Case summary
By Prue Campbell – Panetta McGrath

A dentist has been successful in her defamation claim against a patient who posted negative Google reviews. The article provides some insight on how to better protect you, your staff and practice from negative reviews online. 

MIPS members should be aware that defamation claims of this type are not covered by the professional indemnity policy held with MIPS and it is recommended that members seek their own legal advice if considering defamation proceedings.

A dentist has been successful in her defamation claim against a patient who posted negative Google reviews.

The background

Dr Dean, a well-known periodontist in Melbourne, commenced proceedings against Ms Puleio alleging that she defamed her in four publications on Google reviews of Dr Dean’s business, Kew Periodontics and Dental Implants (Kew Periodontics). 

Ms Puleio was a patient at Kew Periodontics and attended for three appointments. As a result of Ms Puleio’s manner and many cancelled appointments, Dr Dean terminated the doctor/patient relationship.

After the termination of the doctor/patient relationship, Ms Puleio posted the first Google review which accused Dr Dean of being unprofessional, undermining, failing to diagnose various illnesses from which she says she was suffering, trying to charge her unreasonably for work, making ludicrous suggestions as to treatment, and being someone who bullies and berates her patients. 

The second Google review stated that Kew Periodontics provided “unprofessional and undermining service”. This review was removed and replaced with a third Google review that reiterated the second Google review and added that Dr Dean had “apologised for the negligence” of her care and that the “outcome was unsatisfactory”.
 
The fourth Google review reiterated the third review and continued for a number of paragraphs indicating that Dr Dean was unethical, had callously refused to treat Ms Puleio when she was in urgent need of treatment, lied to her and displayed ill intent towards her. 

The outcome

Ms Puleio, representing herself, had her defence struck out and judgment was entered for Dr Dean on the basis of non-compliance with Court orders. Consequently, having failed to file a Defence, the matters in the Statement of Claim were taken to be admitted, including liability for publication, the serious imputations to be drawn from the publications and their defamatory nature. 

Evidence was submitted that the fourth Google review had been viewed at least 1,300 times and was it likely that somewhere in the vicinity of 100,000 people had viewed the extract of the review that stated Kew Periodontics provided “unprofessional and undermining service”. It was further accepted that the “grapevine effect” meant that it was likely the impact of the publications would have spread beyond those people who saw the actual page.

Other evidence included a distinct downturn in the average weekly page views on the website of Kew Periodontics and new patient referrals in the immediate aftermath of the publications.

The court acknowledged that Kew Periodontics would have been impacted by the COVID-19 pandemic, it was still likely that there was some impact from the negative reviews.

The court accepted that the publications had damaged Dr Dean’s reputation amongst her peers and in the eyes of the broader community. 

There was also evidence of the impact of the publication on Dr Dean’s wellbeing.

To the extent it was necessary, given that judgment had been entered, the court found the publications carried the imputations alleged by Dr Dean, those imputations were defamatory and untrue.

Having regard to all the circumstances of the case, the court awarded damages in the amount of $170,000, including for aggravated damages on the basis Ms Puleio’s conduct in that:

  1. she published the statements with the sole purpose of harming Dr Dean’s reputation;
  2. she refused to apologise;
  3. she refused to take down the review;
  4. she refused to attend mediation or participate in the Court process;
  5. she attempted to extract additional money from Dr Dean;
  6. she had revisited and revised the review to inaccurately reflect the content of negotiations;
  7. she threatened to report Dr Dean to medical and other unspecified authorities; and
  8. she accused Dr Dean of blackmail and unethical conduct.

The implications

This case is another example of the recent rise of Google review defamation cases in Australia.

Practitioners adversely impacted by negative reviews are having to resort to bringing such proceedings in order to have the reviews removed. However, launching a defamation action is cost-prohibitive for most people.
 
This case also demonstrates that evidence of reduction in internet traffic on a business’ website and patient referrals may be sufficient to demonstrate loss or harm suffered from a negative and defamatory online review.

To read the decision in Dean v Puleio [2021] VCC 848, click here.
 
Authors: Prue Campbell and Morgan Barnsby.

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