Associated Press: Critical Online Reviews Can Carry Legal Risks

October 24, 2012

 “Critical Online Reviews Can Carry Legal Risks”

Steve Karnowski, Associated Press

Marshall TanickMarshall Tanick, attorney for Dr. David McKee, poses for photos in his Minneapolis office on Wednesday, Oct. 24, 2012. McKee sued a patient’s son for defamation after critical remarks about him were posted on some rate-your-doctor websites. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial. “His reputation is at stake. He does not want to be a target for false and malicious remarks,” said Tanick. (AP Photo/Jim Mone)

MINNEAPOLIS (AP) — A Minnesota doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.” So Dr. David McKee had an unusually aggressive response; he sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.

“His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick.

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

“Patients now have power to affect their businesses in ways they never had,” said Eric Goldman, a professor at the Santa Clara University School of Law who studies the issue. Health care providers are “evolving how to deal with patient feedback, but they’re still in the process of learning how to do that.”

Most online reviews never provoke any response. And successful challenges to negative reviews are rare. Americans are legally entitled to express opinions, as long as they don’t knowingly make false statements.

But if the two sides contest basic facts, disputes can swiftly escalate.

At issue are six of Dennis Laurion’s statements, including the account of the nurse’s name calling. McKee and his attorney say the unnamed nurse doesn’t exist and that Laurion invented her to hide behind. Laurion maintains she is real, but he can’t recall her name.

In arguments before the court in September, Laurion attorney John Kelly said his client’s statements were legally protected opinion that conveyed dismay over how McKee treated Laurion’s father, who had suffered a stroke. The posts described a single visit that lasted 10 to 15 minutes.

The review said McKee seemed upset that after Laurion’s father had been moved from intensive care to a regular hospital room, the doctor “had to spend time finding out if you transferred or died.”

Laurion also complained that McKee treated them brusquely and was insensitive to the family’s concerns about the patient being seen in public in a gown that gaped open in the back.

In an interview, Kelly said nothing Laurion posted was defamatory — a false statement that harms a person’s reputation.

The court is expected to rule on the case sometime in the next few months.

Lawsuits over professional reviews are uncommon in part because most patients write positive reviews, Goldman said. And many states have passed laws that block the kind of lawsuits that are filed mainly to scare someone into shutting up on matters of public concern.

Known as “strategic lawsuits against public participation,” those complaints are often forbidden by broad laws that protect criticism even if it’s wrong, Goldman said.

When health care providers do sue, they rarely succeed. Of 28 such lawsuits that Goldman tracked, 16 had been dismissed and six settled. The others were pending.

One notable exception was a Maine case in which a chiropractor sued a former patient for postings on Facebook and websites that accused him of sexually assaulting her. The courts concluded she probably fabricated her story. In June, a judge ruled that the chiropractor could legally attach $100,000 worth of the patient’s property to his claim as security pending further proceedings in the case, which remains open.

Yelp says reviewers are well within their rights to express opinions and relate their experiences. Spokeswoman Kristen Whisenand says the company discourages professionals from using what she called the “nuclear option” of suing over a negative review. She said they rarely succeed and wind up drawing more attention to the review they dislike.

Angie Hicks, co-founder of Angie’s List, said people shouldn’t be afraid to post honest opinions about health care or other services.  “Everyone has the right to free speech,” Hicks said. “The key here is giving your honest opinion. Honesty is your best defense. Truth is your best defense.”

Jeff Hermes, director of the Citizens Media Law Project at Harvard University’s Berkman Center for Internet and Society, said people who want to post critical reviews should think about whether they can back up their statements. And they can strengthen their position by stating the facts on which their opinions are based.

Goldman advises reviewers to remember that they are still taking a risk anytime they criticize someone in a public forum.  “The reality is that we bet our house every time that we post content online,” Goldman said. “It’s a lousy answer from a societal standpoint because we need people to share their experiences so vendors will be punished or rewarded as appropriate.”

COMMENTS

AW: By suing, he has indeed confirmed the claim that he is “a real tool”.

Jim3K: Calling someone a tool is an opinion. End of story.

Windygirl: Ironic, some of the best doctors are “tools” and are lacking in bedside manners. So, he would be the first on my list to see as a patient. It is your health you are talking about, not a popularity contest, based on working at hospitals for 20 years.

Source

COMMENTS AT MINNESOTA CBS LOCAL:

Turn & Cough: One bad review won’t sink a doc or his reputation. Most would read it along with other reviews to get an overall picture of the doc. No rational person reads one bad review and runs the other way without further investigation. All the doc has done in this case is make it look like he has something to hide that he doesn’t want to get out. There must be a hint of truth in that review to have it get under the doc’s skin so bad!

Phil Usher: Then there’s the “Streisand Effect,” where contesting something in the courts ultimately produces more damage to one’s reputation than the original “offensive” statement.

JJJ Schmidt: I have a review of this website, you are liberal hacks! Now sue me!

Willow S: This is ridiculous. People need to be able to leave honest reviews. They need to be able to be truly anonymous and not sued for giving their opinion. If a company is doing good work, they won’t get bad reviews.

COMMENTS AT YAHOO NEWS:

A true American: What this article doesn’t say is that there are a lot of doctors who ought to be criticized online websites rating doctors. Some of these MDs are in the pocket of drug companies & prescribe medications that can cause damage or kill. I’ve had that happen when a pulmonologist diagnosed me with asthma that turned out to be Atrial Fibriallation. Makes one wonder who is protecting the patients when the doctors sometimes aren’t fit to be dog catcher.

Patricia: Right on. A little over two years ago I posted a very negative online review about a physician. Every word was the truth. Even the physician who took over the case concurred which is highly unusual in Texas. There were other reviews of this doctor containing identical or similar statements. My husband was also “treated” by a neurosurgeon who had him admitted to the hospital for removal of a brain tumor he  diagnosed on the basis of a MRI he never ran. There are quacks in every profession. The problem with the ones in medicine is that their
incompetence can cost the patient their life.

Snow shoes: Sounds like this doc needs a few bucks! Why is it a doc can put anything they deem okay without merit in our medical records and we can only TRY to correct what we find erroneous! Case in point is what I found out was in my medical records! As follows: I took my sister home from hospice to be cared for …. within the same month my mother was in the hospital. Both of them passed away within 30 days of each other! Within 30 days of that crisis I was met with discovering I had lung cancer! So I went to the hospital and am now a cancer survivor so far! Now hear comes the case in point with my then doc. Every time I went to see him he would ask do I need ‘something’ …. I said like what? (Knowing what he was inferring to and he said well you’ve been through a lot and I can give you something for anxiety and depression. I got #$%$ and said I am only grieving but not in a state of anxiety. There is nothing I could about death except to mourn which will pass. I told him I was really offended and that before I would take drugs I’d rather have a marguerita or a martini to make my point. When he asked me how many I told him if I were to go out to dinner or lunch maybe ever two weeks one or two drinks. That I was offended that I am dealing with it and resent his pill-pushing offer and don’t understand that because I’m always upbeat and not anxious. That I would seek another doctor. Here comes the really bad part: In my search for another doctor they were looking at me like they were trying to figure out something about me. I became suspicious and ordered a copy of my records. In those records were comments made by the jackass doctor who said I was an alcohol abuser and depressed. The new doctors I was trying to find always then seemed to want to sniff me (I found out later to smell alcohol on my) Was I depressed. I then had to contact the Illinois Department of Professional Regulation to get this erroneous and mean-spirited comments removed from my records. If there were an emergency and let’s say the paramedics thought I was an alcohol abuser I would not be able to get the proper care and medication. No, it could not be removed but I can have a statement by me to have in my records! Bullsh–t! So that’s where it stands. They are godless freaks that are egomaniacs with no regard for the oath they took to “do no harm.” Well instead of healing from my surgery and mourning properly over my mom and sis it took me three years to find another doctor and I will be seeing this doctor next month! There you have it! So I hope the doctor that thinks he can get away with this trash #$%$. doesn’t get a dime and karma will make the truth be told. A patient has a right to tell of a bad experience from the lousy doctor. If a doc does something wrong once he’ll do it again. They think they can throw caution to the wind and get away with it. Stick up for what’s right! BE YOUR OWN ADVOCATE!!!!

Gotcha: So now you can’t call an idiot an idiot even if he or she is, or they can sue you?

Joseph Wallace: Well… there’s a thing called tact. You don’t need to call a retard a retard. You don’t need to call everything as you see it.

Gotcha: Therein lies the problem. There are too many idiots in places of authority and too many people below them who are afraid of retaliation if they do. An idiot by any other name is still an idiot.

Merlin: @Joseph Wallace – What the hell? Don’t give me that PC, let’s not hurt anybody’s feelings, crap.
The patient’s son thought the Dr. was a douche bag, so he posted comments saying so. If the said “douchebaggery” occurred in a professional sense – you know, while he was treating a patient – then the comments are 100% valid.

An Noid: My suggestion is that the Dr. survey his patients to see where his weaknesses lie. If he does not know that his behavior lack compassion, he cannot fix it. Perhaps he would then begin to receive some counteractive “good” reviews.

Morg: Sure… sue me, you can take over all my debt…

Dissention: Good companies address negative reviews. Bad companies delete them or sue. this doctor must not be so good if he concerned with one bad review.

Sandra: Good for him. It’s about time some of these people who only want to open their big mouths on the internet, have to come into the real light and show their faces.

I Don’t Read Replies: He is going to lose, case closed.

Mr. Opinionated: Sandra, good point. A whole lot of anonymous no-it-alls and bullies live out here on the internet. On the other hand, in this case this doctor’s ego may ultimately wind up impacting his long-term practice.

Sandra: Mr. Opinionated, I feel it’s not ego but rage at someone ruining his reputation that is making him do this (hopefully).

Ali Gator: A trial would or should find the truth, which ever one is wrong should pay. A teen age person trying to rate a highly skilled person. Don’t get wrong I have often wanted let the world know about certain People of all professions. Forty years in the medical profession.

Merlin: You should first try a lesson in reading comprehension; follow up with grammar. Sadly, the fact that you say you worked in the medical field for forty years doesn’t surprise me.

Smarty Pants: Wow. Seems to me that this is a case of he said/she said. Where does this doctor get off suing over it? As long as a person doesn’t make outright false statements or accusations it’s their right to say what they think. If this doctor would win it could seriously hamper our right to leave any kind of feedback anywhere! If the recipient is offended they can sue! Bull hockey!

Joe B: “His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick. So…what if the statements are true and the guy really does suck?

Snow shoes: Doctor’s and lawyers are in cohoots always! Money rules! Truth is hidden! Patients don’t want to sue but at least they can warn others!

Tracy: Too bad you can’t see the writing on the wall! There are false reviews about equipment and companies saying they’re the best there is! As for doctors ….a patient unless not treated with care should be able to say what was not in best interest and care received.

Harley: I guess the guy is a real tool suing his own son

Greg: A patient’s son, not his own.  Since when is it defamation to call somebody a tool ?

Mike: The kids deal to say what he wants freedom of speech.Who’s to say is wrong

Atlantaman: Its The First Amendment, people, it supersedes all others. If it’s the truth then it’s the truth. If it’s made up or fictitious then they deserve to be sued. People should be allowed to speak up because there is so much corruption and dishonesty in government and big business That so much of it Goes on for years and years and sometimes never even comes out Because people are threatened to keep quiet even though it’s the truth. I support everyone’s First Amendment rights in bringing out the truth.

Jennifer: Oddly enought I just this morning posted a review of a roofing company I recently used. In no way did I suggest they were incompetent but my issue was how many times they no-showed. That sort of info in a review I think is very important. Why is this type of forum not protected by free speech?

Bridget: And a lot of people post comments that are half truths or outright lies, and if you respond to them, you are considered a bully. A business just has to shut up and take it. As far as Yelp goes, three of our clients have contacted us to tell us that their positive review was removed by Yelp. I spoke with a Yelp representative myself. I was told they have a computer algorithm that removes posts and they have no control over it. Really?

Steve G: If the patient or his mom had what they felt was a bad experience with a doctor, they are free to post it. If the doctor wants to redeem himself, he should have satisfied patients post positive reviews.

Jerry: If he had nothing to hide or if he was such a upstanding Doctor whay is he worried. Sounds as if the man has touched on something in the case. It’s like everything else including Hospitals, I research which ones ahve the best scores before I check in for any procedures. Is that deamation?

Mr Opinionated: If I don’t like my dry cleaner’s work I can post something. If I don’t like my clerk at Costco I can post something. Why does this doctor somehow believe his professional reputation is beyond public criticism?

Tracy: If proven to be malicious…I hope he wins. It might make people think first before posting reviews that go outside the context of a “real review” and not trumpted up and nasty comments.

Diane: Tracy, thank you for a taking broader perspective here. Everyone is assuming that the complainer was reporting accurately. As someone who has served the public for years the list is long of people that are difficult to satisfy and are very demanding of others. Customers (or patients) who are frustrating the people serving them often wear out the smile the provider began with, and then they perceive the provider as a horrible person. I’ve been threatened by customers because I wouldn’t permit their children to destroy my store. Because my company doesn’t permit random damage I’m a monster. This situation with the doctor may be far from representative of the doctor’s standard of care, so why should the doctor allow their reputation be damaged by a complainer who is posting a potentially tainted opinion that most likely would have been positive under other circumstances? It’s like saying that one rainy day describes every single day after it, rainy or not.

Merlin: @Diane -then 1 bad reviewer wouldn’t matter among all the good reviews.

Tracy: You are welcome Diane…I always try to see the bigger picture and reframe from hateful, nasty and untruthful comments..so common on Yahoo. Merlin, no one should be allowed to damage a person’s reputation at any level..even one “tainted” review can hurt a business.

Kira: First, the patient’s family obviously had little experience with hospitals and the medical profession. Second, neurologists and neurosurgeons are at the top of the list of prima donnas, lousy bedside manner, no social skills, OCD, never wrong, and “tool” is too nice of a reference. I have been in surgery with them, interacted as a patient advocate, and have been a patient, so I have experience with them. Granted some of them are very nice and considerate, but as a rule, yeah “tools”. This one obviously thinks he is better than the rest of the human race and above being accountable, or evaluated. Filing a lawsuit should just prove the comments by the family member – he is a tool. What does he care anyway, his business is by referral of other doctors, or by being on staff at a hospital? Unless the rating effects tenure, then they probably already know he is a tool.

Greg: Well he looks like a real tool in that photograph. Just kidding !!! Just kidding !!!!!!!!!!!!!!

REIDC: If That DR is suing over something as small as what was said about him in this story,I bet there’s a lot more He doesn’t want to get out to public view. Neurologists are notorious for their inflated egos.

Andie: Well i post reviews- good and bad and back it up with proof. But anyone can sue. But if it is true what u r saying…than it is not defamation of character. I have had bad experiences with Docs and I complain to the better business and they leave it up…if you have proof. Carol burnett won from the national enquirer as they fabricated a story that she was drunk in a bar. Now that is defamation of character. Well Goldman that is good advice…but if you have been hurt by a Doctor to the point u have to go away…to the point you see other folks having to go away…and you have the proof….I will post a bad review. Why because I back it with facts. The California audit doesn’t just take a case for nothing. Anyone can sue…but you will win if what u r saying is true. You can write a book about it..just change there names.

Houyhnnm: You can also write the state medical board, so something REAL will happen, instead of nothing happening from that tool named Angie, who encourages circumventing real change to put change in her own pocket.

Andie: This reminds me of Larry Flint who won in court over a parady of Jerry Falwel.

Captain America: This will be thrown out. The guy is a tool just to waste court time for this.

Michael: I write reviews on Yelp. I had a business come after me over a factual negative review that I wrote. It was an auto repair business and the reason I wrote the review was because they told me my car had a bunch of problems, and when I went and got a second opinion another mechanic told me that half of their stuff wasn’t even necessary. The owner first responded to my review online and after talking with him I agreed to take my car to a third place and have them do their own evaluation. If the third place agreed with him, then I promised to remove my review. The owner didn’t have ANY problems with this. About two weeks later, I get a registered letter in the mail (yes, I had to sign for it), and it was from them! They accused me of libel and maliciousness (among other things), and ordered me to remove the review. I thought about it for a couple days and ended up removing it, because even though I thought I was right I didn’t want to get sued of course. Let me ask you all this: was the owner right to do what he did to me? He and I had an agreement and I was going to fulfill my side of the agreement, and then out of nowhere I get this intimidating letter. Personally, I think they were just trying to scare me, what do you think?

Robert M: You should have let the crooked shop owner sue you. You could have obtained documents from the two other shops where you took your car stating that the first shop’s recommended work did not need to be done. You could have gotten an expensive lawyer and insisted that the crooked shop owner’s business pay the legal expenses plus any other expenses (such as time off from work, filing court documents, obtaining statements, etc.) you incurred by being forced to defend yourself. Even in the crooked times we live in, most judges have little mercy for rip off artists. In the future, if you are right in your assertions and have documented all key parts of your situation, press on, as the people have a right to know who is going to try to rip them off. I had a similar incident where a mechanic I had never used before wanted to charge me over 200 dollars to replace a ten dollar brake light switch that simply bolts to the brake pedal strut. He then told me (after an unnecessary $160 code reader charge!) that my battery was bad and so was my alternator and they would cost another $550 to replace! I took the car to another mechanic, and the brake switch cost $25 installed, the alternator was fine, and the battery was bad and cost another $100 to put in! These rip off artists are all around, and any work you do to help inform potential customers of their dishonesty is much appreciated.

Paul: Sounds like a tool to me!

Anonomouse: Let me see. Doctors can treat you like they are God and #$%$ around if THEY choose… hmm. I had one call me “grandma, hang on” as my SON lay almost dead in his office and he MESSED around on a computer…. he took almost an hour to start an IV on my son and we were in his damn office 3 hours before being released. He went on to take my son’s life in his own hands… AND THAT IS OKAY? He called me “grandma” twice….. and prescribed me antibiotics and never even examined me! OMG. The chief of the hospital said “that is how some people communicate.!” THIS IS how I communicate: Go to hell. You do not deserve a M.D. license and go back to what country you came from!

Harry: People need to think before they post comments. In the heat of the moment they can over state the truth. But, the other person should have the right to counter comments.

Rikits:  I’ve never seen a good Dr get bad review. Now if i see 1 bad comment i figure its just something the patient and Dr argued over but if mulyiple comments i don’t want to see that Dr.

Delosz: Doctors work for a corrupt heath system and the drug companies,and not for the patient good.In a free speech country “good name” tactics to cover up medical mistakes,of an incompetent practice,doesn’t work.In this country,healthcare and doctors is a business for money making,not for to help the citizen.

Mathew: Here’s an idea: if you don’t want negative reviews, try a little harder to be nice to customers/patients. Don’t just treat people like cattle.

CCCP: Doctors ars quacks so keep up with the remark,s!

BobR: The Dr.’s reaction to the son’s comments pretty much prove the son is right. The Dr. is indeed, a tool.Actually, in the picture above, the Dr. looks like his Oxy just kicked in

Peter: the guy in the picture is his lawyer.

One bad day: And some lawyer he must be…..looks like he rented an office space for a photo op.

Rob: This is not something new…we always had the right and ability to share our opinions…this just happens to be on the net. The Doc needs to wake up and accept not everyone is going to be happy with their experience. You can’t silence someone because you feel their opinion will hurt your business…it is their opinion. You need to combat it with positive reviews….preferably genuine reviews and not the made up ones found on most websites. That said, calling them ‘a tool’ is not an opinion about the work they did for you and is color commentary that is not professional.

Intoit: A friend of mine had a female dr. that just hated her and used bad beside manners on a routine check up that hurt her. Just file your complaint with the Medical Board. they take the complaint and handle it for you.

Leo: if you’ve heard the commercials for attorneys Cordell & Cordell: their slogan should be WARNING: a partner men should avoid. i hope they do sue me. then they’ll get the attention they really deserve.

FIRST AMENDMENT CENTER REPRINT

FOX NEWS VERSION

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

 

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