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.”
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.