The Good, The Bad And The Ugly With Online Reviews

May 1, 2013

The Good, The Bad And The Ugly With Online Reviews

Carol M. Langford, Contra Costa Lawyer

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

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

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

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

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

 

Defendant Dennis Laurion

Defendant Dennis Laurion

 

Tendentious Lawyer

Plaintiff Attorney Marshall Tanick

Plaintiff David McKee MD

Plaintiff David McKee MD

 

 

 

 

 

 

 

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

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

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

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

Source

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

Boston Globe: Doctors Firing Back At Patients’ Online Critiques

MARCH 31, 2013

“Doctors Firing Back At Patients’ Online Critiques”

Liz Kowalczyk, Boston Globe

During Lyn Votour’s struggle against bone cancer and a cascade of complications, her husband slept with her in the intensive care unit for nine weeks. Back home in Central Massachusetts, he changed her bandages, replaced her feeding tube, and shielded her from debt collectors.

And as she lay dying on the hospital bed in their living room, he snuggled beside her, holding her hand.

They had been married 26 years, and his wife’s death at age 46 overpowered Gary Votour with doubt and rage. He was furious at himself for allowing her to have surgery, during which she had a stroke, at friends who didn’t visit, and at his wife’s neurosurgeon.

Believing that airing his concerns would help him heal, Votour requested a meeting with the surgeon at Brigham and Women’s Hospital. When the surgeon turned him down, Votour’s psychiatrist urged him to write her an “open letter’’ online, detailing his concerns about his wife’s medical care.

He got a response, just not the one he had hoped for.

Last month, the surgeon, Dr. Sagun Tuli, sued Votour and the owner of the website for defamation in Middlesex Superior Court, demanding $100,000 for the damage she said the blog post had done to her career. Her lawyer, David Rich of Boston, said Votour’s blog popped up on the first page of Google search results for Tuli, who now works at MetroWest Medical Center in Framingham. Votour has since removed the blog post.

“It’s difficult to believe we have a legal system that allows people to be sued for expressing their grief,’’ Votour said in an interview.

Lyn Votour was diagnosed with a rare bone cancer after an accident in 2005.

Tuli’s lawsuit is part of a gathering wave of claims brought by doctors against former patients, and sometimes their relatives, over negative ratings and reviews they have posted on the Internet, lawyers say.

Not only have personal blogs proliferated, but consumer sites such as Yelp and Angie’s List allow patients to rate and comment on their physicians. These sites are viewed by thousands of people who increasingly rely on them to choose doctors.

David Ardia, codirector of the Center for Media Law and Policy at the University of North Carolina, said the Internet “has realigned the power structure that existed between doctors and patients,’’ giving patients far more influence than they have ever had. “The Web is just chock-full of people commenting on their experiences. Doctors have reacted with a great deal of hostility toward this.’’

A quick perusal of Yelp reveals the kind of comments that are riling doctors. “Fast, Central, Misguided,” said one comment about a Copley Square practice. “Decent for your quick fix med tricks but leaves a bit to be desired in taking the time to truly understand the ailment.”

Wrote another commenter about a Fenway office: “I feel much more like a number than a human being there.”

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.

In one 2011 case, Dr. Aaron Filler, a neurosurgeon, sued a former patient in a Los Angeles court for posting negative comments about him on rating sites such as RateMDs.com, including that he posed an unusually high risk of death to patients. A judge dismissed Filler’s suit, deciding that the patient was exercising free speech on a public issue, and ordered the doctor to pay $50,000 in legal fees.

Doctors feel they are at a disadvantage in responding to negative reviews because medical privacy laws forbid them from discussing a patient’s care in public — a limitation that hotels, restaurants, and other often-rated businesses and professionals don’t face. They also worry that their explanations could be used against them in a malpractice suit — although a new Massachusetts law protects doctors’ apologies.

Dr. Richard Aghababian, president of the Massachusetts Medical Society, believes rating websites present a skewed picture of doctors because patients are more likely to post about negative experiences — even though they may be rare. “For surgeons, their reputation is very important,” he said. “We don’t want to discourage them from taking on really tough cases because they don’t want to ruin their ratings.’’

Companies have cropped up to help doctors fight back. Physicians Reputation Defender specializes in disputing negative online ratings. Medical Justice gathers reviews from a doctor’s patients and posts them on the Internet.

Ultimately, some doctors file lawsuits to try to protect their names, despite what Ardia calls “the reputational cost’’ of going to court, a step that often brings even more attention to the negative review.

While the rating sites are generally immune from libel claims, said Sandra Baron, executive director of the Media Law Resource Center in New York, individuals who post comments are not. In general for a doctor to win such a suit, she said, the statements made by the patient have to be shown to be false and to have hurt the doctor’s reputation.

Most lawsuits filed by doctors against patients or their families arise from a soured relationship, and that certainly seems true for the Votours and Tuli.

In March 2005, Lyn Votour was driving to her job counseling troubled youth when her car skidded on black ice and crashed. An ambulance rushed her to a local hospital, and tests on her neck eventually discovered a rare bone cancer unrelated to the accident.

An oncologist at Brigham referred her to Tuli to have some of her vertebrae removed, a complicated and rare operation. During a second surgery, Votour suffered a stroke that paralyzed the left side of her body.

The Votours and Tuli seemed to work well together at first. Tuli, for example, supported allowing Gary Votour to sleep in the ICU for an extended period, an unusual practice.

But after Lyn Votour was discharged to Spaulding Rehabilitation Hospital, the couple’s relationship with Tuli deteriorated, according to Gary Votour. His wife was eventually discharged to the couple’s home in Barre in July 2006 with a feeding tube and a breathing tube.

More than two years later, depressed and in pain, she asked her husband to remove her feeding tube, he said. Soon she stopped talking, he wrote on the blog, except for “one brief lucid moment when she thanked me for letting her go and made me promise to move on with my life and try to find happiness again.’’ She died days later, in October 2008.

“I was not doing well with grief,’’ he said in an interview. “I wanted to go back and talk to Dr. Tuli about some questions that were bothering me. I really wanted to ask her why don’t doctors follow up after discharge. I wanted to understand why doctors just wash their hands after discharge.’’

Votour contacted a patient advocate at the Brigham, who said she would arrange a meeting. But the advocate called back and said Tuli had declined to meet, Votour said.

Rich, her attorney, said a Brigham lawyer told Tuli not to meet with Votour.

A hospital spokeswoman, Erin McDonough, said in a written statement that a log kept by the patient advocate “documents that Dr. Tuli indicated that she was not comfortable meeting with Mr. Votour. The hospital’s records clearly indicate it was her decision.’’ The hospital lawyer said she never spoke to Tuli about Votour’s request, McDonough said.

Frustrated, Votour put up his blog in March 2010 and e-mailed a link to Tuli and other Brigham staff who had cared for his wife.

In his post, Votour criticized Tuli for not visiting his wife at Spaulding, according to a copy of the blog included in the lawsuit. He wrote that the surgeon called their home once after her discharge but did not offer to help coordinate her care, and that Spaulding doctors and others urged him to file a lawsuit against Tuli. At another point, he said he lost his wife “not to cancer but to indifference and egotism.’’

In the lawsuit, Tuli said these statements are false and defamatory. In written comments, Rich said that patient privacy laws prevent Tuli from discussing the reasons for the stroke, but according to the blog, she told the Votours it was caused by a preexisting tear in the heart.

Rich wrote that Votour completely misunderstood how discharge planning works at large hospitals. Tuli, Rich said, did not have privileges to treat his wife at another hospital and they lived too far away for her to provide follow-up care.

Rich said Tuli was surprised by the blog, because Votour had previously written e-mails complimenting her care of his wife. After Lyn Votour’s stroke, Tuli “spent 12 hours with Votour and was completely responsive and sympathetic,’’ Rich said.

Tuli, who won a $1.6 million jury award against the Brigham and the chief of neurosurgery in 2009 for gender discrimination, left the hospital in 2011.

Rich called the lawsuit a last resort — lawyers for Tuli initially asked Gary Votour to take down his blog in 2010. Votour took down the blog in February. He said his client hopes to “work out some amicable solution.’’ But she wants Votour to sign an agreement not to write about her again — something he has refused to do.

People have expressed concern to Tuli about what they read on Votour’s blog, Rich said, and some have certainly been dissuaded from seeking her out as a surgeon. “If you are thinking of hiring someone or working with someone, the first thing you do is Google her name,’’ he said.

In the end, Ardia said, doctors will not find satisfaction through the courts, but by using the Internet to their advantage — encouraging happy patients to write online reviews and trying to address the concerns of those who are not. “The ultimate solution is engagement and realizing that not every patient is going to be happy.’’

Votour, who still owes $25,000 to credit card companies for expenses related to his wife’s care, has moved to Columbia, S.C., where he earned a master’s degree in hospital administration. He now works as a patient advocacy consultant. He named his company Fierce Advocacy.

SOURCE

Other Doctor Defamation Lawsuits

Boston Globe: “Doctors, Patients Battle Over Online Critiques”

SEPTEMBER 26, 2013

“Doctors, Patients Battle Over Online Critiques”

By Liz Kowalczyk, Boston Globe

Earlier this year, I wrote a story about Gary Votour’s legal battle with neurosurgeon Dr. Sagun Tuli. Votour’s wife, Lyn, died of complications from bone cancer and soon after, he blogged about his dissatisfaction with the medical care Tuli had given her.

Tuli filed a $100,000 defamation lawsuit against him in Middlesex Superior Court in February.

Given the fervent reader interest in Votour’s situation, I want to provide an update on the case, as well as on another lawsuit I mentioned in my April story. It was brought by California neurosurgeon Dr. Aaron Filler against a former patient in 2011.

Most notably, Votour—who owes thousands of dollars in credit card debt for expenses related to Lyn’s illness—was taken under the wing of major Boston lawfirm Wilmer Hale, which agreed to represent him free of charge. The case was moved to federal court in Boston and Votour’s attorney, Adam Hornstine, has filed a motion to dismiss Tuli’s lawsuit.

The firm believes the case may have broader implications: Among other reasons, Hornstine has filed a potential challenge with the court and Attorney General Martha Coakley’s office to a state law that can hold people liable for making true statements under certain circumstances, which he argues is unconstitutional.

“It’s an affirmative defense protecting my right to free speech,’’ said Votour, who said he posted the blog because Tuli refused to meet with him to answer questions about a stroke his wife suffered during surgery.

While Votour took down his blog in February, he said settlement talks with Tuli have failed so far.

Tuli’s attorney, David Rich, said he could not comment on the case. But he told me last Spring that Votour’s criticisms were false and that the blog damaged his client’s career.

Her lawsuit is part of a wave of claims brought by doctors against former patients, and sometimes their relatives, over negative ratings and reviews they have posted on the Internet. These reviews have shifted the balance of power among doctors and patients. And while some lawyers say doctors only draw more attention to negative comments by suing over them, Filler said sometimes a physician needs to take strong action.

He sued a former patient in a Los Angeles court for posting negative comments about him on rating sites such as RateMDs.com, including “stating falsely that information she has seen suggested Dr. Filler posed an unusually high risk of death to patients,’’ according to his complaint.

Dr. Filler says he brought the case in part because none of his patients had died. While a judge dismissed Filler’s original suit, he said in a recent interview that he was able to get the patient, Susan Walker, to remove her comments and that additional litigation is pending. (In fact, the comment about risk of death was posted again by the patient from another site.) The comments “caused huge harm because there are hundreds of people suffering in pain right now’’ because they are too afraid to seek care from him, he said.

“My message is that physicians should respond to these things,’’ he said. “I don’t think you should be falsely accused of murder and take it. It was shouting fire in a crowded theater.’’

Walker’s attorney did not immediately respond to a request for comment.

Source

Other Doctor Lawsuits

Defamation Suits Against Patients – Three Big Risks

Image-Lawyer-Counsels-Doctor

April 24, 2015

“Defamation Suits Against Patients – Three Big Risks”

Sara Kropf, Physicians Practice

There are rare times when an online review is so damaging that a doctor must file a defamation lawsuit, such as when the review accuses the doctor of criminal behavior or serious malpractice. The reputational harm of that type of review is simply too great to ignore.

For most other negative reviews, however, your best bet is to take a deep breath and ignore it. The risks of filing a lawsuit are too high. Here are three of the biggest risks of filing a defamation lawsuit against a patient.

The Penalty Imposed by Anti-SLAPP Laws

About half of the states have passed laws prohibiting “Strategic Lawsuits Against Public Participation,” or “SLAPPs.” SLAPPs are lawsuits intended to silence critics by burdening them with the costs of defending a lawsuit until they stop the criticism.

Anti-SLAPP laws try to reduce the lawsuits that are filed to restrict free speech and have been successfully used to defend against defamation cases filed by doctors.

These laws vary by state. For example, in California, the anti-SLAPP statute allows a defendant to file a special motion to strike the complaint when the defendant’s supposed bad conduct arose from his “right of petition or free speech under the U.S. Constitution or the California Constitution in connection with a public issue.” Posting an online review almost certainly fits this requirement.

After the defendant files this special motion, the court will dismiss the complaint “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” This is not a high standard, but losing this motion can mean paying a penalty: not only will the court dismiss the lawsuit, but it will also order the plaintiff to pay the defendant’s attorney’s fees.

Here’s a real-life example: In 2009, a California dentist filed a defamation lawsuit against a patient based on a Yelp review that said, in part, “don’t go here, most painful dentist ever.” The patient filed a motion to strike under the anti-SLAPP statute and won. The complaint was dismissed and the patient was awarded $43,000 in legal fees. The doctor filed a second complaint, and the case was dismissed again; this time the patient was awarded $26,000 in legal fees. In 2013, the California Supreme Court refused to allow the doctor to revive his lawsuit.

Not only did the dentist pay his own legal fees in this case, but he also paid an additional $69,000 for the patient’s legal fees. Anti-SLAPP laws are a serious deterrent against filing defamation lawsuits.

Appearance of Bullying and Greater Exposure of Negative Reviews

Another risk of filing a lawsuit is the appearance that you are bullying a patient and the related risk that your complaint will bring more attention to the negative review than simply leaving it alone.

This is sometimes known as the “Streisand effect.” In 2003, Barbara Streisand sued a photographer for $50 million for taking aerial pictures of her home in California. She claimed the photographs violated her privacy. Her lawsuit, however, drew massive media attention and, according to some reports, over 400,000 people ultimately viewed the pictures of her home online.

The public may view a lawsuit by a doctor as an effort to bully a patient into removing a bad review. Public criticism may be harsh, even if the review contains demonstrable untruths. For example, in the McKee v. Laurion case discussed earlier, the story of physician McKee’s lawsuit was picked up by a local newspaper and then was posted on the popular website Reddit. According to McKee, he received dozens of negative reviews on Rate MDs, including one that called him the “d*ckface doctor of Duluth.” Plus there was extensive media coverage of the case — much of which was sympathetic to the patient.

Defending (or Losing) the Lawsuit

Lawsuits are public events. The filings are generally available to anyone who wants to read them, and the media often finds defamation lawsuits irresistible, particularly if the allegations are salacious.

Winning a defamation lawsuit may be an uncomfortable experience. Defendants will often claim that the review is true and therefore not defamatory. Part of litigation will include answering questions about whether the statements are true.

Let’s take a hypothetical example. A review by a former patient on Rate MDs says that you had a sexual relationship with her when she was a minor. You sue the patient for defamation. During your deposition, your personal relationships with any patient (adult or minor, current or former) will be the topic of questioning. Even if you have nothing to hide, having your personal life under a microscope is an unsettling process.

The bigger risk, though, may be losing the lawsuit altogether. Losing a defamation lawsuit will forever leave the impression that the review is accurate. This is an unfortunate result since you can lose a lawsuit for any number of reasons.

Source

Diagnostic Imaging Posting

EHR And Health IT Consulting Posting

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

 

Two Interesting Internet Defamation Cases Filed By Doctors

August 27, 2012

“Two Interesting Internet Defamation Cases Filed By Doctors”

Maura Larkins, San Diego Education Report Blog

#1 – Patient Susan Walker was able to get Dr. Aaron Filler’s defamation lawsuit thrown out of court.

#2–Dennis Laurion is still fighting this defamation case by Dr. David C. McKee: “When a doctor hires a private detective to find out which one of the 4,400 nurses in St. Louis County, MN may have called him a “tool” you know the man is serious about defending his reputation. That is just what Dr. David McKee of Northland Neurology and Myology is doing in preparation for the next leg of his defamation lawsuit against the son of a former patient, Dennis Laurion…”

The irony of all this is that, perhaps, it is more likely that positive reviews are false than negative reviews.

A New York Times article by David Streitfeld, August 25, 2012, tells about how reviews are bought and sold:

“The wheels of online commerce run on positive reviews,” said Bing Liu, a data-mining expert at the University of Illinois, Chicago, whose 2008 research showed that 60 percent of the millions of product reviews on Amazon are five stars and an additional 20 percent are four stars. “But almost no one wants to write five-star reviews, so many of them have to be created.”

Consumer reviews are powerful because, unlike old-style advertising and marketing, they offer the illusion of truth. They purport to be testimonials of real people, even though some are bought and sold just like everything else on the commercial Internet.

The Federal Trade Commission has issued guidelines stating that all online endorsements need to make clear when there is a financial relationship, but enforcement has been minimal and there has been a lot of confusion in the blogosphere over how this affects traditional book reviews…

Aaron Filler MD V Susan Walker

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

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California Patient Wins Anti-SLAPP Motion Against Doctor She Criticized

Image-Defamation-Montage-4

August 1, 2012

“California Patient Wins Anti-SLAPP Motion Against Doctor She Criticized”
Maura Larkins, Thank Heaven For Insurance Companies

Party Issuing Legal Threat: Dr. Aaron Filler; Aaron Filler, MD, PHD, APC; Imagebased Surgicenter Corporation; Neurograph Institute Medical Associates

Party Receiving Legal Threat: Susan Walker; Does 1-25

Dr. Aaron Filler filed a complaint against former patient Susan Walker in Los Angeles Superior Court on May 31, 2011. In his complaint, Filler alleged defamation and interference with prospective economic advantage in response to Walker’s review of Dr. Filler on a physician rating site.

On August 24, 2011, Walker filed a motion to strike based on California Code of Civil Procedure §§ 425.16 and 45, California’s anti-SLAPP statute. Walker’s motion argues that Walker is shielded from liability as the “dissemination of consumer information about medical care is a vital ‘public issue’ and the internet is a ‘public forum’,” and that Dr. Filler is a public figure subject to the burden of proving actual malice. Dr. Filler filed an opposition to this motion on September 16, 2011, also requesting leave to amend the complaint to plead more specific factual allegations to establish actual malice. Walker replied to Filler’s opposition  on September 22, 2011.

After a hearing on April 19, 2011, Walker’s motion to strike was granted.  In the order filed on May 8, 2012, Judge Elizabeth White held that Filler’s claims arose from Walker’s act of free speech in connection with a public issue under CCP § 425.16 and that Filler did not establish a probability of prevailing on these claims. In accordance with this order, Judge White later ordered Filler to pay  $50,259.65 to Walker for attorneys’ fees and costs.

Source

Citizen Media Law Project – Filler V. Walker

Healthcare Employment Counsel: Defamation Claims By Medical Providers

FEBRUARY 5, 2013

“Defamation Claims By Medical Providers”

Breanne Sheetz, Healthcare Employment Counsel

The Minnesota Supreme Court recently held that statements posted by a patient’s son online describing rude and insensitive behavior by a neurologist, and a comment allegedly made by a nurse, were not defamatory. Hospitals and other healthcare employers, however, should remain cautious about the potential for defamation lawsuits when making personnel decisions.

Gossip (Isolated)

In McKee v. Laurion, a neurologist sued his patient’s son for defamation because of statements the son posted on various “rate your doctor” websites and letters of complaint he sent to medical institutions. Among the allegedly defamatory statements was a comment by an unnamed nurse who allegedly stated that the physician “is a real tool.”

Image-Doctor-With-Tool

This statement, the court held, was “pure opinion,” protected under the First Amendment because “it cannot be reasonably interpreted as stating a fact and it cannot be proven true or false.” The court rejected the physician’s argument that the possible fabrication of the existence of the nurse and the statement attributed to her created a genuine issue of fact as to the falsity of the statement, which is one of the elements of a defamation claim. Regardless of whether a nurse made the statement, the court concluded, it could not give rise to a valid defamation claim because the statement itself was an opinion and therefore “incapable” of being defamatory.

In contrast, earlier a California appellate court found that an alleged statement by hospital management that a surgeon is “incompetent” and “needs more training” was not an opinion and could constitute defamation because it could be proven true or false. Indeed, the trial court had conducted an evidentiary hearing to evaluate the doctor’s surgical technique and judgment, and determine the truth or falsity of the statement. Because the hearing established that the doctor’s surgical technique was substandard and his medical judgment was poor, the appellate court found in favor of the hospital on the doctor’s defamation claim, noting that truth is a complete defense to civil liability for defamation.

Although defamation claims are most often unsuccessful, employees, including medical providers, frequently allege defamation as part of wrongful termination lawsuits. If an employee prevails, the cost can be extremely high, particularly when a highly paid physician brings the suit. For example, a jury in Texas awarded an anesthesiologist $9.8 million in a lawsuit against his former employer, a hospital, for defamation and breach of contract. The hospital had accused the anesthesiologist of drug and alcohol abuse and medical incompetence, and fired him when he refused to submit to a peer review or to modify his employment contract. However, the hospital’s impaired physician program cleared the anesthesiologist of all charges. Based on the program’s findings, the hospital couldn’t shield itself from liability by claiming the statements were truthful.

Employees may also claim that the reason provided by the employer for termination is defamatory, whether it is communicated internally within the company, to a potential new employer, or even just to the employee. For example, some states, including Minnesota, Texas, California, and New York, have recognized the doctrine of “compelled self-publication,” which creates a cause of action when a defamatory statement is communicated only to the employee and the employee is compelled to publish the defamatory statement to a third person, such as a prospective employer. This doctrine has so far been applied narrowly, but nevertheless presents another potential claim that terminated employees can assert against their former employers.

The federal Health Care Quality Improvement Act (HCQIA) and some state laws may also protect statements made in the context of a “professional review action,” such as a peer review, if all of the statutory requirements are met, including a reasonable effort to obtain the facts of the case and the provision of notice and the opportunity for a hearing. To reduce the risk of defamation claims and other potential claims relating to the termination of hospital privileges or other adverse actions, healthcare employers are advised to consult with counsel when faced with disruptive or problem physicians or employees to understand potential claims and defenses, including the requirements for immunity from liability under the HCQIA and similar state statutes.

Breanne M. Sheetz advises and represents employers in a broad range of employment law matters arising under federal and state law. She has particular expertise with Wage and hour class and collective actions,Discrimination,Harassment, Retaliation,Wrongful discharge,Breach of contract. She regularly represents clients before federal and state courts and administrative agencies, as well as in arbitration. She has litigated numerous large-scale Fair Labor Standards Act collective actions in federal courts across the country.

Source Health Care Employment Counsel

Source Littler Employment And Law Solutions

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