Author: Chris Boggs
News broke last week that a New Yorker from Manhattan, Michelle Levine, was sued by her Kips Bay gynecologist, Dr. Joon Song of New York Robotic Gynecology & Women's Health, because of her one-star review posted on Yelp and ZocDoc. Levine's review basically lambasted Song for what Levine considered fraud and mistreatment.
Levine's publicized review read: “Very poor and crooked business practice. I suspect that this doctor gives unnecessary procedure [sic] to a lot of people and then charges the insurance sky high prices and no one knows the difference."
“Everything about my one and only visit here has caused me emotional distress and panic, and now they want me to cough up an extra $500 for services I didn't even need?"
Song took exception to this review and sued Levine for $1 million.
As part of my research, I went to Yelp to see what other have said about this doctor. When I opened his page, I was greeted with this message:
Active Cleanup Alert
This business recently made waves in the news, which often means that people come to this page to post their views on the news.
While we don't take a stand one way or the other when it comes to these news events, we do work to remove both positive and negative posts that appear to be motivated more by the news coverage itself than the reviewer's personal consumer experience with the business.
As a result, your posts to this page may be removed as part of our cleanup process beginning Tuesday, May 29, 2018, but you should feel free to post your thoughts about the recent media coverage for this business on Yelp Talk at any time.
At least Yelp is aware of its affect and maybe its responsibility. But I wonder if by taking it upon themselves to remove content they are opening themselves up to other issues? I don't know; I'll leave that to their lawyers.
Evidently Levine isn't the only person who has issues with this doctor; his Yelp rating is 1 ½ stars out of five. I don't think that's an overall good rating, but I might be wrong. Want another gasp? Levine is still at it. She posted a response on May 30 – even though she is already being sued. It reads:
“Hi I am Michelle the one being sued for my review. I also wanted to remind everyone that while Dr. Song calls me a liar and denies any allegation that my visit was changed or that I was overcharged for a visit. His own Billing department has openly admitted on Yelp to giving EVERY single new patient an ultrasound. I am attaching the screenshot here (not provided by the VU) to this post. I didn't learn until after my visit that an ultrasound cannot be a part of an annual. I told Dr. Song that I was there for an annual and he agreed that I was there for an annual so when I was given an ultrasound I thought I was getting an annual.
Nonetheless if he gives EVERY new patient an ultrasound but an ultrasound cannot be part of an annual how should he bill that?
If EVERY new patient gets an ultrasound but an ultrasound is not a part of an annual then no new patient can get an annual from Dr. Song that will be covered by their insurance as an annual.
I don't think that insurance companies would be happy to learn that he is performing an ultrasound for every single new patient. The Ultrasound is a procedure that is meant to be used on a need basis, not for standard screenings, as they are expensive.
I am raising money for attorney fees and will be updating on the progress of the case is anyone is interested. If I hit my goal and if the court awards me anything I pledge to donate 10% of my winnings for my countersuit to eff.org a non-profit fighting to protect free speech in the digital world. In a w ay we would be making Dr. Song donate to the very organization that stands for what he is seemingly against.
(GoFundMe link redacted by the VU)
Joon Song has now stooped to defaming me, he is in the Korea Daily. He does make remarks. He claims that $1 million dollars is symbolic to defend his honor. Then he continues to call me a liar. Then he makes blatant false remarks that I have defamed other people and done it before on purpose and that my negative reviews on Yelp are lies and defamatory towards other businesses. I guess that means I have a habit of going on yelp lying. I can't not like a business. He says this with what evidence? Who is defaming who here? The comments on the bottom of the article by readers are slanderous to the Jewish people.
This is getting better than a soap opera. Regardless of our voyeuristic interest in this situation (it's sort of like a car wreck, you don't want to look but you can't help it), there are important legal and insurance questions that must be considered:
- Is Levine within her rights to post her opinion of Song's practice?
- Is Song attempting to “SLAPP" Levine?
- Is there any insurance protection available?
The Rights of a “Yelper"
First Amendment protection requires, among other standards, “Yelpers" bloggers and other users of social media, practice and prove due diligence in the gathering and reporting of “factual" information. Such social media users must also prove that no actual malice was intended by statements or information ultimately found to be incorrect or untrue. Opinions, stated as opinion and not fact, are potentially immune from charges of libel under the First Amendment since there is no such thing as a false opinion.
Does Levine's original statements qualify as solely opinion, or does it cross the line into unproven fact? That is for the court to decide. Similarly, is it possible she hurt her case with her most recent post? Again, that may be for the court to decide.
“SLAPP'ed" Into Submission
Song may take personal offense at Levine's use of Yelp, but is his suit reasonable? Or, is Song simply attempting to “SLAPP" Levine as an example to everyone else to stem the tide of further bad reviews? Remember, his overall Yelp rating was 1 ½ stars; maybe he's suing Levine to help his rating by creating fear in other Yelpers. Personally, I don't think it will work; his suit seems like a massive PR nightmare! Think about it, who ever heard of this guy before this suit? Now everyone has heard about his attack on a patient – and he's not seen as the victim in most people's eyes.
“SLAPP" means strategic lawsuit against public participation. Winning is not necessarily the intent of the individual or entity filing the SLAPP; fear, defendant exhaustion and intimidation are the main goals.
“Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined," New York Supreme Court Judge J. Nicholas Colabella said of SLAPP suits. Even if the plaintiff loses, they win by scaring others away from the debate. And if the SLAPP perpetrator can stretch the case over a long enough period of time, the defendant, even if innocent or with a meritorious defense, may be financially forced to settle or concede the fight according to Colabella. A SLAPP is an assault using the legal system as the weapon of choice.
Individuals, corporations and governments file SLAPP suits packaged to look like civil suits alleging defamation, invasion of privacy, nuisance, malicious prosecution and other personal injury charges intended solely to embezzle the “offender's" time and finances by means of legal wrangling and continually mounting legal costs. Most individuals and small businesses do not have the time or the financial resources to invest in their defense choosing rather to end the publication or protest. Not only does this remove the primary thorn from the plaintiff's side, but this tactic produces sufficient fear to keep others from voicing their beliefs.
Anti-SLAPP statutes address such suits in twenty-nine states and DC* (two states, Colorado and West Virginia utilize case law). Defendants in these states proving a SLAPP suit generally prevail in court - provided all other standards of journalistic responsibility have been satiated. SLAPP statute.
(*These states are: Az; Ak., Ca., Ct., De., DC; Fl., Ga., Hi, Il; In., Ks., La; Me, Md., Ma., Mn., Mo., Ne., Nv., NM, NY, Ok., Or., Pa., RI, Tn., Tx., Ut., Vt.)
If it's proven that Levine's post was an opinion only and that she was within her rights to provide such opinion; Song may be guilty of filing a SLAPP suit (as NY has an anti-SLAPP law). This is something Levine can potentially add to her personal injury suit. However, because the majority of these statutes relate only to suits by public entities against individuals, it's unlikely Levine can depend on her state's anti-SLAPP statute to help.
In practical application, being SLAPPed by an individual or small business is probably not against most state laws. Click here to see each state's anti-SLAPP statute and review the specifics of your state's laws.
Frustration and an easily available “outlet" for that frustration may cause your insureds to post things in the heat of the moment without thought of the consequences – or any thought that there might BE any consequences. If there are consequences, such as a libel, slander or defamation of character lawsuit, how would the Homeowners' insurance policy respond?
Libel, slander and defamation of character are considered “personal injury" in the insurance world. Unendorsed homeowners' policies do not provide “personal injury" coverage; it's not excluded, coverage is just not granted.
Insurance Services Office's (ISO's) standard, unendorsed HO 00 03, for example, does not define personal injury nor does the Section II – “Liability Coverages" – insuring agreement anticipate protecting against charges of personal injury. Coverage is limited to bodily injury and property damage; both defined terms with neither definition including “personal injury" as a component part.
In short, the cost to defend a personal injury suit and pay any resulting judgment is borne solely by the homeowner – UNLESS personal injury coverage is endorsed onto the homeowners' policy. Garnering personal injury coverage, however, is as simple as attaching the Personal Injury endorsement – HO 24 82 (or any company-specific or state-specific version) – to any homeowners' policy. Granted, many, if not most, insurance carriers automatically add ISO's or other personal injury endorsement, but an agent should never assume.
Yelps, tweets and other social media post can trigger a personal injury lawsuit like our subject case. How are such losses handled by the personal injury coverage provided by ISO's HO 24 82? The “Yelp-related" parts of the personal injury endorsement reads:
“'Personal injury' means injury arising out of one or more of the following offenses, but only if the offense was committed during the policy period:
- Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; or
- Oral or written publication of material that violates a person's right of privacy."
Yelp-related (and other social media-related) personal injury exclusions reads:
This insurance does not apply to:
1. "Personal injury":
- Caused by or at the direction of an "insured" with the knowledge that the act would violate the rights of another and would inflict "personal injury";
- Arising out of oral or written publication of material, if done by or at the direction of an "insured" with knowledge of its falsity;
- Arising out of oral or written publication of material whose first publication took place before the beginning of the policy period;
- Arising out of a criminal act committed by or at the direction of an "insured";
Five specific coverage requirements become apparent when reviewing this spotlighted wording:
- The claimant must have suffered personal injury during the policy period;
- For coverage to apply, the insured must be unaware that the information was false (truth is a defense). Or the information must be an opinion;
- There cannot be an intent to cause injury (this seems troublesome as the whole intent of Yelp and other like sites is to persuade or dissuade others from going to a certain place);
- The material causing the supposed injury must have been originally published during the policy period; and
- The Yelp, tweet or post must not be the insured's business.
Viewed in the light of this five-part test, coverage for Yelp and other related suits seems rather narrow. To be protected, the offending message's publication and the supposed personal injury must be suffered during the policy period. Yelp and other social media posts don't necessarily have a “time limit;" A Yelp or tweet posted today might remain accessible and viewable for several days, months or years before the “target"/claimant sees it.
Which Policy Responds?
Coverage depends on the answer to the question, “when is personal injury actually suffered?" Is it at the time of the publication; when it's read by the claimant; or when the effects of the tweet are felt by the subject of the post? Knowing when personal injury “occurs" is of utmost importance in deciding which policy responds, especially if coverage has just recently been endorsed onto the policy.
For example, a Yelp review is posted on May 1, the subject of the post reads it October 1 and the policy expired and was renewed July 1. Did the personal injury occur the day the post was made available to the public or the day the person read the “good" news?
Most courts hold that libel/defamation occurs when the information is initially published and available to be seen by the public – not the date the party reads it. May 1 is the date of personal injury in the above example and the policy in effect on that date responds. However, if no personal injury protection was endorsed onto the policy in effect on May 1, there would be no possible coverage – even if the renewal policy (the one in effect when the post was read by the claimant) provides the protection.
Is There Protection
Whether the HO policy provides the necessary personal injury protection revolves around the endorsements attached. If the proper endorsement is attached, there is coverage – maybe. Why “maybe," because a specific exclusion might apply.
Either way, a carrier's duty to defend is greater than its duty to indemnify. Michelle Levine states she has already spent over $20,000 defending herself. Evidently, she either doesn't have a HO policy, doesn't have the necessary endorsement or hasn't turned the claim into the carrier. If the suit alleges a covered act, the carrier owes defense.
It appears that if Levine had the proper endorsement, there would be coverage to defend this suit and pay any claim (up to the policy limit).
Confirm Protection and Warn
Social media (Yelp, Twitter, Facebook, LinkedIn, etc.) has changed the personal injury landscape. Now everyone participating in social media has the opportunity to publish their thoughts and opinions to people beyond just their friends and family. A Yelp, tweet or Facebook post has the potential to be seen by thousands of people (interested and disinterested).
Every agent should confirm that personal injury protection is in place for every homeowners' client (whether they are owners or renters) and explain the dangers surrounding disparaging someone or some business on social media (even if what they say is true). Ultimately, the best advice an agent can give… “Don't Yelp it, tweet it, Facebook it or even say it if you don't want to defend it in court."
Last Updated: June 8, 2018