FEBRUARY 3, 2013
“Bedside Manners: Was the Doctor Defamed?”
Mark A. Fischer, Duane Morris New Media and Entertainment Law
In 2010 Kenneth Laurion was admitted to [ St. Luke’s ] Hospital in Duluth, Minnesota, after suffering a hemorrhagic stroke. David McKee, M.D., a neurologist examined the patient at the hospital. From the perspective of Mr. Laurion’s family, the examination did not go well.
According to the accounts of the patient’s son (who was present during the examination), Dr. McKee was rude and insensitive. Among other things, Dr. McKee was accused of saying that he had to “spend time finding out if you [Kenneth] were transferred out or died”; that “44% of hemorrhagic strokes die within 30 days. I guess this is the better option”; that “You [Kenneth] don’t need therapy”; and that “[I]t doesn’t matter” that the patient’s gown did not cover his backside; further, it was alleged that Dr. McKee left the room without talking to the patient’s family; and finally that a nurse told Dennis Laurion that McKee was “a real tool.”
Mr. Laurion’s son posted those statements on various “rate-your-doctor” websites. The doctor sued the patient’s son for defamation. The Minnesota District Court that initially heard the case found for the son; the intermediate Appeal Court ruled in favor of the plaintiff doctor, finding that the case could go forward; and the Minnesota Supreme Court granted the son’s motion for summary judgment, seeking that the case be brought to an end.
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.
In general – and in the Minnesota Supreme Court – “truth is a complete defense to a defamation action and ‘true statements, however disparaging, are not actionable.’” If the statement is true it can’t be defamation (the statement might invade privacy or violate another right, but if it’s true it’s not libelous).
Further, the First Amendment of the U.S. Constitution protects statements that constitute “protected opinion”. For example, saying to others that you don’t like someone else’s new hairstyle may be rude but it is opinion and may be expressed without legal liability. (You can lose a friend that way, but that’s a form of non-legal payback.)
The statement allegedly made by the nurse about the doctor – and posted on the websites by the son — being a “real tool” was, from a legal perspective, protected opinion. The objective truth or falsity of the statement isn’t the point – it is protected opinion.
The court concluded by saying, “because the six statements at issue, viewed individually or in the context of the entire positing, are not actionable, we conclude the district court properly granted summary judgment in favor of Laurion.”
Social media such as Yelp, Trip Advisor, and Facebook give each of us incredible power to express and disseminate our judgments about people, companies, and institutions. We’re on our own about what we post, because editors who could catch our mistakes or nudge us to change our postings aren’t in the picture.
For those who are under criticism, one of the practical consequences of bringing a defamation action is that more publicity for the accused statements is almost an inevitable result, whether the statements are ultimately found libelous or not. In other words, in weighing the pros and cons of initiating a lawsuit, all potential defamation and privacy claim plaintiffs should consider the rule of Hippocrates applicable to physicians, “First do no harm.”