Risk Management Reporter: What About Suing Patients?

August 2015

“What About Suing Patients?”

Risk Management Reporter Volume 34, Number 4, Page 6

Lawsuits against patients, usually related to comments on online ratings and reviews websites, have met with varying results across jurisdictions nationwide. Before considering such a step, providers and their legal counsel should carefully consider cases in their state, such as the ones presented below, to determine if the facts of their case would support a cause of action recognized in the jurisdiction and would be likely to succeed.

Even if legal counsel believes that a potential suit has merit, physicians should consult with risk managers and other advisers regarding the public relations implications of such an effort. Providers may ultimately decide that a lawsuit would draw more attention to a negative review or video posted online than it would garner on its own and could perpetuate a reputation of the provider as “the doctor who sued her patient.” Possibly worse, the plaintiff may respond with a malpractice lawsuit.

Arizona: $12 Million Verdict Overturned

In a case initially decided in 2011, a pair of plastic surgeons sued a former patient for defamation and won a $12 million verdict. In the case, the patient suffered an infection after she received care from the surgeons.

She started a website dedicated to criticizing the two surgeons and questioned their credentials. The surgeons sued her in 2008, and the patient complied with a restraining order to delete the site. At the same time, she launched an extended online campaign criticizing the surgeons on various other websites, lodging professional board complaints, and attending public meetings, all with the intent of hurting the surgeons’ practice.

In suing the patient, the surgeons stated that her online comments and activities had their desired effect, causing such revenue loss as to effectively close their practice.

A jury awarded $11 million in actual damages and $1 million in punitive damages.

An Arizona court of appeals overturned the decision in 2015, writing that the award “shocks the conscience of this court” and finding that the plaintiffs offered insufficient evidence to justify such a large award. Although the appeals court nullified the amount of the award, the court agreed with the trial court that the clinicians were not entitled to summary judgment. The court ordered a new jury trial to determine whether the patient’s statements were actionable opinions or exaggerations that defamed the providers.

Desert Palm Surgical Group v. Petta, No. 1 CA-CV 13-0376 (Ariz. Ct. App. Jan 15, 2015).

Minnesota: Online Posts Not Defamatory

In a case decided in early 2013, the Minnesota Supreme Court declined to compel a patient’s son to remove online posts he had made criticizing a neurologist. The case arose from the neurologist’s examination of a patient in a hospital’s intensive care unit. Prior to the examination, the neurologist had never been involved in the patient’s care and had never met him.

After the exam, during which the patient’s family felt the neurologist’s behavior was “rude and insensitive,” the patient’s son posted on online physician ratings websites that the neurologist was “a real tool” who made insensitive comments about his father’s prognosis and was unsympathetic to concerns about his hospital gown being closed when asking him to get out of bed.

The neurologist sued the patient, claiming that 11 of the statements were defamatory. A trial court dismissed the claims, and the state supreme court upheld the dismissal, noting that many of the alleged statements were truthful and that the remaining statements were pure opinion and could not be considered defamatory under state law.

McKee v. Laurion, No. A11-1154 (Minn. Jan. 30, 2013).

Kentucky: No Evidence Posts Were Knowingly False

In a third case, the U.S. District Court for the Eastern District of Kentucky ruled that a physician could not pursue claims of defamation and tortious interference of business against a patient who posted several negative comments online.

The patient used online review sites to complain about poor results and a series of botched procedures.

The court dismissed the physician’s claims of defamation because it determined the patient’s statements to be protected opinions. Under Kentucky law, opinions may be considered defamatory only if they imply allegations of “undisclosed defamatory facts as the basis for the opinion,” the court said. All of the patient’s comments were found to be protected because they did not imply the existence of any undisclosed facts and were therefore not defamatory.

Because the statements were determined not to be defamatory, the court also dismissed the physician’s claim of tortious interference with business relations. Kentucky law requires proof of fraudulent representation, and the court said there was no evidence that the posts were knowingly false.

 Loftus v. Nazari, Civil Action No. 10-279 (WOB-JGW) (E.D. Ky. May 13, 2013).

See More:

Desert Palm Surgical Group v. Petta

McKee v. Laurion

Loftus v. Nazari

Reason: Court Rules Bad Consumer Reviews Not Defamatory

February 7, 2013

Court Rules Bad Consumer Reviews Not Defamatory

Reason – Free Minds and Free Markets

Dennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father’s neurologist. He expected at most what he calls a “non-apology apology.”

“I really thought I’d receive something within a few days along the lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that would be the end of it,” the 66-year-old Duluth retiree said. “I certainly did not expect to be sued.”

He was. Dr. David McKee’s defamation lawsuit was the beginning of a four-year legal battle that ended when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor’s reputation.

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

The Good, The Bad And The Ugly With Online Reviews

May 1, 2013

The Good, The Bad And The Ugly With Online Reviews

Carol M. Langford, Contra Costa Lawyer

A search on the business rating site Yelp for attorneys in San Francisco yields 5,681 results. Although Yelp and similar sites are probably best suited for restaurants and night clubs, many people use the site to review professionals. These reviews influence potential clients. The Lawyerist.com, a blog for legal professionals, recently polled a thousand people with the question: “When you need to find a specialty lawyer, how would you start your search?” Twenty-two percent said that they search Google or another search engine, 10 percent said that they “look elsewhere on the internet” and 2 percent said that they “ask on my favorite social network.”

Yelp is not the best indicator of an attorney’s ability—but most people using Yelp don’t know that. Most experiences with Yelp reveal that generally bad restaurants get bad reviews and good restaurants get good reviews. However, some places of business and now some attorneys either pay people to write good reviews or ask their dearest friends to rate their lawyer skills online. Thus, inexperienced lawyers who are savvy with social networking can have outstanding reviews and more seasoned, but less Internet-savvy attorneys can have bad reviews and not even know about it. In some instances, attorneys might be rated for things that have nothing to do with their legal abilities. There is really no way to tell why someone rated a particular attorney with high marks.

However, the troubling question is, what can a lawyer do to fight back when he or she receives a negative review on Yelp? According to some ethics experts: not much. In the Los Angeles County Bar Association’s Formal Ethics Opinion #525, the authors concluded that any public response to a negative review online must not “disclose confidential information,” must “not injure the former client in any matter involving the prior representation” and must be “proportionate and restrained.” The part about not disclosing confidential information can leave attorneys at a huge disadvantage when responding online.

Because opinions are protected by the First Amendment, clients are usually within their rights to log onto social media sites and trash their attorney, as long as they don’t knowingly make false statements—a hard standard to prove. Further complicating matters is the attorney-client privilege, which restricts the attorney as to what he or she can say to respond, if that requires divulging privileged information. For instance, imagine a client that hired a personal injury attorney with unreasonable expectations of receiving millions of dollars in settlement, or a client that ended up slighted in a divorce settlement because of his or her own bad behavior. The client could then go on Yelp, AVVO, LawyerRatingz, Angie’s List, etc., and tell the world that the attorney botched the case. In this situation most people would reasonably want to defend themselves against these accusations by pointing out the client’s own bad behavior. But as lawyers we cannot. So what can we do?

A professional can always sue over a bad review for defamation—but only if the statements made in the review were false. Even then, it’s probably not a good idea. The Associated Press recently reported about a Minneapolis Neurologist, David McKee, who sued a patient’s son for defamation after he wrote a scathing review, including disparaging comments allegedly said by the doctor to him and his family following his father’s stroke. McKee claims that the statements attributed to him were not true. This particular case has not been decided ( * ), but such suits are rarely successful. A study by Eric Goldman, a professor at Santa Clara University School of Law, revealed that of the 28 physicians who have recently filed similar suits, 16 of them were dismissed and six of them settled.

 

Defendant Dennis Laurion

Defendant Dennis Laurion

 

Tendentious Lawyer

Plaintiff Attorney Marshall Tanick

Plaintiff David McKee MD

Plaintiff David McKee MD

 

 

 

 

 

 

 

The outcome of such suits can be devastating. In a July 13, 2009, article the San Francisco Chronicle reported about a California dentist, Yvonne Wong, who sued a patient and Yelp after the patient posted a negative review on Yelp’s site. Ultimately, Ms. Wong was ordered to pay more than $80,000 in attorney’s fees to her patient and Yelp. The judge ruled in that case that California’s stringent anti-SLAPP law could be applied because the patient had mentioned mercury fillings in her review, and thus the review furthered discussion of an issue of public interest.

Even Yelp’s spokeswoman Kristen Whisenand recommends against using the “nuclear option” and suing for a negative review. Why? Because it usually only brings more attention to the negative review—which is what the professional didn’t want in the first place. For example, in 2007, the New York Times reported about attorney John Henry Browne who sued the lawyer-ranking site Avvo alleging that his 5.7 (out of 10) ranking was damaging to his law practice. A federal judge held that the reviews were protected under the First Amendment right to express opinions and dismissed the case. The case brought more public notice to the negative Avvo reviews that the attorney wanted removed in the first place. A search of the same attorney now shows that he was able to raise that number to 6.6, so maybe he learned a thing or two since then. Or maybe he simply became more Internet-savvy and learned how to work the system.

The best option for attorneys is to check the ratings websites, and respond to the reviews in a friendly, proactive manner. For example, one San Francisco attorney with a rating of 2.5 stars on Yelp (out of 5 possible stars) responded to each and every one of his negative reviews in a polite manner that did not divulge privileged information. Although measures such as these may seem distasteful, the reality is that social media exists, people do check it when searching for an attorney, and the only thing attorneys can do is to stay on top of things.

Carol M. Langford has a practice in State Bar defense and professional licensing disputes in Walnut Creek. She teaches professional responsibility as an adjunct at U.C. Berkeley, Boalt Hall School of Law, and Hastings College of the Law. Additionally, Ms. Langford serves as an expert witness in cases involving complicated ethics issues and presents at conferences and symposiums across the state. She is a past Chair of the California Committee on Professional Responsibility and Conduct.

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

Business Law Review Cites David McKee MD V. Dennis K. Laurion

2015 (Volume 48)

“Recent Trends In Defamation Law: From The Straigtforward Action In Ventura V. Kyle To Unmasking An Anonymous Poster In The ‘Fuboy’ Case”

David P. Twomey, Business Law Review, Volume 48

Published by Husson University Bangor, Maine, for the North Atlantic Regional Business Law Association

Internet and mobile platforms have radically changed how society consumes and shares news, opinions and other content. The Internet is now seen by some as the “Wild West” where anything goes and the preponderance of speech is either hyperbolic or acerbic, with speakers enabled to “sound off”, often with harsh and unbridled invective.

A carry-over effect exists to cable television and satellite radio. The First Amendment protects freedom of speech and the long enduring right to speak anonymously in a lawful manner. However, when vigorous criticism descends into defamation, constitutional protection is no longer available.

This paper presents, in a current context, a discussion of the elements and defenses in civil defamation cases. It then presents the special issues regarding online defamation cases including identifying anonymous posters of defamatory statements through nonjudicial and judicial actions. Further it identifies a framework for determining whether a statement is protected vigorous criticism or defamation, with true facts and pure opinions broadly protected and mixed opinions susceptible to its speaker bein unmasked in the pretrial defamation process. The paper concludes with brief admonishing for informed carefulness as we express our broadly protected First Amendment freedoms.

Defamation is an injurious false statement by one party about another to a third party. Slander is spoken defamation. Libel is a false publication by writing, printing, picture or other fixed representation to the eye, which exposes any person to hatred, contempt or ridicule, or which has a tendency to injure the individual in his or her occupation.

The elements of defamation are (1) the making of defamatory statement, (2) publication of the defamatory material; and (3) damages that result from the statement. In cases in which the victim is a public figure, such as a well-known entertainer, a professional athlete or political figure, another element is required – the element of malice, which means that the statement was made by the defendant with knowledge that it was false, or with reckless disregard for whether it was true or false.

For example, former wrestler and Governor of Minnesota, and a former Navy SEAL, Jesse Ventura sued Chris Kyle the author of the bestselling autobiography entitled American Sniper for defamation.

Kyle, also a former Navy SEAL, wrote that a character named “Scruff Face” holding court in a Coronado California bar said, “he hates America,” the SEALS “were killing men and women and children and murdering” and SEALS “deserve to lose a few”; at which point Kyle “laid him out”. While not naming Ventura in the book, Kyle confirmed on the O’Reilly Factor cable network television show and the Opie & Anthony satellite talk radio program that “Scruff Face” was Ventura.

Kyle was later killed by a troubled veteran, and his wife, as executor of his estate, was substituted as defendant.

The case, brought by public figure Jesse Ventura, boiled down to a credibility contest with several witnesses testifying that Ventura’s version of events was true, while several other witnesses testified that Kyle’s version of events was true.

The jury decided the case for Ventura, with the court concluding that in believing Ventura’s version of the facts, then Kyle’s writing and telling of the story of punching out Ventura was itself a basis for the jury to make a finding of actual malice.

On the defamation claim, the jury awarded $500,000 in damages. Some $1,345,477 in damages was assessed for unjust enrichment for the money made in defaming Ventura in the book American Sniper.

Truth is a complete defense to a defamation action and “true statements of fact however disparaging are not actionable. The First Amendment also broadly protects pure opinion from defamation claims.

In McKee v. Laurion, Dr. David McKee brought a defamation action against the son of a patient who posted statements regarding Dr. McKee on various “rate-your-doctor” websites after his father’s release from [ St. Luke’s Hospital in Duluth ].

The court reviewed the statements in question and found that the statements were substantially true, pointing out that the common law approach to falsity in the context of libel “overlooks minor inaccuracies”

Regarding a final statement published as follows: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee’s is a real tool!!’”, the parties dispute whether this statement is protected opinion. The court stated that referring to someone as “a real tool” falls into the category of pure opinion because the term “real tool” cannot be reasonably interpreted as stating a fact and it cannot be proven true or false. The court concluded that it is an opinion amounting to “mere vituperation and abuse” or “rhetorical hyperbole” that cannot be the basis for a defamation action. Accordingly, truth is an absolute defense, and pure opinion cannot be basis for a defamation lawsuit.

Source

David McKee MD V. Dennis K. Laurion

Arlington Heights Daily Herald: Can You Be Sued For Critical Comments Online?

October 25, 2012

“Can You Be Sued For Critical Comments Online?”

Arlington Heights Daily Herald, Illinois

A Minnesota doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.”

So Dr. David McKee had an unusually aggressive response. He sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.

Dr. David McKee

Dr. David McKee

 

“His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick.

Tendentious Lawyer

Marshall Tanick, Esquire

 

McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names.

Mr. Dennis Laurion

Mr. Dennis Laurion

 

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

Librarian’s Muse: If You’ve Ever Complained Online About A Business, You May Want To Think Twice About It

DECEMBER 7, 2012

“If You’ve Ever Complained Online About A Business, You May Want To Think Twice About It”

Librarian’s Muse

If you’ve ever complained online about a business, you may want to think twice about it. A contractor is suing a Virginia woman for criticizing his work on two major websites, and those bad reviews could cost her big money. Outside Fairfax County court Dec. 5, a lawyer for Jane Perez flipped through pictures allegedly showing botched home repairs. The photos include door hinges, trash allegedly left behind, and what are said to be strands of hair in a refinished floor. James Bacon, attorney for Perez, said, “I think we presented evidence sufficient to establish that the work was not completed, that he charged for work that had not been done, and that the workmanship was very poor.” Perez hired Christopher Dietz — a former high school classmate — in June 2011 to do cosmetic work on her townhouse.

Unhappy with the results, she gave him an “F” rating on Angie’s List.com, a consumer review website. On Yelp, she accused Dietz of damaging her home, billing her for work he didn’t do, and suggested he stole jewelry. She ended her scathing review with this advice, “Bottom line do not put yourself through this nightmare of a contractor.”

Dietz issued his own response, and then fired back with a $700,000 lawsuit for defamation. Dietz said, “There was no question in my mind that I did 150 percent professional job in her house.” He says Perez’s claims are all lies — lies that cost him $300,000 in lost business. Dietz said, “I believe that people should have the right to state how they feel, but when you state stuff as fact and it’s not fact or it’s not able to be supported there has to be some type of — for the lack of better words — punishment.”

Wednesday, Dietz was awarded his first victory. A judge ordered Perez to take down any allegations of theft and comments about legal action.  Bacon said, “If we need to, we will appeal to make sure that people are not afraid to speak out.”  The court still must decide whether there are grounds for a defamation case.

CBS News legal analyst Jack Ford explained defamation and how it relates to this case. On “CBS This Morning” he said, “Our constitutional right to free speech is not absolute. There are limitations on it. For instance, the classic one, you can’t falsely yell ‘Fire!’ in a crowded theater. … Because obviously, you can expose people to damage. What you can do is offer up is your opinion about things. As long as it’s clearly an opinion. Here’s what you can’t do. And this is where you get into defamation. You can’t make a false statement of fact that damages somebody’s reputation. So if I wanted to say, in a situation similar to this, I was just not at all happy with the work that my contractor did. That’s okay. That’s my opinion. But if i say, ‘I was not at all happy with the work that my contractor did, and by the way my contractor is an embezzler’ … or ‘he stole jewelry’ or even make the argument saying, ‘He damaged my house,’ now you’re making a statement of fact. The law also says, truth is an absolute defense. So if somebody did damage your house or somebody is an embezzler, then you’re OK. Even though it damages their reputation, as long as it’s true, it’s OK. The classic thing to remember is [defamation is] a false statement of fact that damages somebody’s reputation, as opposed to opinion.”

Ford added, “The Internet is still kind of the wild west. You know, tradition news organizations, we have editorial processes we follow. Reliable sources, fact checking, even though you have the right to do it, is it the right thing to do? If you’re going online, everybody uses this, goes and does research first before they buy stuff. Make sure you’re doing it in terms of a genuine opinion on your part. Here’s the other thing, don’t try and cloak your statement of fact and say, ‘It’s my … opinion that he damaged my house. It’s my opinion this person is a serial killer.’ Just because you say the word opinion, doesn’t mean it’s no longer a statement of fact. The thing to be careful about a statement of fact that’s false and damages their reputation.”

In a similar case, a Minnesota doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.”   Dr. David McKee sued the son for defamation. The Duluth neurologist’s case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial. “His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick. McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names.

David McKee MD V. Dennis K. Laurion, Minnesota Supreme Court Case A11-1154, oral arguments held on Sept. 4, 2012

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

Sandusky Register: Critical Online Reviews Can Carry Legal Risks

OCTOBER 26, 2012

“Critical Online Reviews Can Carry Legal Risks”

Sandusky Register

Tendentious Lawyer

Marshall Tanick, Esquire

Above, Marshall Tanick, attorney for Dr. David McKee, posed for photos in his Minneapolis office. McKee sued a patient’s son for defamation after critical remarks about him were posted on some rate-your-doctor websites. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial. “His reputation is at stake. He does not want to be a target for false and malicious remarks,” said Tanick.

So Dr. David McKee had an unusually aggressive response: He sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.

“His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick.

McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names.

“Patients now have power to affect their businesses in ways they never had,” said Eric Goldman, a professor at the Santa Clara University School of Law who studies the issue. Health care providers are “evolving how to deal with patient feedback, but they’re still in the process of learning how to do that.”

Most online reviews never provoke any response. And successful challenges to negative reviews are rare. Americans are legally entitled to express opinions, as long as they don’t knowingly make false statements.

But if the two sides contest basic facts, disputes can swiftly escalate.

At issue are six of Dennis Laurion’s statements, including the account of the nurse’s name calling. McKee and his attorney say the unnamed nurse doesn’t exist and that Laurion invented her to hide behind. Laurion maintains she is real, but he can’t recall her name.

In arguments before the court in September, Laurion attorney John Kelly said his client’s statements were legally protected opinion that conveyed dismay over how McKee treated Laurion’s father, who had suffered a stroke. The posts described a single visit that lasted 10 to 15 minutes.

The review said McKee seemed upset that after Laurion’s father had been moved from intensive care to a regular hospital room, the doctor “had to spend time finding out if you transferred or died.”

Laurion also complained that McKee treated them brusquely and was insensitive to the family’s concerns about the patient being seen in public in a gown that gaped open in the back.

In an interview, Kelly said nothing Laurion posted was defamatory — a false statement that harms a person’s reputation.

The court is expected to rule on the case sometime in the next few months.

Lawsuits over professional reviews are uncommon in part because most patients write positive reviews, Goldman said. And many states have passed laws that block the kind of lawsuits that are filed mainly to scare someone into shutting up on matters of public concern.

Known as “strategic lawsuits against public participation,” those complaints are often forbidden by broad laws that protect criticism even if it’s wrong, Goldman said.

When health care providers do sue, they rarely succeed. Of 28 such lawsuits that Goldman tracked, 16 had been dismissed and six settled. The others were pending.

One notable exception was a Maine case in which a chiropractor sued a former patient for postings on Facebook and websites that accused him of sexually assaulting her. The courts concluded she probably fabricated her story.

In June, a judge ruled that the chiropractor could legally attach $100,000 worth of the patient’s property to his claim as security pending further proceedings in the case, which remains open.

Yelp says reviewers are well within their rights to express opinions and relate their experiences.

Spokeswoman Kristen Whisenand says the company discourages professionals from using what she called the “nuclear option” of suing over a negative review. She said they rarely succeed and wind up drawing more attention to the review they dislike.

Angie Hicks, co-founder of Angie’s List, said people shouldn’t be afraid to post honest opinions about health care or other services.

“Everyone has the right to free speech,” Hicks said. “The key here is giving your honest opinion. Honesty is your best defense. Truth is your best defense.”

Jeff Hermes, director of the Citizens Media Law Project at Harvard University’s Berkman Center for Internet and Society, said people who want to post critical reviews should think about whether they can back up their statements. And they can strengthen their position by stating the facts on which their opinions are based.

Goldman advises reviewers to remember that they are still taking a risk anytime they criticize someone in a public forum.

“The reality is that we bet our house every time that we post content online,” Goldman said. “It’s a lousy answer from a societal standpoint because we need people to share their experiences so vendors will be punished or rewarded as appropriate.”

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

 

Review Trackers Blog: Online Doctor Reviews Reveal What Matters Most to Patients

May 8, 2013

Online Doctor Reviews Reveal What Matters Most to Patients

Chris Campbell, Review Trackers Blog

In 2010, a man in Minnesota did not like the bedside manner of [ Dr. David McKee ] the neurologist treating his father. The man posted online reviews on a couple of popular doctor review aggregators – reviews that referred to the neurologist as a “real tool.”

The whole thing sparked a controversial legal battle [ David McKee MD V. Dennis Laurion ], in which the Minnesota Supreme Court ended up deciding that the reviews were not defamatory. It’s a pretty long story – spanning four years! – but apparently this case is very crucial in understanding what patients really want in the age of Yelp and Dr. Oogle.

According to a new study by medical marketing firm Vanguard Communications, patients want – above all – excellent customer service and bedside manner. In fact, these seem to matter to patients more than level of medical skill: in the multi-city study, the patients who post negative online doctor reviews complain about poor service and bedside manner four times as much as they did about misdiagnoses and inadequate medical skills.

The study aggregated doctor reviews – 3,617 of them, to be exact – and evaluated the reasons for satisfaction/dissatisfaction cited by patients. These reviews came from multiple online medical review sites, including Yelp, Rate MDs, and Vitals.

Interestingly, only 21.5 percent of the negative online reviews cited medical skill as a major concern. Meanwhile, 43.1 percent indicated that the cause of the annoyance was because the doctor was rushed, or late for a scheduled appointment, or did not listen well, or seemed dismissive of the patient’s concerns.

“Doctors who sue patients very rarely gain anything but additional negative publicity,” said Vanguard Communications CEO Harman King. “Often, the easier solution is to take preventive measures – examples include a doctor apologizing to a patient in the exam room for running behind schedule, and staffing the phones and front desk of a doctor’s office with the most cheerful employees.”

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

Addiction Specialists: How Doctors Are Losing The War Against Trolls

October 23, 2015

“How Doctors Are Losing The War Against Trolls,”

Administrator, Addiction Specialists

There is certainly nothing new or novel about people being mean to one another on the internet. But health care occupies a unique space amid critiques of restaurant appetizers and roofers: Because the Health Insurance Portability and Accountability Act (HIPAA) of 1996 prevents doctors from discussing patients, disgruntled and anonymous individuals can pick fights over their quality of medical care with little chance of being successfully hit back, leaving physicians almost powerless to defend themselves. In some instances, aggravated patients use that advantage to mount calculated attacks with the intention of inflicting irreparable damage to careers and reputations. In the life-and-death world of health care, a disgruntled few could impact the medical decisions of thousands already struggling to make sense of new marketplace mandates and regulations.

“I would say the internet has not yet matured to the point where there’s a way of easily understanding the difference between an allegation that has some merit and an allegation that’s simply someone venting who has an axe to grind,” says Gary Nissenbaum, an attorney specializing in commercial litigation. “It’s very hard to tell the two apart.”

A recent Pew Research Center study indicates that 72% of all U.S. internet users looked online for health information in 2012; 30% of them have looked specifically at provider reviews, where anyone can write anything under a near guarantee of anonymity. More than 700,000 physicians are listed on Vitals.com, the largest of the patient review sites, which attracts more than 13 million visitors a month. ZocDoc.com, RateMDs.com, and Yelp.com maintain sizable directories of provider information. (RateMDs.com has logged over 2 million reviews since debuting in 2004.)

Liz Brott, a regional vice president at ProAssurance, a professional liability insurance company, says she’s seen a rise in the number of libel and defamation cases rattling doctors of all kinds. “It’s something that’s come up in the last year or two that we’ve never seen before,” she says. “We’ve had to figure out a strategy to address these complaints.”

It could be argued these sites have proliferated by being an alternative to costly and frustrating malpractice suits. Most cases aren’t even pursued unless a patient is demonstrably injured or died as a result of care; it can cost thousands just to have a hospital make copies of pertinent medical documents. The price of posting a negative review over frustrations with attitude, billing, or a diagnosis? Zero.

“The Streisand Effect.” refers to the consequence of inviting even more negative attention by trying to remove negative attention. (The) inspiration was Barbra Streisand’s objecting to a photo of her house in California being made part of a series documenting coastal erosion. Her complaints made the image far more pervasive online than it would have been had she simply ignored it.

David McKee, M.D., a Duluth, Minnesota, neurologist, was unaware of this phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

Both McKee and Dennis Laurion agree on substance, if not necessarily intent: The doctor entered the room and expressed that he was initially puzzled the elder Laurion had been moved from intensive care. Usually, McKee said, there are only two ways out of the ICU, and he offered this was the better option. McKee intended for the comment to be lighthearted; the Laurions found it crass.

McKee asked if Kenneth felt like getting out of bed so he could make an assessment on mobility. He did, though his gown was partially undone in the back. According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

The family exited the room while McKee conducted a brief examination. Laurion says he returned to find his father partially conscious. His head, Laurion asserts, was “pushed against the railing” of the hospital bed, appearing to be a victim of postural hypotension that resulted in a brief fainting spell.

Unaware of any resentment, McKee went to the nurse’s station to dictate notes; an irritated Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. At no point did he approach McKee to clear the air. Instead, he fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

“I just wanted someone with ‘M.D.’ after their name to say, ‘This doesn’t reflect well on you.’” Laurion says. “I wanted someone to say he should tone it down and be more personable.” The dozen letters, he says, were to account for any overlapping bureaucracy — though he admits even his own lawyer questioned the avalanche of paperwork. For good measure, he also posted reviews on rating sites including Vitals.com and Insiderpages.com. In addition to critiquing his bedside manner, Laurion quoted a nurse he ran into who once knew McKee. The doctor, she allegedly said, was “a real tool.”

McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events. McKee claims the writer called him shortly before close of business Friday to solicit a quote; the story ran the following day. “The Duluth News Tribune article was written like I was being reviewed for misconduct,” McKee says. In fact, no action had been taken against him by any of the organizations Laurion had written to.

Two events further demoralized McKee. In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. Worse, a user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.” Their software was apparently unable to determine that a surge of opinion over a matter of hours was highly unusual activity for a physician who normally received perhaps three comments in a year.

“I got a cold call from an online reputation site,” he recalls. “They said, ‘Boy, you’re all over the internet. You want some help?’” One of the physician’s three daughters was handed a printout of an online post in school and ridiculed. She came home crying.

“The internet creates a scenario where people with most emotional energy behind their opinions will become the most visible,” he says. “But the 7,000 patients I’ve seen since practicing in Duluth that have little or no feelings are invisible.” Convinced Laurion was behind the multitude of postings (though they coincided with the Reddit discussion, a large number allegedly came from Duluth, where Laurion resided), McKee renewed his litigation and his lawyer hired a private investigator to find the nurse Laurion claimed to have run into. She was never located.

“When he sued me, he opened Pandora’s box,” says Laurion, who denies submitting any posts beyond the initial two. “Whether all of it was proportionate, I don’t know. My intent all along was simply to have someone he respected say to him, ‘When a patient complains, it behooves us to conduct ourselves more circumspectly.’ That was my goal.”

McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

Law professor Eric Goldman, who says he feels physicians are “thin-skinned” when it comes to patient complaints, is confident that litigation is never the answer. “I imagine many lawyers saying that’s not good idea,” he says. “Good lawyers, anyway. McKee made a bad call. There are no winners in defamation lawsuits, and you should advise clients of that.”

Nearly $70,000 in legal fees later, McKee would agree. He argued his case in front of the Minnesota Supreme Court, which ultimately concluded Laurion’s comments were opinions. And because the court could not rule on the meaning of “tool,” it became impossible to determine whether that was libelous.

“Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false,” read the ruling, which was excruciating in its examination of a schoolyard insult and found in favor of Laurion.

McKee was rated for several years as a top provider in Duluth Superior Magazine, a well-regarded lifestyle publication that recently folded. But his online reputation will outlive that. “From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”

Comments

Dennis: As one of the “trolls” detailed in the article, I have no issue with the accuracy of the text – at least as it pertains to me – but the tone of the title fails to distinguish sincere complaints about bedside manner from attacks on mental stability, attacks on medical prowess, fake websites, allegations of dangerous injections, and use of multiple identities. The author said “McKee and Laurion agree on substance…”

From the American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

From the Business Insurance Blog: The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.

This entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. It has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents.

While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

What it’s like for a patient or family member to be caught up in a case like this was already described by the plaintiff’s lawyer in a Star Tribune newspaper article, “Company sues over info put on Yahoo message board,” August 27, 2001, and repeated in the Augusta Chronicle . It said in part: “If a company sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win,” said Marshall Tanick, a First Amendment expert at Mansfield & Tanick in Minneapolis. “The strategy is to force the other person to incur huge legal expenses that will deter them and others from making such statements,” he said … “yet very few (cases) go all the way to trial and verdict,” Tanick said.

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.

It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father’s room. The public could decide what to believe and what – if any – impact it had on them: insensitive doctor or overly-sensitive consumer?

Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit – for fear of creating the “Streisand Effect.” As a retired layman, I brought far less resources to the battle of financial attrition.

I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

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

Insure Physicians Blog: Minnesota Supreme Court Rules In Defamation Suit

January 31, 2013

“Minnesota Supreme Court Rules In Defamation Suit”

Insure Physicians Blog

A ruling by the Minnesota Supreme Court has dismissed a defamation lawsuit by a by Dr. David McKee, a Minnesota neurologist, against the son of a former patient. The budding author had posted a scathing online review of the physician including the comment that an unnamed nurse called Dr. McKee “a real tool”.  The final ruling was based on evidence that the postings were based on opinions and not statements of facts.  This matter gained a lot of media attention as websites followed and reported on the case.

The online review came after Dr. David McKee treated an elderly World War II veteran.  The veteran’s son was disappointed in McKee’s lack of bedside manner.  The review pointed out that McKee lacked concern and care for his father both in actions and words.  The defendant posted these comments on a website designed for reviewing physicians and said he was simply exercising his right to free speech.  The court agreed that these comments were not defamation, but simply protected speech.

Dr. McKee was reported as spending over $61,000 in legal bills against the [ son ] of his patient and on services to remove the mention of this event from websites.  When asked about this, McKee said it was money well spent and in five years he wouldn’t even remember spending that much.

Many doctors are faced with online criticism.  It is up to the individual physician to decide how to handle it.  Some may turn to hiring third parties and asking family members to scour the internet in order to intimidate others to remove the mention of a public legal matter.  Others may handle it more graciously.  It is our opinion that a physician should either ignore the matter completely or change their behavior to avoid criticism.  Doctors usually have many reviews placed about them – both favorable and vitriolic.  Paying undue attention to the unfavorable comments or being obsessed with their removal may just backfire, causing others to think that the physician actually does have something to hide.

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