OCTOBER 8, 2011
“For What It’s Worth: Doctor Sues Patient”
Medical malpractice suits are common (even if they are not as common as some doctors fear). But a suit by a doctor against a patient? That would seem to fit the ancient definition of news. Yet I hadn’t heard of Dr. David McKee’s defamation suit against Dennis Laurion before I received an email about the case.
Actually, Dennis Laurion was not McKee’s patient. Dr. McKee, a neurologist, treated Dennis’s father, Kenneth, a World War II vet, who suffered a hemorrhagic stroke in April 2010. The younger Mr. Laurion was not at all happy with how Dr. McKee treated his father. The elder Mr. Laurion survived, but his son felt that Dr. McKee failed to accord his father appropriate dignity and respect. He didn’t sue for malpractice; instead, he blasted the doctor on a number of ratings sites.
There are ratings services for every business and profession out here on the Internet (including sites that rate lawyers). I haven’t used the Internet to check out a doctor since… let’s see… yesterday. Usually, though, I’m only looking for confirmation of the spelling of the doctor’s name, or to verify an address or phone number. I personally don’t put much stock in so-called “reviews.” On any random site, some reviews will seem as if they’d been written by the doctor’s mother. Others read as if they’d been written by the doctor’s bitter ex-spouse.
Nevertheless (and understandably), doctors are a bit sensitive about how they are portrayed online. See, “Why doctors hate online reviews,” by Dr. Rahul Parikh, in the “Pop Rx” column on Salon.com, September 5, 2011.
There are services that promise to provide some protection to the small businessperson who suffers the slings and arrows of outrageous Internet attacks. Reputation Defender is one product that advertises heavily in this market (and the website seems to pitch at doctors in particular); TheReviewBuster.com is another one I found in a quick search today. Public relations firms would, presumably, be able to offer some assistance to the aggrieved professional in straits similar to those in which Dr. McKee apparently found himself.
But Dr. McKee decided to sue instead.
The trial court entered summary judgment against McKee. The various sources I’ve consulted today dispute whether Dennis Laurion voluntarily removed his comments from ratings sites when Dr. McKee asked. Depending on the point of view of the poster, McKee’s suit was either an honorable response to vicious online attacks or a callous attempt to stifle the Laurion family’s free speech rights. And there may have been a SLAPP angle, too: In addition to posting negative reviews, Dennis Laurion made a complaint to the hospital where Dr. McKee worked and to the Minnesota Board of Medical Practice. Supposedly, just before the summary judgment motion was resolved against McKee, a hundred new negative reviews appeared on line about Dr. McKee. McKee’s lawyer blamed Laurion; Laurion denied it. I have to wonder whether these additional postings might have been a product of the Streisand Effect.
In the course of today’s efforts, I do not claim to have peeled through the many layers of conflicting opinion to reveal any hard kernel of truth about this case. The headline on this post, however, “Doctor sues patient’s family — and everybody loses” (HealthExecNews.com, May 10, 2011), struck me as probably accurate. I can report that McKee’s appeal is scheduled for a hearing before the Minnesota Court of Appeals, in Duluth, on November 10.
Not knowing the actual facts and being unschooled in Minnesota law (and being unlicensed in that state), I venture no prediction about the outcome of the doctor’s appeal.
But the question arises how a similar suit might fare in Illinois. Would our Citizen Participation Act (735 ILCS §110/1 et seq.) apply? Shoreline Towers Condominium Association v. Gassman, 404 Ill.App.3d 1013, 936 N.E.2d 1198 (1st Dist. 2010), may provide some guidance. Ms. Gassman kept installing a mezuzah outside the front door of her condominium; the homeowners’ association kept taking it down, insisting it was prohibited by a policy that prohibited “[m]ats, boots, shoes, carts or objects of any sort… outside Unit doors.” Gassman, a lawyer, initiated a raft of lawsuits and religious discrimination complaints with a number of state agencies, challenging the association’s ban.
The association changed its policy. And, for good measure, the City of Chicago passed an ordinance and the State of Illinois passed a law prohibiting others from attempting similar bans.
But relations between Gassman and the Association had soured in the meantime to the point where all sorts of accusations were made by one side and the other. Ultimately the Association filed a 10-count complaint against Gassman alleging a variety of theories. Gassman moved to dismiss all counts under the Citizen Participation Act (or, as it also sometimes called, the anti-SLAPP Act). The trial court agreed that the Act applied to some, but not all of the counts.
On appeal, the Association argued that the Act shouldn’t have applied to any of its claims (404 Ill.App.3d at 1020): Shoreline argues that SLAPP suits are “lawsuits brought to silence public outcry regarding issues of significant public concern,” and it characterizes SLAPP suits as actions brought against “a person or group [who] was using a public forum to voice an opinion regarding a public issue.” It suggests that “[i]t could hardly be argued that [Gassman’s] campaign of defamation, tortious interference, harassment, intimidation, and personal attacks, as to the affairs of a private condominium association, and against the members of the Board personally, rises to the level of an ongoing attempt to petition a governmental entity for public redress.”
But the Appellate Court disagreed (404 Ill.App.3d at 1021-22):
[T]he Act does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected. Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action.
To the extent, then, that our hypothetical Illinois doctor’s suit might be seen as retaliation for complaints to licensing authorities, my suspicion is that an Illinois court might find that the anti-SLAPP statute applicable. Maybe.
But the anti-SLAPP statute provides no license for Internet trolls out to sabotage a professional’s reputation.