February 4, 2013
“Doctor Loses Defamation Case Over Online Remarks”
Eric Goldman, Technology & Marketing Law Blog
McKee v. Laurion, A11-1154 (Minn. Jan. 30, 2013)
Dr. McKee treated Kenneth Laurion. Unhappy with those interactions, Kenneth’s son Dennis critiqued Dr. McKee on various doctor review websites. Dr. McKee sued Dennis for defamation (and related claims) based on 11 different statements.
The district court granted summary judgment to Dennis on all counts, but the appellate court revived the lawsuit on 6 statements.
The Minnesota Supreme Court reversed the appellate court on those 6 statements, concluding that Dennis isn’t liable for any of the statements. On three of the 6 contested statements, the court says that the differences between Dennis’ statements and the truth are so minor that the differences can be ignored. The court says the remaining three statements couldn’t convey a defamatory meaning. For example, Dennis said a nurse told him “Dr. McKee is a real tool!” Calling someone a “real tool” isn’t actionable; at minimum, there’s no agreed-upon definition of what makes someone a tool (although to me, tendentious lawsuits could be the kind of thing that supports the characterization). Attributing the “tool” statement to a third party didn’t change the analysis.
A few observations:
1. I’ve been tracking doctor v. patient lawsuits for online reviews. See my compilation. As you can see from a quick perusal, 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.
2. In this case, Dr. McKee seemed quite sensitive – unusually so? – to Dennis’ remarks. To find potential defamation, many of the 11 statements require an incredibly tendentious reading. The Minnesota Supreme Court opinion didn’t say so explicitly, but a pretty clear subtext to the opinion was: really? You’re litigating in the Supreme Court over THAT?
3. This case reminds us of the Streisand Effect. Whether it’s a fair characterization or not, Dr. McKee will be forevermore associated with the phrase “real tool.”
4. Due to Dr. McKee’s aggressive claims, Dennis has incurred substantial legal costs to defend his words (according to this article, 2 years of income). This highlights why negative truthful information is the most endangered content in our ecosystem. Although I’m not sure a more robust Minnesota anti-SLAPP law may not have fully protected Dennis, it would have helped change the litigation dynamics. For this reason (among others), I remain eager to make progress on a robust federal anti-SLAPP law.