The decision of the Federal Court in Callan v Chawk [2023] FCA 898 (Callan), handed down by Justice Halley on 3 August 2023, provides a useful opportunity to check up on the rights of health care practitioners who are the subject of unfair online criticism.
In the case of Callan, a plastic surgeon successfully applied to the Federal Court for damages for personal distress and hurt caused by a defamatory comment left by a former patient on the website ‘Real Self’.
Key takeaways
- Doctors should always inform a patient of the risks involved in surgery and set realistic expectations for the outcome. Such advice should always be recorded in contemporaneous file notes.
- Where comments that are harmful to a doctor’s reputation are posted or otherwise published, action needs to be taken promptly to both protect one’s reputation, and to not fall outside of the time limit within which defamation claims must be made.
- In this case, the court indicated that a patient cannot evade liability for a defamatory review by claiming it was written to help inform others, or as a matter of personal opinion, if it is contrary to the clear warnings and advice given to the patient and the medical outcomes of the procedure.
The context
Defamation laws provide remedies for publications which 'tend to lower a person’s reputation in the estimation of his or her fellows by making them think the less of that person…' (Parmiter v Coupland (1840) 151 ER 340). The laws of defamation often intersect with the health care field when ex-patients unfairly criticise their doctor or health care provider.
Patients and prospective patients are increasingly using websites which rate and review their experiences with doctors and other health care providers. A 2020 survey in the USA by ‘Software Advice’ found that 71% of persons interviewed had used online reviews as the first step to finding a new doctor.
In the relatively recent case of Colagrande v Kim [2022] FCA 409, the court remarked that 'It does not strain credulity to accept that people contemplating having surgery with a doctor or contemplating employing a doctor might be more interested in what other patients say about the doctor than news articles'.
The facts
In Callan v Chawk [2023] FCA 898 (Callan) Dr Callan, a plastic surgeon, performed a rhinoplasty procedure on Mr Chawk in August 2020. The surgery was conducted to treat collapsed nasal valves and associated breathing difficulties and aesthetic impacts. Following the surgery, his nostrils were significantly more open on both sides, and it was found that Mr Chawk’s right-hand nostril was collapsing, albeit to a lesser degree than prior to the surgery. Further surgery was required, as Dr Callan had forewarned prior to the procedure.
On 16 October 2020, Mr Chawk posted a review (replicated below) on the website ‘Real Self’ which graded Dr Callan with one out of five stars.
- 'The Emotional Impact of a Failed Rhinoplasty is Severe (16 Oct 2020)
This review is mainly to help someone suffering the same symptoms make an informed decision. I have waited many years for my rhinoplasty and have invested much hope in the revision surgery and Mr Callan.
Rather than get an improvement, I regret to inform I have been left with a disappointing outcome from late August 2020. Now I find the additional challenge of finding a surgeon who feels confident they can help me to achieve a better outcome. Not to mention the impact on self-esteem and self-confidence affecting nearly every aspect of my everyday life.
My nasal septum was deviated to [one side], leading to a nose blockage. The septoplasty with Mr Callan was supposed to treat the nasal septum and correct it; unfortunately, that was not achieved.
Another problem was the nasal valve collapse creating limited airflow and causing very uncomfortable symptoms.This was corrected only on one side as the attached pictures show.
Until my deviated nasal septum and nasal valve collapse magically fix themselves, this review is to stand. I still have extra rib graft left above my right rib - let's see if my problems get fixed as promised.'
Six people selected the option that they found the review helpful and a number of people left sympathetic comments such as 'Sorry this happened to you. Thank you for letting us know about this incompetent surgeon!! I will spread the word.'
Dr Callan’s practice attempted to contact Mr Chawk multiple times the day after the review was posted, but all contact went unanswered. Dr Callan subsequently initiated proceedings. The post was eventually removed in November 2021.
The patient argued that the alleged imputations were not in fact conveyed by the review and otherwise relied upon the defences of honest opinion and qualified privilege. Dr Callan’s claim was successful, and he was awarded $50,000 in damages plus costs. Dr Callan settled a separate claim made against Real Self prior to the hearing. He was represented by high-profile barrister Sue Chrysanthou SC, who has acted in several well publicised defamation trials such as those involving Geoffrey Rush, Lisa Wilkinson and Lachlan Murdoch.
The decision at trial
The imputations
Dr Callan contended the review conveyed the following imputations: (a) he had performed the rhinoplasty procedure negligently, (b) he had negligently failed to correct Mr Chawk’s deviated septum, (c) he had performed the procedure so incompetently that Mr Chawk suffered a debilitating nasal valve collapse, and (d) he had ruined Mr Chawk’s self-esteem and self-confidence by 'botching' a rhinoplasty procedure.
Regarding imputations (a) and (b), the court found the imputations were conveyed, having regard to the nature of the type of reader of the website (namely, someone looking for information as to whether they should seek the doctor’s services) as well as the impression given by the statements being that the surgery was unsuccessful and that others should not engage the surgeon for similar procedures.
Regarding imputation (c), the imputation was not conveyed because the statement 'another problem was the nasal valve collapse... this was corrected only on one side…' was most reasonably interpretated as a reference to a failure to fix an earlier problem, rather than the creation of a new problem for Mr Chawk. His Honour remarked 'The ordinary reasonable reader may engage in loose thinking, may read between the lines and may draw implications more freely than a lawyer but they do not search for hidden meanings and focus on sentences and words in isolation from the balance of a publication'.
Regarding imputation (d), the Court found this imputation was plainly conveyed by references to the emotional impact of the procedure being severe and impacting self-esteem and self-confidence.
Having found the imputations were conveyed, Mr Chawk accepted the imputations were defamatory, but claimed the defences of honest opinion and qualified privilege applied.
The defence of honest opinion
Under Section 31 of the Defamation Act 2005 (NSW) (the Act), it is a defence to defamatory publication if the publication was an expression of opinion rather than fact, if it related to a matter of public interest and if it was based upon proper material (where proper material can mean it was substantially true).
As the review included a one-star judgement rating and commented on the emotional impact of the procedure, it was conveyed to be an opinion based upon the facts asserted. However, the facts upon which it was based were not substantially true and were thus not ‘proper material’. Fundamentally, the medical records and witness testimony demonstrated that, contrary to the asserted facts of the review, the procedure had produced discernible functional and aesthetic improvements to the nose.
The defence of qualified privilege
Under Section 30 of the Act, a defence of qualified opinion would apply if Mr Chawk proved that people on the website had an interest in receiving the review, the review was published pursuant to this interest, and Mr Chawk’s conduct was reasonable. The court held that people on the website had an interest in receiving the information, however Mr Chawk’s conduct was not reasonable.
His conduct was not reasonable because Mr Chawk did not hold an honest belief that the rhinoplasty did not achieve its outcome when he was not promised it would be successful and rather was given preliminary advice as to the possible need for revisionary surgery. Furthermore, the 'sting' of the review that Dr Callan did not deliver the promised outcomes necessitated explanation from Dr Callan on the significance of Mr Chawk’s pre-existing injuries and the precise advice given prior to the surgery about the outcome. Dr Callan was not given any opportunity to explain why the apprehended result had not been achieved, and in any event could not do so on the public website, as he would have breached his obligations of doctor-patient confidentiality.
Damages
Damages of $50,000 plus costs were awarded to Dr Callan to compensate for his hurt, humiliation and distress from the review. The damages were small compared to comparable cases proffered by Dr Callan’s counsel. His Honour made a smaller award of damages because the most serious imputation (the third imputation – a failure to correct a problem) was not proved, Dr Callan did not tender any evidence about the damage to his reputation, the allegations related to a single procedure and limited users could access the review. The review was online for 15 months and during this time, there were approximately 3,857 views of his page.
Implications for you
The decision illustrates the importance of providing clear advice on the risks of procedures, managing patients’ expectations and recording file notes on same. It may also reassure health practitioners that if a patient does publicly and incorrectly comment on a doctor’s performance, even if they claim it is to educate others or is based upon their opinion of the procedure, the courts may nevertheless award damages to vindicate hurt feelings and damage to professional reputation.
Doctors should also be cognisant of the strict timelines within which defamation claims must be made, which, across Australia must be commenced within one year from the date of publication.
