UnitedHealth Group Gotta Weird Case

What do the world's largest healthcare company and Drake have common?

Kendrick Lamar made history at the Super Bowl. He boldly took the stage, to the utter mortification of his rival, Drake. The dissee, Canadian R&B star, and previous Nickelodeon star, Mr. Drake, had recently filed numerous defamation lawsuits about the now hextuple Grammy award-winning song “Not Like Us.”

I previously broken down what I think about that lawsuit, which I think has a bit of merit, when it comes to the defamation law.

However, it's entirely within the role of possible that the Streisand Effect¹ gets renamed the Lamar effect before this is all done.

UnitedHealth Group, not content to be the most universally hated company in America, has decided to update the ante, yet again, by hiring a big dollar defamation law firm to go after a breast cancer reconstructive doctor for making what they claim to be defamatory statements.

If anybody wonders why this newsletter has a humorous or satirical tone, it's exactly this kind of behavior on the part of the UHG. Media and humorists have tremendously more leeway when it comes to making statements about matters of public interest.

Before I dig into the meat of why I think this United case against a physician is a loser, from a legal standpoint, I want to speak directly to United’s legal council: Have I not insulted you enough? Come on, I've been poking and prodding you for years now!

I'm kidding, of course, which is the point. The kind of statements people make as public figures, or in jest, have different standards applied when determining what is or is not free speech, compared to something that's false, damaging, and defamatory. Forbes reports:

On Jan. 7, a plastic surgeon named Elisabeth Potter posted a video of herself on Instagram claiming that UnitedHealthcare called her mid-surgery and asked her to justify an in-patient stay for a woman who has breast cancer and needed a surgical procedure to treat it. Potter then claimed that the insurer denied the patient an overnight stay and threatened her with legal action for her posts.

As it turns out, I screenshotted the good doctor’s letter received from defamation council retained by United when she posted it on TikTok, and I will walk you through why this is such a loser of a case for UHG.

First and foremost, when it comes to defamation, truth is an absolute defense. If the thing you said is true, and can be adjudicated as such in court, you win the case. It doesn't matter how embarrassing that truth is, or how damaging that truth is, but you're allowed to say the truth all day long.

This particular defamation council, Clare Locke, is the big guns you'd expect United to hire. It's the same firm that sued Fox News on behalf of Dominion voting systems. It's worth remembering that Dominion didn't win that case—Fox settled. There's a good reason Fox settled. The discovery process might have been painful and embarrassing to Fox News. Every internal email, everything Tucker Carlson would've said under deposition, all of it would've become public. And it was worth 760 something million dollars to not have any of that get out. This is not the same as actually winning a defamation case, which is pretty hard.

United hired lawyers to send a threatening letter. My contention is that this is Junior Varsity behavior. First off, it's worth understanding that defamation cases are almost always, on the defense side, covered by the homeowners insurance of the individual being sued. Thus, the defense of this particular physician would cost her zero dollars, unless maybe, if she lost, she would have to pay up. But more likely, the defense would be covered by a third-party like Chubb.

Furthermore, United is claiming that the Gravamen of this case is the fact that the surgeon was never actually asked to step out of surgery. Keep in mind, this is the same company that has suffered what might be the most popular targeted assassination of all time. That assassin is currently sitting pretty in prison with the best treatment from every other prisoner that anybody could possibly imagine.

This is a horrible state of affairs, because it makes it endlessly more likely that there will be more political violence against healthcare executives, which is exactly the wrong kind of incentive to get them to change for the better—as I've argued before, it's only going get them to hunker down, ensuring that only the most profit driven and antisocial individuals choose to take the next open job at the healthcare behemoth. I’m not in favor of murder—and it has not been a popular stance for me to take, with the internet.

Even Sean Diddy Combs, an actual celebrity, is apparently jealous of the treatment Luigi Mangione is currently receiving in the pokey. If this case were to go to court, it would be determined by a jury, and if you can find a jury of 12 Americans who are willing to let united off the hook and penalize a doctor, for saying something, anything about United? Good luck.

This isn't even a lawsuit yet, and it's already some limp fish material. Were they to file this as a lawsuit, the doctor would immediately move to file an anti-SLAPP motion (if she lives in a state, like NYS, with this kind of law). SLAPP is an acronym for strategic lawsuit against public participation, which is what united is threatening. They're actually establishing, in their threatening letter, the grounds for dismissing their subsequent case, because it is very clearly aimed at limiting the public participation of the physician to speak out against the practices of United. It would be impossible to argue that this is not a matter of public concern.

So in this next part of the letter, United points out that their claim is that the doctor in question made a mistake in an order, which is the only reason innocent and vulnerable UHG team members were questioning it. It’s all a big misunderstanding. Thus, the doctor’s statement is defamatory because of a misinterpretation of the reason United was calling for a prior authorization.

All of which is well and good, except it absolutely sets up the basis for both the anti-SLAPP motion, which is the obvious first step for the doctor in question should a lawsuit be filed, and it sets up a defense as to the malice of the statement.

United is stating what it believes to be the facts of the case. Unfortunately, by putting it in a letter first, and not just filing the case, they lose legal room to move.

They have done nothing to establish that this is public figure. That's a problem for them, because, for what it's worth, United absolutely are. If you're filing a strategic lawsuit against public participation against a private citizen, depending on the state, the standards to establish that private citizen defamed you are incredibly high. United, for what it's worth, is a very public citizen, as a company, and thus would have to establish actual malice on the part of Dr Potter.

And their argument come out that the doctor made a mistake in admitting the patient to the hospital after the surgery, as opposed to the previously agreed upon—according to United—outpatient surgery would have to be established in a court of law to be not a misunderstanding. And not a mistake.

Essentially, by saying “it was your error” united is establishing the non-maliciousness of the statement on the part of the doctor, which would make their subsequent case, which should be clear they haven't filed yet, impossible to win. That's examine the rest of the dog’s dinner of these claims that they hired a very expensive law firm to make against a surgeon!

Oh, yes, of course, any claim that the health insurance company asked you to step out of the surgery is false. According to the insurance company. “Yet you insisted on talking to United healthcare while you're a patient was in the operating room…”

This is of course the only way to make this a defamation claim, but it's also a complete poop-in-a-bag of a defamation claim, because you'd have to prove that the physician in question maliciously left the operating room for the purpose of generating the false impression that United asked her to, and you also would have to get a jury to believe that. As opposed to the much more likely a state of affairs, which is the physician felt obligated to advocate for her patient, and misunderstood the nature of the request, or something, anything.

It is impossible to believe this case, if it were ever filed, would not be dismissed as a blatant strategic lawsuit against public participation, but most importantly, beyond that, if it ever went to trial, the whole matter would be subject to relentless discovery. It would cost the doctor nothing, because again her defense council would be paid for by her homeowners insurance, but they would subpoena every record the insurance company ever had about this case, and probably about a bunch of other cases. It will be working to establish the pattern of behavior on the part of UnitedHealth Group in asking for prior authorizations at unreasonable times. Or making misleading representations to doctors about what was or was not covered, so as to establish the non-maliciousness of the doctors statements about UnitedHealth Group. All the jury would be asked to find is that a reasonable doctor could have said something false, but not done so with actual malice. I’ll reference my prior article about Drake’s case related to Lamar’s diss track to define this:

Given both Lamar and Drake are public figures, it is not enough for the damages to be per se—they also have to be made with actual malice.

The dictionary definition of malice is: "the intention or desire to do evil. This intention includes ill-will, hatred or total disregard for the other's well-being." I consider the inability to get fresh fruit in the morning intentional evil on the part of Big Sugar. This statement doesn’t meet the specific legal definition of actual malice:

The defendant either knew the statement was false or acted with reckless disregard for the truth. This means that the defendant entertained serious doubts about the statement's truth.

Thus, United would have established that this public figure knew, for a fact, that United was not asking her to leave the OR, which would require some written documentation, or someone willing to swear under oath they heard the doctor say that she knew she didn't have to leave, but was going to leave anyway, for the purpose of damaging United’s reputation, etc. This loser of a shakedown letter continues:

Their claim boils down to, as they put it “at bottom, you should know what you are saying is false and misleading, but you continue to defaming United healthcare for your own personal gain.”

First off, I'm pretty sure she's allegedly defaming UnitedHealth Group. But I wouldn't expect the council they retained to get it right.

To establish that she's doing this for her own personal gain would also be quite the lift… that's legal claim, and so they'd have to establish her personally benefited this physician to make these statements, and on that, that she was doing so with knowing and malicious falsehood.

None of the standard defenses that would allow for per se defamation apply here, and you'd expect Clare Locke to know, as a leading defamation law firm.

Per se defamation refers to statements that are so inherently harmful that the plaintiff does not need to prove specific damages.

The four main categories of per se defamation are:

1. Statements that falsely accuse someone of committing a serious crime, particularly one involving moral turpitude (e.g., murder, fraud, sexual assault).

2. Allegations of a Loathsome Disease—to claim that someone has a stigmatized disease, such as an STD or leprosy.

3. Statements that falsely claim incompetence, dishonesty, or unethical behavior in trade, profession, or business (e.g., a doctor being accused of malpractice or a lawyer of fraud).

4. Allegations of Sexual Misconduct— Statements that falsely claim a person is engaging in sexual misconduct, particularly those that accuse someone of sexual impropriety in a way that causes reputational harm.

I would argue that given the business model of United healthcare is at best understood as denying care for money, and that's the only possible per se claim that could be leveled, they're probably stuck with demonstrating actual financial damages specifically related to this doctor statements, which is going to be close to impossible, if only because of the remarkable size, scale, and financial scope of the organization. They'd have to find specific cases where this one specific person’s statements were the cause of lost business or financial damages, even if they were to win the case, and not the general public opprobrium that their company faces for doing everything they do every day. Keep in mind, UnitedHealth Group was found guilty of criminal fraud against the government just earlier this week. So even claiming that they're criminals, well, at least that claim is literally true, at least in some contexts. They're under active investigation by the department of Justice for God knows what this time.

What's really adorable here is that they're claiming 4.8 million views and 762k likes on TikTok is a lot of traction. If they think this is a lot of views, they should see girls dancing in sweatpants. Thank God this surgeon wasn't dancing in sweatpants at the time she made the statements—they'd be looking at hundreds of millions of views. They're probably not intimately familiar with the scale of that platform, and who can blame them, because until recently, the only person making fun of them on there was me and Dr Glaucomflecken.

I'll also point out that United’s reputation, that they're seeking to further damage with threatened defamation case, is so bad that the trolls of the Internet will threaten to murder anyone who stands up for United, or even makes a statement, like I did, decrying the murder of executives of United. Here's some screenshots of what happened when I made a video in favor of human decency and against the murder of human insurance executive at that company. By the way, there are thousands of these viciously hateful comments—directed at me, someone who is not exactly been a huge fan of the United’s business practices!

As we can see, the Internet is full of haters. Never will be more emboldened than when United send lawyers after doctor to do reconstructive surgery after breast cancer…which is what they've actually chosen to do, for reasons completely beyond me, in this letter.

Yes, the doctor and question is absolutely gonna voluntarily take down her videos, and issue a public apology for ever having falsely claim that UnitedHealth Group called her and asked her to do anything.

Oh, wait, that's absolutely not what's gonna happen. UHG gonna hire an expensive law firm—Thomas Clare drafted this letter himself—and the next thing you know, this surgeon will be on stage at the next Super Bowl, bumping hips with Serena Williams, getting down wit Kendrick Lamar, letting the world know that UnitedHealth Group? They not like us.

1. The Streisand Effect is a phenomenon where an attempt to suppress or censor information inadvertently causes it to become more widely known and shared. It is named after singer Barbra Streisand, who in 2003 sued a photographer to remove an aerial photo of her Malibu home from an environmental database. The lawsuit drew massive public attention, leading to the image being widely circulated than if she had ignored it.

This effect occurs because efforts to hide or remove information often spark public curiosity and media coverage, leading to increased visibility instead of suppression. It frequently happens in cases involving legal threats, internet takedowns, or censorship attempts.