A healthcare website for consumers did not defame or otherwise commit a tort against a Brooklyn urologist that it repeatedly misidentified as dead, according to a state appeals court.
Dr. Sheldon Rosenthal brought suit in 2014 against MDX Medical, doing business as Vitals.com, for defamation, negligence, and prima facie tort.
Vitals.com, which operates a site that in part helps consumers find doctors, moved to dismiss the lawsuit for failure to state a cause of action. In 2015, then-Kings County Supreme Court Justice Arthur Schack granted the motion.
In reviewing and affirming Schack’s decision, the Appellate Division, Second Department, noted that Rosenthal had not alleged any special damages.
Then in addressing defamation, Justices William Mastro, Reinaldo Rivera, L. Priscilla Hall and Joseph Maltese wrote that a false written statement is only libelous per se, and thus actionable without special damages, if tends to expose a person to public contempt, induce an evil opinion of him, or deprive him of friendly intercourse in society; or if it tends to disparage the person in their profession or trade.
In their unanimous July 26 decision in Rosenthal v. MDX Medical, Inc., 16519/14, the justices said being named as deceased on Vitals.com did no such harm to Rosenthal.
Addressing negligence, the justices wrote that Rosenthal hadn’t alleged any special relationship between the parties that would give rise to a duty for Vitals.com to speak with care about him.
The justices noted that for a prima facie tort, there must be a measureable loss, requiring special damages. But no special damages were alleged, they wrote.
Luigi Brandimarte, a senior associate at Sacco & Fillas in Astoria, helped represent Rosenthal and couldn’t be reached for comment. Richard Reiter, a Wilson Elser Wilson Elser Moskowitz Edelman & Dicker partner in White Plains, also could not be reached.