FEBRUARY 5, 2013
“Minnesota Supreme Court Rules Online Posts Didn’t Defame Doctor”
Marc Ohmann, MD WebPro
Last week the Minnesota Supreme Court ruled on a defamation case from 2010 filed by Dr. David McKee, a neurologist in Duluth MN. McKee claimed online patient reviews posted by Dennis Laurion, whose father was a patient of McKee. Laurion’s online comments included:
“McKee said 44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option,” and that “It doesn’t matter that the patient’s gown did not cover his backside.”
“When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’”
Laurion’s father, Kenneth, was hospitalized for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. Laurion’s father was discharged and Laurion proceeded to post the online reviews.
Justice Alan Page noted that since McKee acknowledged the gist of some of the statements were true even though they were misinterpreted. Page wrote: “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.”
McKee originally sued and the charges were dismissed by a St. Louis County judge because Laurion’s statements were protected opinion, substantially true, or too vague to convey defamation. An appeals court later reversed that ruling based on harm done to McKee’s reputation and at least 6 of the statements could be proven false. And the Supreme Court disagreed. Page added that the “tool” statements didn’t pass the test of defamation either. McKee’s attorney claimed the statement was fabricated. Page stated whether it was fabricated or not was irrelevant.
McKee has spent more than $60,000 in legal fees and to clear his name online. After the initial lawsuit the story went viral and hundreds of negative reviews appeared on review sites under McKee’s name. A look at the review sites for McKee as of the ruling shows.
Negative reviews from seemingly non-patients and stemming only from the lawsuit such as the one below are still visible on review sites.
What can doctors do to protect themselves?
- The first step any provider should take is to encourage reviews by patients. The majority of patients should have a pleasing experience with you and these positive reviews can drown out any negative reviews. Patients actually expect to see a few negative reviews mixed in with many positive reviews as this appears more real than having 100% positive reviews which could appear fabricated.
- Respond to reviews in a general non patient specific manner. Doctors can respond to reviews without acknowledging that a reviewer was actually a patient. As seen in the image above, many of the rating factors on review sites have nothing to do with protected health information but instead are centered around ease of appointment scheduling, wait times, professionalism, etc and these concerns can be responded to in a very general manner without breaking HIPAA guidelines.
- Monitor your own reviews so you know what is being said about you online and establish a system for responding. Doctors can monitor their reputation online using Google Alerts or by using tools built specifically for monitoring online patient reviews such as ours.
The fact is that online review sites are here to stay. And patients will continue to search for doctors online. The precedent set by the Minnesota High Court, while unfavorable for doctors, will likely be a continuing trend as patients demand to voice their experiences whether fabricated or not.
Marc Ohmann is president of Digital Solutions, Inc in Minneapolis. Digital Solutions is the company behind the MDWebPro blog and tool set. Marc was a computer science and engineering student at the University of Minnesota in 1999 when he started Digital Solutions. Marc, now a husband and father of 3, greatly enjoys the clients and creativity he is involved in each day through Digital Solutions. Follow Marc on Twitter @marcohmann and @MDWebPro and also on Google Plus.
Dennis: “McKee has spent more than $60,000 in legal fees and to clear his name online. After the initial lawsuit the story went viral and hundreds of negative reviews appeared on review sites under McKee’s name.”
The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me.
The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.
“. . . the story went viral and hundreds of negative reviews appeared on review sites under McKee’s name. “
After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage. Newspaper stories have caused people to call or write me to relate their own medical experiences. I’ve referred them to my lawyers. I’ve also received encouragement from other persons who have been sued over accusations of libel or slander.
I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.
I feel that defamation lawsuits are much too easy for wealthy plaintiffs. If I were to attempt suing a doctor for malpractice, my case would not proceed until I’d obtained an affidavit from another doctor, declaring that the defendant’s actions did not conform to established procedures. In a defamation suit, there’s generally no exit short of a judge’s dismissal order – which can be appealed by the plaintiff. Being called “defendant” is terribly personal, but the civil suit path is totally impersonal. During the three years that I went through depositions, interrogatories, a dismissal hearing, an appellate hearing, and a state Supreme Court hearing; I never once spoke to a judge. At depositions, the plaintiff and I sat opposite each other, while I answered his lawyer’s questions, and he answered my lawyer ‘s questions. We were not to speak to each other.
Minnesota and two other states allow “hip pocket” lawsuits. The plaintiff can start a suit by sending the summons and complaint to the defendant without filing the documents in court. The plaintiff enjoys complete anonymity from public awareness. The defendant has 20 days to respond, but the court is unaware that the suit exists. The plaintiff can conduct interrogatories and depositions while the court is unaware that the suit exists. The plaintiff can send settlement demands to the defendant ‘s insurance company while the court is unaware that the suit exists. Until the suit is actually filed, the plaintiff’s lawyer orchestrates everything as the officer of the court. If the defendant files his answer, in order to publicly get onto the docket and under the supervision of a judge, the defendant pays the filing fee. In Minnesota, if the plaintiff loses his effort at rule by law, the rule of law generally allows the defendant no remuneration. The plaintiff can lose the suit while winning the battle of financial attrition.
Marc Ohman: Dennis, Thanks for chiming in. I think that your experience, Dr. McKee’s experience, and the court’s ruling show that the decision to take these cases through the court system should not be taken lightly. With the advent of these review sites and easy access to a large audience for both positive and negative feedback, it is important that both sides are educated on the potential risks. Thanks again for stating your side.
Court Watch: Minnesota defamation case, David McKee MD v Dennis Laurion, cited as precedent by UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT upon Appeal from the United States District Court for the Eastern District of North Carolina. In deciding MYGALLONS LLC and ZENACON LLC STEVEN VERONA versus U. S. BANCORP, VOYAGEUR FLEET SYSTEMS INC, And K. E. AUSTIN CORP (12-1287), the United States Court of Appeals for the Fourth Circuit cited David McKee MD v. Dennis Laurion.
From pages 13-14 of http://www.ca4.uscourts.gov/Opinions/Unpublished/…
The parties agree that the defamation claim is governed by Minnesota law because the alleged defamation originated in Minnesota. They also agree that under Minnesota law, the elements of a defamation claim are: “(1) the defamatory statement was communicated to someone other than the plaintiff; (2) the statement is false; (3) the statement tends to harm the plaintiff’s reputation and to lower [the plaintiff] in the estimation of the community; and (4) the recipient of the false statement reasonably understands it to refer to a specific individual.” McKee v. Laurion, 825 N.W.2d 725, 729-30 (Minn. 2013) . A defamation claim cannot be based on a true statement. Id. at 730. “True statements” include statements that are “true in substance” and contain only “minor inaccuracies of expression or detail.” Id. In articulating this standard, the Minnesota courts explain that “substantial truth” means that “the substance, the gist, the sting, of the libelous charge [is] justified” and the statement “would have the same effect on the mind of the reader or listener as that which the pleaded truth would have produced.” Id.
Chicago Brick: This is from “The Top Lawsuits Of 2013” by Steve Kaplan in Twin Cities Business.
Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.
Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?
It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”
But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”
But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”
The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.