What Happens When Doctors Sue Unhappy Patients? (It’s Not Pretty)

September 20, 2013

What Happens When Doctors Sue Unhappy Patients? (It’s Not Pretty)

Stewart Gandolf

Healthcare Success: Scientific Marketing That Delivers Patients

Experienced doctors tell us that, sooner or later in their career, every physician will face the prospect of legal action. Between 75 and 99 percent of practicing doctors, depending on their specialty, will be threatened by a lawsuit according to a NEJM study.

Although “patient-sues-doctor” rarely makes the news, the reverse situation—doctor-sues-patient—seems to make the headlines with regularity. And the core issue is a negative or unflattering online rating or comment by a patient about a doctor. But the outcome is seldom satisfactory.

Patients are increasingly engaged and empowered regarding their healthcare, due in part by the pervasive Internet. Doctors are understandably—and justifiably—concerned about their professional reputation…also with added muscle of view-anywhere web postings.

In a previous post, Legally Dumb: Should a Doctor or Dentist Sue a Patient for Bad-Mouth Comments?, we sympathized with a practitioner’s frustration and outright anger. Negative comments and online reviews can be untrue, unkind and one sided. But, from a public relations perspective, suing a patient for a negative comment just might be the worst thing to do. In PR terms it likely will grab new and broader media attention, repeat and extend the controversy, patients may sympathize with patients, and generally inflame the original issue.

Bad-mouth comments on personal blogs and collective-comment review sites can be influential among patients and prospective patients. There are dozens of user forums that has expanded to include Angie’s List (initially home improvement services), and Yelp (initially reviews of local restaurants).

Some news reports, The Boston Globe for example, suggest that doctors are firing back at patients’ online critiques, but with mixed results.

“The Digital Media Project at Harvard University tracks lawsuits filed against patients and others for online comments. Its website includes seven such cases filed over the past five years or so, though it’s not a comprehensive list. In some, patients took down their negative comments. In others, judges dismissed the suit, ruling that patients’ comments were protected under the First Amendment guarantee of free speech.”

We’re not offering legal advice here, but as another recent indicator, the Minnesota Supreme Court ruled that an online post about a Duluth neurologist is protected speech. And, according to the AP story about this ruling, “Experts say lawsuits over negative professional reviews are relatively uncommon and rarely succeed, partly because the law favors freedom of speech.”

Seeking professional legal counsel is sound advice for your situation. Our previous post lists some of the possible public relations consequences that should be considered, as well as observations from noted healthcare attorney Stephen Kaufman.

1 Comment:

Dennis Laurion: [QUOTE] We’re not offering legal advice here, but as another recent indicator, the Minnesota Supreme Court ruled that an online post about a Duluth neurologist is protected speech. [END QUOTE]

[COMMENT] In response to a newspaper article about David McKee MD V. Dennis Laurion, Dr. McKee, founder of Northland Neurology and practitioner at St. Luke’s Hospital in Duluth, Minnesota, said that money is money, and he wouldn’t remember the impact in five years. I wrote my review of Dr. David McKee five years ago. I can’t speak for Dr. McKee, but I still remember the impact.

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.

David McKee MD V. Dennis K. Laurion 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 McKee V. Laurion 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. 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. [ Emphasis added ]

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.

The Minnesota Supreme Court compared every statement I attributed to Dr. David McKee against every statement he claimed he really said. The Court concluded the impact of each set of statements was the same. For instance, the Minnesota high court said that Dr. David McKee’s version of his comment about the intensive care unit was substantially similar to mine.

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.

During the existence of David McKee MD vs Dennis Laurion, I heard Dr. McKee’s lawyer tell the Minnesota Supreme Court how I could have commented without being defamatory. I am upset. I think Doctor McKee did not treat my father well. I think he was insensitive. He did not spend enough time in my opinion. [END COMMENT]

Stewart Gandolf, MBA, is CEO of Healthcare Success, a medical marketing and health care advertising agency. He is also a frequent writer and speaker. Most importantly, he is happily married and a “rock-n-roll daddy” to two wonderful girls.

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

More Doctor Lawsuits

Legally Dumb: Should a Doctor or Dentist Sue a Patient for Bad-Mouth Comments?

 August 4, 2013

Legally Dumb: Should a Doctor or Dentist Sue a Patient for Bad-Mouth Comments?

Stewart Gandolf

Healthcare Success: Scientific Marketing That Delivers Patients

If a professional reputation is to be protected at all costs, should a healthcare provider file a lawsuit against a patient for a negative online review?

From time to time we see news items about doctors or dentists who threaten legal action against patients. But suing a patient for a negative comment (or comments) is likely to be a bad idea. In fact, it just might be the worst thing to do.

We can sympathize with a practitioner’s frustration and outright anger. Negative comments and online reviews can be untrue, unkind and one sided. What’s more, we’ve never met a doctor, dentist, physician, surgeon or other healthcare provider who isn’t fiercely protective of his or her personal and professional reputation. Their reputation—real or perceived, in person or online—is the sum of everything they do. And from a physician marketing perspective, their personal and practice reputation is at the heart of their brand and branding message. It’s no wonder that healthcare providers—doctors in particular—are highly sensitive and sometimes nearly fanatical about any and all reflections on their reputation.

We’re not offering legal advice here, but we discussed the concept of online comments with our friend and noted healthcare attorney Stephen Kaufman. He told us, “Sometimes I can convince the website to pull the [offending] comment.  Sometimes, we write a reply. But I have never sued, and I’m hard-pressed to imagine a circumstance where I would recommend doing so.”

And while a lawsuit may “feel” justified, there are good reasons to reconsider the temptation for a dentist or physician to “strike back” in court. From a healthcare public relations and marketing perspective:

  • The “doctor-sues-patient” story is likely to grab much more media attention than the original patient review. A small local story can suddenly go national. It’s the PR equivalent to throwing gasoline on embers. It’s going to ignite a flash fire with an explosive downside and not much of an upside.
  • The general public is likely to identify with–and sympathize with–the patient, not the doctor. Other doctors might quietly commiserate a little, but in the larger “court of public opinion” the doctor may be seen as the villain for starting a fight.
  • The Internet Search Engines will also take notice. Any ensuing controversy about the lawsuit will itself capture high page rankings and will continue to appear in Google search results—and overshadow any positive marketing efforts—perhaps for years.
  • And then there are the legal costs, the prospect of counter claims and the drain on personal and professional time and resources.

Our comments here do not refer to the merits of any specific situation, and it’s always a good idea to seek professional legal counsel regarding your situation. Physician-rating websites and online reviews and commentary provide patients with a channel to publish their feelings—good, bad or otherwise—about physician performance.

A study published in the Journal of General Internal Medicine found the majority of such reviews (88%) to be positive, six percent were neutral and six percent were negative.

In our experience, the concept of a healthcare provider suing a patient for an “unfriendly” review should be approached with considerable care. It’s likely to be a “legally dumb” healthcare marketing and PR move.

1 Comment:

Dennis Laurion: [QUOTE] We’re not offering legal advice here, but we discussed the concept of online comments with our friend and noted healthcare attorney Stephen Kaufman. He told us, “Sometimes I can convince the website to pull the [offending] comment.  Sometimes, we write a reply. But I have never sued, and I’m hard-pressed to imagine a circumstance where I would recommend doing so.” [END QUOTE]

[COMMENT] In response to a newspaper article about David McKee MD V. Dennis Laurion, Dr. McKee, founder of Northland Neurology and practitioner at St. Luke’s Hospital in Duluth, Minnesota, said that money is money, and he wouldn’t remember the impact in five years. I wrote my review of Dr. David McKee five years ago. I can’t speak for Dr. McKee, but I still remember the impact.

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.

David McKee MD V. Dennis K. Laurion 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 McKee V. Laurion 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. 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. [ Emphasis added ]

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.

The Minnesota Supreme Court compared every statement I attributed to Dr. David McKee against every statement he claimed he really said. The Court concluded the impact of each set of statements was the same. For instance, the Minnesota high court said that Dr. David McKee’s version of his comment about the intensive care unit was substantially similar to mine.

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.

During the existence of David McKee MD vs Dennis Laurion, I heard Dr. McKee’s lawyer tell the Minnesota Supreme Court how I could have commented without being defamatory. I am upset. I think Doctor McKee did not treat my father well. I think he was insensitive. He did not spend enough time in my opinion. [END COMMENT]

Stewart Gandolf, MBA, is CEO of Healthcare Success, a medical marketing and health care advertising agency. He is also a frequent writer and speaker. Most importantly, he is happily married and a “rock-n-roll daddy” to two wonderful girls.

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

More Doctor Lawsuits

Minnesota Court Of Appeals Cites David McKee MD Vs. Dennis K. Laurion In Opinion A12-1926, Wolmering Vs. JPMorgan Chase Bank

STATE OF MINNESOTA

IN COURT OF APPEALS

A12-1926

Patrick Wollmering, et al., Appellants,

vs.

JPMorgan Chase Bank, N. A., et al., Respondents,

Usset, Weingarden and Liebo, P. L. L. P., Respondent.

Filed July 22, 2013

Affirmed

Peterson, Judge

Hennepin County District Court

File No. 27-CV-11-2383

Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Stauber, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Appellants-mortgagors challenge the summary-judgment dismissal of their action challenging the validity of mortgage interests asserted by respondents, arguing that (1) fact issues exist regarding whether respondents’ purported interests in appellants’ properties were invalidated by unrecorded mortgage assignments; and (2) the district court erred in concluding that the evidence presented by appellant-mortgagors was speculative. We affirm.

FACTS

Appellants are six homeowners who obtained loans to purchase their homes. Appellants executed promissory notes in favor of the lenders and mortgages to secure the loans. The mortgages named respondent Mortgage Electronic Registration Systems (MERS) as the mortgagee, as nominee for the lenders and their successors. The supreme court has explained that MERS is an electronic registration system that was created in the aftermath of the 1993 savings and loan crisis. MERS does not originate, lend, service, or invest in home mortgage loans. Instead, MERS acts as the nominal mortgagee for the loans owned by its members. The MERS system is designed to allow its members, which include originators, lenders, servicers, and investors, to assign home mortgage loans without having to record each transfer in the local land recording offices where the real estate securing the mortgage is located. MERS members pay subscriber fees to register on the MERS system, as well as other fees on each loan registered and each transaction conducted.

D E C I S I O N

Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from summary judgment, this court reviews de novo whether any genuine issues of material fact exist and whether the district court erred in applying the law. The evidence is viewed “in the light most favorable to the party against whom summary judgment was granted.” McKee v. Laurion, 825 N.W.2d 725, 729 (Minn. 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

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Sten Hoidal: Five Key Social Media Questions All Health Care Employers Should Consider

June 24, 2015

netWORKed

Five Key Social Media Questions All Health Care Employers Should Consider:

Question #5: How Can We Protect The Online Image Of Our Organization?

Sten Hoidal, Fredrikson & Byron, P. A.

We have all read, relied upon or at least considered online reviews … you know, the ratings, stars or “opinions” that represent a person’s experience with a product or service. Healthcare consumers frequently use these reviews to evaluate which hospital or clinic to use and which provider to see. Job applicants also use their sites in evaluating employment opportunities. Many times the online review process will actually help, not harm, health care employers.  At other times, unfortunately, health care employers will be faced with negative online reviews.

Let’s take a hypothetical. A former employee (or patient) anonymously posts false and misleading information about one of your physicians on Vitals. The posts relate to allegedly disrespectful treatment of employees, poor patient care, and poor bedside manner. You investigate and confirm that these statements are not true.  But what are your options?

You certainly have the right to respond to any negative online post. For example, Glassdoor provides companies the opportunity to post “their side of the story.” But before you decide to react to a bad online review, we recommend that you step back and think about the following:

Does the post contain HIPAA-protected information, or other sensitive, confidential information? If the answer is yes, then seek legal counsel as you may have a legal obligation to take action (not just to respond to the negative review).

Is the post believable – that is, will it really hurt your organization? And does the post violate any laws? Many sites won’t take down posts unless you can show that there is a violation of law (i.e. release of HIPAA-protected information), or the posts are threatening (think violent) to a particular person or entity, or the like.

Does the post rise to the level of defamation? If the posts are clearly false statements of fact (not opinion) and are likely to harm your business reputation, then seek legal counsel – but remember, defamation claims can be long fought battles and often hard to win.

For example, in McKee vs. Laurion, Dr. McKee sued Laurion (the son of one of his patients) for his online posts on a “rate your doctor” site. Following several years of court action, the Minnesota Supreme Court concluded that none of the statements posted online by the patient’s son, Laurion, regarding Dr. McKee’s care amounted to defamation. The court dismissed the defamation lawsuit altogether and Dr. McKee gained nothing from bringing the legal action.

Keeping in mind the uphill battle of a defamation lawsuit, what are some other options?

If the post does not reveal patient information or other confidential business information, does not implicate any laws and is not violent/threatening, you may want to stop and consider whether any response at all is warranted. Sometimes simply ignoring the post is the better course of action so as not to escalate the situation or draw greater attention to it.

If ignoring the post altogether seems like a bad idea – and you feel you have a good story to tell – then consider writing a neutral, objective response. While this might prompt your anonymous poster to rage on, it also might help to even the playing field and show the reading public that the poster’s statements may not be legitimate.

Or, consider options for increasing your organization’s positive online image. For example, create (and maintain) a Google Plus Account and write about all of the great things your organization does! Maintain a Facebook or LinkedIn page for the organization, providing general guidance and educational information, not medical advice, on how patients can improve their health, or feature “star” employees (with their consent of course).

Using social media as a platform to highlight your organization’s accomplishments, community involvement, and areas of expertise will hopefully leave the online public with favorable impressions of your organization while minimizing the impact of the occasional negative review.

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

More Doctor Lawsuits

Seattle PI: Bellevue Doctor Sues Patient Who Blasted Him On Yelp

November 4, 2015

“Bellevue Doctor Sues Patient Who Blasted Him On Yelp”

Levi Pulkkinen, Seattle PI

A Bellevue surgeon is suing an unsatisfied patient, claiming she defamed him in an online review posted to Yelp. In the lawsuit, Dr. Alan Brown claims his reputation and business were both damaged by a Yelp review posted by the woman, who had hurt her knee skiing. Brown also claims he’s owed for a complaint the woman made to state health officials that he says contained false, malicious statements.

The patient, Wendy Wester, has denied any wrongdoing. Her attorney, Brad Davis, disputed each allegation put forward by the doctor. Speaking Tuesday, Davis said he believes the record will show Wester’s statements were not defamatory. “I just think it’s unfortunate,” the Seattle attorney said. “My clients (Wester and her husband) didn’t ask for this. … But now they’re going to fight it.”

Brown did not return repeated requests for comment. He is acting as his own attorney in the matter.

Wester met with Brown, an orthopedic surgeon, in February 2013 after she hurt her knee skiing. A different doctor ultimately performed surgery on Wester related to her knee injury. Wester posted a negative review of Brown on June 3, 2014, to Yelp, a popular consumer ratings website. She followed that up with a formal complaint to the state medical board.

Brown claims Wester made “numerous false and malicious claims” in the Yelp review. In his lawsuit, Brown outlined Wester’s description of their interactions and pointed to several he claims were untrue.

As described in Brown’s lawsuit, Wester claimed Brown failed to diagnose the injury to her knee after an initial meeting at the Overlake Hospital emergency room. “It is an understatement to say that I would not recommend him – ever,” Wester said in the Yelp review of Brown’s clinic.

Brown contends Wester’s statements and her account of their interactions were “false and defamatory.” “By their very nature, this defendant’s publications have presented and continue to create a substantial danger to (my) personal and business reputation,” Brown told the court in the lawsuit, filed Oct. 27 in King County Superior Court at Seattle.

Brown also notes that Wester made a complaint to the Washington State Medical Commission, which licenses doctors in the state. Brown claims she did so with “provably malicious intent,” a claim Wester denies.

Speaking Tuesday, medical board deputy executive director Micah Matthews said Wester’s complaint was reviewed earlier this year. The complaint was investigated before being closed in March, after a 10-member panel ruled the evidence did not show a violation had occurred. Brown’s licensing record does not show any sustained complaints.

Filing a response to the lawsuit, Davis denied all of Brown’s claims while asserting the doctor brought any harm he’s suffered on himself.

It’s not clear how much money Brown is seeking. He claims his reputation was seriously harmed by the review, which as of Wednesday appeared in the “not currently recommended” reviews section of the Yelp page for the clinic where he works.

On Wester’s behalf, Davis asked the court to order Brown to pay his client’s legal costs if she prevails. An initial hearing date has not yet been set.

SOURCE 

Seattlepi.com reporter Levi Pulkkinen can be reached at 206-448-8348 or levipulkkinen@seattlepi.com. Follow Levi on Twitter at twitter.com/levipulk.

More Doctor Lawsuits

 

 

Dan Hammond: Regarding McKee vs Laurion Defamation Lawsuit

February 2, 2016

Regarding: McKee vs Laurion Defamation Lawsuit

Dan Hammond

The Facts of the Case: McKee vs Laurion is a defamation case that lasted a total of four years and took place in the state of Minnesota. The case began when Dr. David McKee filed a lawsuit against the defendant, Dennis Laurion, claiming that Laurion posted defamatory statements online that damaged McKee’s reputation and interfered with his business.

The statements in question were in reference to an interaction between the plaintiff and defendant in which Mr. Laurion felt that Dr. McKee acted inappropriately while evaluating the defendant’s father, Kenneth Laurion. Julia Hilden of Verdict-Justia.com summarized the interaction between McKee and Laurion as “The six statements at issue concerned the medical treatment that Dennis Laurion’s father, Kenneth Laurion, after having had a stroke and being hospitalized, had received from Dr. McKee. Unhappy with statements that Dr. McKee had made, and perceiving Dr. McKee’s attitude to be rude and insensitive, Dennis Laurion then left negative comments about Dr. McKee on rate-your-doctor websites.” Laurion admitted to posting negative reviews about Dr. McKee on a number of websites however Laurion contested that all of his statements were either true or personal opinions and therefore not actionable in regards to a defamation law suit in the State of Minnesota.

Minnesota state law officially states that “To establish the elements of a defamation claim in Minnesota, a plaintiff must prove that (1) the defamatory statement was communicated to someone other than the plaintiff; (2) the statement is false; (3) the statement tends to “harm the plaintiff’s reputation and lower the plaintiff in the estimation of the community; and (4) the recipient of the false statement reasonably understands it to refer to a specific individual.” Since Mr. Laurion felt that his statements were true he asked the district court to dismiss the lawsuit. The district court agreed with the defendant, stating “six allegedly defamatory statements posted online by the appellant criticizing the respondent doctor for what the appellant perceived as rude and insensitive behavior are not actionable because either there is no genuine issue of material fact as to the statements’ falsity or the statements do not convey a defamatory meaning as a matter of law,” and ruled to toss  the case out.

McKee, however, appealed the decision and won in the appellate court. The appellate court made the argument that the statements in question could indeed cause damage to the doctor’s reputation, especially if any of the statements were found to be fabricated by the defendant. Due to the appellate court’s decision, the Supreme Court of Minnesota decided to hear the case. In the end the Supreme Court sided with the district court and overturned the appellate court’s decision.

“We conclude that there is no genuine issue of material fact as to the falsity of statements 1, 2, and 4”. In other words, the Minnesota Supreme Court concluded that these statements were not actionable as the court deemed these statements to be true. The Minnesota Supreme Court also found statements 3 and 5 not to be actionable but on the basis that the statements were not defamatory and did no harm to the medical professional’s reputation. And finally statement 6 was ruled to be a matter of opinion and therefore protected by First Amendment rights. In conclusion, the case was thrown out by the Minnesota Supreme Court in 2013 on the basis that none of the statements made by the defendant were actionable offenses according to Minnesota defamatory law.

Legal Principles: This case was very interesting because it involved a number of legal principles that we have discussed in class. In a general sense the case can be summarized as a Defamatory Lawsuit however a deeper analysis of the case showcases a number of legal principles taking place.

One of the first decisions a plaintiff must decide is whether his or her case is libel or slander. In this case, the statements made by the defendant were posted online via rate-your-doctor websites. This means that the defendant’s statements would be consideredlibel in court on the basis that his comments were published or broadcasted to a wide audience. However, one could make the case that because the  medium in which Laurion used to make his comments was specifically designed to express one’s opinions about his or her doctor or quality of medical care then his statements cannot be considered libel because the medium specifically promotes matters of opinion and therefore the publisher’s audience consumes the posted information with this assumption in mind.

Another principle that can be associated with this case is SLAPP law. SLAPP stands for strategic lawsuits against public participation, in other words SLAPP cases are used to intimidate and silence a less powerful critic. In this case, one could make the argument that McKee’s lawsuit served to intimidate Laurion into removing/retracting his negative statements and therefore could violate Minnesota’s anti-SLAPP laws.

The defendant, however, built his defense around the basis that his comments were true and therefore could not be ruled defamatory as opposed to using an anti-SLAPP defense. This is most likely due to the fact that SLAPP cases are notoriously difficult to mediate and judges often make erroneous decisions. As a result of this decision, the defendant must evaluate if any of his comments due in fact coincide with any of the elements of defamation. In this case it really came down to just two elements; defamatory content and falsity.

By the time the case reached the Minnesota Supreme Court the 6 statements in question were clearly defined:

  • Statement 1.) Dr. McKee said he had to “spend time finding out if you were transferred or dead”
  • Statement 2.) Dr. McKee said, “44% of hemorrhagic strokes die within 30 days. I guess this is the better option.”
  • Statement 3.) Dr. McKee said, “You [Kenneth Laurion] don’t need therapy.”
  • Statement 4.) Dr. McKee said, “It doesn’t matter” that the patient’s gown did not cover his backside.
  • Statement 5.) Dr. McKee left the room without talking to the patient’s family.
  • Statement 6.) A nurse told Laurion that Dr. McKee was “a real tool”.

The court ruled that 3 of the 6 statements were factual and therefore did not interfere with the falsity element of defamation and that 2 of the 6 statements were not defamatory content, in other words the statements did not cause any harm to the doctor’s reputation.

The 6th statement was unique in that it referenced a statement made by someone other than the defendant. On one of Laurion’s web posts he stated that after he complained to a nurse about Dr. McKee’s behavior the nurse responded with “Dr. McKee is a real tool”. McKee argued that this damaged his image to the public and that the nurse most likely did not exist, implying that Laurion fabricated the remark. The court, however, said that because “real tool” is not a definable term and that because the comments were made by a third party outside of when the actual incident took place that the statement is a matter of opinion and therefore protected by First Amendment Rights.

My Analysis: This case was interesting to me for a number of reasons. Firstly, my best friend is currently studying to be a doctor and I found it very interesting how medical professionals receive no special treatment/bias in the eyes of the law. I assumed that because ‘doctors’ are typically viewed as upper class, morally upright individuals, that Dr. McKee in this case would receive some kind of leniency with his claim however the court’s ruled that although the comments made regarding Dr. McKee were indeed negative, they were not considered to be defamatory. I fully agree with the court’s decision to throw out this case. I believe that Mr. Laurion was simply exercising his First Amendment rights by stating factual information about his experience with Dr. McKee. Furthermore I would even consider Mr. Laurion’s actions to be a public service in that he is warning members of our society about an individual who he sees as a potential hazard. I also found it very interesting how the court broke down the defendant’s remarks into 6 clear and concise statements. This allowed the court to evaluate each statement individually rather than Mr. Laurion’s remarks as a whole. As a result, the court’s justification for tossing the suit comes across crystal clear because each statement was reviewed individually and given its own reason why the statement didn’t conflict with Minnesota State’s defamation law.

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

Minnesota Court Of Appeals Cited David McKee MD Vs. Dennis K. Laurion In Opinion A15-0413, Teresa McDonald Vs. Allina Health System

STATE OF MINNESOTA IN COURT OF APPEALS

A15-0413

Teresa McDonald, Appellant,

vs.

Allina Health System d/b/a United Hospital, Respondent.

Filed October 26, 2015

Affirmed

Schellhas, Judge

Ramsey County District Court File No. 62-CV-14-5784

U N P U B L I S H E D  O P I N I O N

SCHELLHAS, Judge

Pro se appellant challenges the district court’s dismissal of 12 claims arising from the termination of her employment with respondent. We affirm.

FACTS

On May 6, 1996, appellant Teresa McDonald began working as a Health Unit Coordinator for respondent Allina Health System d/b/a United Hospital. On May 3, 2011, Allina terminated McDonald’s employment for cause. On May 1, 2013, McDonald commenced an action against Allina in the United States District Court for the District of Minnesota, acting pro se and alleging various claims arising from her termination. The court dismissed McDonald’s complaint without prejudice for lack of subject-matter jurisdiction. McDonald v. Allina Health Sys., No. 13-CV-1031, 2013 (D. Minn. Nov. 12, 2013).

. . .

Count 1: Defamation

To establish the elements of a defamation claim in Minnesota, a plaintiff must prove that: (1) the defamatory statement was communicated to someone other than the plaintiff; (2) the statement is false; (3) the statement tends to harm the plaintiff’s reputation and to lower the plaintiff in the estimation of the community; and (4) the recipient of the false statement reasonably understands it to refer to a specific individual. McKee v. Laurion, 825 N.W.2d 725, 729–30 (Minn. 2013)

Full Opinion

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