Doctor Loses Defamation Case Over Online Remarks

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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.

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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.

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

 

 

 

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