February 20, 2013
“The Minnesota Supreme Court Rules For The Defendant In A Suit Alleging Online Defamation”
Julie Hilden, Verdict, Legal Analysis and Commentary from Justia
On January 30, in McKee v. Laurion, the Minnesota Supreme Court ruled that none of the six online statements that had been claimed by Dr. David McKee to be defamatory as to him, when they appeared in an online review written by Dennis Laurion, actually was, indeed, defamatory. The court therefore dismissed the case, leaving the online reviews to stand.
The six statements at issue concerned the medical treatment that Dennis Laurion’s father, Kenneth Laurion, after having had a stroke and being hospitalized, had received from Dr. McKee. Unhappy with statements that Dr. McKee had made, and perceiving Dr. McKee’s attitude to be rude and insensitive, Dennis Laurion then left negative comments about Dr. McKee on rate-your-doctor websites.
In return, Dr. McKee sued Dennis Laurion for defamation. As noted above, however, none of the six statements at issue was deemed defamatory by Minnesota’s high court, and thus, Dr. McKee lost his case.
In this column, I’ll cover the McKee V. Laurion case, and comment on some ways in which those who write online reviews can attempt to steer clear of triggering a libel case with their online remarks.
Why Mr. Laurion Won the Libel Case
This case might have turned into a he-said-he-said were it not for the presence of witnesses; three Laurion family members were there in the hospital room during the 20 minutes during which five of the six contested statements were made by Dr. McKee. (The sixth statement at issue in the case came from an unnamed friend of Mr. Laurion’s who was a nurse, and who called Dr. McKee—not to his face, but only to Mr. Laurion—a “real tool,” based only on what she had heard of Dr. McKee’s conduct. (The Minnesota Supreme Court deemed the nurse’s comment, as reproduced in the online reviews by Mr. Laurion, to be pure opinion, and thus First-Amendment-protected.)
The other five statements in the online review were also not deemed to be defamatory by Minnesota’s high court. One group of statements included statements that were either substantially true, which means that they were true enough for defamation law purposes; or were not defamatory; or both. Each of these statements reported a joking and arguably insensitive, but also true, statement by Dr. McKee, as follows: (Dr. McKee had had to check if Mr. Laurion’s father “was transferred or died); (“44% of hemorrhagic strokes die within 30 days; I guess this is the better option”); (“You don’t need therapy”); and (“It doesn’t matter [if the patient’s gown doesn’t cover his backside]”). Finally, Mr. Laurion’s family also was offended by Dr. McKee’s leaving the room without speaking to them—an act that the court counted as another statement, albeit a wordless one.
In the end, none of the statements, nor the description of the act of the doctor’s leaving the room, was deemed by the court to be defamatory. Accordingly, all of Mr. Laurion’s online postings were ruled to be First-Amendment-protected, meaning that now he can post them wherever he wishes—online, in the brick-and-mortar real world, and even on a billboard on the highway—without fear.
Some Possible Ways to Steer Clear of a Libel Case Based on an Online Review
Could the litigation over the online reviews posted by Mr. Laurion have been prevented, or halted? Possibly, although both sides’ emotions likely ran very high, especially given that this litigation didn’t settle at an earlier stage.
One obvious way to avoid the kind of harsh review that Mr. Laurion posted would have been for Dr. McKee to seek to improve the parties’ relationship, which seems to have gone poorly at a very early stage—due to a doctor whose morbid sense of humor wasn’t appreciated by his patient’s family, who were rightly and understandably focused solely on their family member’s health, and in no mood at all for joking.
Perhaps the litigation might have been preempted entirely had a sensitive family member, or perceptive hospital higher-up, taken Dr. McKee aside and politely made clear to him that his sense of humor might amuse some patients, but in this case, it wasn’t shared by the patient or his family. True, it’s possible that Dr. McKee had heard such comments in the past and ignored them, but it still might have been worth a try, particularly because the alternative is that he now has been memorialized as a doctor with a questionable sense of humor in a state supreme court opinion that will always be in the law books and/or online. Ironically, that very memorialization may actually act like yet another negative review—and one that, like Laurion’s reviews of McKee, may now be very long-lasting.
Finally, speaking more generally, and leaving the Laurion case behind for a moment, a good way to avoid, or counter, negative online reviews is to enlist witnesses who were also there at the time described in the review—whether they are friends, family members or best of all, unbiased strangers—and will help you tell your story of what really happened in a particular situation.
Of course, recruiting witnesses on the spot should be done only occasionally, but when the stakes are very high, such witnesses’ statements and/or contact information can be invaluable. For instance, here, as noted above, the presence of three Laurion family members at the hospital ensured that there were credible and mutually corroborating witnesses to Dr. McKee’s actions and statements. And it’s likely that Dr. McKee could have adduced his own witnesses, too, assuming that other medical personnel also came into contact with Mr. Laurion and his father and family. If it seems clear that a court case is coming, it’s good to be prepared.
Julie Hilden, a Justia columnist, graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for over a decade. Hilden is also a novelist.