January 24, 2012
“Doctor Online Rating Defamation Lawsuit Remanded By Court Of Appeals”
Duluth News Tribune
A jury should decide if six statements a Duluth man posted on rate-your-doctor websites and distributed elsewhere about a Duluth neurologist’s bedside manner were defamatory.
The Minnesota Court of Appeals, in a decision released Monday, sent back to St. Louis County District Court for trial the case of Dr. David McKee v. Dennis Laurion. District Court Judge Eric Hylden had ruled in April that McKee was not defamed by the criticism and threw out the doctor’s lawsuit, leading to the appeal.
McKee, a neurologist with Northland Neurology and Myology, filed the defamation lawsuit against the son of one of his patients in June 2010. McKee alleges that Laurion defamed him and interfered with his business by posting false statements on the internet and to various third parties, including the American Academy of Neurology, the American Neurological Association, two physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s hospital, among others.
Laurion claims that any statements he made about the doctor were true and that he is immune from any liability to the plaintiff. McKee is asking for more than $50,000 in damages.
McKee was pleased by the Court of Appeals ruling. “Obviously, that’s good news and I’m glad that it turned out that way, but I haven’t had a chance to talk to my attorney about it,’’ he said. McKee is being represented by Minneapolis attorney Marshall Tanick.
Laurion’s defense attorney, John Kelly of Duluth, had gained summary judgment from Hylden by laying out 11 statements his client allegedly related regarding McKee and asking the court to determine if any of those statements might be considered defamatory by jurors. Hylden ruled that none of the 11 were defamatory. In his order throwing out the case, Hylden wrote that the alleged defamatory statements constituted opinions, true statements and statements too vague to carry defamatory meaning. He said there wasn’t enough objective information provided to justify asking a jury to decide the matter.“We were hoping to have Judge Hylden’s decision upheld by the Court of Appeals,’’ Kelly said. “They decided there are triable issues. That’s why we have trial courts. We’ll go back and try those triable issues.”
The Court of Appeals ruled that Hylden properly dismissed McKee’s interference-with-business claim, stating that Minnesota does not recognize a cause of action for interference with business or economic expectancy.
To establish a defamation claim, a party must prove that the defendant communicated to a third party a factual assertion that is false and tends to harm a plaintiff’s reputation in the community.
Laurion was critical of the treatment his father, Kenneth, received from McKee after suffering a hemorrhagic stroke and spending four days at St. Luke’s hospital from April 17-21 of 2010.
The appellate court determined McKee’s defamation suit should proceed regarding six claims Laurion publicly made about McKee:
That McKee told the patient he had to “spend time finding out if you were transferred or died.’’
That McKee said, “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option.’’
That McKee said, “You don’t need therapy.’’
That McKee said, “It doesn’t matter’’ that the patients gown did not cover his backside.
That McKee left the patient’s room without talking to the patient’s family.
That a nurse told Laurion that McKee was “a real tool.”
In an e-mail to the News Tribune, Laurion said he was dismayed by the decision. “While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member,” Laurion wrote. “I’ve been said to have run a cottage industry vendetta, writing 19 letters, and posting 108 adverse Internet postings in person or through proxies. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.”