SEPTEMBER 4, 2012
“Can You Tag Your Doctor A ‘Tool’ Online?”
Maura Lerner , Minneapolis Star Tribune
A state Supreme Court case is testing the boundaries of website reviews. Is it defamatory to call a doctor a “real tool?” Or to claim that a nurse described a doctor that way?
The Minnesota Supreme Court wrestled with those questions, as the justices heard arguments in a case about what is or isn’t fair game on the Internet.
Two years ago, a Duluth neurologist, Dr. David McKee, sued the son of an elderly patient for defamation over some negative comments that were posted on rate-your-doctor websites.
The state’s top court was asked to decide whether the lawsuit should finally go to trial, after the case was thrown out by a lower court and reinstated on appeal. The lawsuit is one of a growing number of legal battles testing the limits of free speech on the Internet.
A good portion of the oral arguments were devoted to the meaning of the words that Dennis Laurion used to describe his family’s encounter with McKee when Laurion’s father, Kenneth, then 84, was hospitalized with a stroke.
After McKee examined his father, Laurion complained about the doctor’s bedside manner on several websites. “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'” he wrote.
Opinion or defamation?
John Kelly, Laurion’s attorney, noted that Internet sites are a “free for all” for people to share opinions and that his client’s comments were perfectly appropriate. “We have a word, the word ‘tool,'” Kelly told the justices. “When you look at the word, you have to ask: Is it defamatory?” He argued that the phrase, while “it clearly is not a compliment,” is no worse than “calling someone an idiot or a fool.”
During questioning, some of the justices seemed to agree. “Saying someone’s a ‘real tool’ sounds more like an opinion than a statement of fact,” Justice Christopher Dietzen said.
Chief Justice Lorie Skjerven Gildea had a similar reaction. “The point of the post is, ‘This doctor did not treat my father well,'” she said. “I can’t grasp why that wouldn’t be protected opinion.”
But McKee’s lawyer, Marshall Tanick, argued that Laurion had gone beyond opinion, “making up” statements that were untrue. He noted that Laurion had never been able to identify the nurse who allegedly called McKee a tool. “There was no nurse,” Tanick said. “He made it up.”
He also accused Laurion of putting words in McKee’s mouth that made him look “insensitive and uncaring.” At one point, Laurion wrote that McKee had horrified the family by quoting a statistic when they first met: “Well, 44 percent of hemorrhagic strokes die within 30 days.” Tanick said Laurion later admitted that he had gotten the statistic from Wikipedia.
Kelly said the versions of what happened may differ, but that the family clearly perceived McKee as insensitive. In that situation, he said, people “ought to have a degree of latitude in expressing their opinion.”
The justices are expected to issue their ruling within three to five months.
Raymond Tharalson: Isn’t this more of a Constitutional question regarding free speech?
Mike Merker: I’ll just call them a Frank Burns wanna be.
Matthew Murphy: Free speech, and as someone with first-hand experience, if a nurse thinks a doctor is being a tool, they are. 95% of the doctors I come in contact with on a regular basis are some of the nicest men and women out there, but occasionally a few of them are not so nice, and who is going to know that better than someone who works with them on a continuous basis, a nurse?
Steve Basile: This is not a free speech issue unless the government is suppressing it. This is, however, about your right to express personal opinion. I think this lawsuit is a non-starter. If anything it proves this guy is probably a tool.
Rick Bosacker: As a physician, I can indeed confirm that there exist in our ranks, people who could accurately be described as such. As in any profession, we also run across patients/consumers/clients who are not happy with our advice irrespective of its quality or our personality. They in turn “flame-out” on us. Any of us who’ve read FB comments understand the wide variety of information people provide and its a “reader-beware” situation. Get over it and quit being such a tool.
Tristan Morgan: Doctors are not the “God” some of them believe they are. Why should THEY, as a selective group, be immune to name calling and/or the same bullying anyone else can be handed?
Curt Randa: Why? Then if I get called a tool, I can sue? Pull up your big boy pants and suck it up.
Gretchen Bosacker: Leaving a physician visit with the thought that the doc was anything less than professional and helpful, even if she didn’t have “all the answers” is the tragedy here. Patient expectations are out of reach for our system and their own personal responsibility for their health. Doctors are stressed past maximum capacity financially and in terms of time. The system is broken. Optimally, a patient would come with a concern and the professional he sees would lead him in the right direction. Improve the system and the incidence of online bashing will likely decrease.
Doneetsa Anderson: What a waste of taxpayer money. This case should never have gone to trial. The doctor needs to improve his doctor/patient relationships and stop being so sensitive.
Emily Summers Leabch: This is a waste if time, money and resources. So, your patient and a nurse don’t like you. You have 2 choices, take the information and improve on the flaw, or just suck it up. Not everyone has to like you, not everyone has to be your friend. If you are too sensitive to not take criticism, whether well stated or no, you need to grow some thicker skin.