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

The Republic: Internet Opens Door To Free Speech That Can Get Expensive

e3811-06_07_10_slapp_suits

The above image by Charles Fincher may be purchased at http://www.lawcomix.com/bp.10/06.07.10.html


April 25, 2014

“Internet Opens Door To Free Speech That Can Get Expensive”

Peter Corbett, The Republic

 Sherry Petta did not like the results of two surgeries to reshape her nose and a laser procedure to smooth her face more than six years ago. The 51-year-old Scottsdale businesswoman and jazz-piano entertainer was so angry that she posted remarks on consumer websites to complain about her rhinoplasty and treatment at the Desert Palm Surgical Group, a Scottsdale practice of Dr. Albert Carlotti and Dr. Michelle Cabret-Carlotti.

The Carlottis’ attorneys filed a defamation complaint and won a $12 million judgment in 2011 against Petta, who has since lost her home and filed for bankruptcy as she struggles to pay her debt.

“My life and emotions have been turned upside down,” Petta said in a recent interview.

She is appealing the Maricopa County Superior Court jury verdict, asserting that truth is a defense for her comments and that the Carlottis did not prove the more-than-$1 million loss of income they claimed was the result of Petta’s online complaints.

“I’m volunteering now for a dog-rescue group, working 30 to 40 hours,” said Petta, who previously had a business selling promotional products. “There is no point in doing a lot of work since my pay is taken from me.”

Petta’s case is an extreme example of defamation cases that have surfaced in the digital age as websites give consumers a chance to share their often-anonymous complaints to a wider audience. The online posts, sometimes accurate and sometimes false and defamatory, have put businesses, doctors and other professionals in a harsh and unwelcome spotlight.

Attorneys are finding no shortage of plaintiffs and defendants in defamation cases as the courts struggle to balance free-speech rights with legal protections from false claims.

The Valley, with ties to a number of controversial websites, is at ground zero of this shifting legal landscape.

Ripoff Report is based in Tempe and the Dirty started as DirtyScottsdale.com in 2007.

The Dirty gossip site was on the losing end of a $338,000 defamation judgment in Kentucky last year in federal court that is under appeal.

San Francisco-based Yelp, a consumer-review site at the center of a closely watched Virginia case, has a presence here with several hundred employees at its downtown Scottsdale office.

Plus, the top domain-name registrar, GoDaddy, is based in Scottsdale.

For legal purposes, a website exists where it is registered. That allows attorneys to file claims here against unknown defendants if GoDaddy is the registrar for a website that included a defamatory post. GoDaddy requires a court order to provide information about an anonymous person posting on a website that it hosts.

“If Delaware is the capital of corporate law, then Arizona is the new capital of Internet law,” said Jordan Rose of the Rose Law Group in Scottsdale.

Christopher Ingle and Logan Elia, who developed a specialty in Internet-related defamation cases, cyberpiracy and cybersquatting over the past three years, joined the Rose Law Group in January to further develop that niche. They specialize in finding the identity of people who make false allegations and typically can get search engines like Google and Microsoft to de-index or remove links to defamatory statements, Ingle said. “You can do a lot of damage with the Internet,” he said.

Ingle is working with Matthew Kelly and Kevin McCoy to represent the Carlottis and Desert Palm Surgical Group on Petta’s appeal of the 2011 jury verdict.

Attorney Ryan Lorenz of Clark Hill, representing Petta, said the case is set for oral arguments before a three-judge panel of the Arizona Court of Appeals. Petta’s comments about the Carlottis are either true or legally protected opinions, Lorenz said.

In many instances, a defamation defendant will admit that his or her Internet post was false in an out-of-court settlement, Ingle said. That stipulation allows the attorney to get a court order that he or she can use to request that Google and Microsoft, which runs the Bing and Yahoo search engines, no longer link to a defamatory post. Ingle said in most cases, Google and Microsoft will de-index the post and the defamatory comments no longer will come up in searches. However, the website that hosted the comments is not required to remove the posts.

Section 230 of the Communications Decency Act of 1996 protects website publishers from defamation claims for comments made by others on their sites, and they are not required to remove the posts.

In an October 2013 case, three former employees of Natural Health Research Inc. made false claims against the company on Ripoff Report. Ingle sued on behalf of Natural Health, operating as the Diet Doc, and won a default judgment in March against the defendants.

Those garden-variety defamation cases do not bring financial windfalls. “I tell my clients this is not going to be a claim where you’re going to get a lot of money in a judgment,” said Ingle, adding that the point is to restore the plaintiff’s reputation and eliminate links to the offensive comments in search engines. The comments still will be found on sites such as the Ripoff Report.

Ripoff Report is operated by Fountain Hills resident Ed Magedson, who said more than 3 million consumer complaints have been posted over the past 16 years on his site. “The biggest and best thing (about Ripoff Report) is that consumers have a way to speak out,” Magedson said. “It used to be buyer beware, but in the 21st century, it’s seller beware.” Magedson is a lightning rod for complaints from businesses and individuals targeted in Ripoff Report postings. He has been widely vilified and seems to relish his role as an antagonist. “Do consumers lie sometimes? Yes. Do businesses lie?” Magedson said. “The truth is probably somewhere in between.”  Ingle, who has often tangled with Magedson and his attorneys, calls Ripoff Report a “defamation engine.”

Others have alleged that Magedson uses Ripoff Report to force businesses to pay him for favorable treatment on his site. He denies those allegations, saying that businesses have offered him $500 to $50,000 to remove one report. “That’s nice in theory, but it’s just not the way the site works,” Magedson said.

Xcentric Ventures LLC, the parent company of Ripoff Report, makes its money from advertising, a corporate advocacy program and an arbitration service it offers, said Maria Speth, Magedson’s attorney.

Ripoff Report investigates the business practices of companies that pay for the corporate advocacy program and works to try to resolve consumer complaints with the companies, Speth said. Companies that opt for arbitration agree to pay $2,000. Half of that fee goes to the independent arbitrator, who reviews the veracity of the Ripoff Report complaints that were posted, she said. If there are false statements, only those remarks are removed from the site; the rest of the post is left intact, Speth explained.

Paul Levy, an attorney for Public Citizen, a non-profit group that does not accept corporate or government funding, questions the validity of the corporate responsibility programs offered by sites such as Ripoff Report and Pissed Consumer. They claim to analyze a company’s business practices, but it appears they just bury the online criticism with an abundance of praise, Levy said. “Many of these (consumer sites) are within their rights. Others are sleazy,” he said. “I have to admit I’m skeptical.”

Levy is representing Yelp in a 2012 Virginia case involving seven anonymous reviews that were critical of Hadeed Carpet Cleaning Inc. Owner Joe Hadeed checked his customer database and could not match them with the negative reviewers that posted on Yelp. Hadeed asked the court to force Yelp to disclose the identity of the anonymous reviewers.  Both a lower court and Virginia Court of Appeals ordered Yelp to disclose the identities of the reviewers. That ruling has been appealed to the Virginia Supreme Court.

Levy said the First Amendment protects anonymous speech, and Hadeed has not presented enough evidence to overturn those protections, which are in place to prevent retaliation. He said he has spoken with four of the seven anonymous reviewers and they are legitimate customers with legitimate complaints against Hadeed. “Hadeed is seizing on the controversy to amplify his extortion claim against Yelp,” Levy said.

Yelp has been accused of strong-arming businesses to advertise on Yelp or expect a slew of negative reviews. The Federal Trade Commission disclosed last month that it received 2,046 complaints about Yelp in the previous five years. The complaint information was released in response to a Wall Street Journal Freedom of Information Act request.

Yelp had an average of 102 million unique, monthly visitors in the first quarter of 2013, and its contributors have posted 39 million local business reviews, according to court records.

“I don’t see any substantial basis that Yelp is engaged in extortion,” Levy said. It’s unclear when the Virginia Supreme Court will hold a hearing on the case, he said.

In the case of the Dirty, a federal district court in Kentucky denied editor Nik Richie’s immunity claim under the Communication Decency Act. The court ruled that the Dirty encouraged defamatory content. Richie, a former Scottsdale resident now living in Orange County, Calif., added his own comment to a post about a Cincinnati Bengals cheerleader, who was also a high-school teacher. One of the posts said the cheerleader had slept with all of the Bengals players and another said she likely had two sexually transmitted diseases. Richie’s comment was: “Why are high school teachers freaks in the sack?”

Judge William Bertelsman allowed the case to go forward. In his ruling, he wrote: “These postings and others like them were invited and encouraged by the defendants by using the name ‘Dirty.com’ for the website and inciting the viewers of the site to form a loose organization dubbed ‘the Dirty Army,’ which was urged to have ‘a war mentality’ against anyone who dared to object to having their character assassinated.”

The Electronic Freedom Foundation and other free-speech advocates filed an amicus brief supporting the Dirty‘s appeal. “In short, since 1996 the law has been very clear: Website owners are not legally responsible for content posted by their users,” said David Gingras, a Phoenix attorney representing the Dirty. “In our case, the trial judge said that this protection will be lost if a website owner does anything to screen or review content from users.”

The appeal is scheduled to be heard May 1 in Cincinnati with a decision likely in a few months, he said.

Meanwhile, no date has been set on Petta’s appeal of her $12 million judgment from 2011 that included $1 million in punitive damages.

COMMENTS

David Drexler: This is really a comment for the author of this article: I caught the story of the Carlotti 12M Judgement tonight for the first time in this article and accompanying video. After reading this article, I could not understand how a case even made it to the jury if all the Plaintiff did was comment on websites about her dissatisfaction with the result of surgery. I was initially thinking that Defendant did not present the best defense and was overrun by a more well funded law firm. Someone reading this article would be under the impression that if you post a negative comment about your experience with a doctor on a review website that it equates to defamation. Because other web sources rely heavily on the AZ Rep reporting of local stories–the same generalities on this story were re-posted numerous times even going back to other stories on the case over the past 2 years. It took a bit of research to finally find an article to learn exactly what defendant did for the Court to allow this case to go to the jury. One older article specified that Defendant broadcast that Plaintiff was not board certified, was under investigation by the medical board and contacted Plaintiff’s patients and claimed the same. These are critical elements because they cross from an opinion on treatment to inaccurate false statements. You don’t want readers to mislead into thinking that just posting a negative review on a website review site is dangerous because these review sites are an important tool for consumers to use to make decisions on whether or not to use a service. There are some poor practitioners in every discipline and you have to do your own due diligence. You can’t rely on regulatory bodies–by that time it is too late. You want people to be candid about their experiences and provide as much detail as possible.

Sherry Petta: Mr. Drexler, my reviews on these doctors were accurate. The doctors’ board certification WAS NOT recognized by the Arizona Medical Board. Their certification, in fact, is recognized by the Dental Board, and I did not have a dental procedure by them; and one of the two doctors is not even a licensed dentist in this state. Therefore, at the time of my posts, my statements were indeed accurate and truthful. And unfortunately, these are very well-funded doctors whose attorneys were not at all honest in court (attorneys are not under oath), nor were the doctors truthful in court. Further, my reviews on line were live for approximately three weeks before I was forced to remove them, and there is absolutely no way that a three week website can cause such damage. The doctors did not provide any evidence of damages, the case is being appealed, AND unfortunately, these days, doctors, because of their excessive wealth, do bully patients with litigation threats and have negative reviews removed. I have encountered many patients who have been hurt by the doctors who hurt me. The exact time frame these doctors allege a decline in income is exactly in line with the fall of the economy. It is also in line with the number of other patients whom they’ve hurt, and their over-abundance of lawsuits which is very reflective of their character and reputation.

David Drexler: While I am not in your jurisdiction, one of the things that has concerned me over the years generally in the medical profession are Doctors reaching out of their certified specialty and residence training. We have seen this a lot over the years with various specialists like ENT and Dermatology moving beyond their residency training and into the purview of Board Certified Plastic Surgeons. I would feel more comfortable if only Board Certified Plastic Surgeons were performing Plastic Surgery. It is a very hard and lengthy residency/training. I wrote in primarily because Yelp is a extremely important consumer tool–it’s one of the critical applications that helps the consumers to make choices and sometimes important decisions in their life. I do want to see lawsuits or threat thereof prevent folks from detailing an accurate consumer experience. In my jurisdiction–California, I have learned of at least a couple of doctors that have hired marketing companies to manage their feedback on Yelp and Facebook. In one instance the marketing representative posted a positive review of the doctor even though he represented him and never obtained any professional medical services from him.

Sherry Petta: David Drexler , thank you for your note. Regarding yelp, they are, in my opinion, worthless. The doctors who hurt me have hurt many patients. I’ve met some of them, and have read posts from others on line. Yelp deems any negative reviews on these two doctors as “not recommended” and moves them to an area where they are unlikely seen.

Then, only two positive reviews remain for these two doctors. The doctor(s) often posts flattering commentary about herself (she has multiple aliases on line), and/or she uses one of her employee’s names and posts on line as well. This means of reviewing the doctors is of zero benefit to patients, and in fact, is the complete opposite.

I have had a good number of patients of these doctors contact me since I became “news,” saying that they wish my reviews had remained, and maybe they wouldn’t have been hurt by these doctors.

Yelp should be ashamed of themselves. Either they are so poor, period, as a review site, or they allow themselves to be manipulated by these doctors (which I believe is the case), that they now REMOVE any negative posts about the doctors. It is absolutely inexcusable in America that we have lost our freedom of speech.

Pray for me that my appeal will result in my favor and that the tables will turn so that others will not have to suffer the way I have, and so that I can have freedom from these people who have been tormenting me for years.

Source

More Doctor Defamation Lawsuits

The Republic: Scottsdale Doctors’ $12M Defamation Award Overturned

February 13, 2015

“Scottsdale Doctors’ $12M Defamation Award Overturned”

Ken Alltucker, The Republic

 The Arizona Court of Appeals has overturned a $12 million jury award to a Scottsdale cosmetic surgeon and his physician wife who sued a former patient for defamation over complaints aired in public and on various websites.  The three-judge appellate court said the $12 million award — nearly four times larger than the second-highest defamation award in Arizona over the past decade — wasn’t supported by the evidence and “shocks the conscience” of the court.  The appellate court vacated the jury award and sent the case sent back to Maricopa County Superior Court for a new trial.

In 2011, a Maricopa County jury awarded Dr. Albert Carlotti and Dr. Michelle Cabret-Carlotti $12 million in actual and punitive damages following a 10-day trial over allegations that jazz singer Sherry Petta defamed the physicians and portrayed them in a false light.

Following the jury verdict, Petta said she filed for bankruptcy and was ordered to sell her Scottsdale house.  “This has been the most devastating thing I could have imagined in my life,” Petta said. “I appreciate the appellate court’s decision. I truly look forward to the proper result coming out if there is a new trial.”

Carlotti said Petta rejected his offer to negotiate a settlement. He plans to petition the Arizona Supreme Court for a review of the appellate decision. He claimed that Petta’s persistent complaints on patient websites and her own personal website “heavily damaged our business.” Because she rejected settlement talks, “I don’t have a choice but to go the distance on this,” said Carlotti, who added that doctors can’t adequately defend themselves from consumer website postings because patient-confidentially laws limit what they can disclose. “We’re in a society, particularly on the Internet, where people can express their opinions even if it’s factually inaccurate or destructive,” he said.

In 2007, Carlotti performed cosmetic surgery on Petta’s nose and eyelids and laser treatments on her face. Petta claimed that the laser treatment burned and scarred her face and left her with a persistent, post-procedure infection. The Carlottis attempted to aid her healing and appearance with multiple follow-up treatments, according to court documents.

In January 2008, Carlotti performed a nasal tip surgery on Petta, which Petta later said shortened and curved her nose upward without her permission, according to the appellate court’s opinion.

Petta later filed a complaint with the Arizona Medical Board alleging Carlotti had operated on her nose beyond her consent. Petta and Carlotti later clashed when the doctor refused to hand over her medical records, citing the medical board complaint. Police intervened to ensure Carlotti gave Petta the medical records, according to the appellate court’s opinion.

Petta began posting reviews and complaints and questioned the credentials of the Carlottis on consumer websites, and she created her own website to detail her complaints and warn other patients about the practice.

The Carlottis’ lawyer sent Petta letters in April and May 2008 demanding she remove “all defamatory and baseless” statements from various websites. In May 2008, the Carlottis sued Petta alleging she had posted false and defamatory statements on multiple websites. More than three years later, a Maricopa County jury awarded $12 million to the Carlottis and their medical practice.

The appellate court opinion, delivered by Judge Lawrence F. Winthrop, noted that that Carlottis’ claims of special damages were not supported by evidence, such as business operations analysis or tax returns. While testimony claimed that after Petta created her website, the Carlottis’ billings dropped from $1.52 million in 2007 to $444,000 in 2010, the appellate court opinion noted that there was no evidence of how that affected the medical practice’s net income or profit.

The appellate court said that lack of evidence and the lower court’s rejection of Petta’s motion for a new trial “allowed plaintiffs to obtain an award of damages not supported by adequate evidence, and allowed a verdict to stand that not only shocks the conscience of this court but was so extreme ‘as to manifestly indicate passion, prejudice, mistake or a complete disregard of the evidence.’ ”

REMARKS

 Terry Tuznik: I am glad this was reversed because this is a direct smack in the face to the call for Healthcare Transparency which allows a consumer to have information about the price AND quality of healthcare services. This information allows a patient to make informed decisions which lower costs and improve outcomes. If a patient is not allowed to share their experience with others this will allow providers of lower quality care to continue to do so without a any repercussions.

Debra McGuinn Savittieri: Scary as hell that doctors can sue patients and any judge or jury would award any money to a doctor from his patient..Shame on the Carlotti clan for doing this to any patient! Ugh!

Julie Lee Smith: How is this any different from people posting grades on healthnet and other websites that rate doctors??? I am a healthcare practitioner and everyone is entitled to their opinion! People can review food and services on yelp so why would opinions on health care practitioners be any different? If Ms. Petta was unhappy with her procedure, care and outcomes, she should be free to say so! Unbelievable. Do people sue other people on yelp and amazon for providing lower ratings? Take some accountability people!

Source

Other Doctor Defamation Lawsuits

Duluth Doctor’s Claim For Defamation Based On An Online Review Reaches The Minnesota Supreme Court

FALL 2012

Duluth Doctor’s Claim For Defamation Based On An Online Review Reaches The Minnesota Supreme Court

Cassie Batchelder, Silha Research Assistant

Silha Center For The Study Of Media Ethics And Law

University Of Minnesota School Of Journalism And Mass Communication

Image-University-Of-Minnesota

Displeased by the treatment his father received in the hospital, Dennis Laurion took his complaint online. Laurion wrote a review of Dr. David McKee, a neurologist who treated his father at St. Luke’s Hospital in Duluth, Minnesota. following a stroke, on a rate-your-doctor website.

Laurion wrote in the online review that his family was displeased with McKee’s “bedside manner.” The review read, “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’” according to a March 24, 2012 story in the Minneapolis Star Tribune. Laurion’s complaint focused on Dr. McKee’s “body language and comments” when he treated Laurion’s father on April 20, 2010.

McKee reportedly read the comments online after another patient alerted him to their existence. McKee responded by filing a lawsuit for defamation and sought more than $50,000 in damages in district court in Duluth. He claimed he has spent $7,000 attempting to eliminate the comments from the Internet. “It’s like removing graffiti from a wall,” McKee’s lawyer, Marshall Tanick, a partner with Mansfield, Tanick & Cohen, P.A. told the Star Tribune. He argues Laurion has continued to distort the facts of the situation, both online and in complaints he has filed with various medical groups since the original online complaint. “He put words in the doctor’s mouth,” and made McKee “sound uncaring, unsympathetic or just stupid.”

In St. Louis County District Court in Duluth, District Judge Eric Hylden agreed with Laurion, writing, “The statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by a physician.” Hylden dismissed McKee’s lawsuit in April 2011. The Minnesota Court of Appeals, however, disagreed. The court reversed and remanded the dismissal in January 2012, finding that some of Laurion’s comments could subject him to liability for defamation.

Laurion appealed the decision to reverse and remand the case to the Minnesota Supreme Court, which heard arguments on September 4, 2012. The issue in McKee’s appeal is whether statements Laurion published describing McKee’s treatment of his father are not pure opinion but, rather, factual assertions capable of being proven true or false. This is the standard the United States Supreme Court set forth in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), for what establishes opinion protected by the First Amendment.

“I argued that the posting to a website is part of the context that colors or shapes what Mr. Laurion was trying to do, and the essential nature of one of these websites is to provide subjective feedback and people get lots of subjective feedback from different perspectives and from different experiences,” John Kelly, an attorney with Hanft Fride, P.A., who represented Laurion before the Minnesota Supreme Court, told the Duluth News Tribune for a September 5, 2012 story.

“We argued to the court that Mr. Laurion published both on the Internet and to approximately 20 others, including medical organizations, false statements about Dr. McKee that disparaged his professional abilities and hurt his reputation,” Tanick, who also represented McKee before the Minnesota Supreme Court, told the Duluth News Tribune. “We asked the court to affirm the decision of the Court of Appeals so that Dr. McKee has the opportunity to present this to a jury and get his day in court.”

Lawsuits like McKee’s are rare, Eric Goldman, professor at Santa Clara University School of Law told the Star Tribune. However, Goldman said “they’ve been popping up around the country as patient review sites such as Vitals and Rate Your Doctor have flourished.” Lawsuits claiming defamation are “kind of the nuclear option,” Goldman said. “It’s the thing that you go to when everything else has failed.” Goldman tracks lawsuits healthcare providers file against online reviewers, and told the Reporters Committee for Freedom of the Press (RCFP) for the Fall 2012 issue of The News Media and The Law that, of the 28 lawsuits he has tracked, courts dismissed 16 of them, six settled, and the other six are still pending.

In one such suit, an Arizona cosmetic surgeon, Dr. Albert Carlotti III, won a $12 million verdict against a former patient in February 2012, according to a Feb. 20, 2012 post by the American Medical Association on its website. The patient wrote reviews on numerous websites and created her own website stating Carlotti disfigured her face, was not board-certified, and was being investigated by the state medical board, although no records of such investigations exist; the patient is appealing the judgment.

Online reviews of other businesses and services have resulted in lawsuits alleging defamation around the country, as well. For example, an owner of a Sarasota, Fla. computer graphics company sued a reviewer after the reviewer wrote a negative, one-star review on Yelp.com, a website that allows anyone to post reviews of a wide range of businesses. The review called the owner “a scam liar and complete weirdo,” according to a Dec. 18, 2011 report in the Sarasota Herald Tribune. A dentist in Foster City, California, filed a similar suit in Santa Clara County Superior Court in 2008 after a patient’s parents posted a negative review on Yelp.com, according to a Jan. 13, 2009 story in the San Francisco Chronicle.

Because online reviewers are subject to defamation lawsuits, Rob Heverly, assistant professor of law at Albany Law School of Union University, wrote a guide for online reviewers on Madisonian.net, a blog focused on law, technology, and culture, which features written contributions from many law professors, on April 13, 2010. “The lesson here is straight forward: if you are making statements online about another person, a business or a service, do not embellish beyond what you can show factually,” Heverly wrote. “Statements of opinion were, in the past, considered absolutely protected, but the U.S. Supreme Court has clarified that opinion-statements backed by implied facts will be actionable where the facts implied are false.” The Minnesota Supreme Court is expected to release its decision in early summer.

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

 

 

 

 

 

Man Bites Dog

MARCH 3, 2012

“When Doctors Sue Patients – Defamation Is Devastating – But A Lawsuit Could Make It Worse”

Jeffrey Segal, MD, JD, Medical Justice

Image-Man-Bites-Dog

Dog bites man never makes the newspaper. Man bites dog is news.

Doctors suing patients (and their families) is news.

Several cases are percolating through the legal system. In each, a doctor sued a patient (or patient’s relative) for online mischief. Doctors are starting to prevail in the legal system. Whether this is a useful strategy for all doctors will be discussed further down. First the details.

In Carlotti v. Petta, Dr. Carlotti, a cosmetic surgeon, successfully sued his former patient – receiving a jury verdict of $12 million in December 2011. In 2007, Albert Carlotti, performed a number of procedures on Ms. Petta, a singer, including a rhinoplasty.

To say Petta was unhappy would be an understatement. She launched a website which claimed, among other things, that Dr. Carlotti was not board-certified. Records showed he was board certified by the American Board of Oral and Maxillofacial Surgery.

She claimed Carlotti was being investigated by the Arizona Board of Medical Examiners. Carlotti did not have any disciplinary record with the Arizona Board.

Petta also allegedly obtained phone numbers for some of Caroltti’s patients, calling them, making the same allegations.

Petta’s actions took a toll on the practice. “I was dealing with somebody who had the intent of destroying us professionally, personally and on every level. I went from a very successful surgeon to pretty much out of business.” Carlotti considered relocating to another country. He was forced to sell his home. And he shed over 30 pounds due to stress.

As a last resort, Carlotti sued Petta for defamation. A jury listened to testimony over three weeks. They delivered an 8 figure verdict in one day. The case will likely be appealed.

In McKee v. Laurion, Dr. David McKee, a neurologist, sued his patient’s son for online defamation. In April, 2010, McKee was reviewed on a doctor rating site.

“My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. David C. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” When we gaped at him, he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” My father mentioned that he’d been seen by a physical therapist and speech therapist for evaluation. Dr. McKee said, “Therapists? You don’t need therapy.” He pulled my father to a sitting position and asked him to get out of bed and walk. When my father said his gown was just hanging from his neck without a back, Dr. McKee said, “That doesn’t matter.” My wife said, “It matters to us; let us go into the hall.” Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or me. When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!””

The patient’s son sent letters to the hospital and assorted medical associations making the same claims. McKee sued the son in Minnesota court. The case was thrown out on summary judgment. Truth and opinion are two defenses to allegations of defamation. The judge concluded the review contained statements of opinion, true statements, and vague statements. Accordingly, the judge ruled against the doctor. McKee appealed his case.

January 23, 2012, the Minnesota Court of Appeals overruled the lower court, sending the case back to be heard by a jury. The court ruled that many of the statements were factual assertions – not opinions. And many of the statements were capable of harming the doctor’s reputation. For example, the following statements suggested the doctor was rude, insensitive, and morbid: the doctor had to “spend time finding out if [the patient was] transferred or died”; “44% of hemorrhagic strokes die within 30 days. …this is the better option”; and “[It] doesn’t matter” that the patient’s gown did not cover his backside. So, the case lives on.

In the past, some doctors have tried to sue various doctor review sites. But, such sites are immune from most litigation. They are protected by Section 230 of the Communication Decency Act. Section 230 is a federal law which makes it impossible to sue a web based platform for defamation. That said, if a doctor can identify the actual author of a defamatory post, he can sue that person. In the cases above, the doctor was able to easily identify the author. More often, it can be challenging – as most posts are uploaded anonymously.

Even anonymous posts can be tagged to a specific person. Patients often leave digital footprints. Their post emanates from a specific Internet Protocol address. Many online sites and/or Internet Service Providers keep date stamped records tying an Internet Protocol address to online activity. Doctors can file “John Doe” lawsuits making the case for defamation. If they can demonstrate they have a prima facie case asserting defamation, they can file a subpoena to track down the Internet Protocol address – getting closer to determining the identity of the poster.

So, is it a good idea to sue a patient for defamation? In most cases, the answer is no.

First, proving defamation is not easy. To prevail, you must prove that the defendant made a false statement to another person; and the statement harmed one’s reputation. If the statement was true, you will lose. If the statement was an opinion, you will lose. If the patient writes she does not like your bedside manner and you communicate poorly, that will likely be construed as opinion. And opinion is fair game.

What type of statement might be considered defamatory? One which is easily proven to be false. For example, “Dr. X is not board certified” – when he is. Or “Dr. X charged $15,000 for the surgery” when the documented price was $3,500.

Next, litigation can be capricious and expensive. Even if you win a judgment, the defendant might have no assets. A Pyrrhic victory.

Most importantly, suing a patient brings attention to the nasty post. If that post could only be located on a Google search buried on page 3, suing the patient is the most effective way to move the post to page 1 – an undesirable outcome. In other words, suing for defamation might increase the damage caused by the post.

This phenomenon is known as the Streisand effect. In 2003, Barbara Streisand attempted to suppress photographs of her residence appearing online. She sued a photographer, Kenneth Adelman, and Pictopia.com for $50 million hoping to have an aerial picture of her mansion removed from a publicly available collection of 12,000 California coastline photographs. The photographer said he took shots of beachfront property to document coastal erosion. Before Streisand filed her lawsuit, “Image 3850” was downloaded from Adelman’s website less than ten times (2 of those times were from Streisand’s attorneys). After the lawsuit was filed, more than 420,000 people visited the site the following month. Streisand did not prevail.

The best way to prevent damage from isolated online posts is by accumulating real reviews from confirmed patients. This will dilute whatever effect the negative post has. The public understands you cannot make everyone happy 100% of the time. Even the Ritz Carlton gets an occasional bad review. If you only have great reviews, the public will likely discount the authenticity of such reviews. If there’s an occasional bad review, the public will perceive all reviews as authentic.

Don’t be afraid to invite your patients to give you feedback. The literature suggests most patients are happy with their doctors.

Suing a patient makes news. Pre-emptively asking your patients for online feedback is not remotely newsworthy. But, that strategy is more likely to help you control your online reputation.

Jeffrey Segal, M.D., J.D., is founder and CEO of Medical Justice. Medical Justice is a physician based organization focused on keeping doctors from being sued for frivolous reasons. In addition, Medical Justice helps doctors control their online 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

 

Associated Press Column Discusses When Online Reviews Lead To Lawsuits

Foundations of FreedomMarch 19, 2013

“When Online Reviews Lead To Lawsuits”

Ken Paulson, Associated Press

Hotels, doctor and other ratings are controversial, but courts view most as free speech.

Story Highlights
•    Judges weigh free speech vs. reckless comments with devastating professional consequences.
•    Comments that are strictly opinion or hyperbole are often protected.
•    Unsupported statements of fact can lead to liability.

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

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

The Minnesota Supreme Court found that the critical comments were protected under the First Amendment as free speech because they were just an opinion — “mere vituperation” — and dismissed the case. It was the latest in a series of fascinating cases in which judges struggle with balancing freedom of speech with the devastating professional consequences of reckless or unsubstantiated reviews.

A woman in Washington, D.C., is being sued after giving a contractor an F rating on Angie’s List and hinting that he might have stolen some jewelry. A judge ruled in January that the strongly negative review could remain online, but that the libel case could proceed.

Another Washington woman is being sued by a dermatologist after she claimed on Yelp that he scarred her face. The doctor contends the scar was pre-existing.

In 2012, a U.S. District Court threw out a lawsuit filed by a Pigeon Forge, Tenn., hotel after Trip Advisor called it “the dirtiest hotel in America” based on user reviews. Remarkably, the court concluded that the “dirty” designation wasn’t defamatory.

Last year, the Beaverton (Ore.) Grace Bible Church showed the limits of its grace, suing a former member who criticized the church online as being “creepy” and guilty of “spiritual abuse.” A judge dismissed the suit, saying these opinions were protected as free speech.

In 2011, two Scottsdale, Ariz., surgeons were awarded $12 million by a jury after a patient created a website to accuse the doctors of poor care.

Libel cases on rise

Libel cases over online comments are on the rise, perhaps inevitably in an era of impulsive tweets and anonymous comments. Nevertheless, what could be a more fundamental exercise of free speech than telling others about your negative experiences with doctors, lawyers, contractors and hotels?

Unfortunately, not all complainers can be counted on to give an accurate and fair account, and a business can be damaged irreparably by false allegations. Courts have largely found that comments that are strictly opinion or hyperbole are protected by the First Amendment, while unsupported statements of fact can lead to liability.

That probably means you can post a comment calling your lawyer a “clown” or “buffoon.” On the other hand, suggestions that your counsel is unlicensed, negligent or careless are assertions of fact and not mere insults and could land you in a courtroom. The difference: Lawyers can document they are not negligent, but none of us can really prove we’re not a clown.

Protected speech

Ironically, the federal law that protects review sites such as Yelp, Angie’s List and RateMD.com can also lead to reckless claims online. Section 230 of the Communications Decency Act protects websites from libel claims as long as they simply permit the posting of content and don’t actively control posts. If a website edits posts, weeding out vitriolic or unfounded attacks, its potential liability can be more, not less.

There’s no question that the websites rating professionals and public accommodations are a real plus for consumers. A few minutes online can help ensure that you make the right choices in terms of your health care, legal advice as well as vacation accommodations.

Even so, the hands-off administration of these sites can undercut their overall credibility. Imagine the benefits of a site that posted both constructive and critical comments and yet set standards that would weed out the intemperate in favor of the informative. Now that would be a real tool.

Ken Paulson is president and CEO of the First Amendment Center in Nashville, a former editor of USA TODAY and a member of USA TODAY’s Board of Contributors. In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors.

FULL ARTICLE

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