Another Failed Doctor Lawsuit Against A Patient For Online Reviews–Brandner v. Molonguet

January 8, 2015

“Another Failed Doctor Lawsuit Against A Patient For Online Reviews–Brandner v. Molonguet”

Eric Goldman, Technology And Marketing Law Blog

This is another lawsuit by a doctor over a patient’s negative online reviews. Dr. Brandner is an oral surgeon in Louisiana. In 2005, he treated Molonguet. Molonguet protested Brandner’s fees, but a court ruled for Brandner. In response to that court loss, Molonguet allegedly began an aggressive harassment campaign against Brandner as well as a patient who wrote a positive review of Brandner.

Brandner sued Molonguet in 2013. For purposes of Molonguet’s motion to dismiss, the court assumed the following allegations were true: “Molonguet posted on the internet false statements about Dr. Brandner’s treatment of him…Molonguet posted the false statements with the sole intent of harming Dr. Brandner; and as a result of Molonguet’s actions, Dr. Brandner’s reputation has been harmed.”

On appeal, Molonguet won several helpful points on his motion to dismiss, including a good application of the statute of limitations for defamation and harassment. However, his biggest win came via Louisiana’s pretty broad anti-SLAPP law. Molonguet had allegedly said the following online:

Dr. Brandner had cut or nipped a nerve in his mouth; statements indicating his belief that Dr. Brandner had billed Molonguet for services he never received; and suggestions to others that they check the CPT codes under which Dr. Brandner billed for services.

Without a lot of discussion, the court says these statements relate to a matter of public concern. (In contrast, my 2011 analysis of consumers reviews as a matter of public concern was more mixed). Thus, the burden shifted to Brandner to make his case, but Molonguet prepared the case well. He provided good support for the nerve nipping; and he had two independents review of the medical bills that gave him sufficient grounds for his assertions to overcome allegations of defamatory malice. Thus, Brandner’s case couldn’t survive the anti-SLAPP heightened pleading requirements. Due to Brandner’s anti-SLAPP loss, I believe Brandner will have to pay Molonguet’s attorneys’ fees. This ruling is a great illustration of the power of anti-SLAPP laws and how they can provide extra breathing room for free speech.

I’ve been tracking doctor vs. patient lawsuits over online reviews for a while, and the numbers are clear: doctors rarely win. Yet the cases keep coming, so I guess the optimism bias remains strong among doctors.

Source

Case Judgment

Other Doctor Defamation Lawsuits

CBS4 Covers Michael Gesquiere V. Joanna Putnam

July 19, 2012

“Doctor Suing Former Patient Over Online Criticism”

Brian Maass, CBS 4, Denver, Colorado

 A Centennial-based anesthesiologist, Dr. Michael Gesquiere, has filed a civil lawsuit against a former patient, Joanna Putman, claiming her online venting amounted to libel that damaged his reputation and his business.

“What we are talking about are not negative opinions or reviews, what we are talking about are demonstrably false statements of fact that harmed a medical practice and a physicians reputation,” said Tripp Lake, Gesquiere’s attorney.

Putman had seen Dr. Gesquiere for relief of chronic pain following numerous surgeries, but the Doctor-patient relationship soured.  “I thought he was a really nice guy. I liked him,” Putman said of the initial relationship.  But eventually, the two did not see eye to eye.

Putman took to Angie’s List, RateMds.com and other websites to criticize Gesquiere and his treatment.

On Angie’s List, where other patients had given Gesquiere “A” grades, Putman gave him an “F” saying in part that Gesquiere’s office “filled my medical file with lies… and then abandoned me… he is under investigation.”

On another site, Putman wrote, “I stayed here too long and it almost killed me.”

“The one review on RateMds basically says this doctor pushes too many meds, and he’ll start treating you like a second class citizen making you take urine tests,” said Putman.

“I didn’t say anything that wasn’t true,” maintains Putman. “Everything I said was true.”

Gesquiere declined to speak to CBS4 citing patient confidentiality issues. But his attorney said the physician only filed suit after first trying to get Putman to take down what Gesquiere considered to be false statements. “He was charged with being a pain pill pusher and for an anesthesiologist whose focus is to wean people off meds, you can’t let those kinds of statements stand,” said Lake.

Putman said she has removed some of the offensive posts but has not been able to remove all of them.

She says the Doctor’s lawsuit has wracked her and her husband with anxiety and they anticipate financial difficulties.

Similar lawsuits have been filed across the country by service providers against consumers believed to have posted false statements.

“The internet is no different than any other forum as far as libel law is concerned,” said Steven Zansberg, a Denver based first amendment attorney. Whether it’s in a consumer review site, a tweet, on a blog or on a website, its treated the same under the laws of defamation as something thats published in a newspaper, a flyer or broadcast over your airwaves,” said Zansberg. He said actions like Dr. Gesquiere’s tend to inhibit critical web postings, “Those types of claims do have a chilling effect and do inhibit consumers and patients from posting comments that may be of benefit to the rest of us. “My advice to anyone thinking of posting a negative review, particularly in the immediate aftermath of a bad experience is to pause, and think, and to give some time before hitting send.”

SOURCE

DOCTOR DEFAMATION LAWSUITS

McKee V. Laurion: Dr. David McKee Is Questioned By His Own Lawyer After Deposition By Defense Lawyer

The following text is copied from pages 1 and 2 and pages 88 through 108 of Exhibit AA-156 of David McKee, MD, V. Dennis K. Laurion.


State of Minnesota District Court

Sixth Judicial District

File # 69DU-CV-10-1706

David McKee, MD, Plaintiff, vs. Dennis K. Laurion, Defendant

Deposition of David C. McKee, MD, January 7, 2011

Carol Danielson Bille, RPR, Danielson Court Reporting, LLC The following is the deposition of David C. McKee, MD, taken before Carol Danielson Bille, RPR, Notary Public, pursuant to Notice of Taking Deposition, at the law offices of Hanft Fride, PA, 1000 U. S. Bank Place, 130 West Superior Street, Duluth, Minnesota, commencing at approximately 11:43 a.m., January 7, 2011.

Appearances

 For the Plaintiff:

Marshall H. Tanick, Esq.

Mansfield, Tanick, and Cohen, P. A.

1700 U. S. Bank Plaza South

220 South Sixth Street

Minneapolis, Minnesota, 55402-4511

612-339-4295

For the Defendant:

John D. Kelly, Esq.

Nathan N. LaCoursiere, Esq.

Hanft Fride, PA,

1000 U. S. Bank Place,

130 West Superior Street,

Duluth, Minnesota, 55802

218-722-4766

Proceedings

MARSHALL TANICK: Dr. McKee, I have a few questions to ask of you. And let me start by asking [ the reporter ] if you could mark that, please, as Exhibit 19. And I’ll give John a copy. I don’t have an extra copy, but I shall let him see it first.

JOHN KELLY: Let me just take a look at it. I’ve seen that, I think.

MARSHALL TANICK: Okay. Dr. McKee, I’m showing you Exhibit 19. Is that what you refer to as a curriculum vitae or resume?

DR DAVID MCKEE: Yes.

MARSHALL TANICK: And is that something that you use in your business practice, your current business practice?

DR DAVID MCKEE: It’s a current curriculum vitae. Yeah, it’s something that goes out here or there occasionally, yes.

MARSHALL TANICK: Okay. And you talked about your reputation. I’ll ask you how important it is to you. Presumably it is to most of us, but are there things that you try to do to foster or help or promote your reputation?

DR DAVID MCKEE: Well, I – – you know, I try to be the – – the best neurologist that I absolutely can, and that includes the, you know, nuts and bolts of getting a diagnosis right and embarking on the right treatment, as well as interacting professionally and compassionately with patients. I’m not sure how else to answer that question.

MARSHALL TANICK: You mentioned you were not a member of the American Medical Association, the state medical association, and the county medical association. I — I think there’s a – – many people think that if – – those are sort of organizations that doctors must be a member of, and we have the same thing in our profession, that kind of three-tiered bar association. But why aren’t you a member of those organizations?

DR DAVID MCKEE: Those are mainly political organizations, and – – that’s mine.

MARSHALL TANICK: (Indicating.)

DR DAVID MCKEE: Sorry. Those are primarily political organizations. They’re not – – they’re not so much involved with – – with day-to-day professional activity, and I don’t really see eye to eye politically with a lot of the views of the AMA, and I have less concern about the state medical society. But as I mentioned before – – and the county medical society is almost just a social organization. But – –

MARSHALL TANICK: Well – –

DR DAVID MCKEE: – – membership in one pretty much implies membership in all three.

MARSHALL TANICK: Those organizations aren’t – – are they not – – they’re not reflective of one’s medical skills or ability?

DR DAVID MCKEE: Oh, no, not at all. Anybody – – any – – any physician can join them. It’s – –

MARSHALL TANICK: All right. I want to ask you a few questions relating to this particular case. Mr. Kelly asked you about the – – your entrance into Kenneth Laurion’s room after you found out he was in a ward room. Do you have a standard, habitual practice of what you say to people when you enter the room, if they’re comatose and not confused? I mean, is there something you generally say?

DR DAVID MCKEE: If they’re not comatose?

MARSHALL TANICK: If they’re not comatose or confused.

DR DAVID MCKEE: Yes, it’s not some canned speech or anything – –

MARSHALL TANICK: Right.

DR DAVID MCKEE: – – but – – but, as I mentioned before, you know – –

MARSHALL TANICK: Well, do you introduce yourself in a certain way?

DR DAVID MCKEE: I always introduce myself – –

MARSHALL TANICK: Do you – – and how – –

REPORTER: Just a minute. You’re both – –

MARSHALL TANICK: Just a second. Do you introduce yourself in a certain way? Do you say, “I’m Dr. McKee”?

DR DAVID MCKEE: Yeah.

MARSHALL TANICK: Do you say, “I’m Dr. David McKee”? Is there a certain standard practice you have?

DR DAVID MCKEE: Yeah. I always say I’m – – “Hello, I’m Dr. McKee, and I’m the neurologist, ” or “I’m the neurologist that Dr. Gilbertson asked to come and see you.”

MARSHALL TANICK: All right. Do you have any reason to believe you did not follow that practice with respect to Mr. Laurion?

DR DAVID MCKEE: No.

MARSHALL TANICK: Likewise, is your – – what is your practice with respect to knocking on the door or – – or indicating you’re about to enter before you enter a room? A hospital room?

DR DAVID MCKEE: Well, I – – I think I already described that, but I – – you know, I always knock on the door if the door is open, the door frame, or the window next to the door.

MARSHALL TANICK: Do you have any reason to believe you did not do that with respect to Mr. Laurion?

DR DAVID MCKEE: No.

MARSHALL TANICK: In his Web postings and his various other comments, Mr. Laurion asserts that you said words to the effect that Mr. Laurion’s father was talking about therapy he had undergone, and you said words to the effect – – well, he quotes you. He quotes you as saying, “Therapy,” ques – – “Therapist,” question mark. “You don’t need therapy,” unquote. You read that. Right? You’re aware he said that about you?

DR DAVID MCKEE: I read that he said that about me.

MARSHALL TANICK: Did you say that?

DR DAVID MCKEE: Absolutely not. That isn’t even the way I speak, and – –

MARSHALL TANICK: Well, did you say something else to – –

DR DAVID MCKEE: No.

MARSHALL TANICK: – – or equivalent or similar or resembling that?

DR DAVID MCKEE: No. I just – – I just do not do that. It’s not the – – it’s not the way I speak. It’s just – – no, I did not say that.

MARSHALL TANICK: Did you say anything – – do you remember saying anything relative to therapy or therapists for – – with respect to Mr. Laurion?

DR DAVID MCKEE: No.

MARSHALL TANICK: Generally speaking, do you have a – – how would you characterize your relationship with the – – with nurses with whom you’ve worked or had occasion to interact with through the years?

DR DAVID MCKEE: Well, acknowledging that – – that often times what a person thinks other people think about him isn’t the same as what is they really do think about them, I think – – I think it’s excellent.

MARSHALL TANICK: Have you ever had any complaints to any hospital authorities or any other people in charge of your work or overseeing your work from any other nurses or hospital personnel about you or your behavior or conduct or treatment?

DR DAVID MCKEE: No.

MARSHALL TANICK: Do you – – how much work did you do, or how much work have you done with or at St. Mary’s Medical Center over the years?

DR DAVID MCKEE: Very little. The – – as I mentioned an hour or more ago, St. Mary’s at some point, I think the late ’90s or maybe the early – – early 2000’s, closed its staff, and it basically became next to impossible for physicians who weren’t employed – – were not employed by SMDC to do work there. So I haven’t had a patient at St. Mary’s Medical Center probably for at least ten years. Prior to that, I would guess that I maybe averaged one inpatient consultation or admission a year.

MARSHALL TANICK: Are you saying since approximately the year 2000 or 2001 you didn’t see any patients at St. Mary’s.

DR DAVID MCKEE: Yes.

MARSHALL TANICK: Do you know any of the nurses there on a personal or social or professional basis?

DR DAVID MCKEE: No.

MARSHALL TANICK: Do you know whether any of them are familiar with you or your practice?

DR DAVID MCKEE: No.

MARSHALL TANICK: Have you ever heard any rumbling about – – about you having a bad reputation amongst the nurses at St. Mary’s or hospital personnel?

DR DAVID MCKEE: No.

MARSHALL TANICK: Mr. Laurion says that he – – and he wrote in his Web site, you heard his testimony, that he ran into a friend nurse at the – – I almost said it again – – at the Post Office, the Lakeside Post Office, shortly after your treatment of his father, and she made the comment, according to Mr. Laurion, that you are a – – “Dr. McKee is a tool,” unquote. You’ve heard that before or read that – –

DR DAVID MCKEE: Yes.

MARSHALL TANICK: – – in connection with this case. Right?

DR DAVID MCKEE: Yeah, I have.

MARSHALL TANICK: Do you have any idea what that – – have you ever heard that phrase used in any context, like somebody’s a tool?

DR DAVID MCKEE: I never heard it used about me. I – – I guess I’ve heard it. I – – I’ve never quite known exactly what it means, but I’ve always thought that it meant something to the effect of, you know, this is a person that, you know, is sort of a lick-ass who will do whatever is politically expedient. But I don’t know that that’s the correct definition or not. That’s a definition that doesn’t fit me very well.

MARSHALL TANICK: Have you ever heard that phrase applied to you – –

DR DAVID MCKEE: No.

MARSHALL TANICK: – – as a tool, other than in this case?

DR DAVID MCKEE: Except here.

MARSHALL TANICK: Do you have any – – do you have any reason to believe or think about how – – who or how that statement could have been made to Mr. Laurion, or by whom?

DR DAVID MCKEE: I don’t have any idea as far as – – you know, like I said, I, it should be clear, had next to no contact with the nursing staff at St. Mary’s, especially in the last ten years. And I did make a – – I don’t – – I don’t know most of the physicians at St. Mary’s very well. I – – I have some interactions with some of their rehab people and the neurosurgeons that have come and gone over the years and, to a lesser degree, some of the neurologists that have been there. Beyond that, the physicians that I know that practice at St. Mary’s are people that I’ve met socially rather than professionally. I did make a call yesterday evening to a general surgeon that I know socially, who has been a long-term employee there for, I guess, the better part of the last twenty years and gave the description of this nurse to him the way Dennis Laurion gave it to us yesterday – – that is, something a little taller than average height, maybe 5-5, 5-6, trim build, 50s, dark blonde or light brunette hair, graying – – and described Mr. Laurion’s former work at St. Mary’s and described the interaction in the way in which he encountered nurses and mentioned that he had described this nurse working at least part of the time on the night shift when he worked and asked this surgeon, Dr. Steven Eyer, if he knew anybody that fit that description, and he said he didn’t.

MARSHALL TANICK: Okay. In – – in your encounter with Mr. Laurion, Kenneth Laurion – – the defendant, Dennis Laurion, stated in his Web site postings and his other communications – – some of the other communications that you made a reference while you were in the room there to the percentage of hemorrhagic stroke patients who die in the ICU, who didn’t get out of the ICU. And Mr. Laurion testified that you said 44 percent. You heard that his wife said that you said some percentage or – – but doesn’t remember the specific number, and that’s maybe what his mother heard too. Let me ask you. Did you say anything about a percentage or a statistic or a number or a figure relating to the likelihood of stroke patients – – hemorrhagic stroke patients expiring?

DR DAVID MCKEE: No.

MARSHALL TANICK: Did that come up at all during the encounter?

DR DAVID MCKEE: No.

MARSHALL TANICK: Well, how can you know that if you see – – how many patients do you see a year on a typical – – let’s just say a week?

DR DAVID MCKEE: Well, for slightly different reasons, I did a little back-of-the-envelope calculation yesterday, and I – – I see, in an average day, perhaps fifteen or sixteen patients, of which, on average, maybe a dozen of those will be new to me. And I would say that, on average, they would have two – – maybe the average would be a little less than two – – family members in tow. Of course, some of them are there by themselves. So, you know, five days a week, maybe a dozen new people with family members.

MARSHALL TANICK: It would be several hundred a year, I take it, is that what you’re saying?

DT: No. It would be thousands a year.

MARSHALL TANICK: It would be several hundred a month?

DR DAVID MCKEE: Yes.

MARSHALL TANICK: A thousand. How many of those – – roughly, how many hemorrhagic stroke patients would you see in a typical week, month, or year, if you can help us with that?

DR DAVID MCKEE: New patients as opposed to what I’m seeing in a follow-up?

MARSHALL TANICK: Right.

DR DAVID MCKEE: I would say that – – that it would probably be a few a month.

MARSHALL TANICK: So over the course of a typical year, you may see a few dozen new hemorrhagic stroke patients?

DR DAVID MCKEE: Yeah. I would say maybe – – yes, you know, something like that.

MARSHALL TANICK: Well, how can you remember, then, what you didn’t say to Mr. Laurion and his family about the percentage of hemorrhagic stroke patients who die?

DR DAVID MCKEE: Because I’d never seen that statistic before, and it’s not – – it’s not – – it’s not a common-knowledge statistic among neurologists. You know, we found it by searching for it, and the source is Wikipedia. Now, whoever wrote the Wikipedia article presumably had some source from which he got it, but it isn’t something that comes out of – – you know, it’s not a major piece of – – of general data that neurologists have on hand, and I would guess that if you took 100 neurologists and said, “Okay, what’s the percentage of patients with hemorrhagic stokes that die within the first month,” my guess is none of them would come up with 44 percent. People would say, “Gee, maybe it’s 20 percent, maybe 30.” Somebody might guess 40 or more. But this isn’t a – – this is not a common – – commonly quotes or known number – –

MARSHALL TANICK: Was – –

DR DAVID MCKEE: – – to the best of my knowledge.

MARSHALL TANICK: Was it a number that you were aware of or had in your mind on April 19th, when you treated Dr. – – Mr. Laurion?

DR DAVID MCKEE: Absolutely not.

MARSHALL TANICK: If someone had asked you that day, April 19, 2010, “Doctor, how many hemorrhagic stroke patients die within a month” – – “within 30 days,” what would you have said?

DR DAVID MCKEE: I would have said it’s probably somewhere between a third and half, probably closer to a third.

MARSHALL TANICK: Okay.

DR DAVID MCKEE: And I – – I’m sure I wouldn’t have been any more precise than that, because I wouldn’t have been able to. I still don’t know if that – – you know, where that 44% comes from, what – – what study or database that may be.

MARSHALL TANICK: Didn’t come from you?

DR DAVID MCKEE: It didn’t come from me.

MARSHALL TANICK: All right.

DR DAVID MCKEE: It was attributed to me with quotation marks, but it definitely did not come from me.

MARSHALL TANICK: Now, Mr. – – you were asked about patients or family members, people who encounter doctors like you, having criticisms from time to time of doctors. Right?

DR DAVID MCKEE: Right.

MARSHALL TANICK: Okay. It – – and you realize, of course, that Mr. Laurion, in his postings and other communications, was quite critical of what you did?

DR DAVID MCKEE: Yes.

MARSHALL TANICK: Is – – are you – – are you bringing – – or did you write the – – or did you cause me to write the cease – – the letter I wrote to Mr. Laurion because you didn’t like his criticism?

DR DAVID MCKEE: No, not per se. What I didn’t like is that he – – he made very inaccurate factual statements about what happened and about what I said. His right to criticize me is, of course, you know very appropriate, and – – and I certainly understand that – – you know, believe me, I know that you can’t be in any profession for months and certainly not years, without somebody subjectively being dissatisfied, and – – and certainly somebody, you know, like that has a right to – – to express their dissatisfaction. But that’s not what happened here. These were – – his criticisms and what he wrote was blatantly inaccurate. I’m not talking about his subjective opinion. I don’t care if Mr. Laurion likes or dislikes me, but – – what he wrote was just utterly inaccurate.

MARSHALL TANICK: Mr. Laurion wrote about this incident involving his father to some fourteen, I think it was, different organizations. Some were licensed – – one is the Minnesota Board of Medical Practice – – and other peer groups, and some were licensing-related authorities, some weren’t?

DR DAVID MCKEE: Physician – – physician groups in town.

MARSHALL TANICK: Right. Did you get any – – were you aware of which – – what conclusions or – – were reached by any of these different organizations as to this matter?

DR DAVID MCKEE: Well, you know, it was a real shotgun approach. He wrote to anybody that had anything to do with medicine anywhere, and – – and though some of those could have harmful, because the people that would receive the letters are peers or involved with health care in a way that matters to me. They – – a lot of these – – in fact, probably the majority of them – – don’t have any kind of authority, that the letters were – – you know, they were not directed to appropriate agencies and organizations. But, you know, I’ve got their – – their responses from Dr. Peterson, who thought the complaint was intrinsically so preposterous, that – – that it didn’t require investigation.

MARSHALL TANICK: Well, how do you know – – excuse me. How do you know what he thought?

DR DAVID MCKEE: Because that’s what he told me.

MARSHALL TANICK: Okay

DR DAVID MCKEE: And yesterday Dennis Laurion was trying to come up with a name of a woman at St. Luke’s with whom he discussed these issues, and – – and so forth, and I suspect from his description of – – of the person and her role that he was trying to come up with Kathy Johnson’s name. She’s the director of quality assurance there. And – –

MARSHALL TANICK: Did you have some feedback from her about this matter?

DR DAVID MCKEE: I did. It was informal, but I – – because Mr. Kelly wanted access to – – to, you know, every place it seemed that I have had or have medical privileges and wanted to be able to delve into my professional – –

MARSHALL TANICK: Well, let me just ask you this. Okay. I’m sorry to cut you off, but what feedback did you receive from Ms. Johnson?

DR DAVID MCKEE: Well, I had to present to her his – – the form whereby she could release information to him, and she was – – she had a very good memory of this whole thing, and she expressed to me her sympathies for being dragged through the mud over all of this, and – – and felt that the complaint was – – was absurd. And obviously that’s her subjective opinion and all, but she thought it was outrageous and very offensive.

MARSHALL TANICK: How about – –

DR DAVID MCKEE: I’ve also had the feedback ultimately from the Minnesota Board of Medical Practice.

MARSHALL TANICK: That was my next question. What feedback did you get from them?

DR DAVID MCKEE: That they dismissed the two Laurion complaints, which are really quite obviously one, with a second go-around with it.

MARSHALL TANICK: How was that communicated to you?

DR DAVID MCKEE: By letter.

MARSHALL TANICK: that the charges were dismissed or not acted upon?

DR DAVID MCKEE: Yes, dismissed.

MARSHALL TANICK: What – – did – – was this lawsuit that you brought against Mr. Laurion inspired by, prompted by, motivated by his filing any complaints or charges, formal or informal, against you with the Minnesota Board of Medical Practice? Is that the reason you – –

DR DAVID MCKEE: No.

MARSHALL TANICK: – – brought this suit?

DR DAVID MCKEE: No, of course not.

MARSHALL TANICK: Well, why did you bring this suit?

DR DAVID MCKEE: Because of – – of the damage my reputation that occurred from, you know, his – – initially, the Web postings. I mean, that was really the thing that got this whole thing going, and of course, as we went along, discovered all these other place that he had fired off letters and sent copies of things and so forth. But all of this was commenced as a result of this – – this Web nonsense.

MARSHALL TANICK: All right. I don’t have anything else.

JOHN KELLY: Doctor, can we agree that there are only five people who know what went on in that hospital room on April 19, 2010, those five being you, Dennis, Bonnie, Lois, and Kenneth Laurion?

DR DAVID MCKEE: I think we can agree on that.

JOHN KELLY: That’s all I have. Thank you. Appreciate it.

MARSHALL TANICK: We’ll read and sign.


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

McKee V. Laurion: Dr. David McKee Is Deposed About Circumstances And Events After His Encounter With The Laurion Family

The following text is copied from Exhibit AA-156 of David McKee, MD, V. Dennis K. Laurion.

State of Minnesota District Court
Sixth Judicial District
File # 69DU-CV-10-1706

David McKee, MD, Plaintiff, vs. Dennis K. Laurion, Defendant

Deposition of David C. McKee, MD, January 7, 2011

Carol Danielson Bille, RPR, Danielson Court Reporting, LLC The following is the deposition of David C. McKee, MD, taken before Carol Danielson Bille, RPR, Notary Public, pursuant to Notice of Taking Deposition, at the law offices of Hanft Fride, PA, 1000 U. S. Bank Place, 130 West Superior Street, Duluth, Minnesota, commencing at approximately 11:43 a.m., January 7, 2011.

Appearances

For the Plaintiff:
Marshall H. Tanick, Esq.
Mansfield, Tanick, and Cohen, P. A.
1700 U. S. Bank Plaza South
220 South Sixth Street
Minneapolis, Minnesota, 55402-4511
612-339-4295

For the Defendant:
John D. Kelly, Esq.
Nathan N. LaCoursiere, Esq.
Hanft Fride, PA,
1000 U. S. Bank Place,
130 West Superior Street,
Duluth, Minnesota, 55802
218-722-4766

Proceedings

MR KELLY: The hospitals and the medical profession have promulgated what is known as a patient’s bill of rights. Correct?

DR MCKEE: Yes.

MR KELLY And, among other things, that bill of rights encourages patients to express concerns that they may have about their or a near relative’s patient care?

MR TANICK: I’m going to object to that. Calls for a legal conclusion. The statute says what it says.

MR KELLY: Go ahead.

DR MCKEE: I don’t know offhand what the details of the patient’s bill of rights includes.

MR. KELLY: Have you ever – –

DR MCKEE: I suspect that it’s – –

MR. KELLY: Have you ever read it?

DR MCKEE: You know, I probably have. But I certainly haven’t read it anytime recently. I’m aware – – excuse me.

MR. KELLY: Sure.

DR MCKEE: I’m aware of the patient’s bill of rights and – – and have a rough idea as to what’s in there, but I don’t think I can answer specific questions about it.

MR. KELLY: I’m showing you what’s been marked as Exhibit Number 6 (Handing).

DR MCKEE: (Reviewing document.)

MR. KELLY: Exhibit Number 6 is Mr. Tanick’s letter of May 7, 2010?

DR MCKEE: Yes.

MR. KELLY: If you turn to page 2 of the letter, you are not shown as having been copied on that letter. Would you agree?

DR MCKEE: Yes.

MR. KELLY: Had you seen this letter before it was sent to Dennis Laurion?

DR MCKEE: (Reviewing document.) I – – I don’t recall. I know I’ve seen the letter – – this letter before. I don’t recall whether or not I saw it before it was sent or after it was sent.

MR. KELLY: Were you told that Mr. Laurion had, to use the term that has been employed here earlier, taken down his comments from the Web sites?

DR MCKEE: I’m sorry. Could you say that again.

MR. KELLY: Yes. Were you told that Mr. Laurion took down the comments he posted on the Web sites?

DR MCKEE: There was some point at which I was told that – – that he had communicated that he had removed some of what he had posted on the Web.

MR. KELLY: Did you look to see whether in fact that has been accomplished?

DR MCKEE:  Yeah, and it hadn’t been accomplished.

MR. KELLY: Do you know whether or not by that point in time he had requested that it be taken down?

DR MCKEE: I think I know that he claimed to have made an effort or tried to take some of this down.

MR. KELLY: Do you have some reason to believe that he had not?

DR MCKEE: Well, I suppose you’re asking me to speculate, and – –

MR. KELLY: No, I’m asking whether – – I’m not asking you to speculate. I’m asking whether you have some reason to believe that, in fact, Dennis Laurion had not requested that those Web sites be taken down – – or that his comments be taken off?

DR MCKEE: You know, I think I do have some reason to suspect it. If you ask if I think that he did make an effort to remove some of what he had done, my answer is – – my best guess is that he made some effort to remove some of what he posted. But how certain of that am I? I don’t know. I’m not entirely certain at all. I – – I think he – – Dennis Laurion is a very dishonest person, and I think there have been any number of examples of contradictions and out – and – out untruths that he has made verbally in the last two days, and – – and more importantly, in print and electronically before this. Frankly, I think you know that too, because there have been any number of inconsistencies that have come to light in these two days of depositions.

MR. KELLY: The – – the letters that you submitted here to the Board of Medical Practice, two letters, and the one letter to Dr. Peterson, represented your considered response to Mr. Laurion’s complaints about you. Am I correct?

DR MCKEE: Yes.

MR. KELLY: Now, Doctor, tell me, if you would, in your own words, to what extent you believe you have been harmed or damaged by Dennis Laurion’s criticisms of your conduct of your examination or during your examination of Kenneth Laurion on April 19th of 2010. Would you, please?

DR MCKEE: I think I’ve been harmed to a great extent. That’s a qualitative, not a quantitative term, but, you know, but I can give you some rough idea as to what I’ve been through since then. This has been extraordinarily stressful. There hasn’t been a four – day stretch since this happened in April that I haven’t had at least one night where, in the wee hours of the night, I haven’t been wide awake thinking about this. My three daughters, 16, 13, 9, at various points along the history of all of this, became aware of Mr. Laurion’s work and comments, always in very unpleasant circumstances. My 9-year-old actually had the mother of a friend of hers confront her very undiplomatically about this. All of them have come to me very upset on different occasions about the results of Mr. Laurion’s efforts. The amount of time that I’ve invested related to this is probably much more than you would imagine. During the first three or so months following his postings, I was easily taking an hour a day out of my work schedule to deal with this. It’s been less since then, but – – and that’s just time out of my work schedule. I would say that since late April, in an average week, I’ve probably spent, you know, probably seven to ten hours related to – – to these issues, more again in the first half of that time frame than the second half. It’s been – – it’s been frustrating, infuriating, and anxiety-provoking, and at times very embarrassing. And I will give you a specific example that occurred just a short time ago, some weeks back. I don’t know if you’re familiar with the Integrity Health Network. It’s a relatively new organization, but it’s effectively a merger of Northland Medical Associates, North Star Physicians, and half a dozen clinics within, oh, a 100 and – – 150 mile radius or so of Duluth, and it – – it includes around 220 physicians. It has a CEO, a director of quality assurance, two medical directors, one in charge of the specialists and specialty care, and one in charge of primary care, and a COO, and I am the medical director in charge of specialty services. At a meeting that we had of the – – the officers that I just mentioned not very many weeks ago, it came up somewhat parenthetically that the CEO mentioned that there is an iPhone ap that a lot of the primary care physicians were using and finding very helpful called iTriage, nothing that I had ever heard of before. And he described this – – this application. It’s essentially a – – something that can be downloaded into an iPhone, and once you go into this ap, there – – there are sections that allow primary care physicians to input symptoms and – – and physical signs of a patient, and then the application gives a list of potential diagnoses and – – and suggestions for work-up. The other major component of the ap is a database for making referrals to specialists, and it can be entered by a physician’s name or by specialty. You can choose to – – you know, you can say, “I want a gastroenteroologist, but I want one within a thirty-mile radius,” and this sort of thing, and then it spits out names, and as it happens, ratings of those doctors. And as a point of demonstration, he – – he punched in, obviously never having done this before, “Well, let’s just say we need a neurologist that it within 25 miles of Cloquet,” and he ran this through. And – – and all of the neurologists that practice in Duluth – – there are none that are based in Cloquet, but all of the neurologists that practice in Duluth, and even some that no longer practice in Duluth, came up on the listing. Only one of them had ratings, and that – – that was me. And they were all – – the ratings were essentially Mr. Laurion’s work.

MR. KELLY: Were the – –

DR MCKEE: So this – – these Web-based projects have sort of metastasized throughout the Internet, well beyond where he initially entered them. And this – – he – – he punched this in, and one of the others was sitting right next to him in a position to see the result that he had, and suddenly the smile came off of his face and he didn’t say anything and just shut the phone off and set it down on the table. Well, it was pretty obvious that what he had seen was quite derogatory.

MR. KELLY: Did you look to see what he saw?

DR MCKEE: Today, I did, yes.

MR. KELLY: And what did you find?

DR MCKEE: I found that the – – there was some scoring there obtained from Health Grades.

MR. KELLY: And Health Grades is a website?

DR MCKEE: It’s one of the ones that Mr. Laurion worked on, yes.

MR. KELLY: All right. And was there text or were there numerical scores or stars? What I’m trying to figure out is what you saw.

DR MCKEE: What I saw were numerical scores, but what they had told me at the time was that there was text available too. So I don’t know if the text is now reviewed, but the numerical scores are still there.

MR. KELLY: And how do you know whose numerical scores they are – –

DR MCKEE: Well, after – –

MR. KELLY: – – or were?

DR MCKEE: After the patient brought to my attention Mr. Laurion’s handiwork on the Web, as I’ve already testified, I did soon thereafter look on the Internet to – – you know, and found these Web sites and – – and found what he had entered and saw that he had given me the very lovely objective scores of 1 on a scale of 10 and so forth. And, actually, most of these – – in fact, all of these sites, there was very little data, so it’s – – it’s a simple mathematical calculation if you know that there are – – you know, all of them tell you how many people have given a score.

MR. KELLY: If I can stop you right there, do you know from your own observations or investigations how many people have scored you on these Web sites?

DR MCKEE: It’s just a very few. It’s – – it’s, you know . . .

MR. KELLY: But how many is a very few?

DR MCKEE: I don’t remember offhand. We’re talking, you know, very much single digits. Three, four, five, in that ballpark. It wasn’t the same number on each site, but it’s a small number, and in each case it was very easy to do the math to figure out what the average score would have had to be before getting a bunch of 1’s to bring it down to what it is now. That’s – – that’s, you know sixth grade math.

MR. KELLY: Did you find – –

DR MCKEE: And I ran the – – I did these calculations. My scores prior to Mr. Laurion’s efforts were not mediocre. Well, I guess we don’t know what he means exactly by “mediocre,” but they were not low scores before – – his input.

MR. KELLY: How do you know what your scores were before Mr. Laurion’s input if you never looked?

DR MCKEE: Because it’s – – as I said, the math is very simple. If – – if you – – let’s – – let’s take an over-simplified example. Let’s suppose it’s a 5-point scale and you know that there are – – that there have been only two people who have input scores, and that one of them has given you 1’s because they show up as the most recent entry and there are a bunch of 1’s, and you know that your average – – the average score, which is also given by these sites is a 3. Well, the mathematics are very simple. What number, averaged with 1, gives you 3, when there are two numbers to average. The answer is 5. So it’s only slightly more complicated to find out that, say, there are a total of four entries, and let’s suppose the average is now 2. You can still work backwards, carry out the calculations, and figure out what the average had to be before you were given a bunch of 1’s or zeros or whatever. And – – and I did do that.

MR. KELLY: Mm-hmm.

DR MCKEE: So it’s – – it’s – – it’s a simple mathematical exercise.

MR. KELLY: I have seen, and perhaps you have, several of these Web sites’ ratings on which you received very favorable comments. Have you seen those?

DR MCKEE: Yes, I have.

MR. KELLY: And do you think that it is possible that different people would have different perceptions, different reactions to their interactions with you?

DR MCKEE: Of course.

MR. KELLY: And that those may be reflected in these crude numerical appreciations of – – that are expressed in these ratings.

DR MCKEE: Yes.

MR. KELLY: There’s nothing scientific about them?

DR MCKEE: Well, nothing very scientific; I’ll grant you.

MR. KELLY: And have you found, Doctor, in your inquiries or discussions with people that these rating services have any real significance among the patient population?

DR MCKEE: It’s hard to know. The – – for me, this – – this finding on this iPhone applcation was much more disturbing. It – – it is the result of Mr. Laurion’s handiwerk. It has much more potential to impact me, I think, than the – – you know, the – – the initial location of these. And I say that because, first of all, I don’t know how – – how often these things are consulted. I suspect that, among younger patients, probably quite routinely. Among older patients who I suspect don’t use the Internet very much, probably not as often. But for – – for a neurologist, at least in my practice, to some extent, to a large extent from a – – let’s say, a business standpoint rather than a professional one, my customers, if you will, are not so much the patients as their referring doctors. In fact, as – – the practice in – – in my clinic is that we, since the middle of 1993, don’t normally allow patients to self-refer. We make exceptions. You know, we very routinely let physicians and nurses self-refer, but we don’t let most patients self-refer because we used to find that maybe a quarter of patients that – – that would make an appointment, we would get them in and find out that they didn’t really have a neurologic problem, that they would have been better off seeing some other specialist.

MR. KELLY: Or their GP or their family physician, perhaps?

DR MCKEE: Perhaps, but usually this is a situation where the family doctor or GP has given the person some reason to think that – – that this is outside his or her area of expertise and, you know, for whatever reason, hasn’t made a referral, so then the patient takes it upon himself to do this. But they get it wrong. You know, they – – not intentionally, of course, but just basically end up in the – – not seeing the most appropriate specialist. So many years back we took the policy of not allowing patients to self refer. And so if we think, from a business viewpoint that – – that my flow of patients depends on what their – – their primary physicians, and also some other types of specialists refer a lot to neurology and neurosurgeons – – orthopedic surgeons, rheumatologists, a few others. But – – but, you know, our flow of patients depends on the reputation that I have among these other physicians. And I hear from – – from the chief nonmedical person in our organization, who very much has his fingers on the pulse of what the primary care doctors do, that there’s this wonderful ap that you can get on your iPhone that they’re using a lot now for initial work-up and for referrals, that my name pops right up there, when you input neurologists, with these very unfavorable results. It would be hard to precisely quantify how much business I’ve lost from that, but it darn well isn’t a good thing. And I guess – – I apologize because I know that this has been a longwinded answer, but I want to make one other point about the harm here, and I mean this very sincerely. The work that I do is not – – I do not see my – – my job as, you know, see patients, dictate report, go home, get paid. It – – it isn’t anywhere near that simple. A very large part of what I consider to be the reward of my work is my reputation. If I worked solely with financial consideration in mind, my practice would be very different than what it is. About 10 percent of the patients I see are not able to pay, and we know that from the get-go.

MR. KELLY: Mm-hmm.

DR MCKEE: And another 30 percent or so are not able to pay. These are primarily people on Medical Assistance. They are not going to be paying adequately to cover the overhead that I encounter during the time that I’m seeing them, so I’m getting paid something, but I’m losing money in seeing them. So this is in the ballpark of 40 percent of the practice time in terms of time spent seeing people that either aren’t go to pay anything – – you know that up front – – or that you will not get enough money to cover your overhead and you’ll be losing money. If – – if my sole motivation as a physician were to make money, I could very easily change my practice around. I could say, “We don’t see Medical Assistance and we don’t see people that don’t have verified insurance of some form, and if they don’t have insurance, they have to pay in advance.” If I did that, instead of working typically 65 hours a week and being on call for half the hours in a week, for which I get no compensation at all, I could work probably 35 or 40 hours a week and probably completely eliminate my call responsibilities, and I would make the same amount of money that I make now, and my lifestyle would greatly improve. So since that would be a very simple thing to do, and I don’t do it, it – – it should be fairly clear to see that – – that I do the work that I do for reasons that aren’t limited to financial compensation. So, you know, reputation is an awfully large part of that, and to have somebody make a cottage industry of out destroying my reputation, contacting fourteen physician groups and professional organizations, three media sources, four or five Web sites over the course of weeks, and – – and continuing to post and re-post what’s at his disposal, this is extraordinarily disturbing. I think you can understand why I’ve lost an awful lot of sleep over this over – – over the last months and why I felt compelled to pursue this.

MR. KELLY: If a patient or a close member of a patient family had what he or she considered to be a legitimate criticism or complaint about some aspect of your practice with a particular patient, it would be right for that person to articulate the criticism. Don’t you agree.

DR MCKEE: I agree.

MR. KELLY: And for a layman, the precise target of that criticism, that is the place to lodge it, might not be well-known. Would you agree?

DR MCKEE: I agree. I think that – – that the obvious first place to – – to place that concern is with a face-to-face or phone-to-phone encounter with the physician, that anything short of that is – – is somewhat passive aggressive.

MR. KELLY: Doctor – –

DR MCKEE: Making over two dozen contacts without having made any effort to interact with the physician is not just passive aggressive; it’s malicious.

MR. KELLY: When you were first apprised of Dennis Laurion’s response, reaction, as he wrote it down, your encounter with Kenneth Laurion, as I recollect it, it was when this patient of yours brought this Web site posting to your attention. Am I right?

DR MCKEE: That’s correct.

MR. KELLY: Did you ever once attempt to contact Dennis Laurion?

DR MCKEE: Essentially, yes.

MR. KELLY: How?

DR MCKEE: Once that was brought to my attention, that same day I asked my office manager when Kenneth Laurion’s follow-up appointment was scheduled, and she checked and found that at the time of discharge they had erred and had not made a follow-up appointment. I say “erred” because making a follow-up appointment, a post-hospitalization appointment for somebody who’s had a stroke is pretty routine. And so once she related this to me, and very much with the knowledge in mind that Dennis Laurion had made these postings, I told her to be sure to contact Kenneth Laurion and schedule him for a follow-up appointment and to do it as soon as was practical.

MR. KELLY: Did she?

DR MCKEE: She – – she did.

MR. KELLY: And what did she report back to you?

DR MCKEE: I will tell you what she reported back to me. She reported that she made the appointment and talked to Lois Laurion, Ken – –

MR. KELLY: Kenneth’s wife, Lois?

DR MCKEE: – – Kenneth’s wife.

MR. KELLY: Yes?

DR MCKEE: And that she related that she would be happy to bring him in for his appointment. But either in that conversation or in one that occurred the next day, and I can’t remember which, Lois Laurion conveyed to my then office manager that Dennis Laurion had told her that he would under no circumstances bring his father in for this follow-up appointment, and so she regretted – – Lois Laurion regretted that, as they depended on Dennis Laurion for transportation and that he was refusing to bring his father in, that they probably would not be able to keep his appointment. So it was very much my goal, in having this follow-up appointment made, to have the opportunity to talk to Dennis Laurion, with the expectation that he would be there.

MR. KELLY: All right. Bearing in mind what you’ve told me, did you, in follow up, attempt, not through your office manager or through a nurse, but yourself directly, to make contact with Kenneth Laurion or with Lois or with Dennis or with Bonnie – –

DR MCKEE: Her – –

MR. KELLY: – – to see if you could – –

DR MCKEE: Sorry.

MR. KELLY: – – clear this thing up?

DR MCKEE: It – – it was the impression of my office manager that Lois Laurion and Kenneth Laurion wanted to come in for a follow-up appointment, and so therefore it was my understanding, from what she told me, that they didn’t perceive a problem. Obviously, Dennis Laurion did, since there didn’t appear to be a problem from the standpoint of the patient, who, in fact, is my principal concern, really; my only professional concern. It – – it seemed somewhat less of an issue and definitely less of a medical quality of care issue.

MR. KELLY: So the answer to my question is no?

DR MCKEE: No. You’re – – it’s correct.

MR. KELLY: All right. I just have these few questions and we’ll quit, Doctor. Your practice is primarily a practice based on referrals from various family practitioners and specifically groups that you’ve already told me about. Correct?

DR MCKEE: That’s correct.

MR. KELLY: And the success or lack of success of your practice or that of any specialist in this or any other medical community is very much dependent on how these other practitioners view how you’re treating their patients. Correct?

DR MCKEE: Yes.

MR. KELLY: And I gather that, in this community, you have the esteem of the other practitioners in the clinics in this city. Would you say that’s true?

DR MCKEE: Well, I – – I think I would say very definitely. But, of course, esteem isn’t something that – – you know, it’s not like $5 bill. You either have one in your pocket or you don’t. There are all levels of esteem – –

MR. KELLY: Okay.

DR MCKEE: – – that a person can have.

MR. KELLY: Have you noticed that any of the physicians who have referred to you patients have ceased referring you patients?

DR MCKEE: It’s not something that would be easy for me to notice. My referral base is huge.

MR. KELLY: Mm-hmm.

DR MCKEE: It’s – – it’s literally hundreds of physicians, and a lot of those physicians could – – could go quite a few months before there was any need to refer a patient to me. So this isn’t something that, you know, you would – – you know, it’s – – it’s not as if to say there are ten doctors that refer to me, and I can say, “Gosh, three of them have stopped.” There are truly hundreds of physicians that refer to me, and apart from from a, you know, large handful, most of these refer a relatively small number of patients in a given year. And so it would – – it would really take quite a while to – – to reach any conclusions like that. If somebody didn’t refer a patient to me for three months, you say, “Oh, my gosh, Dr. Smith hasn’t referred to me in these last three months.” You wouldn’t think anything of it. You would realize that he could easily go that many or more months without referring you to, and then the next week he might refer three patients to you. Just – – just, you know, luck of the draw in terms of his need to make referrals.

MR. KELLY: Is it often the case, Doctor, that after you have had a chance to examine a patient referred to you that you will write a note or some type of communication to the referring physician?

DR MCKEE: Essentially, always.

MR. KELLY: Yeah. And, you know, just because – – you’ve already done a note for the chart, but you usually send a little letter that will say, you know, “This is my basic finding, and thanks a lot for sending the patient to me”?

DR MCKEE: The fact of the matter is that my normal format, except in the case of hospital consultations, where there’s a set format, is to do my consultation report in the form of a letter. So, “Dear Dr. Smith: Thank you for referring Mr. Jones for evaluation of his left-hand numbness. You will recasll that Mr. Jones is a pleasant 72-year-old gentleman who developed left-handed numbness very suddenly seventeen days ago,” and – –

MR. KELLY: Etcetera?

DR MCKEE: – – so on from there.

MR. KELLY: Do you typically get any feedback from these letters that you send to referring physicians?

DR MCKEE: In the vast majority of cases, no.

MR. KELLY: Do you have any reason, as you sit here, to believe that any of the physicians from whom you have received referrals in the past have stopped or diminished their referrals to you because of anything that Mr. Laurion has done?

DR MCKEE: I don’t have any reliable way of assessing that. There would be no way for me to say with certainty that there had been a drop in referrals.

MR. KELLY: Are you – – you have alluded to at least one medical organization that you spoke of?

DR MCKEE: Well, I’m active in a lot of medical organizations.

MR. KELLY: I know, and that’s what I’m getting to.

DR MCKEE: Yes.

MR. KELLY: What are the other local organizations that you participate in? We all belong to professional societies.

DR MCKEE: Right.

MR. KELLY: I’m just wondering which ones you are active in.

DR MCKEE: I am – – Marshall, do you have a copy of my c. v.?

MR TANICK: Well, just answer. I do, but why don’t you just answer the question as best you can, to your recollection.

DR MCKEE: I’m, of course, active on the medical staff at St. Luke’s Hospital. I’m active – –

MR. KELLY: Do you have a position? Chief of Staff or something of that nature at St. Luke’s Hospital at the present time?

DR MCKEE: No.

MR. KELLY: Have you had such a position in the past?

DR MCKEE: I was the – – the Chief of the Section of Neurology for quite a few years.

MR. KELLY: Mm-hmm.

DR MCKEE: Up to about 2003.

MR. KELLY: Okay.

DR MCKEE: I’ve – – I am on the executive committee and the board for Northland Medical Associates. I’m on the executive committee and the board for Integrity Health Network.

MR. KELLY: How did you get that position?

DR MCKEE: It’s an elected position.

MR. KELLY: All right. Thanks.

DR MCKEE: I’m not sure where to draw the line here. I – – I’m on the medical staffs of, you know, the hospitals that we mentioned before, and that all involves interactions with – – with physicians and – – and that sort of thing. Are you asking me about – – when you say “active,” are you asking about positions with titles or just – –

MR. KELLY: No. For example, do you belong to the St. Louis County Medical Society?

DR MCKEE: No.

MR. KELLY: All right. Are there any other local medical societies?

DR MCKEE: Well, if you consider the Minnesota Medical Association local.

MR. KELLY: Are you a member of that?

DR MCKEE: No.

MR. KELLY: Are you a member of the AMA?

DR MCKEE: No.

MR. KELLY: Okay.

DR MCKEE: Those three basically come as sort of a set. You normally belong to your county, state, and the AMA or you don’t belong to any of them.

MR. KELLY: The last time I looked, 20, 25 percent of physicians were in the AMA these days.

DR MCKEE: Right.

MR. KELLY: Okay, those are all the questions I have for you, Doctor. Appreciate your patience and your being here today. Thank you.

MR TANICK: Why don’t we take a short break and see if there’s anything I want to ask him.


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

McKee V. Laurion – Dr. David McKee Deposed About Encounter With Laurion Family At St. Luke’s Hospital

The following text is continued from Exhibit AA-156 of David McKee, MD, V. Dennis K. Laurion.

State of Minnesota District Court

Sixth Judicial District

File # 69DU-CV-10-1706

David McKee, MD, Plaintiff, vs. Dennis K. Laurion, Defendant

Deposition of David C. McKee, MD, January 7, 2011

Carol Danielson Bille, RPR, Danielson Court Reporting, LLC The following is the deposition of David C. McKee, MD, taken before Carol Danielson Bille, RPR, Notary Public, pursuant to Notice of Taking Deposition, at the law offices of Hanft Fride, PA, 1000 U. S. Bank Place, 130 West Superior Street, Duluth, Minnesota, commencing at approximately 11:43 a.m., January 7, 2011.

Appearances

For the Plaintiff:

Marshall H. Tanick, Esq.

Mansfield, Tanick, and Cohen, P. A.

1700 U. S. Bank Plaza South

220 South Sixth Street

Minneapolis, Minnesota, 55402-4511

612-339-4295

For the Defendant:

John D. Kelly, Esq.

Nathan N. LaCoursiere, Esq.

Hanft Fride, PA,

1000 U. S. Bank Place,

130 West Superior Street,

Duluth, Minnesota, 55802

218-722-4766

Proceedings

 Mr. KELLY: You had never met Dennis Laurion or Kenneth Laurion or Lois Laurion or Bonnie Laurion prior to April 19 of 2010. Am I correct?

Dr. MCKEE: To the best of my knowledge, no.

Mr. KELLY: And when and how did you first learn that you were being asked to see Kenneth Laurion at St. Luk’es Hospital?

Dr. MCKEE: Well, I don’t remember this happening because it would have been a completely routine thing. I can tell you what – – what would have occurred and almost certainly did occur in this case. The attending physician, who, in this particular instance, was Craig Gilbertson, would have written an order in the chart to have a neurologist see Kenneth Laurion, and that order would have been taken off by the – – the secretary, the unit clerk in whatever part of the hospital; in this case, the intensive care unit. That person would have called my office and talked to one of the secretaries there, who would have told me about it or put a note on my desk.

Mr. KELLY: Do you know whether you had seen other patients at St. Luke’s on April 19 of 2010 before you visited Kenneth Laurion?

Dr. MCKEE: I can’t remember. I don’t know.

Mr. KELLY: Do you remember what time you went on duty that day?

Dr. MCKEE: Well, I’m on duty most of the time. There are only two neurologists that cover St. Luke’s, and one of us is on call at all times. Normally, call switches at 7:00 a.m., and – – and so I would have been responsible for anything coming through the emergency room or any in-patient work starting at 7:00 a.m. that day and extending till 7:00 a.m. the next day unless I was also on call the following day or, I guess, the preceding day. If you tell me – – and I don’t remember what day of the week it was that I saw Kenneth Laurion – – I can tell you how long I would have been on call already and when I would have come off call.

Mr. KELLY: So you don’t, as you sit here now, recall whether you had been on call or whether you were specifically asked by Dr. Gilbertson to see that patient?

Dr. MCKEE: No, and – – that raises a point. Sometimes the person on call isn’t the one who ends up seeing a patient, because if the referring physician specifically requests one of the two of us, then if that person is in town and available, then that person would – – would do the consultation, even if he wasn’t on call that day.

Mr. KELLY: Do you have any recollection, as you sit here this morning, of what information you were given concerning Kenneth Laurion before you went to see him?

Dr. MCKEE: No, I don’t. And normally what – – what I would have would be just a, you know, two – – or three-word presumptive diagnosis, something like hemorrhagic stroke, or stroke, and occasionally, maybe 20 or 30 percent of the time, if the referring physician either considers the situation especially urgent or if they think that the situation is confusing and that they’ve got some useful information that isn’t in the chart or not readily available, they’ll call and discuss the case rather than just send it through the secretarial channels, and then there would be some background that way. I don’t recall that having been the case here, and so normally I would have just a very brief one – – or two – – or three-word presumptive diagnosis. But I would have checked the electronic medical record before going in to see the patient, so I would have had, by the time I went into the room, a reasonable background. Probably would have, for example, already seen the CAT scan and pertinent laboratory tests.

Mr. KELLY: Do you remember anything about the specifics of any CAT scan or lab tests as they pertained to doctor – – or, excuse me, to Kenneth Laurion before you saw him?

Dr. MCKEE: I was aware that he had a hemorrhagic stroke that was acute and in the posterior portion of the brain. So, yes, I had that information.

Mr. KELLY: I suppose it goes without saying that such a stroke, any stroke, is a serious medical event?

Dr. MCKEE: Yes.

Mr. KELLY: Did you initially go find Kenneth Laurion in the ICU unit at St. Luke’s?

Dr. MCKEE: Yes.

Mr. KELLY: And you discovered that he was not there?

Dr. MCKEE: That’s right.

Mr. KELLY: And then how did you find out where he was? What’s the process?

Dr. MCKEE: Oh, it’s very simple. I – – you know, along with the brief presumptive diagnosis there would have been the room number that the patient was in. In this case, it was a room in the ICU. And then going there and not finding him, you know, then what you would do is check with the unit clerk there and ask if – – if the patient had been transferred or if he was just off having some kind of a study, presumably an imaging study somewhere else in the hospital. And from there, you would know where he was and where to go.

Mr. KELLY: And so off you went to find him?

Dr. MCKEE: (Nodding head.)

Mr. KELLY: And when you arrived at Kenneth Laurion’s room, do you recall what time it was? We’ve heard roughly 6:00 o’clock. Does that jibe with your recollection?

Dr. MCKEE: Well, I know it was in the evening, and, you know, I don’t think I could say anything more precise. That – – normally, that’s when I do hospital consultations, unless they’re especially urgent. And so 6:00 o’clock is probably about right.

Mr. KELLY: Were you wearing a white coat at that time?

Dr. MCKEE: Yes.

Mr. KELLY: And were you wearing a shirt and tie at the time?

Dr. MCKEE: I don’t know. Of course, I was wearing a shirt. I don’t always wear a tie. In fact, more days than not, I don’t wear a tie. I usually wear a dress shirt with a button-down collar, and then I usually don’t bother with a tie. If it’s an open collar, I wear one.

Mr. KELLY: So you may or may not have been wearing a tie?

Dr. MCKEE: Yeah. I definitely wasn’t wearing a stethoscope.

Mr. KELLY: All right. Did you carry anything with you when you went to see Kenneth Laurion? Did you have any instruments?

Dr. MCKEE: Oh, yeah. That’s the purpose of the white coat, really, the – – at least for me. Apart from it sort of denoting to patients and family that you’re a physician, it’s beneficial mostly for all the pockets that it has. And so, you know, my – – the pockets of my lab coat are always stuffed with reflex hammers and light sources and things of that nature.

Mr. KELLY: And needle? Something of that nature?

Dr. MCKEE: (Nodding head.) Mm-hmm.

Mr. KELLY: All right. And do you recall there being several people in Kenneth Laurion’s room when you arrived – –

Dr. MCKEE: Yes.

Mr. KELLY: – – to see him? And we have been told that Kenneth Laurion’s wife, Lois, was there, and that Dennis and Bonnie were there when you arrived. Do you have any reason to disagree with that?

Dr. MCKEE: No, I don’t have any reason to disagree with that. I can’t say that I can draw up a real precise mental picture of where everybody was, but I do remember that Dennis Laurion was sitting, as he said yesterday, at what we would call the 3:00 o’clock position, if the head of the bed was 12:00 o’clock.Mr.

Mr. KELLY: Had you finished?

Dr. MCKEE: Yes, I had.

Mr. KELLY: Good. And can you tell me what your recollection is of the length of the exam?

Dr. MCKEE: Well, I – – you know, again, I – – I can tell you how long it takes me to do this. I can’t tell you that I had a precise mental image of the encounter. But, you know, normally, to – – to evaluate somebody with a stroke who’s alert and able to provide a history – – as you can imagine, it takes longer if you can’t get a history easily from the patient or from family members. But that wasn’t the case here. If the patient is able to provide a history and / or their family members, it can help that way. You begin by introducing yourself and then taking the pertinent history and then doing the neurological exam, and the whole thing usually takes about twenty minutes.

Mr. KELLY: Is it your recollection, then, that you were in Kenneth Laurion’s room for twenty minutes?

Dr. MCKEE: Again, I can’t say that I can remember the – – all the sequence of events and how long they lasted. I remember a lot of what happened, but I – – yes, I think that’s a good estimate, you know.

Mr. KELLY: From portal to portal, from the time you entered till the time you left?

Dr. MCKEE: I think that’s – – yes, it’s probably right around twenty minutes.

Mr. KELLY: And in the course of time, it would be your custom, your practice, to introduce yourself, obtain a history, and go through a set of diagnostic tests?

Dr. MCKEE: (Nodding head.)

Mr. KELLY: Presumably you have some communication with the patient?

Dr. MCKEE: Yes.

Mr. KELLY: And then you leave?

Dr. MCKEE: Yes.

Mr. KELLY: While you were with Mr. Laurion, Doctor, did you take any notes?

Dr. MCKEE: Probably not. I usually don’t have a need to do that. I always dictate my report immediately after leaving, and I’m able to remember events well enough that that usually isn’t necessary.

Mr. KELLY: I take it you didn’t have his chart with you when you went into the room?

Dr. MCKEE: No, because the hospital switched to electronic charts some time ago. So, as I said a few minutes back, I would have looked over the pertinent – – you know, the most pertinent records and imaging studies before going in, so I had a background. But there wouldn’t have been a chart that I could have physically brought into the room.

Mr. KELLY: Did you go to the nurse’s desk immediately from Kenneth Laurion’s room?

Dr. MCKEE: Yes.

Mr. KELLY: To the nursing station?

Dr. MCKEE: Sure. Yes.

Mr. KELLY: And did you then immediately dictate your consultation notes?

Dr. MCKEE: Essentially, yes. I – – I might have written some orders in the chart before I started dictating my report, but I would have been doing those things essentially right after leaving.

Mr. KELLY: And when and how at that time did you prepare and dictate your consultation notes?

Dr. MCKEE: Well – –

Mr. KELLY: Is that in a room or with a mobile machine that you had, some sort of – –

Dr. MCKEE: No, no, no. At the nurse’s station you have multiple computer terminals, and next to each terminal there’s also a phone. Normally what I would do is – – you know, I would have acquired a lot of the information before going into the room. Now I’ve gone into the room and gotten additional history from the patient and family and done the physical exam, so leaving, I know more than coming in. At that point, I would, more often than not, go back to the computer to look up, you know, any – – anything additional that seemed important, based on the interaction I had in the room and then would have – – would have done the dictation through the phone system. And that’s also the time that I would have written any orders in the chart.

Mr. KELLY: Do you remember whether you had any orders with respect to Kenneth Laurion?

Dr. MCKEE: Not offhand. I — I almost always do. So I – – you know I probably wrote a few orders in the chart, but I can’t remember offhand that I did.

Mr. KELLY: When and how did you first learn that some complaint had been made about you in regard to the visit you had with Kenneth Laurion?

Dr. MCKEE: Well, the first time that I found out there was some kind of formal complaint was when I got a phone call from Gary Peterson on May 6th, who is – – Gary Peterson is the medical director at St. Luke’s Hospital. But I was aware of the – – at least one of the Internet postings several days before that.

Mr. KELLY: All right. And how was that brought to your attention?

Dr. MCKEE: It was brought to my attention by a patient, who is a long-term patient with a chronic neurologic problem, and she – – she’s a very energetic lady, and she – – as soon as I came in the room to see her in my clinic, she said something to the effect of, “Dr. McKee, you’re not going to believe what I saw on the Internet,” and then proceeded to describe one of Dennis Laurion’s postings and was very upset and thought that this was outrageous. And, in fact, on leaving, she, being very outgoing, made a point of telling the four or five people in the waiting room that they needed to go on line and find this and needed to rebut what she had read.

Mr. KELLY: Did she happen to tell you what Web site or what rating site – –

Dr. MCKEE: I’m sure she did – –

Mr. KELLY: – – she encountered this on?

Dr. MCKEE: – – but, you know, I can’t remember which Web site, because, as we all know now, there are several of them. I can’t remember which one she specifically mentioned.

Mr. KELLY: Did you go to look at the Web site that she had brought to your attention?

Dr. MCKEE: Well, not right away,but yeah, I did.

Mr. KELLY: Had you ever looked at that or any other Web site to see whether anybody had submitted a rating on you as a physician?

Dr. MCKEE: No, I never had. I was, up to that time, I think, vaguely aware that there were some Web sites of that sort. But, no, I had never looked at any of them.

Mr. KELLY: So this patient says, “I saw something on the Web site,: and at some point you went to look at what she brought your attention to?

Dr. MCKEE: Right. I don’t – – it was fairly soon after that. I don’t remember if it was, you know, perhaps that evening or the next day, but it was fairly soon after that.

Mr. KELLY: And then several days thereafter, if I understood you correctly, you received a call from Dr. Peterson?

Dr. MCKEE: Right.

Mr. KELLY: And as I understand the chronology, you first received a call from Dr. Peterson and then you were provided a copy of the document, the letter that Mr. Laurion sent to Dr. Peterson. Is that correct?

Dr. MCKEE: I should remember this, but I – – I think that’s correct. I’m – – we talked about this at length, and I think he all but read the whole letter to me on the phone.

Mr. KELLY: I see.

Dr. MCKEE: And – – and I can’t say if my knowledge of the letter came from what he said in the phone conversation or the phone conversation plus later reading the letter. But in one way or another, the contents of the letter were made available to me by – – by Dr. Peterson.

Mr. KELLY: Let’s mark these. (Whereupon Deposition Exhibitis 16, 17, and 18 were marked for identification.) Perfect. Thank you. All right, Doctor, I’m showing you what’s been marked as Exhibit Number 16, which I believe is a letter you wrote to Dr. Peterson on May 6th of 2010.

Dr. MCKEE: Yes, that’s right.

Mr. KELLY: Do you happen to remember how long after your conversation with Dr. Peterson you composed and sent this letter?

Dr. MCKEE: Very soon after. We – – we had our conversation of the phone, and it – – it essentially ended with Dr. Peterson telling me that – – something to the effect that he didn’t consider the complaint believable or reasonable, and that if I would just put it in letter form to him, the responses that I had given him over the phone, that he would consider the matter resolved.

Mr. KELLY: So he asked you for some document in response to the complaint he had received from Mr. Laurion?

Dr. MCKEE: Yes, he asked me to summarize what I had said in our phone conversation.

Mr. KELLY: All right. I’m showing you what’s been marked as Exhibit Number 17. This is a letter dated May 28 of 2010 to William Marczewski of the Minnesota Board of Medical Practice. Am I right?

Dr. MCKEE: Yes.

Mr. KELLY: And this is a letter that you composed and submitted?

Dr. MCKEE: Yes.

Mr. KELLY: Were you requested to submit this letter to the medical board?

Dr. MCKEE: Yes. I – – I was given a notice from them that a complaint had been filed and asked for my response.

Mr. KELLY: And presumably you intended this letter to constitute your response to Mr. Laurion’s – – Dennis Laurion’s complaint to the medical board?

Dr. MCKEE: Yes.

Mr. KELLY: And showing you finally what’s been marked as Exhibit Number 18, this letter dated June 24 of 2010, again to Mr. Marczewski, and I gather that this particular letter is in response to the submission that was made by Bonnie Laurion. Am I right?

Dr. MCKEE: Yes, the one that was signed by Bonnie Laurion.

Mr. KELLY: Now, Doctor, have you written any letters to the various agencies or offices that received a communication from Mr. Laurion concerning his appreciation of your encounter with Kenneth Laurion?

Dr. MCKEE: No, not that I can recall.

Mr. KELLY: In your letter to Dr. Peterson of May 6, in the first paragraph of your letter, you say, and this is in the middle of the paragraph, “When I entered the room, and this is Kenneth Laurion’s room, “I certainly wasn’t angry or annoyed, but did make the comment that I had looked for him in the intensive care unit and was glad to see that he had been transferred from there to a regular hospital bed, as the two possibilities when one leaves the ICU are that you are a patient” – – “are that you” – – I gather that there’s a word missing there – – “you are a patient who’s improved and doesn’t need the intensive care unit, or a patient who died.” And that would have been a comment you made in the room?

Dr. MCKEE: Well, that’s not a quotation – –

Mr. KELLY: But that’s what you wrote?

Dr. MCKEE: – – or anything to that effect. That’s what I wrote, yes.

Mr. KELLY: And so if that’s not a direct quote, words to that effect were uttered in Kenneth Laurions room?

Dr. MCKEE: That’s right.

Mr. KELLY: And then you say that “This was no glib or morose” – – and presumably another word is missing there.

Dr. MCKEE: I think it’s this letter – –

Mr. KELLY: “No glib or morose comment.”

Dr. MCKEE: I think it was meant to say, “This was not glib or morose.”

Mr. KELLY: All right. And you say that “Nobody in the room, the patient, his wife, or Dennis Laurion himself, expressed or showed any evident disconcert with that statement.” That was your recollection?

Dr. MCKEE: That’s right.

Mr. KELLY: When you prepared this letter to Dr. Peterson, were you relying on your memory?

Dr. MCKEE: Yes.

Mr. KELLY: That is, you hadn’t made any notes at the time of the encounter – –

Dr. MCKEE: That’s right.

Mr. KELLY: – – on which you based your recollection of what you had said when you entered the room?

Dr. MCKEE: Correct.

Mr. KELLY: And then directing your attention to the second paragraph, “As for the incident with the hospital gown, the lead-up to this was nothing like what Dennis Laurion stated. I asked the patient if he had been out of bed that day, and after hearing that the therapists had worked with him but had not gotten him out of bed, I asked him if he felt up to that and if he wanted to try to stand and walk a little bit.” So far, so good?

Dr. MCKEE: Yes.

Mr. KELLY: “He told me that he very much wanted to try to get out of bed, and I held my hands out so that he could grab them to pull himself up to a standing position.” And then you say, “I certainly did not jerk him out of bed or in any way rush him.” “It was when he was half-standing, half-sitting” – – here the picture I have is of somebody who’s got his fanny at the edge of the bed, and perhaps his feet on the floor?

Dr. MCKEE: No, it’s not quite that. The – – but luckily here’s an area in which Dennis Laurion and I agree, and we at least agree on the layout of the room and where people were. Before I started to help Kenneth Laurion up, he was lying supine. He was lying more or less on his back. And Dennis Laurion was – – if we think of him lying on his back, on his left side was Dennis Laurion. I would have been on his right side, which is also where the doorway to the room is. And so you should picture him as starting out lying on his bed – – on his back, slightly – – with the head of the bed slightly elevated, but still essentially lying back. Now I’ve got my hands on his forearms, and he, in turn, is holding my forearms like this (indicating). And so – – so he’s – – he’s being pulled up from this semi-reclined position to sitting and then, ultimately, to standing.

Mr. KELLY: All right. “I certainly did not jerk him” – – I’m going on. ” I certainly did not jerk him out of bed or in any rush him. It was when he was half-standing, half sitting that Dennis Laurion, sitting in a chair on the other side of the bed, made the observation that the patient’s hospital gown was only tied at the neck.” Had you noted that to be the case by that point?

Dr. MCKEE: No, when – – when – – when I – – again, you know, remembering that the hospital gown opens at the back, he’s lying on – – on his back, and you wouldn’t see whether it was closed or open. And as he’s now coming up, he and I are facing each other, so his back side is away from me.

Mr. KELLY: All right. “Dennis Laurion, sitting in a chair on the other side of the bed, made the observation that the patient’s hospital gown was only tied at the neck. By the way he said this, I thought that his concern was that the gown might fall off, but I could see the knot was well-tied and told him that I thought it would be fine.” So that, again, is your recollection or assessment of something that you said?

Dr. MCKEE: Yes.

Mr. KELLY: Would you agree, Doctor, that because these gowns are the way they are that people – – both the people who wear them and the people who may be in close proximity to them can sometimes have some modesty concerns that are legitimate?

Dr. MCKEE: Certainly.

Mr. KELLY: People don’t like having portions of their body that they consider to be private exposed. Correct? I mean, you know that from experience?

Dr. MCKEE: Sure. It varies from person to person. Some don’t seem to mind, but some – – some do.

Mr. KELLY: And family members very often don’t want to be caught in a circumstance where the family member is embarrassed and, by extension, they may be embarrassed themselves. Would you agree?

Dr. MCKEE: Yes.

Mr. KELLY: So you say, “It never crossed my mind that he was concerned about his father’s modesty,” but, in fact, that at least is a consideration in retrospect, that one must give consideration to?

Dr. MCKEE: In general, but not in this specific case, for the reason that I outline on the beginning of the next page.

Mr. KELLY: All right. Your assessment on the next page was that it would have been possible for Dennis Laurion to simply reach across the bed and tie the gown?

Dr. MCKEE: Exactly. You have to realize, these rooms are tiny. The – – you know, there’s not much more than the minimum amount of space that it would take to walk around the bed. That’s, you know, the kind of dimension we’re talking about. So if you’re on the side – – if you’re to the side of the bed, you’re within reach of the bed.

Mr. KELLY: Was the exam that you planned to do when you entered the room likely to involve Mr. Laurion, Kenneth Laurion, getting up and standing and walking to some extent?

Dr. MCKEE: It was certainly likely, as mentioned in the – – you know, as part of the letter that we’ve already covered, I asked him if he had been out of bed and if he felt up to getting out of bed and if he wanted to get out of bed, so once it had been established that we were going to do that, you know, at that point, yeah, it was, you know expected that he would be getting up and standing.

Mr.KELLY: Now, Doctor, would it typically be the case that you would conduct a neurological examination of the kind that you were planning to conduct on Kenneth Laurion in the presence of family members?

Dr. MCKEE: Yes. It’s – – you know, sometimes the family doesn’t want to stay, sometimes the patient doesn’t want the family to stay, but more often than not, both the patient and the family members prefer for them to stay.

Mr. KELLY: Did you ask Kenneth Laurion if he wanted his family members present while he was examined?

Dr. MCKEE: I don’t recall.

Mr. KELLY: Did you ask the family members whether they wanted to be present while Mr. Laurion was examined?

Dr. MCKEE: I don’t recall, but I probably wouldn’t have. You know, I – – it’s likely that I asked him, but since he was – – if he had been very confused or comatose or something like this, I probably would have asked the family – – that’s my – – that’s how I would typically handle that situation. And if I knew I was going to be doing something invasive that would be uncomfortable for them, I probably would ask them to leave. But in a situation where the patient’s awake and conversant, I would be leaving it up to the family – – or, I’m sorry, to the patient. In fact, very often family members will, when I’m starting an exam in a situation like this, ask me, “Is it okay if we stay,” and my response is always, again assuming the patient is alert, to ask the patient and say it’s entirely up to him or her.

Mr. KELLY: Do you recall whether any one of the Laurions who were in the room when you entered the room asked whether it was okay if they stayed?

Dr. MCKEE: I don’t recall.

Mr. KELLY: Is it the case that at some point Kenneth Laurion asked that the family members leave the room?

Dr. MCKEE: I don’t remember that.

Mr. KELLY: Do you remember whether Mr. – –

Dr. MCKEE: But I do remember that – – that at some point the family members left the room.

Mr. KELLY: Do you remember if Mr. Laurion at some point during the initial part of this encounter expressed some concern for his personal modesty?

Dr. MCKEE: Mr. – – no, I – – I don’t remember that. I mean, I don’t remember that as happening.

Mr. KELLY: All right. Why don’t we begin with your arrival at the room, then, and, if you would, walk me through what you recall happened from the time you entered the room until you left the room.

Dr. MCKEE: Well, these rooms are very small.

Mr. KELLY: Is this a – – excuse me, but – –

Dr. MCKEE: It’s a private – –

Mr. KELLY: – – one-person room?

Dr. MCKEE: Private room, right.

Mr. KELLY: Thank you.

Dr. MCKEE: Yeah. And I – – I mention that because I almost laughed yesterday when Dennis Laurion said that I strode in rapidly and appeared annoyed. Well, you can’t walk into these rooms rapidly. The first step would carry you smack into the side of the bed. And, you know, I always knock. Usually the door’s already open, and I always knock on the door frame.

Mr. KELLY: Do you recall doing that in this instance?

Dr. MCKEE: I know I did that. I always do that.

Mr. KELLY: Did you announce yourself?

Dr. MCKEE: I always do that. I always introduce myself. It’s – – it’s inevitably the very first thing that I say when I come into a patient’s room. The only exception would be if the patient’s comatose, I know they’re comatose, and there are no family members present.

Mr. KELLY: And, Doctor, over the course of time, I suppose you’ve come up with a custom, a habitual way of introducing yourself. How do you do that? When you enter a room, what do you say?

Dr. MCKEE: You’re – – you’re right. And again, let’s just work with the scenario where we’re not talking about a confused or comatose person and – – but normally I always knock on the door or the door frame. If the door is closed, I knock, wait to hear if there’s any kind of answer and stick my head in. But I always knock and come in and introduce myself. I say, you know, “Hello,” or “Good evening. I’m Dr. McKee. I’m the neurologist.” And usually at that point the patient responds with, you know, “Thanks for coming,” “Nice to meet you,” “Hello.” Something.

Mr. KELLY: Do you remember that occurring in – –

Dr. MCKEE: I don’t remember exactly – –

Mr. KELLY: – – particular instance?

Dr. MCKEE: – – what – – I’m sorry to interrupt. I don’t remember exactly what Kenneth Laurion said, but the sequence began like this.

Mr. KELLY: Do you remember any comments or any statements being made by any of the family members who were in the room in response to your introduction?

Dr. MCKEE: I don’t remember.

Mr. KELLY: What’s your next recollection of what happened?

Dr. MCKEE: Well, my next – – the next thing that happened was that I made a jocular comment meant to kind of relieve tension and – – to the effect of I had looked for him up 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.

Mr. KELLY: All right. And what’s the next thing?

Dr. MCKEE: Well, after that, I would have started asking the patient about his symptoms, how he felt, and taking the history from him, and – – and – –

Mr. KELLY: If I may interrupt you just a second, Doctor?

Dr. MCKEE: Yes.

Mr. KELLY: Do you remember that as being next in the sequence, or are you telling me what customarily would have been the case?

Dr. MCKEE: Well, I think both.

Mr. KELLY: Go ahead.

Dr.MCKEE: You know this was, what, nine months ago now, but I – – I know that – – that following this little introduction that we got on with the business of the history and – – and his current symptoms and so forth, which would be the way things would pretty much always, you know, progress.

Mr. KELLY: Did you receive any information concerning his – – his history or concerning his immediate experience before he was admitted to the hospital from any of the family members?

Dr. MCKEE: That’s – – that’s what I was – – you know, at that point I’m getting history from him and – – and invariably I’m asking for supplementation from family members if the patient has trouble doing that. You know it’s – – it’s, in my mind, usually a good thing if there are family members there, because even if the patient is alert, sometimes they’re aware of – – of useful historical aspects that the patient either doesn’t know or doesn’t remember.

Mr. KELLY: Dennis Laurion testified that he made some remark about his father’s experience of vomiting prior to the time that you saw him. Do you recall that being said or not?

Dr. MCKEE: Yeah, Dennis Laurion mentioned that sort of after the fact, as sort of an addition to what he had said initially. But I don’t specifically remember him making those statements, no.

Mr. KELLY: Do you remember any of the family members providing you with any historical information pertaining to Kenneth Laurion while you were in his room?

Dr. MCKEE: Not specifically, no.

Mr. KELLY: Did you ask his wife anything in particular?

Dr. MCKEE: You know, I probably did, and it’s likely that – – that one or more family members interjected with – – with some historical information, because that’s generally the way an encounter like this takes place, but I can’t remember the – – the specifics.

Mr. KELLY: All right. The next thing that happened, then, in the sequence, as best you can recall, was what?

Dr. MCKEE: Well, the – – the next thing was, you know, after getting the pertinent history and establishing, as mentioned in the letter, that he had been somewhat active through the day, but hadn’t been out of bed, asking him if he wanted to try and get out of bed, and he answered that he – – he very definitely did, and so I put my hands out to help him. He grabbed both of my forearms, as I demonstrated before, and – – and this is where we have a huge disagreement. I can say unequivocally I did not jerk him out of bed or force him against his will out of bed. I can say that with absolute certainty because I have never, ever done that to any patient. But in any case, I recall very specifically that he was – – you know, he was pulling on my forearms, and I was pulling on his steadily and trying to get him up, and when he was sort of no longer, you know, supported – – his back was no longer supported by the bed and – – and now he’s pulling pretty hard on my forearms (indicating) and I’m bearing a fair bit of his weight, that – – that the comment was made to me by Dennis Laurion that his gown wasn’t tied. And as I said before, Kenneth Laurion and I were facing each other. I can see the front of the gown, but not the back and see the – – could see the knot, which presumably was on the side rather than on the back, and it appeared – – it appeared good to me and like the gown wasn’t in any risk of falling off. And so I said, “It looks like it’s okay.”

Mr. KELLY: And what happened next?

Dr. MCKEE: Well, then, you know, continued to try to get Mr. Laurion in a standing position, and he did stand. And it was around that time that one of the family members asked – – and I believe it was a woman, and I think probably Bonnie Laurion, and I can’t say for certain, asked Kenneth Laurion if he’d prefer that they leave, which is, as I said a minute ago, a very routine question for family members to make. And Mr. Laurion – – Kenneth Laurion said yes, and the family members left, and we continued with the exam from there.

Mr. KELLY: All right. Up to this time, up to the time that the Laurion family members leave the room, do you have any estimate of or appreciation of how long you had been in the room?

Dr. MCKEE: Probably in the ballpark of eight or ten minutes.

Mr. KELLY: And up to this point, what you have done is gotten a history – –

Dr. MCKEE: Mm-hmm.

Mr. KELLY: – – and had an opportunity to make some assessment of your patient based on his responses to your comments and questions?

Dr. MCKEE: Right.

Mr. KELLY: Had you done any tests up to that point?

Dr. MCKEE: There’s a – – there’s a pretty good chance – – though I can’t say for certain, but just, you know, thinking as to how I usually proceed in a situation like this, there’s a pretty good chance that I had already checked a few simple things while he was still lying down, some reflexes with a flashlight and some other simple things that wouldn’t require him to move. I can’t remember whether I did those maneuvers before or after the family left. But, otherwise, it’s – – it’s as you just said.

Mr. KELLY: So if I have the sequence of events down properly, what happens now is that the family troops out. Is the door closed behind them or do you close the door behind them?

Dr. MCKEE: you know, I don’t remember – –

Mr. KELLY: Would you typically – –

Dr. MCKEE: – – if they closed the door – –

Mr. KELLY: Sorry.

Dr. MCKEE: – – or if I closed the door, but normally the door would be closed at that point.

Mr. KELLY: It would be your practice to close the door – –

Dr. MCKEE: Yes.

Mr. KELLY: – – so there would be some confidentiality, privacy, with the patient?

Dr. MCKEE: Right.

Mr. KELLY: And then, as I understand it, you would have gone through the series of what was left of the series of diagnostic tests that you wanted to perform?

Dr. MCKEE: Yes, which at that point would have been most of it.

Mr. KELLY: All right. And if I recall properly, you said the whole sequence took roughly twenty minutes, and we’re seven minutes into the encounter now, so – –

Dr. MCKEE: I said eight to ten.

Mr. KELLY: Oh, I’m sorry.

Dr. MCKEE: Well, it’s probably hair-splitting, but, yeah, we’re probably eight to ten minutes in.

Mr. KELLY: Okay, And then how – –

Dr. MCKEE: And I probably – –

Mr. KELLY: Go ahead.

Dr. MCKEE: Sorry. I probable spent, you know, another ten minutes, maybe a little more, completing the exam and talking to Mr. Laurion.

Mr. KELLY: Now, of that time, how long was Mr. Laurion on his feet?

Dr. MCKEE: Oh, undoubtedly less than a minute. Maybe a lot less than a minute. What I would have wanted him to do after standing – – and now he would be standing at the side of the bed, facing the door, I would have just wanted him to take a very few steps, probably while I was still holding his hands or his forearms for support, to see what kind of balance he had. I wouldn’t have been trying to assess his endurance or anything of that nature.

Mr. KELLY: All right. So this would have been a relatively short phase of the exam?

Dr. MCKEE: Right. And then I would have – – you know, usually in a situation like this, and again knowing where his stroke was and how large it was, what I really wanted to know was whether or not he had something called truncal ataxia.

Mr. KELLY: Which is what?

Dr. MCKEE: It’s a – – it’s an abnormality of balance, which is really easy to assess. It’s basically whether or not there’s a decline in balance to the point where a person has to have their legs spread further apart than normal when standing or walking to maintain balance. You can tell almost instantly when somebody stands up whether they have this, aand if so, how severe it is. So, you know, we get them to their feet and then maybe ask them to take a step or two, and then – – and then that’s it. You would usually – – or I would pretty much invariably from that point be holding the patient’s hands or forearms and then ask them to back up so they could then just sit directly back on the side of the bed, which is the easiest position for finishing the rest of the exam.

Mr. KELLY: Do you remember, from the height of the bed in that room, whether Mr. Laurion would have been then returned to a seated position when you were done with this?

Dr. MCKEE: You’d always – – always.

Mr. KELLY: All right.

Dr. MCKEE: And the height of the bed is adjustable and, you know, what I do when I bring somebody out of bed like this, especially if they’re elderly or some reason to suspect that they’re going to have trouble with balance, is, if necessary, adjust the height of the bed so that their feet, once they’re over on the side of the bed, will be touching the floor without them having to hop down off the bed. It’s the easiest way to get them up.

Mr. KELLY: Do you remember doing – –

Dr. MCKEE: And then it’s the easiest way to get them back down again.

Mr. KELLY: Do you remember doing that with Kenneth Laurion?

Dr. MCKEE: I don’t remember if the bed needed adjustment. but it’s – – it’s something that I always do, because it’s the easiest and safest way to get them out, and, more importantly, it’s by far the easiest way to get them back into bed. That way, when they’re backing up to the bed, all I have to do is, once they’re back, if their legs are against the side of the bed, is just simply sit down and – – and then they’re right there where you need them and, no hopping up or, you know, anything of this nature.

Mr. KELLY: Do you remember if Kenneth Laurion, once returned to the bed, remained in the seated position until you left the room?

Dr. MCKEE: Well, he certainly remained in a seated position while I finished the exam, because the rest of the exam is hard to do in any other position. And – –

Mr. KELLY: Do you remember what you did for the rest of the exam, that is, after you got him back on the bed?

Dr. MCKEE: I know what I always do in that situation. you know, the whole – – there’s – – there’s a logical order to go in here just from a practical – –

Mr. KELLY: A protocol?

Dr. MCKEE: Just from a practical standpoint, because much of the exam can’t be easily done with somebody lying down. Some parts can’t be done at all with them lying down. Most parts of the exam are easiest to do with them sitting , so – – there are a few little bits that can be done either way equally well, and sometimes I’ll do that lying down; sometimes after they’re sitting. And that’s what I was referring to before, in saying that, well, before I had him stand, I might have checked his pupil reflexes with a flashlight or something like this. But I always check the – – the gait and standing ability relatively early because I want to then – – you know, after doing that, I’ll have them in a sitting position, where it’s easiest to finish the rest of the exam.

Mr. KELLY: Which would typically, customarily, be what?

Dr. MCKEE: Well, there are half a dozen maneuvers that relate to testing of cranial nerves, which are the nerves that come off the base of the brain, and those are the things that you can, at least in part, do either lying down or sitting up. So it’s checking some aspects of respiratory function, facial – – muscular symmetry, facial sensation, whether or not the soft palette moves symmetrically, whether or not the tongue moves symmetrically, whether eye movements are normal and conjugate. And then following that, testing strength of all four extremities; muscle tone of all four extremities; the reflexes, whether or not there’s any ataxia, that is, a tremulous-like movement of the hands and arms when they’re used for purposeful movements. It’s usually checked by asking a person, with his eyes closed, to bring his arms out, bring his index finger to his nose, back to the starting position (indicating), while marking the starting position with your own index finger, and then repeating that maneuver on the other side; checking sensation, at least in the hands, with the eyes closed; and then the plantar responses, which are reflexes in the feet that are normally checked in a sitting position, but with the knee extended. And that is – – that’s pretty much it. Those are the standard things. Then depending on whether or not the specific issues at hand dictate it, there might be some additional tests, the same kind of things, but some additional things that you don’t necessarily do on everybody.

Mr. KELLY: Would it be your custom and practice, Doctor, at the conclusion of this sequence of events constituting your examination to assist the patient in getting back into bed?

Dr. MCKEE: What I would almost always do at the end of that – – well, really always do, is, with the patient now sitting – – a lot of times they’re pretty relieved to be out of bed, and I always ask them, “Do you want to stay sitting up or do you want to lie down? Would you like me to,” you know, “help you get back into bed or would you rather just sit” – – “stay sitting?”

Mr. KELLY: Did you have that exchange with Kenneth Laurion?

Dr. MCKEE: I’m sure – –

Mr. KELLY: Do you remember?

Dr. MCKEE: I’m sure I did, because i always do that.

Mr. KELLY: Do you remember what his particular response was?

Dr. MCKEE: I don’t remember.

Mr. KELLY: Do you remember whether he was left in a seated or prone position?

Dr. MCKEE: I don’t remember.

Mr. KELLY: All right. Then when you left Kenneth Laurion, did you give him any instructions or did you provide him with any information concerning a follow-up?

Dr. MCKEE: By follow-up?

Mr. KELLY: I mean seeing him at some later date?

Dr. MCKEE: Well, what – – what I would have done after finishing the exam is, you know, tell him what I thought was going on and let him know what was coming up in the near term, if there were any, you know, important tests that he was going to be having and ask him if he had any questions. We wouldn’t have talked about follow-up, like, after discharge or anything like that at that point. That probably would have been – – well, unless I expected him to leave later that day or something, that would have been a little, you know, ahead of the game.

Mr. KELLY: Now, at this point we’ve reached the stage in the sequence where you have finished the exam and Mr. Laurion has been returned to and is on the bed in some configuration?

Dr. MCKEE: Yes.

Mr. KELLY: And the next thing, I suppose, was for you to leave the room?

Dr. MCKEE: Yes, of course.

Mr. KELLY: Now, ordinarily, Doctor, in a circumstance of this kind where you have the patient’s family members on the floor, would it be your practice to provide them with some information concerning your observations, your findings, or conclusions?

Dr. MCKEE: It’s – – that’s variable. It depends on a number of details. If – – if the patient, in my opinion, isn’t able to retain information well, and the most extreme case would be if they were in a coma. But, you know, if they were confused or anything of that nature, then yeah, always. If the patient – – if – – if I’ve already discussed what’s going on or conveyed, it seems like, the important information to the patient and he seems to grasp it well, then not necessarily, especially if the family is going to go in, you know, right away and realize that the patient’s perfectly able to relay what I’ve just said, then probably only unless – – only in the situation where a family member would ask something.

Mr. KELLY: Do you recall what your assessment or conclusion was in regard to Kenneth Laurion’s ability to, first, absorb and then relay the information you had provided to him during your examination of him?

Dr. MCKEE: My recollection is that he seemed to be doing well in terms his cognitive function.

Mr. KELLY: All right. So what did you do next, then?

Dr. MCKEE: I left the patient’s room and went to the nurses’ station to do the various tasks that we already discussed.

Mr. KELLY: Did you observe Lois Laurion when you left the room? That would have been Kenneth’s wife.

Dr. MCKEE: I don’t recall if I did or not. you know, now, since the time that this encounter happened, I’ve read some varying descriptions of that detail, and I – – I don’t remember whether or not I saw her immediately on leaving the room or not.

Mr. KELLY: Would it ordinarily the case, Doctor, that you would attempt to at least stop and provide some comment to the – – the spouse of the patient you’ve just seen?

Dr. MCKEE: Well, again, it’s variable. It – – it depends on whether or not I think the patient has understood it and has, you know, the information at hand and able to relate it. If I’ve just explained things to patient who seems to understand well and expect that the family will be going in shortly thereafter, I wouldn’t necessarily then repeat the entire conversation to a family member, even – – even a patient’s wife. It would, you know, be my feeling that the patient is going to be asked all these questions by the family and is able to relay the information himself. But certainly anytime that a family member asks any questions after I leave the room, I always take whatever time is needed to answer those questions, even if I’ve already just answered the identical question with the patient.

Mr. KELLY: Do you recall seeing Bonnie Laurion anywhere around the Kenneth Laurion room when you departed his room?

Dr. MCKEE: No, I don’t recall that.

Mr. KELLY: Do you recall – –

Dr. MCKEE: I recall her being in the room. She was one of the individuals in the room. But, no, I don’t remember if she was at hand when I left the room.

Mr. KELLY: Did – – did you look for her when you left the room? Did you look for Lois Laurion when you left the room?

Dr. MCKEE: I don’t recall making a specific, you know, search for family members after I left the room.

Mr. KELLY: And if I understood you correctly, you departed the room and went directly to the nursing station, where you would have dictated your consultation notes?

Dr. MCKEE: Written orders and prepared my report, yes.

Mr. KELLY: And that would have closed your encounter with Kenneth Laurion. Correct?

Dr. MCKEE: Yes.

Mr. KELLY: And that would have been the last time that you had any contact at all with Lois, Bonnie, or Dennis Laurion. Am I right?

Dr. MCKEE: Well, are you asking me with the conditional that that would be the normal routine?

KELLY: No, no I – –

Dr. MCKEE: – – and not be other things, or – – or what happened in this case?

Mr. KELLY: In fact, you never had another encounter with Lois Laurion – –

Dr. MCKEE: That’s – – that’s – –

Mr. KELLY: – – Kenneth Laurion’s wife?

Dr. MCKEE: Wife. That’s correct.

Mr. KELLY: And in fact, you never had another encounter with Bonnie Laurion? You never spoke to her again?

Dr. MCKEE: No, that’s correct.

Mr. KELLY: And you never spoke to Dennis Laurion again. Is that also correct?

Dr. MCKEE: Correct.

Mr. KELLY: You haven’t seen them, that is, Dennis Laurion and Bonnie Laurion, again until you encountered them here in this conference room in connection with these depositions. Am I right?

Dr. MCKEE: I believe so yes.


 

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

 

McKee V. Laurion – Dr. McKee Deposed About Conditions And Circumstances Before Encounter With The Laurion Family At St. Luke’s Hospital

The following text is copied from Exhibit AA-156 of David McKee, MD, V. Dennis K. Laurion.

State of Minnesota District Court

Sixth Judicial District

File # 69DU-CV-10-1706

David McKee, MD, Plaintiff, vs. Dennis K. Laurion, Defendant

Deposition of David C. McKee, MD, January 7, 2011

Carol Danielson Bille, RPR, Danielson Court Reporting, LLC The following is the deposition of David C. McKee, MD, taken before Carol Danielson Bille, RPR, Notary Public, pursuant to Notice of Taking Deposition, at the law offices of Hanft Fride, PA, 1000 U. S. Bank Place, 130 West Superior Street, Duluth, Minnesota, commencing at approximately 11:43 a.m., January 7, 2011.

Appearances

For the Plaintiff:

Marshall H. Tanick, Esq.

Mansfield, Tanick, and Cohen, P. A.

1700 U. S. Bank Plaza South

220 South Sixth Street

Minneapolis, Minnesota, 55402-4511

612-339-4295

For the Defendant:

John D. Kelly, Esq.

Nathan N. LaCoursiere, Esq.

Hanft Fride, PA,

1000 U. S. Bank Place,

130 West Superior Street,

Duluth, Minnesota, 55802

218-722-4766

Proceedings

Mr. KELLY Doctor, would you state your full name for me, please?

Dr.MCKEE: David Charles McKee.

Mr. KELLY And, Doctor, where do you live?

Dr. MCKEE: In Duluth.

Mr. KELLY And where do you practice medicine?

Dr. MCKEE: At multiple locations. Mostly in Duluth, but I do outreach in Virginia, Cloquet, Hibbing, and Grand Rapids.

Mr. KELLY For the record, what is the name of the firm or clinic under which you practice?

Dr. MCKEE: Northland Neurology & Myology.

Mr. KELLY And do you have a partner in that practice?

Dr. MCKEE: There’s another physician in the practice. We’re – – we’re partners in wevery sense except from a business standpoint.

Mr. KELLY All right. Who is that?

Dr. MCKEE: Edward Crisostomo.

Mr. KELLY How long have the two of you been practicing together under that clinic name?

Dr. MCKEE: A little over fifteen years.

Mr. KELLY You’re a neurologist by specialty, are you not?

Dr. MCKEE: Yes.

Mr. KELLY When did you graduate from medical school?

Dr. MCKEE: 1987.

Mr. KELLY And as I recall, it was from the University of Wisconsin?

Dr. MCKEE: Yes.

Mr. KELLY And where did you do your residency?

Dr. MCKEE: Portland, Oregon.

Mr. KELLY Portland. And in what year did you finish your residency?

Dr. MCKEE: I finished my residency in 1991, but then I did a fellowship at McGill University – –

Mr. KELLY In Montreal?

Dr. MCKEE: – – the following year. In Montreal.

Mr. KELLY And what was the fellowship in?

Dr. MCKEE: Neuromuscular diseases and muscle disorders.

Mr. KELLY When were you eligible to sit for your boards?

Dr. MCKEE: The neurology boards?

Mr. KELLY Yes, sir.

Dr. MCKEE: In – – the neurology boards are done in two parts, and you – – the – – it’s a little bit complicated, but the soonest you can become eligible to take the first part, which is a written exam, is six months after you’ve finished your residency. At least that’s in most cases. So, in my case, that would have been very late 1991 or, you know, probably early in ’92.

Mr. KELLY Did you sit for those exams then or wait until you were finished with your fellowship?

Dr. MCKEE: No, I took it then.

Mr. KELLY And the second phase is what? An oral exam?

Dr. MCKEE: If you pass the first phase, then you can take the oral exam, and you can’t take that immediately either. I don’t remember exactly how long you’re required to wait, but it’s – – it’s a matter of a few months.

Mr. KELLY And you are Board-certified, are you, Doctor?

Dr. MCKEE: Yes.

Mr. KELLY And your Board certification was first received when?

Dr. MCKEE: In 1992, as soon as I could have gotten certification.

Mr. KELLY In your particular specialty, do you have to re-certify periodically?

Dr. MCKEE: Like most specialties, there was a point at which the – – the board that determines certification decided that certifications would be – – would not be permanent and would require retesting periodically. But most – – most – – probably all of the specialty boards picked a point at which they grandfathered people in, so in – – in my case, the residency – – my residency class were aware that, for us, we would be able to get under that wire if we passed both portions of the exam at the earliest time we were eligible to take them, and I did that, so my certification in neurology is permanent. But I’m also Board-certified in electrodiagnostic medicine, and that’s something that’s an extension of my fellowship, and – – and, in that case, I became certified long after they had set the grandfather point, so I have to re-do that one every ten years.

Mr. KELLY Do you have a specialty within your specialty? Are there particular – –

Dr. MCKEE: That’s – –

Mr. KELLY – – aspects of neurology that you are particularly focused on?

Dr. MCKEE: That’s the one I was just referring to.

Mr. KELLY: The electrodiagnostic – –

Dr. MCKEE: Neurodiagnostic medicine and peripheral nerve and muscular disorders.

Mr. KELLY: Do you see stroke patients with some frequency in your practice?

Dr.MCKEE: Very often.

Mr. KELLY: And if you would – – I think you started out to tell me this, but I’m not sure. What hospitals are you admitted to practice?

Dr. MCKEE: Well, I have active privileges at St. Luke’s, and I had had courtesy – – actually, the first couple of years I was in Duluth, I think I had active privileges at St. Mary’s, but a few years after I started in Duluth, they changed that to a closed system, and most of the doctors that weren’t directly employed by the Duluth Clinic were switched to courtesy privileges. And so I’ve had courtesy privileges there for a long time, and I actually gave those up a few months back. And I have active or courtesy privileges at Virginia Regional Medical Center. I think they’re actually active, but I’ve never admitted anybody there. And I have courtesy privileges at Fairview Hospital in Hibbing, as well as the hospital in Grand Rapids and – – Memorial Hospital in Cloquet.

Mr. KELLY: I gather, though, that most of your work, to the extent that it involves work in hospitals, is done at St. Luke’s?

Dr. MCKEE: Right.

Mr. KELLY: Has it been your experience that when you deal with patients or families in which a stroke episode has been involved, that the patient and the immediate family members are typically anxious? Upset?

Dr. MCKEE: You know, the – – I would say yes. The range of emotion is – – is quite wide, and there are families that, you know, take this very much in stride. Maybe it’s the third or fourth stroke that somebody has had, and everybody in the family is well aware that the individual has a lot of risk factors for stroke and is almost expecting another one. And – – and there are others that – – that are extremely anxious.

Mr. KELLY: Have you found it to be the case that a patient or their immediately family members will look to the physician for clues as to what can be expected in the case? How things will develop?

Dr. MCKEE: Yes.

Mr. KELLY: And that patients and immediate family members tend to be sensitive to cues and expressions by the practitioner?

Dr. MCKEE: My experience is that they – – they usually have questions about prognosis, although in some cases they – – actually don’t want to carry out any discussion that can be avoided at all, asnd I think that’s sometimes an extension of anxiety; sometimes maybe a little bit of denial.

Mr. KELLY: The hospital gown is a perpetual source of irritation, I think, to everybody. Would you agree?

Dr. MCKEE: Yeah, it’s one of those items that’s never in fashion and always in fashion, I suppose.

Mr. KELLY: It seems to me I’ve read that there’s been some move afoot to try and adopt a new standard for the hospital gown, but I’m not aware that it’s been adopted.

Dr. MCKEE: No, I’m not aware of that, but it seems like an idea that isn’t a bad one.


 

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