation laws slated to commence this year will provide a new defence for these platforms in respect of such claims, but it will remain the case that their failure to remove a defamatory review after being notified of it may give rise to liability.
However, it will be important to notify the platforms in the manner set out in s31A.
Section 23A to the uniform defamation laws will also require courts to consider privacy and safety issues prior to ordering preliminary discovery, but this is aimed at preventing abuse of the preliminary discovery procedure (for example, by perpetrators of domestic violence), and is unlikely to impact applications by health professionals concerning their work.
Prior to considering an application for preliminary discovery, it is necessary to consider:
- the strengths of commencing defamation proceedings, including whether you have suffered ‘serious harm’ and whether any defences may apply;
- the information available and what information is missing; and
- whether reasonable enquiries have been made and what further actions can be taken prior to the commencement of preliminary discovery.
It is important for doctors to notify their Medical Defence Organisation or Insurer if they believe they have been defamed, as they can provide advice on the appropriate steps to protect the individuals reputation which may include an application for preliminary discovery.
For further information, or if you require advice on dealing with anonymous online reviews, please reach out to Nathan Buck for a confidential discussion.
Information technology
Australia