Kansas appeals court decides negative Yelp review didn’t defame JoCo plastic surgeon

A Johnson County surgeon lost a lengthy defamation case Aug. 19 after a Kansas appeals court decided that a review from a former patient did not have a negative impact on his professional practice.

Eric Swanson, a plastic surgeon in Leawood, sued his former patient Elysia Marcus for defamation after she left a negative Yelp review of his practice, according to court documents. The Kansas Court of Appeals decided 2-1 that Swanson did not prove harm to his professional reputation.

According to court documents, Marcus wasn’t pleased with the results of a laser facial resurfacing from Dr. Swanson in December 2016. Marcus and her husband agreed in 2017 that, to get a $2,500 refund on the treatment, they would give up any legal claims against Swanson and not discuss the case or settlement in the media, according to court documents.

In 2018, Swanson discovered a prior Yelp review, which claimed the doctor “ruins lives” and other negative statements, according to court documents. The review, which was written under the name Lisa but linked to Marcus, also told readers to look into Swanson’s past and consider bringing their business elsewhere.

According to court documents, the claims referred to a 1999 proceeding in front of the Kansas Board of Healing Arts for negligently treating three patients. Swanson was publicly censured, and the board required his practice be limited and monitored for more than two years.

Swanson’s lawyer sent a letter to Marcus and her husband, saying they needed to delete the review, give a written apology, pay $25,000 in damages and sign a new release, according to the appellate court opinion.

A jury sided with Swanson, when the case was heard in Johnson County District Court in August 2019. The court set aside the verdict and said his full schedule of patients showed that his reputation was not damaged by the review Marcus left, according to court documents.

The court also ruled that Marcus should return the refund to Swanson because she breached her contract.

Swanson, the appellate court said, could not prove his reputation had been harmed by the review, meaning the situation did not constitute defamation.

He argued that other clients read Marcus’ review and looked elsewhere for service, but the court said he provided no evidence to prove this point. He also told the court he was working at capacity before and after the review had been posted and continued to book jobs as a speaker for professional programs.

“Dr. Swanson testified Elysia Marcus’ statements in the post bothered him personally,” the court wrote in its decision. “But, as we have outlined, plaintiffs asserting defamation claims cannot rely on their own emotional upset or distress to establish the required reputational harm.”

Judge Sarah Warner dissented the majority opinion. She argued Marcus acted with intent to harm Swanson’s reputation by posting a negative review on a widely known website and said it “stands to reason” that the review, which called Swanson a “monster” and accused him of medical malpractice, would hurt his professional reputation.

Warner also said Swanson’s argument that the review brought his overall Yelp rating from five stars down to three-and-a-half stars was proof of the negative impact on his reputation.