Defamation in a Medical Malpractice Claim

[Evad]

My question involves defamation in the state of: Ohio

Possible defamation claim or other legal theory?

A child was hospitalized. The medical records reflect the mother’s repeated assertions that the treatment her child is receiving is harming her child. A specialty doctor did list 2 possible reasons why the child’s treatment could actually be harmful. No doctor ever followed up with those 2 possible reasons. Before releasing child from hospital, one doctor noted, “our only concern is non-compliance” and another doctor wrote, “consider social work for poor compliance”. The mother had to take an in-hospital class before they would release child to her. Years later, it was discovered that the child was misdiagnosed and cannot have that treatment as it harms his true condition. Our theory behind the defamation claim is that other doctors during the next few years did read these past medical notes. The notes stating the mother is in poor compliance or non-compliance reduced her credibility and hindered her efforts in getting another doctor to believe her and perform a differential diagnosis contributing to a delayed diagnosis(more harm came to child over years). The mother was also embarrassed after reading those statements and it had negative effects on her recovery from the PTSD that was directly related to child’s mistreatment and misdiagnosis over the years. One issue I have is that the mother did follow all treatment plans except for one medication because she knew it was harming her child. Technically, I could see where she is in non-compliance by withholding that one medication, but since it turns out she was right and the treatment plan was wrong, I’m stuck on if it would technically be defamation or not. I’m arguing both sides and I see both sides, but I feel like I’m missing a better argument. Before a doctor makes a defamatory statement against the mother, shouldn’t he make sure that his diagnosis is correct? Any takers? I’m tired of arguing with myself..haha.

[Taxing Matters]

Defamation is the communication of a false statement of fact about the mother to others that harm her reputation. If it is true that she was not in compliance with the treatment plan then it was not defamation for them to say that she was not in compliance. The fact that the treatment was incorrect due to the diagnosis being wrong is a possible malpractice claim. But that doesn't turn true statements about her compliance into false ones and thus make them defamatory. Why she didn't comply isn't the issue with defamation. The issue for defamation is whether the statements of fact that were made were true.

And while you've not given dates for when each part of this happened, my guess is that the statute of limitations for both defamation and malpractice have likely long expired since it is now "years later."

[cbg]

I think you should do your own homework.

[Evad]

Thank you Taxing Matters. I agree. I didn’t want to miss any possible contributory claims, so wanted another opinion on if there’s any potential legal theories for that one. In Ohio, minors are exceptions and their statute of limitations do not start to run until their 18th bday. The child is still a minor.

Cbg, why would you tell me to do my own homework? There’s no need to have a forum on legal topics if you tell everyone that or is it just me for some reason?

[Shadowbunny]

Thank you Taxing Matters. I agree. I didn’t want to miss any possible contributory claims, so wanted another opinion on if there’s any potential legal theories for that one. In Ohio, minors are exceptions and their statute of limitations do not start to run until their 18th bday. The child is still a minor.

Cbg, why would you tell me to do my own homework? There’s no need to have a forum on legal topics if you tell everyone that or is it just me for some reason?

Your question, as written, sounded very much like someone's homework assignment, rather than a personal situation. So cbg wasn't being flippant or singling you out. She believed (as did I) that you were a student trying to get help with his homework.

[cbg]

^^^What she said. And I'm still not entirely convinced.

[Taxing Matters]

In Ohio, minors are exceptions and their statute of limitations do not start to run until their 18th bday. The child is still a minor.

But the child does not have any defamation claim here. It would only be a medical malpractice claim that the child could bring.

[pg1067]

Before releasing child from hospital, one doctor noted, “our only concern is non-compliance” and another doctor wrote, “consider social work for poor compliance”.

Compliance with what?

Our theory behind the defamation claim is that other doctors during the next few years did read these past medical notes.

What is the antecedent of "our"? It's worth noting that the first seven sentences of your post were written in the third person, with no indication that the situation at hand has anything to do with you. Now, suddenly, you've shifted to writing in the first person.

I’m stuck on if it would technically be defamation or not. I’m arguing both sides and I see both sides, but I feel like I’m missing a better argument.

With whom are you arguing about this (other than yourself)?

In any event, defamation is the publication of a false statement of fact of and concerning another person, which statement is harmful to the subject's reputation and, in most cases, which results in financial damages. Whether a person is or isn't "in compliance with" something is probably a statement of fact. However, in the absence of any detail about what you're talking about, it's not really worthwhile taking the analysis any further.

In Ohio, minors are exceptions and their statute of limitations do not start to run until their 18th bday.

That's generally true in every state. However, your post does not suggest that any potentially defamatory statements were made about the minor child, so the rule that tolls the SOL for claims by minors would not be relevant. Rather, your post indicates the only potentially defamatory statements were made about the mother. That those statements related to medical treatment for the minor doesn't make any difference as far as the SOL is concerned.

[Evad]

Thank you everyone who took the time to respond. I never even thought about a student coming here for their homework...bwahaha, so sorry I took offense to that. Yeah, I was trying to make it easier to read by writing in 3rd person, but I now see where I made it even more confusing. Anyways, we(my son and I) have not decided which attorney to go with yet. As we found out, no 2 doctors are equal, so we(mainly me) is trying to become as educated as I can on certain topics before making a final decision. Defamation is/was only .001% of the case and I realize it is insignificant compared to the bigger picture, but I still had to ask as I want to hold everyone accountable for the harm my son suffered. PG1067 helped a lot as I didn’t realize that even if they were defamatory statements, it would be my damages and not my sons. I just really wanted to hold this doctor accountable for his role and no one else could find a way(yeah, I know, let the attorney handle it as I am too emotionally involved, but I needed to know if there was a way of including this doc before choosing an attorney that told me NO). I am emotionally involved and cannot understand how a doctor can claim that a mother is in non-compliance of the treatment plan when it is now proven that the treatment plan harmed the child.