January 31, 2013
Jack Leyhane, For What It’s Worth
I don’t pretend to cover Minnesota law here; I am not licensed in Minnesota.
However, I wrote about the case of McKee v. Laurion here before, back in 2011, and, yesterday, the Minnesota Supreme Court entered an opinion in that case that, presumably, will bring that matter to a close.
The case arose when Dennis Laurion’s father, Kenneth Laurion, was hospitalized in Duluth after suffering a hemorrhagic stroke. Dr. David McKee, a neurologist, was called in for a consult. Kenneth apparently recovered; the extent of Dr. McKee’s contributions, if any, to this happy outcome appear to be beyond the scope of this case.
This case, rather, is about how Dennis responded to Dr. McKee’s initial consultation. Dennis thought the doctor’s manner brusque and rude and he said so on a number of what the Minnesota Supreme Court calls “‘rate-your-doctor’ websites.” Dennis wrote (slip op. at 3):
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!”
Dennis also sent a number of letters to “medically-affiliated institutions” making substantially the same complaints. But the online postings are the focus of Justice Alan Page’s opinion, and they are the focus of this post as well.
McKee sued Dennis for his negative reviews, charging that Dennis had made 11 defamatory statements and interfered with McKee’s business. After some discovery, Dennis sought and obtained summary judgment. On appeal, the Minnesota Court of Appeals (2012 Minn. App. Unpub. LEXIS 73, 2012 WL 177371) agreed that Dr. McKee had no claim for interference with his business, but found that six of the allegedly defamatory statements in Dennis’s comments were potentially actionable because they were assertions of fact, as opposed to opinion; there were questions of fact as to whether these statements were false; and these statements (if false) tended to harm Dr. McKee’s reputation.
The Minnesota Supreme Court set out these statements at p. 4 of the slip opinion:
Statement 1: Dr. McKee said he had to “spend time finding out if you [Kenneth Laurion] were transferred or died.”
Statement 2: Dr. McKee said, “44% of hemorrhagic strokes die within 30 days. I guess this is the better option.”
Statement 3: Dr. McKee said, “You [Kenneth Laurion] don’t need therapy.”
Statement 4: Dr. McKee said, “[I]t doesn’t matter” that the patient’s gown did not cover his backside.
Statement 5: Dr. McKee left the room without talking to the patient’s family.
Statement 6: A nurse told Laurion that Dr. McKee was “a real tool!”
As to statements 1, 2 & 4, the Minnesota Supreme Court found that there was no question of fact about the falsity of these statements. When the court compared what Dr. McKee said he said with how Dennis quoted him, the court concluded that any minor inaccuracies were not actionable. While, for example, Dr. McKee insisted that he never quoted a percentage with regard to how many hemorrhagic stroke victims die within 30 days, he admitted that he told the family that some of these patients do die. The “presence, absence, or inaccuracy of a specific percentage within this statement, without more” casts Dr. McKee in no more “negative light than does his discussion of patients dying.” (Slip. op. at 8.) Therefore, there was no question of fact regarding the falsity of the statement and it could not support a defamation claim.
As to statements 3, 5 & 6, the Minnesota Supreme Court found that these did not convey a “defamatory meaning” as a matter of law (slip op. at 9). Calling someone a “tool” is hardly complimentary, but “an opinion amounting to ‘mere vituperation and abuse’ or ‘rhetorical hyperbole'” cannot be the basis for a defamation action (slip op. at 12). There was an issue as to whether or not there really was a nurse who expressed this opinion to Dennis, the possibility that she might not exist would not make a non-actionable statement attributed to her any more actionable.
A word of caution to those who might leap from this to a conclusion that any vile smear may be rendered non-actionable simply by framing it as an opinion: In Illinois, at least, “there is no artificial distinction between opinion and fact: a false assertion of fact can be defamatory even when couched within apparent opinion or rhetorical hyperbole… ‘statements made in the form of insinuation, allusion, irony, or question, may be considered as defamatory as positive and direct assertions of fact’… [and a] ‘defendant cannot escape liability for defamatory factual assertions simply by claiming that the statements were a form of ridicule, humor or sarcasm.'” Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 581, 852 N.E.2d 825 (2006).
The point here is that, although a Minnesota case is not binding on our courts here in Illinois, McKee v. Laurion at least suggests that our courts may not look kindly on suits by doctors (or dentists or lawyers or restaurants) unhappy with comments made by unhappy customers.
Jack Leyhane is an experienced attorney (concentrating in insurance coverage, insurance litigation and civil appeals). He is certified as a Mediator in the Cook County Law Division Major Case Court-Annexed Civil Mediation Program and the Chancery Division Mediation Program.