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In a case testing First Amendment rights in the Internet age, a dentist and an oral surgeon have filed suit in a Florida trial court to stop a disgruntled former patient from criticizing their care on a scathing Web site called dentalfraudinflorida.com. At issue is a site created by Elaine Prentice. On the site, Prentice, who lives near West Palm Beach, blasts the care she received between 1996 and 1998 from dentists Dr. Leonard Tolley of Lantana, Fla., and Dr. Richard Kaplan of West Palm Beach. Kaplan, who’s also an oral surgeon, treated Prentice from August 2002 until March 2003. In their Palm Beach County Circuit Court suit, the dentists claim the site is slanderous, a “public nuisance” and violates state law requiring that state disciplinary complaints be kept confidential if they are dismissed. The suit represents the latest salvo in what is becoming a widening war, fought increasingly on the Internet, between doctors and patients. In the past, disgruntled patients have picketed the offices of medical professionals they felt had provided poor care. Several years ago, a Boca Raton dentist filed suit against picketing patients. Now, however, with the cost of disseminating such complaints relatively cheap on the Internet, unhappy patients increasingly are publishing their complaints on the Web. Some doctors and medical groups in turn are posting the names of patients they consider litigious in order to warn other doctors. Robert Jarvis, a professor of constitutional law at Nova Southeastern University near Fort Lauderdale, said, “These days, anybody is a publisher. On the Internet, there are no checks and balances.” On Prentice’s site, she has posted a photo of herself and her dog, Mani, as well as a list of complaints about the care provided by Tolley and Kaplan. Prentice said the dentists were paid $18,200 to perform dental work that she deemed unsatisfactory. The site costs Prentice $20 a month to maintain. She launched the site in October. “This Web site,” Prentice wrote, “is my personal tragedy delivered to me by several dentists in West Palm Beach, Florida. I am ashamed and embarrassed to admit that I allowed these dentists to do this dental work in my mouth. I was not smart enough to see the reality of what their goals and intent were. It certainly was not to promote healthy dental care or ‘do no harm.’ In my opinion, my best interests never even entered into their dental planning/recommendations and ultimate dental work they performed.” Prentice was critical of the dentists for their work on braces, a five-unit bridge, two root canals, surgical removal of two teeth and two implants. She said that her “guts are telling me that the back implant needs to be removed, area grafted with my own bone and if I am pursuing implants, then have them placed correctly by someone skilled and well experienced.” Prentice’s Web site also includes the following: “Fraud is the intentional perversion of truth or a false representation of a matter of fact which induces another person to part with some valuable thing belonging to him or her to surrender a legal right.” PATIENT COMPLAINT TOSSED In their slander complaint, filed in November, Tolley and Kaplan maintain that Prentice started her Web site “to publicly embarrass, humiliate or otherwise in an egregious manner reduce the reputation of the plaintiffs.” The doctors say Prentice filed a complaint against them and three other treating dentists with the Florida Department of Health’s Board of Dentistry in September 2003. According to their suit, the dentistry probable cause panel of the health department closed the investigation last May, with a finding of no probable cause, and so informed Prentice. Their lawsuit includes as an attachment a letter from Samuel Dean Burton, assistant general counsel for the state department of health, informing Prentice that her complaint had been dismissed. The plaintiffs allege that Prentice’s Web site discusses “confidential matters that relate to” the Health Department’s review of Prentice’s complaint that may not, under state law, be publicly aired “until 10 days after probable cause has been found to exist.” Since no probable cause was found to exist, they argue, Prentice therefore has no legal right to publicly disclose the information. But in a response to the complaint filed Jan. 14, one of Prentice’s lawyers, James K. Green of West Palm Beach, cited a wealth of decisions holding that the First Amendment right to free speech supersedes any act of any state Legislature designed to protect confidentiality by inhibiting such speech. The dentists are represented by Bonnie A. Navin, an associate at McIntosh Sawran Peltz Cartaya & Petrucelli in Fort Lauderdale. Prentice, an office worker, is being represented on a pro bono basis by Green of West Palm Beach, operating under the auspices of the American Civil Liberties Union, and Paul Alan Levy, an attorney with Public Citizen, an advocacy group based in Washington, D.C. The case is before Circuit Judge Catherine Brunson. Navin said negotiations are in progress. Neither she nor Green would discuss details. FIRST AMENDMENT TRUMPS Two constitutional experts not involved in the case say the lawsuit is doomed to fail on the theory that Prentice’s Web site violates the state dental discipline law requiring confidentiality. They contend that Prentice’s constitutional right to express her point of view trumps any such state law provision. “Prior restraint violates the Constitution,” Jarvis said. Bruce Rogow, another Nova law professor, agreed. “If it’s defamatory, [the dentists] have a remedy at law — damages,” he said. “But you start off with a presumptive First Amendment right to speak.” But they also say the two doctors have a solid cause of action if they can demonstrate that Prentice’s statements are false and have damaged them in a tangible fashion. The complaint, however, makes no specific allegations of inaccuracies in Prentice’s Web site and also makes no specific claims of damages to the doctors’ practices. Much of what Prentice wrote on the Web site is stated as opinion and may be constitutionally protected even if the site’s content is professionally damaging to the doctors. “Opinion is protected speech,” Rogow said. Rogow noted that there’s also the important question of whether Prentice has enough money to make her worth suing. “It does you no good to win an award for damages if the person you win from lacks the money to pay you,” he pointed out. In a similar case in 2003, the state’s 4th District Court of Appeal in West Palm Beach permitted a neurologist, Hooshang Hooshmand of Vero Beach, to proceed with a defamation suit against a Pennsylvania woman. He alleged that the woman made false and defamatory statements about him in e-mails and on an Internet chat room designed for sufferers of her rare neurological disease. Dr. Hooshmand was a nationally known expert in treating the disease, but the woman had never been his patient and did not live in Florida. In that case, the issue on appeal was whether a Florida state court had jurisdiction — which the 4th DCA said it did. On her Web site, Prentice explained that her goal in operating the Web site was merely to “teach. … I have no financial rewards or incentives related to my teaching Web site.” She said she had invited both Tolley and Kaplan “to post their responses.” Rogow suggested that the doctors’ lawsuit already may have backfired. “Every time somebody tries to stifle speech,” he said, “they end up advertising it.”

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