January 31, 2013
“Court: Online Patient Reviews Are Protected Speech”
Minnesota Supreme Court Says Claims That A Doctor Is A ‘Real Tool’ Cannot Be Proven True Or False
Alicia Caramenico, Fierce Healthcare
The decision ends a four-year legal battle that stemmed from a defamation lawsuit by neurologist David McKee. Following the hospitalization of Dennis Laurion’s father at St. Luke’s Hospital in Duluth, Laurion wrote reviews on several sites, with one claiming a nurse called the doctor “a real tool,” according to the Minneapolis Star Tribune .
The high court dismissed the defamation lawsuit and reversed an Appeals Court ruling that the statements harmed McKee’s reputation and could be proven as false. Moreover, according to the state Supreme Court, it doesn’t matter if the unnamed nurse really exists, the Associated Press noted. “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,” the opinion states.
The situation also highlights that defamation lawsuits are not without cost–to the providers and the patients involved. McKee has spent at least $50,000 in legal fees, as well as $11,000 to clear his reputation after the incident prompted hundreds of negative online reviews. For Laurion, litigation costs have totaled more than two years’ income, noted the Minneapolis Star Tribune.
“The financial costs are significant, but money is money, and five years from now, I won’t notice the money I spent on this,” McKee told the newspaper. “It’s been the harm to my reputation through the repeated publicity and the stress.”
Providers can take several steps to control their online reputation, such as training staff to impress and keeping listings up to date and accurate. To avoid defamation lawsuits, experts recommend providers first try to resolve the patient’s complaint, if a name is provided, and encourage them to remove or amend their review.
Henri Isenberg: Every business owner should be aware of what is being said on review sites. Even more important is for business owners to encourage reviews from their customers (especially the positive ones). ReviewInc is a great company to help monitor and collect reviews. But collecting lots of reviews, the handful of negative reviews won’t matter as much. In fact, a few bad reviews in a mix of a bunch of good reviews can make your reviews look more credible.
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.
George Abel: One of my more competent doctors, who has helped me through a couple of serious illnesses over the past decade when other physicians were unable to help me, has a review on one of the many physician review websites that says that ‘he runs his office like a third world clinic’. I have absolutely no idea what that means. His office is clean, efficient, his computer system is up to date, and I get regular follow-ups by phone after procedures or tests. Unless someone posting a review lists their real email address and real name, I would disregard anything I read in terms of reviews.
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.”
Tha Shiznit: In the same vein as a “real tool”, only someone with a serious “screw loose” spends over $60K because they’re salty about a negative online review, in my opinion.
George Abel: To Tha Shiznit, if you post your comment under an obviously ridiculous alias, why should I believe anything that you post? Not an insult directed at you, but just to make a point that anonymous postings are like free advice – they’re worth every penny that you paid for them.
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.”
Suki: The reason for the various review sites is for people to verbalize their “opinion” of someone and/or the care received. Why doesn’t this doctor look at his personality and behavior and ask himself, “why is it people perceive me in this light?” But of course, being an egotist that would never happen.
Howard: I wonder whether the esteemed justices of the Minnesota Supreme Court would be as sanguine if someone posted a comment on a legal review site referring to one of the justices as a ‘real tool’. Just wondering. It all depends on whose ox is being gored, I guess.