Suing Unhappy Patients For Defamation Is A Great Way To Put Yourself On The Hook For Their Legal Fees

Defamation

from the HAH! dept

Customer service matters. Suing patients unhappy with your work just ain’t it.

That’s what Texas cosmetic surgeon Dr. Wilbur Hah has just learned, after being handed a loss in four concurrent opinions dealing with four anti-SLAPP motions filed by unhappy patients the (allegedly not-so-good) doctor sued for daring to besmirch his reputation with social media posts.

Here’s the rundown, courtesy of longtime anti-SLAPP bulldog, Eric Goldman:

Dr. Wilbur Hah is a board-certified cosmetic surgeon in Texas. In 2020, he performed procedures for four patients, Chesson, Gage, Melton, and Robinson (tragically now deceased). All of the patients signed a “Contract of Reasonable Expectations” that restricted “post[ing] any defamatory, derogatory, mean spirited, or negative comments, reviews that is [sic] designed to damage the online reputation regarding Dr. Hah, Dr. Chen-Hah or Beauty MDs, LLC team based on my perception of not having my cosmetic outcome expectations met.” Despite the contract, the defendants allegedly posted negative remarks about Hah’s work online.

Hah sued the four defendants. The defendants filed an anti-SLAPP motion pursuant to Texas’ anti-SLAPP law (the Texas Citizens’ Participation Act (TCPA)). The district court didn’t act on the motions, which acted as a pocket denial. The appeals court reverses, dismisses Hah’s lawsuits, and orders Hah to pay the defendants’ attorneys’ fees.

One problem (and it’s pretty problematic) is that the lower courts never bothered to address these four motions to dismiss. By ignoring them, they gave Dr. Hah the impression his arguments have merit. They don’t, but this refusal to address the counterarguments forced the plaintiffs to take their anti-SLAPP case to the next level of the judicial system at their own expense.

The good news is that Hah has now lost every one of these lawsuits. All four end with wins for the defendants after appellate review. Goldman links to all four decisions (one, two, three, four) but I’ll just be posting one of those [PDF] here since they’re all pretty much the same form of defeat — one that utilizes Texas’ anti-SLAPP law (the Texas Citizens’ Participation Act [TCPA]) to find in favor of those sued. And because it’s an anti-SLAPP law analogue, that means Hah will be opening his checkbook at least four times in the near future. Back to Goldman:

For his failed lawsuits, Hah will be writing checks to the defendants’ attorneys. Because he sued four patients, he’ll presumably pay 4x the fees. FAAFO.

The allegations are windy and wordy, but they’re not allegations of anything actually actionable.

Hah alleged that after Robinson underwent surgery, she and several other patients began posting on social media about their experience with Hah. In August 2022, Hah sued Robinson and three other patients in separate lawsuits. He alleged that Robinson “contractually agreed[] to refrain . . . from posting false, defamatory, derogatory, mean-spirited or negative comments or reviews on social media designed to damage the Plaintiff’s reputation or livelihood, or to interfere with Plaintiff’s business relations with other patients.”

Hah further alleged he provided Robinson “with informed, elective cosmetic services within such reasonable expectations and without any violation of the standard of care.” Hah also claimed that in “direct violation of Defendant’s agreement,” Robinson “published defamatory, derogatory, mean-spirited, or negative comments or reviews on social media[.]” He specifically claimed that Robinson “published in a website labeled ‘Botched Cosmetic Surgeries in Orange Texas’ and ‘Local Failed Cosmetic Surgeries’ false, defamatory, derogatory, mean-spirited and negative materials on social media, intentionally, and with malice, designed to damage” his livelihood or reputation and interfere with his business relations with other patients…

The thing is that it takes a lot more than being simply “mean-spirited” or critical of someone to rise to the level of defamation. Yet when given an opportunity to make his case, Hah preferred to recite the law repeatedly, rather than actually specify what about these posts was defamatory. He also failed to show anything other than his feelings had been damaged by these posts, which isn’t the sort of thing that allows for the recovery of actual money from the people who’ve hurt your feelings.

Specificity matters. Hah decided shotgun pleadings in front of an apparently disinterested court would be enough to sustain his defamation claims. The appeals court corrects his misapprehension, as well as the lower court’s inattentiveness.

Like his business disparagement claim, Hah failed to substantively address the essential elements of his defamation cause of action in his Responses to Robinson’s TCPA Motion to Dismiss. While he generally attached screenshots of Robinson’s social media posts to his Response, he did not explain which of these statements were defamatory, the defamatory nature of the statements, or specify how Robinson’s statements damaged him.

More importantly, in the trial court, Hah did not raise or argue in his responses or in his affidavit that any particular statements constitute defamation per se. Rather, in his Responses, Hah confined his argument to his breach of contract cause of action and asserted he “has met his burden to establish by clear and specific evidence a prima facie case for each element of his breach of contract claim against Defendant that Defendant did not attempt to establish a valid defense to the claim.” However, “[T]he TCPA requires that on motion the plaintiff present ‘clear and specific evidence’ of ‘each essential element[,]’”which Hah failed to do here.

Lose. Lose. Lose. Lose.

Hah won’t even get another chance to re-argue his cases in front of the court that could barely be bothered to hear it in the first place. Open up your wallet, Dr. Hah.

Hah failed to establish a prima facie case for his defamation, business disparagement, invasion of privacy, and breach of contract claims, and his claim for injunctive relief was derivative of those claims. We hold the trial court erred by denying Robinson’sTCPA Motion to Dismiss. We reverse the trial court’s denial of Robinson’s TCPA Motion to Dismiss, remand the case to the trial court so that it can enter a judgment dismissing Hah’s defamation, business disparagement, invasion of privacy, breach of contract, and injunctive relief claims, and instruct the trial court to award Robinson reasonable attorney’s fees, costs, and other expenses incurred as allowed under the TCPA.

Even if you’re not a public figure, you still have plenty of options to deal with criticism. A lawsuit is rarely the answer. And that’s what Dr. Hah has discovered, along with a new set of line items on the ledger he didn’t expect to show up in the Accounts Payable column. Unhappy customers can be made whole. Or they can be ignored. Or they can expect their speech to be met with more speech. This rarely results in a blowout win for those being criticized, but it’s a far better outcome than paying out legal fees to the people you thought you’d sue into silence.

Filed Under: anti-slapp, defamation, non-disparagement, reviews, slapp, tcpa, wilbur hah