WFTV, Orlando, Florida: Plastic Surgeon Sues Patients For Anonymous Online Complaints

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May 23, 2012

“Plastic Surgeon Sues Patients For Anonymous Online Complaints”

WFTV, Orlando, Florida

Image-Defamation-Montage-4Image-Defamation-Montage-4

 An Orlando, Florida, plastic surgeon is suing 10 patients who he claims anonymously posted comments online about their bad experiences inside his office. Dr. Armando Soto claims the complaints are lies and have damaged his good name. He said he is seeking $49,000 in damages.

One woman wrote that her “9-inch scars are horrific, frightening and unnecessary” after a breast augmentation.

Critics said the lawsuit is frivolous.

“The right to speak anonymously is a fundamental right, particularly when you’re expressing opinion,” said attorney David Muraskin.

When WFTV went to Soto’s office for comment, we were directed to his blog, which said he only filed the suit to learn why his clients weren’t satisfied, and if possible, fix the problems. However, it does not say why he’s seeking damages.

COMMENTS

Lwfpe2: Obviously, he doesn’t want anyone to know about the screw ups. Perhaps they should come forward and go to the State Medical Review.

Elroy53: Other than disease (like cancer), women should not augment their breasts. They only do it for a man who has wrongfully brainwashed them into thinking that bigguns make her better. Those kind of women would be losers WITH or without 9 inch scars.

Getoutofl: This guy is a real class act.

RealityCzech: @elroy53, I completely disagree. The majority of women get fake boobs as a band-aid for their self-esteem. They have a “any kind of attention = happiness” mentality and they feel as though they will be more desirable to men if they have two gravity-defying basketballs in their shirt. Sadly, this is often the case. On the other hand, some women get lifts or small implants because their boobs are wrecked after having babies. But it all goes back to low self-esteem and not being comfortable in their body. Society seems to fuel this problem for most women.

Hillbilly1: You get what you paid for , more likely a low cost boob job .

AmandaBurns: Free advertising in a bad economy. Doesn’t say much for his own candor with his patients. He had to name them to sue them. If he knows who they are, why didn’t he dictate a nice letter asking them to come in and discuss the matter with him? Postage stamp would have been a lot cheaper than filing suit and a classier way to get their attention. All he did was draw attention to his own mistakes.

Bassfisher: Looks like a no repeat customer, all the plastics will have to go somewhere else. What’s really going to be funny is seeing all these actors when they get old and how ridiculous they look after all these injections/implants/face lifts.

Staticfl: I’d like to see pictures of successful augmentations. Also like to take them from a test run, motorboat style

HerbRice: These cases can last several years and go all the way to a state Supreme Court.

A man’s online post calling a doctor “a real tool” is protected speech, the Minnesota Supreme Court ruled. The state’s highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient’s son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor “a real tool,” slang for stupid or foolish.

The court tossed a lawsuit filed by neurologist David McKee, who claimed he was defamed by several statements made by defendant Dennis Laurion on websites used to rate doctors, report the Duluth News Tribune, the Minneapolis Star Tribune and the Associated Press.

The lawsuit followed the hospitalization of Laurion’s father, Kenneth, for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude.

Laurion expressed his dismay in several online posts with what he considered the doctor’s insensitive manner. Laurion had posted his comments on a website where patients review their doctors. The case has been watched with interest because of the potential conflict between free speech versus protection of professional reputations on the Internet.

On at least two sites, Laurion wrote that McKee said that “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option,” and that “It doesn’t matter that the patient’s gown did not cover his backside.”

Laurion also wrote: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”

He expected at most what he calls a “non-apology apology. I really thought I’d receive something within a few days along the lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that would be the end of it,” the 66-year-old Duluth retiree said. “I certainly did not expect to be sued.”

He was. Dr. David McKee’s defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor’s reputation.

In 2011, State District Judge Eric Hylden ruled that McKee was not defamed by the criticism and dismissed the doctor’s lawsuit.

McKee appealed to the Minnesota Court of Appeals; and in January 2012, that court sent the case back to the district court for a jury to decide whether six statements Laurion posted about McKee on rate-your-doctor websites and
distributed elsewhere were defamatory.

Laurion appealed the Court of Appeals decision to the Supreme Court and the case was heard in St. Paul in September.

Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted.

The ruling also said it doesn’t matter whether the unnamed nurse actually exists. McKee’s attorney argued that Laurion might have fabricated the nurse, something Laurion’s attorney denied. And it said the doctor’s objections to Laurion’s
other comments also failed the required legal tests.

“Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false,” Page wrote.

“I’m sure he and his family are very happy with this result,” Laurion’s attorney, John Kelly, said. “It’s been a long and difficult process for them.”

Laurion said the entire experience was stressful on his family. “The initial excitement has not worn off,” he told the News Tribune. “I’m very gratified it’s all over.”

Laurion, whose father survived the stroke and is now 87, said he feels vindicated — not in the sense that he’s proven the things he said, but that he had the right to express his opinion of a single encounter on a website designed to rate
doctors.

He regrets the cost of the litigation — in his case, the equivalent of two years’ income, he said, some of which he had to borrow from relatives who dipped into their retirement funds. “I regret that it became as painful as it was,” Laurion said. “I don’t think I regret having posted the comment. I thought at the time that it was my right to do so.”

McKee’s lawyer, Marshall Tanick, said he and McKee plan no further appeals and that they were disappointed with the ruling. McKee, a neurologist with Northland Neurology and Myology, said Wednesday he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.

It’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people
who never met him. He hasn’t ruled out a second lawsuit stemming from those posts.

“The financial costs are significant, but money is money, and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”

He said he offered to settle the case at no cost after the Supreme Court hearing. Laurion contends they couldn’t agree on the terms of the settlement, and said he not only deleted his initial postings after he was initially served, but had
nothing to do with subsequent online statements about McKee.

Tanick said the ruling could present a slippery slope. “We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse,” Tanick said.

Jane Kirtley disagreed. The professor of media ethics and law at the University of Minnesota School of Journalism said the ruling stems from “an elementary principle of libel law. I understand the rhetoric, but this is not a blank check for
people to make false factual statements,” she said. “Rather, it’s an endorsement that statements of opinion are protected under the First Amendment.”

The case highlighted the tension that sometimes develops on ratings sites, such as Yelp and Angie’s List, when the free speech rights of patients clash with the rights of doctors, lawyers and other professionals to protect their good names.

Experts say lawsuits over negative professional reviews are relatively uncommon and rarely succeed, partly because the law favors freedom of speech.

Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. “It’s almost as if things were said around the water cooler or
perhaps posted in a letter to the editor,” he said. “I think the principles they worked with are applicable to statements made irrespective of the medium.”

While the decision is not binding in other states, Kelly and Tanick agreed that it might influence how other courts would rule on similar questions. Kelly said lawyers often look at rulings from other jurisdictions when they put cases together, sometimes for leads or guidance.

“Certainly this is a cutting edge issue and I’m sure lawyers and courts in other jurisdictions will pay attention to this decision and give it the weight it deserves,” Tanick said.

In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said on Wednesday the justices made the right decision. That being said, “You can’t blame a guy like Dr. McKee for being upset,” Anfinson said. “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”

Before the Internet, people who complained about others typically did so to a small group of family, friends and acquaintances. “No one in the wider world ever heard them,” Anfinson said. That is no longer the case.”

“If you’re a practicing physician or other professional in a highly competitive environment, and this stuff is out there for any potential patient or client to see, it isn’t as simple as a superficial reading of the Supreme Court opinion would
suggest,” he said. “I kind of feel for the guy, but the law as it is currently constituted really doesn’t provide him much of a remedy. That is the moral of the story.”

Anfinson was also interviewed by Minnesota Lawyer. He said, “Anyone who knew about the case, who observed the oral arguments, and who knows something about libel law is about as unsurprised with this result as they can be. It’s about as perfunctory and routine as the Supreme Court ever gets. It was a completely straightforward application of long-settled libel-law rules.”

Anfinson said the case is more significant for social commentary purposes than for its legal analysis, noting that perhaps the justices only accepted the case to fix an error of the Court of Appeals.

Commenting about this case on his own blog, February 8, 2013, Aaron Kelly, internet law & defamation law attorney, said “Thanks to the First Amendment, free speech is the law of that land, and that means being able to communicate our views publicly – no matter how offensive.”

Mark A Fischer of Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, said on February 11, 2013, “For those who are under criticism, one of the practical
consequences of bringing a defamation action is that more publicity for the accused statements is almost an inevitable result, whether the statements are ultimately found libelous or not. In other words, in weighing the pros and cons
of initiating a lawsuit, all potential defamation and privacy claim plaintiffs should consider the rule of Hippocrates applicable to physicians, ‘First do no harm.’”

In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for online reviews. See my compilation. As you can see from a quick perusal, doctors usually lose or
voluntarily drop these lawsuits. Indeed, with surprising frequency, doctors end the lawsuit by writing a check to the defendant for the defendant’s attorneys’ fees where the state has a robust anti-SLAPP law. Doctors and other healthcare
professionals thinking of suing over online reviews, take note: you’re likely to lose in court, so legal proceedings should be an absolute last-resort option–and even then, they might not be worth pursuing.

See:

Minneapolis Star Tribune, JAN 30, 2013

Duluth News Tribune, JAN 30, 2013

Associated Press, JAN 30, 2013

http://www.mncourts.gov/opinions/sc/current/OPA111154-0130.pdf.

Dr Armando Soto: Some time ago, we became aware of a collection of internet posts that bore no resemblance to truthful patient experiences in our practice. There have also been, over the years, a small number of other negative opinions expressed, with which we were not as concerned, understanding that we can never make everybody happy, and that the people involved were not going to be possible for us to please, no matter how hard we tried.

However, because this particular collection of posts included multiple untruthful representations of fact, because they include duplication of complaints with subtle differences and different usernames to make it look as though written by multiple people (when in reality a single person was responsible), and because some included no truth at all (again, in statements represented as fact), we felt it important to pursue the matter.

Why? Well, first of all, because as a professional who takes his relationships with his patients and their complete satisfaction as seriously as I do, it was important to me that I do everything possible to understand (for the benefit of this individual as well as my practice) why this person had not expressed any legitimate complaints to me directly and allowed us to guide her through a thoughtful and appropriate course of action prior to posting untruthful and damaging things about me on the web. The vast majority of my patients would attest, I believe, to the extreme dedication to patient satisfaction we practice in my office every day- and I believe it is evident to them that we often do so even when not in our financial best interests. In other words, we believe win doing the right thing- and did not understand why someone would do this.

Secondly, there is no one alive today that is more thankful for the opportunities, freedoms, and rights that we as Americans enjoy than me. I am a living example of The American Dream. I simply would not have been able to achieve everything I have in any other nation on Earth, and I am deeply grateful for that. For the legal eagles at Public Citizen to say that I am trying to “squelch free speech” is ignorant, offensive, and more importantly, untrue.

I believe all of our constitutional rights- including the right to free speech are valuable and ought to be protected- but as an American who HAS worked so hard to accomplish everything I have, I also believe (just as strongly) that we have a right to protect our good names from libel and slander. These rights are no less important.

I believe the zealous, if misguided people at Public Citizen have an ax to grind on this issue of internet free speech, and would like to use me as their stone… but this is simply not my issue. I’ve got no problem with free expression of opinion. Just libel and slander. Thank God that in America, we recognize a difference.

The reason all of the people who complained on the web about me were named in the suit is because it was necessary to do so in order to identify this one person. It is also required that damages requested be stipulated- but our goal was never to attempt to recover money. Our goal was to identify the person involved, come to an understanding of the causes of her behavior, and bring light to the truth, while hopefully recovering a more healthy doctor-patient relationship and achieving her satisfaction.

Experience has shown that the most vocal and happy clients/patients of any business are those who may have been initially displeased and were then won over by the establishment’s skills at recovering their satisfaction and trust. It has been our goal to have this opportunity with this person, and I am pleased to say we are on our way to achieving this end.

I have no problem with the occasional patient expressing a negative opinion of me. The fact is that even a cursory review of my education, training, experience, work product, and the vast majority of prior patient experiences would reveal a level of success and accomplishment with which I believe I can be rightfully proud, and which belies the idea being pushed by the brilliant minds at Public Citizen- that I am a poorly qualified surgeon who is trying to keep the word of my incompetence from getting out somehow by suing all critics into submission.

The truth is that the lawsuit we filed had a very limited purpose- to identify the person responsible for this one particular collection of fraudulent and defamatory (because they included multiple representations of fact that could be objectively proven to be false) posts. The suit served that purpose.

Indeed, not only have we established communication with the person involved, but she has admitted to the activity outlined above, and has agreed to remove all of these posts… And here is the amazing thing- her request of me is that I take her back as a patient!

Let’s reflect for a moment on this…. If the ugly things she says about me in her posts, or the ugly things that the amazing intellectual powers at Public Citizen would have people believe about my practice are true, why would she want me to be her surgeon again??

To summarize, I have no problem with the reality that there are always going to be some people who have a negative opinion of me as a professional, despite my best efforts. But I believe I have a right to protect my reputation when behavior crosses the line towards libel and slander. In this particular case, thankfully, the patient has admitted her wrongdoing, agreed to resolve the issues with me, and even asked that I take her back as a patient- such is her true assessment of me.

BBoop: I am a former patient of Dr. Soto. I can honestly say he is a man of integrity, highly educated and highly skilled at what he does. I had interviewed 7 plastic surgeons before I interviewed him and instantly knew he would be my choice for plastic surgeon. He puts you at ease and is honest with his recommendations. He performed several surgeries and I have to say my life has definitely changed for the better. No amount of exercise could have made me look the way I do (although the exercise I now do KEEPS me looking the way I do). I would recommend Dr. Soto to anyone. I often refer to him as “Dr. Michelangelo” the sculptor. DR. SOTO IS THE REAL DEAL!

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