MARCH 25, 2012
“Doctor’s suit tests limits of online criticism”
Maura Lerner , Star Tribune
Two years ago, Dennis Laurion logged on to a rate-your-doctor website to vent about a Duluth neurologist, Dr. David McKee.
McKee had examined Laurion’s father, Kenneth, when he was hospitalized after a stroke. The family, Laurion wrote, wasn’t happy with his bedside manner. “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'” he wrote.
McKee wasn’t amused. He sued Laurion for defamation, and now the case is pending before the Minnesota Supreme Court.
McKee, 50, is one of a small number of doctors who have gone to court to fight online critics, in cases that are testing the limits of free speech on the Internet. “Doctors are not used to public criticism,” said Eric Goldman, an associate professor at the Santa Clara University School of Law in California, who tracks such lawsuits. “So it’s a new phenomenon for them.”
While such cases are rare, Goldman said, they’ve been popping up around the country as patient review sites such as Vitals and Rate Your Doctor have flourished. Defamation suits are “kind of the nuclear option,” Goldman said. “It’s the thing that you go to when everything else has failed.”
McKee’s lawyer, Marshall Tanick, said the doctor felt he had no choice but to sue to protect his reputation and his medical practice. “It’s like removing graffiti from a wall,” said Tanick. He said Laurion distorted the facts — not only on the Internet, but in more than a dozen complaint letters to various medical groups. “He put words in the doctor’s mouth,” making McKee “sound uncaring, unsympathetic or just stupid.”
McKee calls Laurion “a liar and a bully,” and says he has spent more than $7,000 to “scrub” the Internet of more than 100 vitriolic comments, many traced to a single computer (IP address) in Duluth.
“Somebody who holds a grudge against you can very maliciously go on the Internet, post anything they want, and … basically redefine who you are,” he said.
Laurion, 65, a retired Coast Guard Chief Petty Officer, says he deleted the Internet comments shortly after the lawsuit was filed and “never rewrote them.”
At the same time, his lawyer, John D. Kelly, defends the postings. He says it was Laurion’s perception that “the doctor’s speech and conduct were tactless and inconsiderate.” And that, he argued, is “constitutionally protected.”
So far, Minnesota courts have had mixed reactions. A district court in Duluth dismissed McKee’s lawsuit last year, but the state Appeals Court reinstated it in January. Laurion has appealed to the Minnesota Supreme Court.
The dispute isn’t about McKee’s medical decisions, but about something less tangible: his body language and comments when he walked into Kenneth Laurion’s room at St. Luke’s Hospital in Duluth on April 20, 2010.
In his online postings, Dennis Laurion wrote that McKee “seemed upset” because he thought his father, then 84, was still in intensive care.
“Never having met my father or his family, Dr. McKee said, ‘When you weren’t in the ICU, I had to spend time finding out if you transferred or died,'” according to Laurion’s account. “When we gaped at him, he said, ‘Well, 44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option.'”
Laurion, who was visiting with his wife and mother, wrote that McKee was brusque and dismissive during the exam, especially when his father raised concerns that his hospital gown was hanging open at the back. “Dr. McKee said, ‘That doesn’t matter,'” according to Laurion’s account. “My wife said, ‘It matters to us,'” and they left the room.
McKee discovered the online comments when a patient brought them to his attention. He filed suit, seeking more than $50,000 in damages. “The way he quoted me was completely inaccurate,” McKee said in an interview. At the time, he said, nobody in the room “appeared to me to be the slightest bit upset.”
According to court documents, McKee admitted making a “jocular comment” about only two ways to leave the intensive care unit, but said he only meant that he was relieved to find Laurion in his hospital bed. He denied citing any statistic about stroke deaths and said the entire story was distorted beyond recognition.
“Every physician gets an occasional complaint from a patient, or even a patient’s family member, but this was so ridiculous,” he said. “This just seemed so extremely over the top, and really meant to be harmful.”
In the first legal battle, district Judge Eric Hylden in Duluth sided with Laurion. “The statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by a physician,” he wrote in dismissing the suit in April 2011.
The appeals court disagreed, ruling in January that some of the statements were fair game for a defamation suit and sending the dispute back for trial.
Tanick, McKee’s lawyer, said the case isn’t just about someone voicing an opinion. He said Laurion defamed the doctor by accusing him of things “that never happened.”
Laurion’s lawyer, however, says it’s a matter of perception. “Something happened in that room that disturbed the four members of the family significantly,” he said.
More than a dozen defamation suits have been filed since 2004 by doctors or dentists over online reviews; most have been dismissed or settled, according to Eric Goldman, an associate professor at the Santa Clara University School of Law in California.
Some medical practices have even tried to silence critics by requiring patients to sign a form forbidding them from posting comments on the Internet.
But Dr. Jeffrey Segal, a North Carolina neurosurgeon who promoted the controversial forms, says he’s since had a change of heart; he “retired” them last year in the face of widespread criticism. Now his firm, Medical Justice advises doctors how to use consumer websites to their advantage. “Doctors need to know how they’re being perceived,” he said. “If you’ve got 100 people saying he’s a jerk, maybe he is a jerk,” he said. But the vast majority of reviews are positive, he noted.Most of the time, Segal said, a negative review can be neutralized “with something as simple as saying, ‘Hey, I was having a bad day. I’m sorry.'” Or calling the patient to apologize for getting off on the wrong foot. “Those words often solve the problem,” he said.
Still, Goldman says it’s important for consumers to “choose their words” carefully in online reviews. “We’ve been given the power to critique vendors in the marketplace,” he said, “but no one’s taught us how to make sure that we aren’t going to lose our house by doing so.”