Risk Management Reporter, “What about Suing Patients?”

August 2015

“What about Suing Patients?”

Risk Management Reporter, Volume 34, Number 4

ECRI Institute

Lawsuits against patients, usually related to comments on online ratings and reviews websites, have met with varyingresults 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. Although the cases presented here do not specifically deal with secret recordings, they address similar legal issues and arise from a similar feeling of frustration on the part of providers

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.

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).

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

Plaintiff in Tiffany Flowers V. Peggy Mitchell Cites McKee V. Laurion in Appellate Brief To Minnesota Court of Appeals

Extracted from Appellate Brief, Number A11-1093

State Of Minnesota Court of Appeals

Tiffany Flowers, Plaintiff/Appellant, V. Peggy Mitchell, Defendant/Respondent

. . .

5. Argument: THE TRIAL COURT IMPROPERLY RULED IN FAVOR OF PEGGY BECAUSE PEGGY’S STATEMENTS WERE IN FACT LIBELOUS

Peggy’s statements were libelous and that fact is supported heavily by case law and statutory law The elements for a defamation action are as follows: the defamatory statement was communicated to someone other than the plaintiff, the statement was false, the statement tends to harm the plaintiff’s reputation and to lower the plaintiff in the estimation of the community, and the recipient of the false statement reasonably understands it to refer to a specific individual. McKee v. Laurion, 825 N.W.2d 752 (2013).

In McKee, a doctor attempted to sue the son of a patient for posting “defamatory statements” on a rate your doctor website. The son was found not guilty, as the statements were either true, simply opinion based, or unable to convey a defamatory meaning. In this case, Peggy should have been found liable, because her statements about Tiffany were not true because there is no scientific way to prove that someone is a “slut”. Peggy’s statements were not opinion based, because she was not discussing her actual view of Tiffany. The word “slut” conveys a very strong defamatory meaning because it insinuates that someone has sex with a large amount of different people.

To meet the first element of a defamatory action, Peggy communicated the statement through a national magazine. Next, the statement about Tiffany was false. Then, the statement harmed Tiffany’s reputation in the community, people began to dislike her and she was fired from her job as a result of her reputation being harmed. To meet the final element, Peggy used Tiffany’s full name, making it obviously known that the statement was in regards to her. The case of Longbehn v. Schoenrock, 727 N.W.2d 153 (Minn. App. Ct. 2007) states that statements are defamatory per se if they falsely accuse a person of having a repugnant disease, of being a criminal, of being unchaste, or of poor conduct in regards to running their business or performing their work duties.

In Longbehn, the defendant accused the plaintiff of being a pedophile because he was a much older man that was dating a young woman. The defendant did not start the rumor of plaintiff being a pedophile, but he did repeat it throughout the town. Although being accused of pedophilia is much more serious that being accused of being a slut as Peggy called Tiffany, the statement about Tiffany still had a detrimental effect on Tiffany’s reputation around town because they reflected upon her chastity. The court in Longbehn found that although the defendant was not responsible for starting the rumor that the plaintiff was a pedophile, he still repeated the term around town and that action made him liable for defamation per se. Peggy’s statements about Tiffany were not defamatory per se, but they were defamatory because they harmed Tiffany’s reputation and they accused Tiffany of being unchaste. Following the decision in Longbehn, the court should find Peggy liable for defamation.

. . .

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