In recent years, skilled nursing facilities, like many other businesses, have all too often faced scathing online criticism in the form of negative reviews and postings on social media outlets. Left unaddressed, such statements can be very damaging to a facility’s professional reputation within the communities it serves. In an effort to combat the impact of these postings, some facilities are now turning to the courts to provide relief by filing lawsuits against the offending proliferators of such defamation.
Under New York law, defamation consists of:
(1) a statement that tends to injure reputation;
(2) published or communicated to a third party without authorization; and
(3) that the speaker knew or should have known was false. Typically, in order to seek relief in the courts, a person who has been defamed must show that the statement caused them to suffer special harm and prove damages.
However, certain kinds of statements are so inherently damaging that they are legally deemed defamation per se, meaning the courts will presume reputational harm and will not require a party to prove their damages. Statements that constitute defamation per se include:
(1) statements charging a person with a serious crime;
(2) statements that tend to injure another in their trade, business, or profession;
(3) statements imputing that a person has a loathsome disease; and
(4) statements imputing that a person is unchaste.
Certain online criticisms of skilled nursing facilities may constitute defamation per se because they injure the facility’s business reputation, particularly when they impute any kind of fraud, dishonesty, misconduct, incapacity, unfitness, or the lack of some necessary qualification. In many cases, a simple cease and desist notice to the individual who made the posting, noting that the online statement is defamatory and demanding its removal, can be effective and resolve the matter. However, if the posting individual fails to respond or refuses to cooperate, the facility may want to consider filing a lawsuit for defamation.
The party making the statement may assert a number of defenses to avoid liability. For example, truth is an absolute defense to defamation; if the statement in question is objectively true, the defamation claim will fail. A person will also not be liable for expressions of opinion which cannot be objectively proven to be true or false. In addition, New York recently expanded its legislation regarding strategic lawsuits against public participation, known as the Anti-SLAPP law. This law applies to any lawsuits involving “public petition and participation”, which has been broadly construed to include cases involving any communication in a public forum in connection with an issue of public interest. Under New York’s Anti-SLAPP law, defendants in defamation lawsuits may seek dismissal or summary judgment by demonstrating that the case involves “public petition and participation”. The burden then shifts to the plaintiff to demonstrate that the lawsuit has a substantial basis in fact and law, a much higher burden of proof than plaintiffs in other actions are required to satisfy, which can force the plaintiff to come forward with evidence in support of their defamation claim at an earlier stage without forcing the defendant to incur the cost of discovery. Significantly, if the defendant prevails on an anti-SLAPP motion, he or she is entitled to receive their attorney’s fees and costs. Most importantly, it is a mechanism to combat the bad publicity.
Defamation cases are complex; having the assistance of an attorney experienced in defamation matters is crucial. Cona Elder Law’s experienced attorneys continue to monitor the case law and trends regarding defamation cases as well as other important legal matters concerning the nursing home industry. Contact us at 631.390.5000 or click here to learn more about how our firm can help your facility preserve its bottom line and ensure your ability to continue to provide quality services to your nursing home residents.