Delaware Online: When Web Reviews Lead To Lawsuits

MARCH 21, 2013

“When Web Reviews Lead To Lawsuits”

Ken Paulson, Delaware Online

When a Minnesota man felt his family was treated shabbily by a neurologist, he made sure the world knew about it.

Dennis Laurion posted caustic reviews of Minnesota neurologist David McKee, saying he was insensitive to his father’s needs and claiming that a nurse called the doctor “a real tool.” This angered McKee, who offered his own prescription: a libel suit.

The Minnesota Supreme Court found that the critical comments were protected under the First Amendment as free speech because they were just an opinion and mere vituperation and dismissed the case.

Source

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

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Bemidji Pioneer: Minnesota High Court Says Online Post Legally Protected

January 30, 2013

“Minnesota High Court Says Online Post Legally Protected”

Bemidji Pioneer

MINNEAPOLIS – The Minnesota Supreme Court says a man’s online post calling a doctor “a real tool” is protected speech.

The high court on Wednesday dismissed a case by Duluth neurologist David McKee, who took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites. Those included a claim that a nurse called the doctor “a real tool.”

The justices say the comments posted by Dennis Laurion don’t add up to defamation. They say referring to someone as “a real tool” is a protected statement of opinion that can’t be the basis of a defamation claim. They also say it doesn’t matter whether the unnamed nurse actually exists.

The decision reverses a Minnesota Court of Appeals decision that would have let the doctor’s lawsuit proceed to trial.

Source

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

Physician Rating Web Sites: Ethical Implications

August 23, 2015

“Physician Rating Web Sites: Ethical Implications”

Julie Balch Samora, MD, PhD; Scott D. Lifchez, MD; Philip E. Blazar, MD; The American Society for Surgery of the Hand Ethics and Professionalism Committee

There are currently more than 60 physician rating Web sites. In an analysis of 4,999 online physician ratings, the 10 most commonly visited PRWs were found to be HealthGrades.com, Vitals.com, Yelp.com, YP.com, RevolutionHealth.com, RateMD.com, AngiesList.com, Checkbook.org, Kudzu.com, and ZocDoc.com. Yelp and Healthgrades appear to be the most trusted Web sites by patients. Three respondents specifically mentioned Yelp as a Web site that had an algorithm that tended to highlight negative reviews. Many of these Web sites had not contacted the physician, office, or hospital for permission to report or requested any data from the rated entities. Online information may misrepresent background information, qualifications, or professional performance. Only 4 of the 8 busiest PRWs were found to have accessible and reliable data pertaining to orthopedic surgeons in a major metropolitan region. In this study, there was insufficient user-generated content, lack of an orthopedic surgery designation, or a high rate of incomplete submissions.

There are many ethical questions that arise with the creation and expansion of PRWs. Physicians and professional organizations have argued that they have been misrepresented by PRWs and that they have been abused by angry patients or competing practices. A systematic review performed by Emmert et al found the major shortcomings of PRWs to be incomplete databases, few ratings, unstructured patient opinions, lack of a reference standard for surveys, lack of validity of scoring systems, data that do not reflect the actual quality of the physician, potential for abuse due to anonymity, inability of physicians to respond to negative reviews, and lack of evidence of effects on physician performance or patient outcomes. We found many of our respondents felt that they had also been misrepresented by PRWs, with 62% of respondents observing inaccuracies in their online profiles, and 53% receiving a critical comment about their practice that was objectively false.

There is evidence suggesting manipulation. Most rating sites do not require authentication of raters. Some physicians have posted reviews about themselves, which both undermines the validity of these sites and demonstrates deficient ethics of the providers who wrote their own reviews. None of our respondents acknowledged posting positive reviews about themselves. However, 1 respondent reported an investigation that found that a negative comment had been posted by a local competitor.

In a study of online reviews of 500 urologists, the composite rating was based on scores from an average of 2.4 submitted ratings. One-sixth of practicing U.S. physicians received at least 1 rating on RateMD in 2010. Because there are so few ratings, 1 low score could potentially lead to a severely low overall rating. Several respondents felt that the small sampling of reviews cannot possibly lead to accurate evaluations.

Most ratings have been found to be generally positive. Nonetheless, one-third of the current survey respondents had asked satisfied patients to submit reviews. Ethically, this practice raises questions. It is not clear whether this is simply the online equivalent of asking satisfied patients to refer their friends or if it crosses an ethical line, because adding more positive ratings will dilute the impact of negative ratings. Is there an obligation or expectation to solicit ratings from all patients or a representative cross-section? There are physicians who are actually handing out comment cards that can later be posted to PRWs. Apparently, there are also companies that directly contact physicians and physician offices with offers to improve ratings for a fee.

Regardless of the incomplete databases, few reviews, and lack of validity, a national survey found that 35% of respondents selected a physician based on good ratings on PRWs and 37% had avoided a physician based on bad ratings. Almost 40% of our respondents felt that the Web sites changed referral patterns. However, only 17% of respondents felt that PRWs had direct negative effects on their practice. Many open-ended responses reflected that respondents truly had no understanding what effects ratings produce.

One of the dilemmas as a treating physician who receives an undesirable rating is the relative inability to provide feedback. When responding to negative reviews, patient anonymity must be protected and remain in compliance with the Health Insurance Portability and Accountability Act of 1996. Oftentimes, there is no opportunity for rebuttal, because patient confidentiality must be maintained.

There have been lawsuits filed by physicians who felt they had suffered damages from reviews. Dr. David McKee, a neurologist from Duluth, MN, sued Dennis Laurion, the son of a former patient, alleging that statements Laurion published online defamed him. In McKee v. Laurion, 2013, the Minnesota Supreme Court found that Dennis Laurion had the right to call Dr. McKee a “tool.” The laws of defamation generally favor those individuals who post the untoward comments, because freedom of speech is privileged. If there are no specific details provided and the posts are generally subjective and mere generalities, the writer is protected by law. Even Web site operators are often immune to lawsuits.

It is expected that PRWs will play a major role in health care in the future. The National Health Service in the United Kingdom has encouraged patients to rate their general practitioners through a National Health Service–run Web site. It is unclear whether there will be a uniform reporting system in the United States or whether these online ratings will influence patient-referral patterns or quality improvement.

In 2012, the Affordable Care Act implemented a policy to withhold funds from hospitals that do not have high patient-satisfaction scores. Two-thirds of poorly performing hospitals (with higher numbers of readmissions, complications, and death) had highly satisfied patients based on Hospital Consumer Assessment of Healthcare Providers and Systems scores. In a prospective cohort study, patients who reported being the most satisfied with their medical care actually had higher health care and prescription costs, higher odds of inpatient admissions, and higher mortality rates than patients who were not as satisfied. We may witness the development of a similar policy for individual providers.

Providers have started to take a more active role in the development and management of PRWs. The California Orthopaedic Association contacted Healthgrades with the goal of improving accuracy of information, subspecialty information, and personalized practice information. It is early in the process, but Healthgrades did make major changes to its review site, even creating a section to enable physicians to input personalized information about their practice. Similarly, the Wisconsin Collaborative for Healthcare Quality, a nonprofit coalition of health systems, medical groups, hospitals, and health plans, has voluntarily collected and provided information to Consumer Reports. These data are the foundation for ratings in this region.

The main limitation of this study is the low response rate of 12%. These data, therefore, may not accurately represent the views of the entire ASSH membership.

Professional organizations such as the ASSH have the opportunity to take an active role in online physician rating. Well-developed PRWs can provide both qualitative and quantitative feedback and new insights on the perceptions of patients. Some of the opportunities suggested to reduce bias and harm to physicians include making the ratings first available when they have reached a certain minimum number, which may thereby reduce the impact of extreme opinions. Furthermore, assuring accuracy of information, providing physicians the opportunity to respond to negative comments, and enabling the removal of fraudulent posts will be of paramount importance to ensure factual data. We suggest that in the near future, professional societies will play a more active role in the area of online physician rating and recommend the creation of a task force within our societies to assess the development, management, implications, and ramifications of PRWs.

There are multiple ethical conundrums that PRWs pose, which will need to be more fully evaluated. Providers should take an active role in the creation and implementation of quality PRWs so as to ensure quality and accuracy of information.

Source

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

John Washam: Oregon Dentist Sues Patient For $300,000 For Bad Online Review

SEPTEMBER 2, 2012

“Oregon Dentist Sues Patient For $300,000 For Bad Online Review”

John Washam, Talk To The Manager

Dr. Mo Saleh, dentist, is suing a patient for $300,000, stating that the review his patient, Spencer Bailey, posted on Yelp is costing his business $100,000 a week.

Bailey now has a lawyer and an expensive court battle ahead of him after his fallout with Dr. Saleh who works at Optima Dental in Lake Oswego.

Bailey suspected he was getting questionable care. “I had never had a cavity before I set foot in his office,” he said. “He told me the day that I saw him that I had 10 or so cavities, which threw me for a loop – I was nervous that I had some other health problem.”

Bailey said three weeks after he posted his review, Dr. Saleh demanded Bailey take down the posting or be sued. Bailey said he removed it immediately. “In hindsight it didn’t matter, because even though I took down the opinion online, I’m still right here,” he said.

This type of lawsuit is not new, and we expect to see more in the future. Such lawsuits expose the legal struggle between free speech and responsible speech, meaning that these reviews can damage business’ reputations.

Source

Dentist Mo Saleh

Dentist Lawsuits

Doctor Lawsuits

KATU News: Dentist Loses Suit After Former Patient Criticizes Him Online

SEPTEMBER 27, 2012

“Dentist Loses Suit After Former Patient Criticizes Him Online”

Lincoln Graves, KATU News

A judge decided the critical comments made on review site YELP.com and other sites were free speech.

“I’m disgusted. I’m actually really disgusted,” said dentist Mo Saleh, who tried to sue his former client, Spencer Bailey, for defamation after finding negative reviews on the Internet. “The reason I’m risking opportunity and risking this negative exposure is because I feel that this is wrong.”

But a judge threw out the suit before it got very far.

“When we walked into this courtroom, we didn’t walk on equal footing because of the Anti-SLAPP law,” Saleh said. The “SLAPP” in the Anti-SLAPP law stands for Strategic Lawsuit Against Public Participation.

Businesses can sometimes file those suits to quiet criticism. But the Anti-SLAPP law can be a friend to those who are taken to court, giving them free speech protection when they make comments in a public forum and concern a public interest, which a site like YELP seeks to serve.

“It’s not easy to be sued and dragged into court,” said Jeremiah Ross, the attorney who represented Bailey. “Just as we anticipated, they couldn’t prove their case because it wasn’t a defamatory statement.”

Still, Saleh may appeal, believing the online criticism was meant to harm him and not simply to inform the public. “I teach my kids to stand up when you’ve been wronged, and I think that’s absolutely disgusting what happened today,” he said.

One of the comments Bailey was accused of making was, “If Saleh finds a cavity, get a second opinion and get it filled by someone else.”

Saleh was seeking $300,000 in damages.

Source, KATU

Source, KOMO News

Source, KVAL

Dentist Mo Saleh

Dentist Lawsuits

Doctor Lawsuits

Brian Deon Brown: “Real Tool” and Other Comments About Doctor Are Not Defamatory

FEBRUARY 16, 2014

” ‘Real Tool’ and Other Comments About Doctor Are Not Defamatory”

Brian Deon Brown, Exclusive Rights To Use

Online statements to various “rate your doctor” websites” as well as letters sent to “medically-affiliated institutions” “of and concerning” a doctor’s bedside manner or lack thereof, were recently found not defamatory by the Minnesota Supreme Court in Mckee vs. Laurion.   As a result, the Minnesota Supreme Court had no problem reversing a January 23, 2012 Court of Appeals decision to deny the defendant’s motion for summary in  McKee v. Laurion, No. A11-1154, 2012 WL 177371 (Minn. App. Jan. 23, 2012).

In the Supreme Court’s view, none of the defendant’s comments  had any “defamatory meaning” and on their own, were substantially accurate depictions of the doctor’s statements to his patient or were the type of vague communication incapable of being proven true or false under the circumstances.   Thus, it’s ok, at least in Minnesota, to describe your doctor or medical professional to others as a “real tool” or to comment truthfully on his or her rude/insensitive behavior during the course of an examination.

Source

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

 

Years Of Great Dental Marketing Erased When Dentist Sues Patient

October 12, 2012

“Years Of Great Dental Marketing Erased When Dentist Sues Patient”

Jim Du Molin, Dental Practice Marketing And Management Blog

No matter how many times The Wealthy Dentist points out that suing for a negative online review is just bad dental marketing, another case makes headlines.

Three weeks ago we reported on dentist, Mo Saleh, who was suing a former dental patient for $300,000 for damage to his reputation and loss of revenue stemming from what he felt was an inflammatory negative online review.

And just this week the judge in the case decided to throw the lawsuit out, stating that online comments made by the dental patient were free speech.

To prove that the dental patient was guilty of libel, the dentist would have to establish that the statements made in the online review were false, that they caused the dentist harm, and were posted without proper research into the validity of the comments.

But if the online review is considered a statement of opinion about the dentist, as opposed to actual facts, then the dentist won’t get very far in a lawsuit for defamation, and here in California, as well as in Oregon, the law takes it one step further with Anti-SLAPP legislation.

California’s anti-SLAPP statute provides for a special motion to strike a complaint where the complaint arises from activity exercising the rights of petition and free speech. (The California Anti-SLAPP Project). The same is true on Oregon, where the dentist’s lawsuit was initiated.

According to KVAL news, Dr. Saleh may appeal the judges verdict, if he feels that the online review was meant to harm him and not simply to inform the public.

The Wealthy Dentist argues that Dr. Saleh’s money would be better spent initiating a new dental marketing campaign targeted at showcasing what his dental practice has to offer and bringing in new dental patients.

Most of the general public is beginning to look at negative online reviews with some skepticism because of many of the outlandish comments reviewers have made. Someone looking for a local dentist may see the negative review, but will also read the positive reviews, and probably ask a few people they know in the community for a recommendation. They most likely won’t make their decision based on one reviewer’s comments, and if a dental patient did decide on a dentist based on just one review, then a dentist might not want them as a dental patient.

But a dentist can do more damage to their reputation themselves and erase years of great dental marketing by engaging in litigation with a dental patient who has written a poor review of their dental practice.

Instead, spend that money on making your dental practice the best practice in town.

Jim Du Molin is a leading Internet marketing expert for dentists in North America. He has helped hundreds of doctors make more money in their practices using his proven Internet marketing techniques.

Source

Dentist Mo Saleh

Dentist Lawsuits

Doctor Lawsuits