Richman Quoted in Healthcare Risk Management Article

November 23, 2020 | Medical Malpractice Defense

David Richman was quoted in the Healthcare Risk Management article, “What to Do When Malpractice Allegations Become Defamation.” The article discusses the different types of defamation and what can be done about each.

Proving defamation can be difficult since court statements are hard to challenge. There are many forms of defamation, but they can be hard to prove due to HIPAA laws. In some cases, “pursuing a defamation claim against an attorney may be more difficult than the same claim against a former patient,” says Richman. In the context of words spoken before the court or in a judicial or quasi-judicial proceeding, attorneys are accorded absolute immunity against a suit for defamation even if those statements are proven to be false, malicious, or made with ill will, Richman explains. In New York, that protection appears in Sec. 74 of the New York Civil Rights Law.

Richman says, “The reasoning behind this protection is a policy recognizing the need for vigorous representation of one’s client and the assumption that, as officers of the court, counsel will act in a manner consistent with that responsibility, even if those actions and words are not true and sound personal in nature.” This protection is available to attorneys for statements said outside of legal proceedings.

The question of propriety will first turn on whether the context of the statement was central or ancillary to the litigation. Then, it has to be determined if the statement was made with “actual malice.” To be considered defamatory, it has to clear several hurdles that examine the context of the statement. “While the statements by counsel to the media would seem to be clearly harmful to the doctor’s reputation, the standard of proof to be met must establish the defendant/defamer acted with ‘actual malice’ — that is, that he or she knew or should have known the statements were untruthful,” Richman says.

The context is important. “If the statement is untethered to a court or quasi-judicial proceeding, the grounds for pursuing a claim may be more justified,” says Richman. But again, context is everything, as is the question of the perceived harm.

“Has the statement or is the statement likely to impact business or reputation? If so, is the damage short- or long-lived?” Richman asks. “The analysis should also consider the chances of success at trial, as the vast majority of defamation suits wind up in favor of the alleged defaming party, particular if the one making the statement is an attorney and the comments are arguably related to actual or anticipated litigation arising out of a failed doctor-patient relationship.”

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