Physicians Practice: Suing for Defamation Over a Negative Online Review

Image-Lawyer-Counsels-Doctor

March 27, 2015 

“Suing for Defamation Over a Negative Online Review” 

Sara Kropf, Physicians Practice

 In 2010, Dennis Laurion brought his father to [ St. Luke’s Hospital, ] a Minnesota hospital following a stroke. He found the bedside manner of the treating neurologist, David McKee, rude. After his father was discharged, Laurion posted several negative online comments about his interaction with McKee. In response to the posts, McKee took an unusual step. He sued Laurion for defamation. After four years of litigation, however, the doctor’s lawsuit was dismissed. He had lost.

There are dozens of websites where people like Laurion can post online reviews of doctors. Search for “review doctors,” and you will find sites such as Health Grades, Zoc Doc, and Rate MDs. On Rate MDs, for example, doctors are rated on staff, punctuality, helpfulness, and knowledge. Each of the websites allows users to post open-ended comments about the doctor as well. These online comments can pose a serious danger to a doctor’s reputation.

If you think prospective patients are not relying on online review sites, think again. According to a 2012 study published in the Journal of the American Medical Association, 59 percent of individuals seeking a physician for themselves found online reviews of doctors to be “somewhat” or “very” important when choosing a doctor. There can be little doubt that online reviews affect your practice, both positively and negatively.

 Review Recourse

 These review websites can provide a trove of helpful information to potential patients. But what if the reviews are false? What if a patient posts misleading statements about your practice or your medical skills? What if negative reviews lead to a decline in new patients or loss of current patients from your practice? What can you do?

One option is to sue for defamation, just as McKee did. Before you take this step, however, you should understand the benefits and risks of doing so. This post is the first in a series exploring how physicians can respond to negative online reviews. We will examine what steps can be taken before suing for defamation, the risks involved in suing a patient for defamation and some of the barriers to winning a defamation case, including the challenges of proving damages.

For now, let’s start with the basics. What is defamation? Defamation is a broad term that includes both slander (when the defamatory words are spoken) and libel (when the defamatory words are written). So, if your patient smears your reputation during a community meeting, you may have a slander claim. If he does so in a post on RateMDs, then you may have a libel claim. They both fall under the legal cause of action for “defamation.” 

Winning a Defamation Case: 6 Key Elements

 To win a defamation case, you must prove six things:

# 1 There is a “published” statement. This means only that the “speaker” (who will be the defendant) made the statement to at least one other person. It is a very low barrier and easy to prove.

# 2 The defamatory statement is about you. This is usually not an issue because the speaker will identify the doctor by name. As long as a reader could identify the doctor by the words used in the statement (for example: the “senior doctor in the dermatology practice in the Harris Building in Topeka”), then you have proven this element.

# 3 The statement is false. A true statement is never defamatory.

# 4 The statement is a statement of fact, not opinion. This element is usually the hardest one to prove. The First Amendment protects patients who are only expressing their opinions or merely insulting someone. So, it is not defamation if someone posts that you have a “rude bedside manner” or possess “terrible surgical skills” or are an “idiot.”

# 5 The speaker was either negligent in making the statement or acted with malice, depending on the type of case. “Malice” in this context means that speaker knew the statement was false or recklessly disregarded the truth of the statement. For example, if a speaker wrote that “Dr. John Doe does not have a medical license,” after visiting the doctor’s office and seeing the framed license on the wall, this would satisfy the malice standard.

# 6 You suffered some provable damages. The harm must have been caused by the defamation and not any other reason. This can be difficult to prove in the online review context.

Each part of a defamation claim can present an independent obstacle to success in court. In the next post, we will explore the steps you can take to remove a negative review from a website, either through obtaining a court order in a defamation lawsuit or by contacting the website and patient directly. 

Sara Kropf has been a trial lawyer for over 15 years and handles both civil litigation and white-collar criminal defense. She was a partner at a large, international firm before founding Law Office of Sara Kropf in 2013. She is licensed in Washington, D.C., Maryland, and Virginia, and has handled cases across the country. Sara was lead counsel in a landmark defamation case involving defamatory reviews on Yelp.. Email sara@kropf-law.com.

Source

As Posted At Diagnostic Imaging

As Posted At Online Reputation Management For Doctors

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

Similar Articles

Plastic Surgeon Sues Patient for Posting Negative Review

Image-Defamation-Montage-2

May 29, 2012

“Plastic Surgeon Sues Patient for Posting Negative Review”

 John Washam, Talk To The Manager Blog

Restaurants and hotels aren’t the only categories of service business that are vulnerable to online reviews.  Healthcare providers also are wary of reviews appearing on medical review sites such as Vitals, Rate MDs, and Rate Your Doctor.

Dr. Armando Soto is claiming defamation against a patient who posted a negative review on Rate MDs.

Domingo Rivera, attorney for Dr. Soto, said the patient’s comments on Rate MDs aren’t opinions protected by the First Amendment but a “malicious campaign of unlawfully defaming and spreading lies” about his client and business.

The counsel for the unnamed patient warned the suit could have a chilling effect on users of sites such as Angie’s List, Yelp, Rate Your Doctor, and others that rate professionals and services.  “The terror created by this lawsuit will squelch freedom of speech,” said David Muraskin, a Public Citizen attorney representing the defendant.

In 2011, the anonymous online comments about breast-augmentation surgeries claimed that the doctor had botched the work, saying there was unevenness, extra scarring and other issues. The doctor’s lawyers claim those statements are defamatory because they aren’t true, while other comments about the “end result is horrible” is an opinion.

David Muraskin of the Public Citizen Litigation Group said, “If a patient is unhappy, they can use constructive criticism, or return to the surgeon to fix it.”

Rivera said. “This person has a vendetta, and my client has to use the court system to remedy that.”

The Henrico County Circuit Court granted Soto a subpoena in April to force Comcast to divulge the Internet IP address, identity, mailing and billing addresses of the person who posted the comment.

Rivera said he most likely will drop that subpoena because he has independently learned that patient is an Osceola County schoolteacher. He suspects she has posted multiple comments on the website, posing as another unhappy patient. He did not identify the patient and has not transferred the lawsuit to Florida yet.

“It is almost a certainty that we will file there,” he said. “This person will be dealt with.”

Rivera said Soto wants the posts removed and is seeking $49,000 in damages.

Comments:

 Dr. Armando Soto: Free Speech is Great; Defamation is Illegal; but Patient Satisfaction is King.

Here are the facts of this situation.

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 in 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 have 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. The patient in question, in fact, has at this point admitted to everything I describe above, and we are actively discussing a solution acceptable to all, with restoration of a healthier relationship. Which is really what good health care is all about.

To summarize, I have no problem with the reality that there are always going to be some 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.

This is- for the patient, and for me, a very successful outcome.

John Washam:  I see that this has been a difficult experience for you and I’m glad that you’ve reached a resolution. So many businesses are vulnerable to online reviews and in most cases the reviewer is not held accountable. Free speech does not imply “freedom from responsibility”.  Speech can impact good people who are doing their best to run a business and provide valuable services to the community.

Source

Similar Articles

Florida Doctor Sues Patient For Posting Bad Review Online

Image-Defamation-Montage-2

May 24, 2012

“Florida Doctor Sues Patient For Posting Bad Review Online”

Fox News, Orlando

 ORLANDO, Fla. –  A Florida plastic surgeon has filed a lawsuit against one of his patients for posting an unfavorable review of him online.

Dr. Armando Soto told My Fox Orlando he filed the suit to protect his reputation and his business. The unnamed patient allegedly trashed his services online at the website Rate MDs, posting complaints about a breast surgery.

Attorney Larry Walters tells My Fox Orlando although the patient may be covered by free speech laws, this protection will only apply if the criticism is valid. “You cannot cross the line and make false statement of fact about a person that causes damages to that person,” he said.

Dr. Soto tells My Fox Orlando he has been in contact with the patient he filed the suit against, and they are trying to work it out. He said he believes his suit against the patient could soon be dropped.

Source 

Similar Articles

Two Interesting Internet Defamation Cases Filed By Doctors

August 27, 2012

“Two Interesting Internet Defamation Cases Filed By Doctors”

Maura Larkins, San Diego Education Report Blog

#1 – Patient Susan Walker was able to get Dr. Aaron Filler’s defamation lawsuit thrown out of court.

#2–Dennis Laurion is still fighting this defamation case by Dr. David C. McKee: “When a doctor hires a private detective to find out which one of the 4,400 nurses in St. Louis County, MN may have called him a “tool” you know the man is serious about defending his reputation. That is just what Dr. David McKee of Northland Neurology and Myology is doing in preparation for the next leg of his defamation lawsuit against the son of a former patient, Dennis Laurion…”

The irony of all this is that, perhaps, it is more likely that positive reviews are false than negative reviews.

A New York Times article by David Streitfeld, August 25, 2012, tells about how reviews are bought and sold:

“The wheels of online commerce run on positive reviews,” said Bing Liu, a data-mining expert at the University of Illinois, Chicago, whose 2008 research showed that 60 percent of the millions of product reviews on Amazon are five stars and an additional 20 percent are four stars. “But almost no one wants to write five-star reviews, so many of them have to be created.”

Consumer reviews are powerful because, unlike old-style advertising and marketing, they offer the illusion of truth. They purport to be testimonials of real people, even though some are bought and sold just like everything else on the commercial Internet.

The Federal Trade Commission has issued guidelines stating that all online endorsements need to make clear when there is a financial relationship, but enforcement has been minimal and there has been a lot of confusion in the blogosphere over how this affects traditional book reviews…

Aaron Filler MD V Susan Walker

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

Similar Articles

California Patient Wins Anti-SLAPP Motion Against Doctor She Criticized

Image-Defamation-Montage-4

August 1, 2012

“California Patient Wins Anti-SLAPP Motion Against Doctor She Criticized”
Maura Larkins, Thank Heaven For Insurance Companies

Party Issuing Legal Threat: Dr. Aaron Filler; Aaron Filler, MD, PHD, APC; Imagebased Surgicenter Corporation; Neurograph Institute Medical Associates

Party Receiving Legal Threat: Susan Walker; Does 1-25

Dr. Aaron Filler filed a complaint against former patient Susan Walker in Los Angeles Superior Court on May 31, 2011. In his complaint, Filler alleged defamation and interference with prospective economic advantage in response to Walker’s review of Dr. Filler on a physician rating site.

On August 24, 2011, Walker filed a motion to strike based on California Code of Civil Procedure §§ 425.16 and 45, California’s anti-SLAPP statute. Walker’s motion argues that Walker is shielded from liability as the “dissemination of consumer information about medical care is a vital ‘public issue’ and the internet is a ‘public forum’,” and that Dr. Filler is a public figure subject to the burden of proving actual malice. Dr. Filler filed an opposition to this motion on September 16, 2011, also requesting leave to amend the complaint to plead more specific factual allegations to establish actual malice. Walker replied to Filler’s opposition  on September 22, 2011.

After a hearing on April 19, 2011, Walker’s motion to strike was granted.  In the order filed on May 8, 2012, Judge Elizabeth White held that Filler’s claims arose from Walker’s act of free speech in connection with a public issue under CCP § 425.16 and that Filler did not establish a probability of prevailing on these claims. In accordance with this order, Judge White later ordered Filler to pay  $50,259.65 to Walker for attorneys’ fees and costs.

Source

Citizen Media Law Project – Filler V. Walker

Protect Your Practice Carefully Against Negative Online Reviews

Image-Lawyer-Counsels-Doctor

February 18, 2013

“Protect Your Practice Carefully Against Negative Online Reviews”

Fox Rothschild LLP Website

 A recent court decision to throw out a doctor’s well-publicized defamation case raises the question: What’s the best way to deal with negative online comments about your practice?

Neurologist Dr. David McKee pursued the defamation suit against the author of some negative online reviews for more than two years before the Minnesota Supreme Court reversed a lower court opinion and threw his suit out. According to court papers the defendant objected to McKee’s behavior while treating his father and criticized him on various websites.

Studies of online review sites in general show these reviews to be influential on consumer behavior.

Attorneys recommend to take several steps short of legal action in order to protect yourself against negative reviews such as the those experienced by Dr. McKee.

Some attorneys suggest reaching out to the critic however attorney William Maruca advises that trying to answer a critic with your side of the story can be dangerous – particularly if you do it in the forum where the criticism appears.

“The danger is escalating a bad situation into one that could attract more attention,” says Maruca. “One unhappy review in a long list of favorable reviews is more likely to be overlooked or discounted than if there is a lengthy flame war on your review page.”

In addition attorneys suggest using low-impact legal tactics such as a cease-and-desist order from an attorney. It also may be valuable to try using positive news to combat the bad. If you promulgate your positives with an eye toward search engine optimization you may find that the good outweighs the bad.

Source

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

Similar Articles

Image-Nuclear-Option

Protecting Against Negative Online Reviews

Image-Angry-Doctor

October 16, 2013

“Protecting Against Negative Online Reviews”

Just ClicIt LLC, Medical Practice Reputation Marketing

 A recent court decision to [ dismiss ] a physician’s well publicized defamation case produces a concern: What is the best choice in dealing with negative online comments about your practice?  Legal action against consumers who criticize your practice online can be costly, prolonged and unsuccessful, as in the case of neurologist, Dr. David McKee of Duluth, Minnesota.

McKee pursued this previously mentioned defamation suit against a person who wrote some negative online reviews for more than three years before the Minnesota Supreme Court reversed a lower court opinion and [ dismissed ] his case on Jan. 30, 2013.

Per court documents, defendant Dennis Laurion objected to McKee’s behavior while treating his dad and criticized him on various “rate-your-doctor websites.”Laurion stated in his reviews a nurse’s alleged observation that McKee was “a real tool” – one of six statements that a court of appeals judged had merit for a lawsuit.

In reversing, the Supreme Court decided some of Laurion’s statements were essentially true and others innocuous, or in the case of the “real tool” statement, a matter of opinion that “cannot be proven true or false.”

An analysis on online review sites in general show these reviews to be influential on consumer behavior.  Just a 1-star increase on Yelp brings a 5% to 9% increase in revenue, according to Harvard Business Review. Studies on physician review sites such as Vitals.com are less decisive, but common sense does suggest that bad reviews are not good, especially when patients look for a new doctor.  “Sometimes the cranks get ignored,” says an attorney from Indianapolis. “If the complaint is ‘I had to wait an hour,’ that’s probably not a big deal, but when they get patients to question your quality of care, that’s another story.”

As Online Reputation Marketing specialists have stated, “When you have only so much real estate on Google, then who do you want to own it: You, unhappy patients or competitors?”  Experts tell us that medical practices can take a few steps short of legal action to protect themselves against negative reviews.

Contact critics, but do it offline

 Trying to respond to a critic with your side of what happened can be dangerous, particularly if you do it in the forum where the criticism appears, says a health care attorney with Fox Rothschild in Pittsburgh.  There is danger in elevating a bad situation into one that could bring even more attention. One unhappy review amongst many favorable reviews is likely to be neglected or diminished, than if there is a lengthy social spat on your review page.

A principal from a law office in Royal Oak, Michigan, who specializes in social media issues, suggests you contact the critics away from the review site, either by using their posted address or by tracking them down on Google.  However, the outreach may backfire. They might go back to the message board and say, ‘I heard from the doctor, and he’s really feeling the heat.  A better way to respond is, ‘We understand you’re upset; what can we do to help?’  If a consumer feels resentful, disgraced or that they’ve been treated poorly, just a modest show of respect can actually be very healing and productive.

Next, Use low-impact legal tactics

 If a critic is overly obnoxious, or if you suspect that he may be employed by a competitor and is committing willful sabotage, consider getting him, or the site that displays his reviews, to remove them with a relatively low-impact legal tactic: a cease-and-desist order from an attorney.  The attorney from Indianapolis advises that this usually presents a simple complaint, such as the reviews violating the website’s terms of service in some way.  If the reviewer is defaming you, “a strongly worded letter from an attorney advising him about defamation liability and demanding a retraction” may stop him.

Positive Inputs to Fight the Bad Reviews

Online Reputation Marketing Service companies often advise that you fight the bad reviews with good ones.  If you disseminate your positives with an eye toward search engine optimization (SEO) and reputation marketing strategies, you may find that your good-news posts exceed any bad reviews.  One such firm battled a physician’s critic by publishing on the internet a professional biography and personal website for the doctor that accurately brought to light his numerous awards and accolades, his volunteer service, and other notable endeavors.  This type of truthful and current content quickly pushed the negative reviews to the bottom of his second page of search results.

It is advised that physicians appropriately and proactively contact patients and ask for accurate feedback on pertinent review sites. To get reviews from patients, an Online Reputation Marketing Service company can provide you with strategies, such as setting up practices with a tablet so that patients have the ability to give a review in their office.  If the reviews are not all good, it’s still a positive for the practice, because the higher the quantity of reviews and how current they are is what makes you rise to the top.   Asking for opportune reviews is key and would not include getting your staff to postreview sites with good information.  “FTC (Federal Trade Commission) has some clear rules on disclosure,” warns the attorney from Indianapolis. “Their guidance says someone reviewing a product should disclose if they’ve received remuneration or have an interest – for example, if they’re employed by the company they are reviewing. Don’t offer gifts, discounts, or premiums to patients for giving reviews, because a patient could be offended by such an offer, and they will post it and destroy your credibility and the credibility of any unprompted favorable reviews. Also, it may get close to violating the civil monetary penalty law’s prohibitions against patient inducements.”

 As a Last Resort, There is Always Legal Action

 When all else fails, legal action may be your last resort, though you can’t be sure of a positive result. Opinions are one thing, but “if they disparage your professional capabilities falsely, it can be easier to prosecute,” says the attorney from Michigan. “‘Tool’ is ambiguous, but ‘Doctor Smith botched my surgery’ isn’t, and if you can show it’s not true, you may have something.”

Image-ToolsThis is not a drill. This is not a drill. This is not a drill.

 The best method, of course, is not to get to this point in the first place. “I think this underscores the need for good, old-fashioned customer service. Make sure patients are well-served. Things do happen, and sometimes someone is going to be unhappy, or you’ll get a malcontent.… If there’s a complaint, don’t blow it off. Remember that doctors are in a service business too.”

Because your reputation is everything online, medical practices need to implement reputation marketing first, before any other marketing.  Consider hiring an Online  Marketing Service company that specializes in Reputation Marketing so they can spend the time you don’t have on building a 5 star reputation online and leveraging that reputation to get more patients.

Source

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

Similar Articles

Image-Lawyer-Counsels-Doctor

Arrogant Doctors, Online Reviews, and the Hot Water Test

FEBRUARY 6, 2013

“Arrogant Doctors, Online Reviews, and the Hot Water Test”

Trisha Torrey, About.com Guide

Image-Trisha-Torrey

In 2011, I told you about the case of McKee V. Laurion – that is – son-of-a-patient-who-died Dennis Laurion, who was sued for defamation of character by his father’s neurologist Dr. David McKee.

The facts aren’t in dispute.  Mr. Laurion was upset at the way the neurologist “communicated” with the family.  So he did something about it in the most public way he knew how.  He wrote reviews of Dr. McKee on 19 different websites (sic), reporting, according to a Duluth (MN) news article in April 2011, that . . . Dr. McKee “seemed upset” that Kenneth Laurion (the father) had been transferred from the Intensive Care Unit to a ward room; that McKee told the Laurion family that he had to “spend time finding out if [the patient] had been transferred or died;” that McKee told the Laurions that 44 percent of hemorrhagic stroke victims die within 30 days; that McKee told the patient that he didn’t need therapy; that McKee said it didn’t matter that the patient’s gown was hanging from his neck with his backside exposed; that McKee blamed the patient for the loss of his time; and that McKee didn’t treat his patient with dignity.

Bottom line – Dennis Laurion felt the doctor had been arrogant, condescending, and not respectful of his patient or his patient’s family.  And when he said so publicly, the doctor sued him.

In the four years since Mr. Laurion Sr. died, the lawsuit has gone up the court ladder with varying outcomes. But last week, the Minnesota Supreme Court handed down the final verdict.  Mr. Laurion was within his rights to publicly recount his experience with Dr. McKee.  Mr. Laurion won the lawsuit.

So why is that important to empowered patients?  Because the more upset we get with the healthcare system, the more we blame doctors or other providers, the more frustrated we are that we aren’t getting the care we think we need and deserve, the more tempted we all are to let the world know about our experiences.

However – despite the Minnesota Supreme Court’s ruling – we do not have carte blanche to say what our anger and frustration tempt us to say.

A few notes for patients:  This lawsuit took place in Minnesota.  The laws may be different in your state and even then, the world of online reviews is still evolving.  Learn how to write a doctor review so that it makes you feel better, helps others, and doesn’t get you into trouble.

The reason Mr. Laurion didn’t lose the suit was because he related facts and observations – not opinions and generalities.  That’s the real hot water test. The difference between recounting opinions vs facts can be the difference between winning and losing a defamation lawsuit.  Learn how to write a doctor review so that it’s effective, and doesn’t cross the line.

There are many more considerations to writing a doctor review online, whether or not you were happy with your doctor’s treatment.  Learn how to share information fairly and comprehensively, in the right places, so that you help others and don’t get yourself into hot water.

A note for SOME doctors (and yes, you know who you are):  Whether or not you care to change your communications stripes, please note that the law and your income (think patient satisfaction and HCAHPS) are trending toward your need to improve your communications and for some of you, your attitude in general. No matter what you think of the outcome of this lawsuit, know that it cost Dr. McKee more than $60,000 out of his pocket, including his attempt to try to repair his reputation. Don’t think you are above the same sort of scenario if you don’t treat your patients with the respect and dignity they deserve. If you aren’t a good communicator, then look for courses (even CMEs) to help you.  Your career and your reputation may depend on it.

Off my soapbox.

Comments:

February 7, 2013, Dennis Laurion says: Trisha, thanks for your coverage of David McKee vs. Dennis Laurion.

The reports of my (father’s) death are greatly exaggerated. Although I believe he was told there are only two ways to leave ICU – dead or transferred – he got the better option.

Dennis-Kenneth-May-2012-Horizontal-Crop

Dennis Laurion and Kenneth Laurion

My father had his stroke at age 84. He is now 88. He has difficulty with gait and balance. His speech and mental resources remain well. My father enlisted in the Navy at age 17 during World War II. By age 19, he was a Navy combat medic in the Solomon Islands, a Second Class Petty Officer, the equivalent of an Army or Marine Corps Staff Sergeant. My father worked two jobs and supported a family while obtaining a Ph.B. and an M.S. in Geriatric Counseling. He was a Boy Scout leader, an Elder in his church, a high school teacher, and a systems analyst at the advent of the computer age.

“The reason Mr. Laurion didn’t lose the suit was because he related facts and observations – not opinions and generalities.  That’s the real hot water test. The difference between recounting opinions vs facts can be the difference between winning and losing a defamation lawsuit.”

I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice – at least in Minnesota. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances.

If one purports to say what happened, factual recitations can be litigated. My three levels of adjudication have involved exercises to determine whether my statements were provable facts or opinion. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort. I thinks it’s better said that one should stick to opinions (without exaggeration), but have the facts at hand. Had the Minnesota Supreme Court concluded that I offered facts, I’d be awaiting jury trial. It was, I believe, the conclusion that I’d offered opinions that caused dismissal.

“He wrote reviews of Dr. McKee on 19 different websites, reporting, according to the Duluth News Tribune in April 2011

While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, writing 19 letters, and posting 108 or 118 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again. Several newspapers accounts have repeated assertions about how many letters I wrote and how many reviews I wrote. You’ll find accusations that I wrote 108 or 118 subsequent postings. You’ll find remarks that most were traced to a single IP address in Duluth. It wasn’t mine, and my internet provider tells me that nobody has ever asked about my IP address.

“No matter what you think of the outcome of this lawsuit, know that it cost Dr. McKee more than $60,000 out of his pocket, including his attempt to try to repair his reputation.”

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

I feel that defamation lawsuits are much too easy for wealthy plaintiffs. If I were to attempt suing a doctor for malpractice, my case would not proceed until I’d obtained an affidavit from another doctor, declaring that the defendant’s actions did not conform to established procedures. In a defamation suit, there’s generally no exit short of a judge’s dismissal order – which can be appealed by the plaintiff. Being called “defendant” is terribly personal, but the civil suit path is totally impersonal. During the three years that I went through depositions, interrogatories, a dismissal hearing, an appellate hearing, and a state Supreme Court hearing; I never once spoke to a judge. At depositions, the plaintiff and I sat opposite each other, while I answered his lawyer’s questions, and he answered my lawyer’s questions. We were not to speak to each other.


February 7, 2013 at 8:25 am Trisha Torrey says: Dennis, thank you for contributing to this report. I have corrected the statement about your father’s life and apologize for getting that wrong… may he stay healthy and happy for years to come. Regarding your report on how many comments were made, who made them, etc; you have enlightened us all. And it proves exactly what I was saying – we cannot assume that anything we write online, especially through anger or frustration, can’t be tested at unlimited cost. The power still remains with the monied and we can’t forget that. Best of luck to you as you sort out the aftermath.


February 7, 2013, Gemdiamondintherough says: I personally, had not been aware of this particular case. But I can assure you that there are many like it. (Not exactly the same, including court etc). Remember the Golden Rule, that you want to treat others as you would want to be treated. State FACTS AND OBSERVATIONS, NOT OPINIONS. This is true for BOTH the client and the caregiver. OPINIONS will usually not hold up, other than for you, yourself!!!!!!!!!! I KNOW THAT WE ARE ALL TEMPTED TO DO THAT FROM TIME TO TIME, BUT WHEN YOU FEEL BETTER OR ARE SOMEWHAT REMOVED FROM THAT PARTICULAR SITUATION, REVIEW IT YOURSELF AND ASK THE HARD QUESTION. DID I STATE MY OPINION, OR DID I STATE THE FACTS AND OBSERVATIONS? Many times our emotions get in the way and either we saw something that was not there, or heard something that was not said or intended.


February 7, 2013 at 4:39 pm Sandy says: I suppose anyone who has serious medical issues and has interactions with many doctors will run into an arrogant a–. But when they make a mistake, in my mind they lose the right to be arrogant. If it’s surgery, you need to figure out what kind of person you’re dealing with *before* your major procedure. If it’s ongoing care and the doctor’s a jerk, you’re lucky you can probably just move on to another doctor.


February 10, 2013 at 11:27 pm, David McKee says: Okay let me set you straight on a few things. First, Mr Laurion and I do not agree at all as to what was said and what happened. More importantly, Mr. Laurion (the son, not the patient) contradicted his account of what happened numerous times. No Trisha, I am not a real SOB as you have concluded based on accepting the statements which I sued Laurion over as truthful. If they were truthful I would not have brought the suit forward. Dennis Laurion is a sick malicious bully. He wrote several versions of what transpired in his father’s hospital room, each more slanderous and exaggerated than the last. As an example, in the earliest versions of Laurion’s description, he mentioned, accurately, that I helped his father to a standing position. A later version stated that I pulled his father out of bed; still later that I jerked his father against a closed bedrail and against his will.

Laurion also complained that I humiliated his father by not tying the back of his father’s hospital gown. In fact, Dennis Laurion was sitting in a chair on the same side of his father’s bed as the patient. He would have needed only to lean forward a little to reach the ties of the gown. I was on the opposite side of the bed and could not have reached the back of the gown if I had wanted to.

After I left the patient’s room I was sitting at a nurses station only 30 feet from where Dennis Laurion was sitting and in plain sight. He could have discussed any concern with me then without the slightest difficulty. Instead he chose to begin his smear campaign against me. He fired off 19 letters of complaint within the next few days.

He tried for several weeks to get the local media outlets interested; none would have anything to do with him until he met up with Mark Stodghill of the Duluth News Tribune. The two of them met several times over a 2 week period to come up with a great doctor bashing piece of propaganda. Stodghill placed a call to my office at 4:55 p.m. on a Friday. I was not on call and had left for the day. This was the only attempt he made to contact me. The newspaper article came out only 10 hours later. Still the one half hearted attempt to reach me allowed the reporter to accurately state that “calls to Dr. McKee were not returned”, implying that I had something to hide. The article was so biased that of approximately 80 conversations with patients who brought up the matter, only 2 understood that I was suing Laurion; the rest misunderstood and believed I was being sued by Laurion.

I have been the victim of a cowardly relentless series of attacks by a truly sick human being. The fact that you appear to always assume that if a complaint is made against a physician, the physician must be in the wrong, makes you little better than Mark Stodghill who was willing to use the lowest possible journalistic standards seemingly designed to get the story wrong so as to allow for the most inflammatory headline possible.


February 11, 2013 at 11:47 am, Dennis Laurion says: Dennis Laurion was sitting in a chair on the same side of his father’s bed as the patient. He would have needed only to lean forward a little to reach the ties of the gown.”

While my father was lying down, and when he was seated, I was unaware that the back string was untied. It was my father who mentioned his parting gown. We then insisted on leaving the room to wait in the hall.

“I have been the victim of a cowardly relentless series of attacks by a truly sick human being.”

McKee has learned to exercise his own free-speech rights. In earlier responses to publicity, I’ve been called an oddball sort of fellow, passive-aggressive, liar, bully, coward, and malicious person.  I think somebody should have told McKee about the Streisand Effect. I feel that I have been the victim of a game of financial attrition that I haven’t wanted to play.

” As an example, in the earliest versions of Laurion’s description, he mentioned, accurately, that I helped his father to a standing position. A later version stated that I pulled his father out of bed; still later that I jerked his father against a closed bedrail and against his will.”

In my postings to the public, I stopped short of details that would have embarrassed my father but shared those details with a state agency. McKee is apparently including my comments to a state agency, while insisting he didn’t sue me for those contacts.

“He fired off 19 letters of complaint within the next few days.”

McKee is apparently including letters that I wrote as a response to his suit.

“He tried for several weeks to get the local media outlets interested; none would have anything to do with him until he met up with Mark Stodghill of the Duluth News Tribune. The two of them met several times over a 2 week period to come up with a great doctor bashing piece of propaganda.”

When McKee sent a threat letter, I asked 3 local media outlets if such a suit would be a “man bites dog” story. I never mentioned McKee’s name and would not have, had there been no suit. In spite of follow-up inquiries by the press, I demurred giving his name until a public record existed. On the day of filing, Mr. Stodghill found the public record without my prompting and ran the story. Mr Stodghill contacted me once by email and once by phone. We did not meet over any time period, and I did not recognize Mr. Stodghill, who was covering my first court appearance.


Source

Trisha Torrey

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

The Futility of Suing a Patient for Defamation

583a5-beating-a-dead-horse

February 23, 2013

The Futility of Suing a Patient for Defamation

Jeffrey Segal, MD, Medical Justice Blog

Proving defamation is hard. To prevail, you must demonstrate someone (a) made a false statement; (b) to another; and (c) that false statement damaged your reputation.

Truth is a defense to a charge of defamation. And statements of opinion don’t count.

An example of a defamatory statement is: “Dr. X is not Board Certified in Neurosurgery” when it is demonstrably provable Dr. X is indeed Board Certified in Neurosurgery.

An example of a statement which is not defamatory (because it is an opinion) is: “Dr. Y is a jerk and he has horrible bedside manner.”

Once you sue a patient for defamation, you guarantee his or her commentary, which might have been buried on page 4 of a Google search, will move to page 1.  Further, it will take a long time to resolve the conflict. Finally, it will cost a lot of money with an uncertain outcome. In fact, the outcome will likely be against you. In general, we think it’s a bad idea for a doctor to sue a patient for defamation.

Every case is different, and if a patient is hell-bent on destroying your career, and you have exhausted all reasonable options, you might have little choice. That was the difficult challenge experienced by Dr. Carlotta, an Arizona surgeon. He sued his patient for defamation and won a $12 million jury verdict. This outcome is the exception to the rule. Dr. Carlotta described the single-minded purpose of his patient’s attacks as forcing him to live in a perpetual nightmare.

The more typical outcome was just published by the Minnesota Supreme Court in Laurion v. McKee.  Dr. McKee is a neurologist who took care of a patient who suffered a hemorrhagic stroke. The patient’s son posted comments on a doctor review site which portrayed McKee as rude and insensitive. The actual review follows:

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!”

I’ve definitely seen worse.

McKee sued the patient’s son for defamation. He lost in lower court. An appellate court overturned. And now the Minnesota Supreme Court ruled in favor the patient’s son. The Court concluded:

We hold that none of the six statements is actionable either (1) because there is no genuine issue of material fact as to the falsity of the statements or (2) because the statements are not capable of conveying a defamatory meaning that would harm respondent’s reputation and lower him in the estimation of the community. Therefore, we reverse.

So there you have it. A goose-egg.

The better way to address an occasional negative review is to deputize confirmed patients to give real feedback on the review sites. If you are doing a good job, the world will then have a more representational picture of your practice – and you won’t be defined by two noisy people with a megaphone.

Source

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

 

The Minnesota Supreme Court Rules For Defendant In Online Defamation Suit

Image-Law-Montage

February 20, 2013

“The Minnesota Supreme Court Rules For The Defendant In A Suit Alleging Online Defamation”

 Julie Hilden, Verdict, Legal Analysis and Commentary from Justia

 On January 30, in McKee v. Laurion, the Minnesota Supreme Court ruled that none of the six online statements that had been claimed by Dr. David McKee to be defamatory as to him, when they appeared in an online review written by Dennis Laurion, actually was, indeed, defamatory. The court therefore dismissed the case, leaving the online reviews to stand.

The six statements at issue concerned the medical treatment that Dennis Laurion’s father, Kenneth Laurion, after having had a stroke and being hospitalized, had received from Dr. McKee.  Unhappy with statements that Dr. McKee had made, and perceiving Dr. McKee’s attitude to be rude and insensitive, Dennis Laurion then left negative comments about Dr. McKee on rate-your-doctor websites.

In return, Dr. McKee sued Dennis Laurion for defamation.  As noted above, however, none of the six statements at issue was deemed defamatory by Minnesota’s high court, and thus, Dr. McKee lost his case.

In this column, I’ll cover the McKee V. Laurion case, and comment on some ways in which those who write online reviews can attempt to steer clear of triggering a libel case with their online remarks.

Why Mr. Laurion Won the Libel Case

This case might have turned into a he-said-he-said were it not for the presence of witnesses; three Laurion family members were there in the hospital room during the 20 minutes during which five of the six contested statements were made by Dr. McKee. (The sixth statement at issue in the case came from an unnamed friend of Mr. Laurion’s who was a nurse, and who called Dr. McKee—not to his face, but only to Mr. Laurion—a “real tool,” based only on what she had heard of Dr. McKee’s conduct. (The Minnesota Supreme Court deemed the nurse’s comment, as reproduced in the online reviews by Mr. Laurion, to be pure opinion, and thus First-Amendment-protected.)

The other five statements in the online review were also not deemed to be defamatory by Minnesota’s high court. One group of statements included statements that were either substantially true, which means that they were true enough for defamation law purposes; or were not defamatory; or both.  Each of these statements reported a joking and arguably insensitive, but also true, statement by Dr. McKee, as follows: (Dr. McKee had had to check if Mr. Laurion’s father “was transferred or died); (“44% of hemorrhagic strokes die within 30 days; I guess this is the better option”); (“You don’t need therapy”); and (“It doesn’t matter [if the patient’s gown doesn’t cover his backside]”). Finally, Mr. Laurion’s family also was offended by Dr. McKee’s leaving the room without speaking to them—an act that the court counted as another statement, albeit a wordless one.

In the end, none of the statements, nor the description of the act of the doctor’s leaving the room, was deemed by the court to be defamatory. Accordingly, all of Mr. Laurion’s online postings were ruled to be First-Amendment-protected, meaning that now he can post them wherever he wishes—online, in the brick-and-mortar real world, and even on a billboard on the highway—without fear.

Some Possible Ways to Steer Clear of a Libel Case Based on an Online Review

 Could the litigation over the online reviews posted by Mr. Laurion have been prevented, or halted?   Possibly, although both sides’ emotions likely ran very high, especially given that this litigation didn’t settle at an earlier stage.

One obvious way to avoid the kind of harsh review that Mr. Laurion posted would have been for Dr. McKee to seek to improve the parties’ relationship, which seems to have gone poorly at a very early stage—due to a doctor whose morbid sense of humor wasn’t appreciated by his patient’s family, who were rightly and understandably focused solely on their family member’s health, and in no mood at all for joking.

Perhaps the litigation might have been preempted entirely had a sensitive family member, or perceptive hospital higher-up, taken Dr. McKee aside and politely made clear to him that his sense of humor might amuse some patients, but in this case, it wasn’t shared by the patient or his family.  True, it’s possible that Dr. McKee had heard such comments in the past and ignored them, but it still might have been worth a try, particularly because the alternative is that he now has been memorialized as a doctor with a questionable sense of humor in a state supreme court opinion that will always be in the law books and/or online.  Ironically, that very memorialization may actually act like yet another negative review—and one that, like Laurion’s reviews of McKee, may now be very long-lasting.

Finally, speaking more generally, and leaving the Laurion case behind for a moment, a good way to avoid, or counter, negative online reviews is to enlist witnesses who were also there at the time described in the review—whether they are friends, family members or best of all, unbiased strangers—and will help you tell your story of what really happened in a particular situation.

Of course, recruiting witnesses on the spot should be done only occasionally, but when the stakes are very high, such witnesses’ statements and/or contact information can be invaluable.  For instance, here, as noted above, the presence of three Laurion family members at the hospital ensured that there were credible and mutually corroborating witnesses to Dr. McKee’s actions and statements.  And it’s likely that Dr. McKee could have adduced his own witnesses, too, assuming that other medical personnel also came into contact with Mr. Laurion and his father and family.  If it seems clear that a court case is coming, it’s good to be prepared.

Image-Lawyer-Counsels-Doctor

Julie Hilden, a Justia columnist, graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for over a decade. Hilden is also a novelist.

SOURCE

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