JANUARY 30, 2013
“Calling A Doctor ‘A Tool’ Is Protected Speech”
Bob Collins, Minnesota Public Radio News Cut
The Minnesota Supreme Court has thrown out the case against a man for rating a doctor online.
Kenneth Laurion had a stroke in 2010 and was examined in St. Luke’s Hospital by neurosurgeon (sic) Dr. David McKee in Duluth. Laurion’s son found McKee to be “rude and insensitive” during the 20-minute examination. So he posted the following on some “rate-your-doctor” websites:
My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and a physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” When we gaped at him, he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” My father mentioned that he’d been seen by a physical therapist and speech therapist. Dr. McKee said, “Therapists? You don’t need therapy.” He pulled my father to a sitting position and asked him to get out of bed and walk. When my father said his gown was just hanging from his neck without a back, Dr. McKee said, “That doesn’t matter.” My wife said, “It matters to us; let us go into the hall.” Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or myself. When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!”
McKee sued for defamation. A district court judge court threw the case out, but an appeals court kept the defamation claims intact.
The Minnesota Supreme Court threw those claims out, too, saying there’s no indication they were false, and there does not appear to be any harm to the doctor.
Statement 3 was published as follows: “Dr. McKee said, ‘Therapists? You don’t need therapy.’ ” We fail to see how this statement, standing alone, is capable of a defamatory meaning that would harm Dr. McKee in the eyes of the community. By itself, Statement 3 is harmless. Doctors routinely evaluate whether therapy is appropriate for a given patient.
Of particular interest in the case is the debate over whether calling a doctor “a tool” is protected speech. It is, the court said today:
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…. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990). We conclude that it is an opinion amounting to “mere vituperation and abuse” or “rhetorical hyperbole” that cannot be the basis for a defamation action. (explaining that people often engage in name-calling “without any real intent to make a defamatory assertion, and it is properly understood by reasonable listeners to amount to nothing more”).
Nonetheless, the assertion that a nurse told Laurion that Dr. McKee is a “real tool” is one of fact because whether a nurse actually made the statement to Laurion is an assertion that can be proven true or false. Dr. McKee argues that Laurion’s possible fabrication of the existence of the nurse, and thus the statement attributed to the nurse, creates a genuine issue of fact as to the falsity of Statement 6. As described above, Laurion’s assertion that the nurse made the statement to him and the implicit assertion that the nurse exists are susceptible to proof. We nevertheless conclude that even though Statement 6 includes a factual assertion that can be proven true or false, Statement 6 is not actionable because the statement is incapable of conveying a defamatory meaning. First, the part of the statement that can be proven true or false–whether a nurse made the statement to Laurion–does not itself place Dr. McKee in a negative light even if it is false. The assertion that a nurse made the statement only has the potential to cast Dr. McKee in a negative light when combined with the second part of the statement–that Dr. McKee is a “real tool.” However, attributing the statement to an unidentified nurse does not add defamatory meaning to the statement.
As a final matter, a review of Laurion’s online posting as a whole does not change our holding in this case. Given the reasoning underlying our conclusion that the six individual statements at issue are not actionable, it would defy logic to conclude that the posting, when viewed as a whole, is somehow actionable. Therefore, we reject any argument that the totality of Laurion’s statements makes his online posting actionable.
Nonetheless, there’s clearly a lesson here regarding posting material online: Be careful.
Jeff Hermes, director of the Citizens Media Law Project at Harvard University’s Berkman Center for Internet and Society, told the Associated Press at the beginning of the case that “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.”
“The reality is that we bet our house every time that we post content online,” Professor Eric Goldman told the Associated Press. “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.”
GT: Wow, if I sued when someone called me a name, people might think I was a real tool!
Joanna: I notice that the court did not rule on whether or not the doctor exhibited toolish behavior in their consideration of whether or not the statement concerning his toolhood was fact or opinion. It is my opinion that the description of the doctor’s behavior suggests a violation of the hospital’s Patients’ Bill of Rights.
Bob Collins: They did not rule on whether or not the doctor exhibited toolish behavior in their consideration. They weren’t asked to rule on that.
Gary: So now thousands of people are made aware of Dr. McKee’s “toolish” behavior who would never have heard of it otherwise. If the good doctor was hoping to protect his reputation, I think he actually did the exact opposite. Which is another lesson we can take away from the whole affair.
BJ: Another lesson we can take away from the whole affair is that bullying works? I’m sure many people think the doctor is a tool (even I do) but if the lesson is to let bullies get away with something – because you deserve it – is still bullying. Free speech has limits – this person doesn’t appear to have come close to crossing it. But that doesn’t mean that just because you can say a thing, that you should say a thing. Like the title implies the opinion of the doctors behavior, calling this guy a tool, is protected. It appears that his skills as a doctor (besides beside manor) were not discussed in the online postings.
tribune reader: Doctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune 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.
The Star Tribune 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.”
McKee’s lawyer, Marshall Tanick, told the Associated Press that he and McKee plan no further appeals and that they were disappointed with the ruling. “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.
From the American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”
From the Business Insurance Blog: The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine
issue as to falsity.”
From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.
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.”
Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from “an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it’s “an endorsement that statements of
opinion are protected under the First Amendment.”
According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “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.”
The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being
sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”
In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for online reviews. . . 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.”
Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”