You can sue a doctor for lying

Law: Defamation by Patients - Doctors Can Do That!

It is not uncommon for doctors to find themselves on the Internet: a photo with a rating of a few asterisks, plus a malicious comment from a patient. Doctors can defend themselves against this.

It is already uncomfortable when patients make false claims in public - to other patients, colleagues, the employer or the press. In the worst case, these false claims spread, are denounced on the Internet and listed in the first place on Google. The nightmare: You will also be provided with information about personal details, your own mobile phone number, home address, names of the partner and the children.

Defamation, defamation, insult

Defamation is an untrue and defamatory statement. In this case, the perpetrator knows that his allegations are incorrect. According to the Criminal Code (StGB), defamation is punishable (Section 187 StGB). Defamation, punishable under ยง 186 StGB, exists if the allegation is not verifiably true. The perpetrator can be wrong, but has to prove the truth in court. In both cases, the utterance must be capable of making the person concerned scornful or disparaging in public opinion.

Proven factual assertions are to be distinguished from "mere" expressions of opinion. Assertions of fact are amenable to evidence. Expressions of opinion, on the other hand, are value judgments that are not accessible to evidence. The following statement is a verifiable factual assertion: "The doctor has disfigured me." The following statement, on the other hand, represents a value judgment: "The doctor is arrogant."

And then there is the insult. The big difference: even a defamatory expression of opinion can be offensive.

If patients threaten to post a bad entry on an evaluation portal, for example to get an unauthorized notification of illness, this is a compulsion. The doctor should be able to deal with this, because issuing a false certificate would be similarly fatal.

Since defamation, defamation and insult, as well as coercion, constitute criminal offenses, doctors can file a criminal complaint with the police. If necessary, a criminal complaint is required, i.e. the person concerned must also express an interest in prosecution. Caution is advised because of the medical confidentiality.

Defend yourself with legal means

If the utterance lacks the defamatory character, it can at least be checked for its truthfulness. Untrue statements of fact are open to attack. Not every statement is based on facts. This means that the patient or the alleged patient may even have to prove contact with a doctor. Especially with some fake statements on the Internet, it can be missing. However, expressions of opinion are permitted.

Doctors can also defend themselves against the publication of all too private details. The private address or mobile phone number, as well as information on personal circumstances, are basically not anyone's business.

Those affected can use legal means to defend themselves against the criminal offenses mentioned, but also against untrue statements of fact and the inadmissible publication of private details. Calls to refrain from the behavior come into consideration, combined with a declaration of cease and desist with penalties (warning). If damage has occurred, claims for damages come into consideration. Going to the lawyer makes sense. At best, the costs must be borne by the opponent.

Many statements on the Internet are vulnerable. The platform and search engine operators, including jameda, Sanego, Google or Bing, are obliged to investigate complaints. You have to check the facts, ask the outside party to comment and, if necessary, delete the post. If they do not do this, those affected can direct their claims against the operator of the platform. Difficulties sometimes arise with foreign operators. It must be clarified which national legal framework applies.

Accepting valid criticism can help

Of course, it makes sense to defend yourself against false claims and defamation. But at the latest when the negative evaluations predominate, less legal than good advice makes sense. Sometimes it can help to accept legitimate criticism and to reflect on one's own practice procedures or personal behavior towards patients.

Doctors should also actively approach their patients, let them evaluate them and check the response. The following applies: With predominantly positive reviews, individual slips into the negative are not uncommon. They are part of a credible presentation. It therefore makes sense to create incentives to evaluate the practice. Doctors should not limit themselves to just one rating portal, but should be listed on numerous other platforms.

There is also the possibility of public feedback. Doctors can use the feedback function provided by many platform operators for this purpose. When making statements, however, they must weigh up the data protection aspects as well as medical confidentiality. You should also note: a patient's incentive to give a doctor a negative rating because of a bad experience is higher on the Internet than the incentive to report on his positive experience there. To do this, the patient would ultimately have to leave their comfort zone.

If the patient suddenly stands in front of the private apartment of the doctor concerned, or if he keeps calling unpublished phone numbers and possibly threatening violence, then it is time to ponder measures under the Violence Protection Act. Perhaps a so-called threat approach by the local police is enough. Alternatively, the court can impose a ban on contact and residence.

A personal conversation often clears up a lot

However, the most promising is still personal contact. Usually, differences can best be clarified in a personal conversation. However, both parties must be willing to do so.

Dr. jur. Andreas Staufer

Partner, lawyer, specialist lawyer for medical law and information technology law

FASP Finck Sigl & Partner

80336 Munich