Chicago Tribune: Doctor Sues Former Patients Over Allegations Of Sexual Contact

August 12, 2013

“Doctor Sues Former Patients Over Allegations Of Sexual Contact”

Crystal Lake neurologist never charged with crime, but license was suspended last year

Robert McCoppin, Chicago Tribune

A doctor in Crystal Lake is suing three former patients for defamation over their allegations that he fondled them in his office.

Dr. Mahesh Parikh, a neurologist, had his medical license suspended indefinitely last year as a result of the claims. But he has denied any misconduct and is seeking to have his license reinstated.

His attorney said that since Parikh was stripped of his ability to practice medicine, his reputation has been harmed, he has lost his annual income of $1 million and his home is in foreclosure.

The doctor filed separate defamation lawsuits this month against three former patients and the mother of one of the patients. That woman, who testified against Parikh at regulatory hearings leading to his suspension, said she was taken aback that the lawsuits publicly name the three alleged victims.

“This is an appalling action by a remorseless individual who is trying to intimidate those who would testify against him,” the mother wrote in an email. The Tribune is not naming her or the patients to protect the identities of the three alleged victims of sexual misconduct.

Parikh’s attorney, Rishi Agrawal, said he would file an amended suit that will identify the patients by initials only, calling it a “more appropriate” way to handle the unusual case, but said the baseless allegations against Parikh justified the lawsuits.

“We’re trying to right this wrong for this man who has contributed so much to the community,” Agrawal said. “We’re trying to get him back to practicing medicine.”

In response to an inquiry about Parikh’s lawsuits, Susan Hofer, a spokeswoman for the Illinois Department of Financial and Professional Regulation, noted that the Medical Practice Act “specifically prohibits breaching patient confidentiality,” and protects people from civil liability if they contact regulators under the act.

Disclosing a patient’s name, without disclosing protected health information, is not generally a violation of federal law, said Joel Shalowitz, director of health industry management at Northwestern University’s Kellogg School of Management. But that doesn’t make the lawsuit a good idea in his eyes.

“By making this a very prominent case, (the doctor is) probably making a strategic error in trying to restore his reputation,” said Shalowitz, adding that he had never heard of a similar suit by a doctor against a patient. “If he gets his license back nobody will know, but if he sues, it’s news, and his name will be all over the place.”

The case that led to Parikh losing his license involved a college-age woman who saw him on multiple occasions in 2008 and 2009 to treat migraine headaches and other ailments, according to her testimony at a disciplinary hearing for the doctor.

When the patient complained of breast tenderness, she testified, the doctor said it was a side effect of a drug he had prescribed for her, and he touched her breasts on repeated visits. During later visits, she claimed, he touched her vaginal area under her clothes.

The patient testified that she felt uncomfortable but assumed the doctor was doing what was medically necessary. A state’s expert involved in the disciplinary hearing said there was no medical reason for such exams.

Police also investigated the young woman’s claims, though Parikh was not charged with a crime. Neither Crystal Lake police nor McHenry County prosecutors could be reached for comment on the case. The woman’s mother said authorities told her they lacked evidence to pursue the case.

Parikh was, however, the subject of a disciplinary hearing to determine whether he violated the state Medical Practice Act. An administrative law judge found that the state failed to prove any violation. The judge questioned the young woman’s credibility, saying that her naivete about her treatment didn’t seem to match her age and experience.

The Illinois Medical Disciplinary Board agreed with those findings but was overruled by the state Division of Professional Regulation.

Jay Stewart, director of the division, wrote that Parikh engaged in “unethical” and “immoral” misconduct.

The state’s investigation determined that the doctor “took advantage of an innocent and naive patient over a period of six months,” Stewart wrote. “This was not a brief lapse of judgment or an isolated incident.”

According to his legal filings, Parikh learned from state regulators after his license was suspended that two other women had come forward with claims they had been “touched inappropriately in a sexual manner” while they were patients of Parikh’s. Those two women are among the four he is suing.

One of the women, reached Monday at her home in the northwest suburbs, said she saw Parikh about 25 years ago to treat leg numbness after a car crash.

Parikh’s suit against the woman states that she made “false statements when she falsely accused Dr. Parikh of sexual misconduct in course of being treated by Dr. Parikh.”

She was too embarrassed to tell anyone besides her family and close friends, she said. But when she saw a newspaper account of the most recent allegations against Parikh last year, she said she wanted to back up the patient’s story, and called Crystal Lake police.

She said they referred her to the Department of Financial and Professional Regulation, where she filed a statement.

“I hate to see him do it to somebody else,” she said.

Through his attorney and his lawsuit against the woman, Parikh stated that he was notified of the woman’s complaint in April but denied the incident took place.

Parikh is seeking reinstatement of his license at a hearing this fall and wants an injunction to bar the four defendants from making further statements against him. He also is seeking at least $5 million in damages from each defendant.

Source

Petition To Reinstate Dr. Parikh’s Medical License

Other Doctor Lawsuits

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Doctors’ legal remedies can defeat online attacks

Image-Angry-Doctor

December 12, 2011

“Physicians face barriers when fighting derogatory comments posted on the Internet, but some legal strategies can curb the problem”

Alicia Gallegos, AMedNews

“Horrible results!”

“The doctor misdiagnosed the case.”

“It was a failed surgery.”

When unhappy patients post these kinds of comments about physicians online, doctors’ reputations — and their practices — can suffer.

Reviews by patients have become common as blogs and review websites proliferate on the Internet. But doctors are seeking legal remedies to battle alleged online libel and defamation.

An Illinois plastic surgeon on Nov. 3 sued Google in federal court for failing to remove blog posts the doctor claims are libelous and false.

On Nov. 10, the Minnesota Court of Appeals heard arguments in the case of a neurologist suing a former patient’s family for alleged defamation. David McKee, MD, alleges that a family member made derogatory and untrue posts about his treatment of the man’s father. A ruling is expected by January 2012.

From 2009 to 2011, Chicago plastic surgeon Jay Pensler, MD, sued three patients and an attorney for alleged defamation stemming from comments left on review websites and for statements made to a TV station. One of the cases was settled, and three are ongoing, said an attorney involved in the litigation.

Taking legal action against Internet posters is not always ideal, legal experts say. However, doctors who do so should be aware of how best to navigate the judicial process.

Before suing, experts say doctors should consider all legal strategies that may help remove comments from a website. Knowing the right legal step to take — and when to take it — could be the difference between a quick remedy and a years-long ordeal.

“Lawsuits are time-consuming and they’re expensive, and they may not result in the outcome the physician wants,” said neurologist Daniel Larriviere, MD, a former medical liability attorney and current chair of the American Academy of Neurology’s Ethics, Law and Humanities Committee. But because of federal laws, “a physician can’t go onto the website where a comment is posted and defend themselves. For better or for worse, sometimes the only way for the physician to present his or her side of the story is to do so in court.”

Opinion vs. defamation

Before claiming defamation, physicians should understand its meaning. Though gray areas exist, defamation generally is a statement that can be proven true or false, said Enrico Schaefer, an Internet defamation and copyright attorney who founded the law firm Traverse Legal PLC in California.

For instance, an online poster who writes that he is a patient of a doctor and had a procedure performed has written a statement that usually can be confirmed or disproved, he said. On the other hand, a comment about being treated rudely while visiting a doctor is more of an opinion.

“While doctors have to have a thick skin about a patient’s opinion, we get a lot of calls where physicians are dealing with a posting where the [writer] is not a patient, where the person is unstable or has confused them with someone else, or where the poster is really” the doctor’s competition, he said.

In Dr. McKee’s case, a trial court ruled that the comments posted by Dennis Laurion, the son of one of Dr. McKee’s former patients, were not defamation but rather an “emotional discussion of the issues.” Dr. McKee appealed. He accused Laurion of writing untrue posts about his interaction with Laurion’s family, including a charge that the doctor did not treat his father with dignity after a stroke.

Laurion’s assertions go beyond opinion, said Marshall H. Tanick, Dr. McKee’s attorney. “He felt he was viciously defamed by the son of a patient. He sued to vindicate his reputation,” Tanick said. “We maintain these statements cross the line. [They are] demonstrably false.”

Laurion’s attorney, John D. Kelly, said some of Laurion’s statements were true and the rest were vague or obvious opinions. For example, Laurion wrote that Dr. McKee was “scowling” during his interaction with Laurion’s family, Kelly said. Statements about a person’s expression or demeanor are open to interpretation and cannot be considered defamatory, he said. If doctors aren’t sure if an online comment is defamatory, seeking legal guidance can help, Schaefer said.

People behind the posts

Anonymous posts create challenges for doctors who want to remove negative blogs. However, identifying people behind posts is sometimes as simple as asking. Most websites have policies against libelous statements, Schaefer said.

Questioning website operators about false posts could lead to removal or to finding out posters’ identities. If that doesn’t work, physicians can seek a subpoena ordering the Internet service provider to give identification data, said Sheldon Halpern, a professor at the Albany Law School in New York. “Generally, whether you’re a doctor or anyone else and someone has posted what is really defamatory statements about you, you can get a court to require the ISP to give you the name of the person who did it,” he said.

Doctors can contact the patient directly to ask that the post be removed or request that an attorney send a letter warning the poster of potential legal action, said Mitchell Marinello, an Illinois attorney who practices defamation law.

In one case, an investigation revealed that a blogger was posting negative comments from his employer’s email system. Once Marinello contacted the poster, he quickly removed the posts before making waves with his employer. “There is a whole series of things you can do short of a lawsuit, assuming that you’re dealing with a reasonable person,” Marinello said.

If requests to take down posts fail, seeking a court order is another option. If doctors can show that false posts are causing irreparable harm to their reputation or practice, a judge can demand the comments be removed.

That’s what Indiana plastic surgeon Barry Eppley, MD, sought in 2009 after finding Internet postings by Lucille Iacovelli, a patient who was unhappy about a facelift done by Dr. Eppley, court documents show. She also created Web pages about her experience. Dr. Eppley sued Iacovelli for defamation and other things. A federal judge granted a preliminary injunction against Iacovelli, preventing her or anyone “acting as her agent” from posting online comments about Dr. Eppley, according to court documents. She was ordered to remove prior postings about the doctor from her websites. A Web operator who did not remove postings about the doctor was ordered to pay Dr. Eppley $1,772. The operator is appealing. Dr. Eppley got $40,000 in damages and attorney fees.

“The record before the court demonstrates that Ms. Iacovelli has made numerous false and offensive statements about Dr. Eppley on public websites,” said Judge Sarah Evans Barker, U.S. District Court, Southern District of Indiana, in her ruling on the injunction. “As Indiana courts have held, when the speech enjoined is of lesser constitutional value because it is false and defamatory, and the injunction operates to address specifically that speech, the injunction passes constitutional muster under the First Amendment.”

To sue or not to sue?

Suing over negative posts is typically a last resort, Schaefer said. But lawsuits bring challenges. Legal proceedings often run for years and can draw more negative online attention for plaintiffs, he said. Schaefer said most states have a statute of limitations in which to file defamation suits. If negative online content is found years after being posted, physicians have no legal recourse. “There are no great answers here. You have to spend some time and some money to get the problem handled, and there are some instances where you’re stuck,” he said.

If doctors sue, experts say individual posters, not websites, are the more logical defendants. The Communications Decency Act of 1996 protects Internet service providers from liability for third-party comments.

Some physicians, such as New Hampshire internist Kevin Pho, MD, believe legal action is the wrong answer to curb negative Internet reviews and blogs. “In general, I can’t think of a time where a lawsuit would be tremendously effective. The negative publicity and the fallout from the lawsuit is far worse than the initial issue,” said Dr. Pho, who writes a physician-focused blog on health and social media called KevinMD.com. “It’s a better idea to take charge of your online presence.” For instance, doctors should have a Facebook page, join other social networking sites and participate in blogs, he said. Those links show up first during a Google search of a physician’s name, pushing negative reviews farther down.

Physicians also should consider distributing satisfaction surveys to their patients, said Susan Shepard, RN, director of patient safety education and electronic issues for The Doctors Company, a medical liability insurer. Surveys provide a forum for patients to express their feelings about visits and allow doctors instant feedback about problems that may need to be addressed. “I would encourage practices to look at a visit through the patient’s eyes — look at the comfort standards. There’s a lot more to a physician visit than having the current magazines in the waiting room,” she said. Shepard discourages doctors from taking legal action against online blogs or review sites. “I understand the anger and the need to get back at someone, but it’s very difficult to sue someone for an opinion,” she said. “Most of the comments are very subjective, meaning neither one can prove the other is wrong.”

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

 

Leyhane Blogspot: “For What It’s Worth: Doctor Sues Patient”

OCTOBER 8, 2011

“For What It’s Worth: Doctor Sues Patient”

Leyhane Blogspot

Medical malpractice suits are common (even if they are not as common as some doctors fear). But a suit by a doctor against a patient? That would seem to fit the ancient definition of news. Yet I hadn’t heard of Dr. David McKee’s defamation suit against Dennis Laurion before I received an email about the case.

Actually, Dennis Laurion was not McKee’s patient. Dr. McKee, a neurologist, treated Dennis’s father, Kenneth, a World War II vet, who suffered a hemorrhagic stroke in April 2010. The younger Mr. Laurion was not at all happy with how Dr. McKee treated his father. The elder Mr. Laurion survived, but his son felt that Dr. McKee failed to accord his father appropriate dignity and respect. He didn’t sue for malpractice; instead, he blasted the doctor on a number of ratings sites.

There are ratings services for every business and profession out here on the Internet (including sites that rate lawyers). I haven’t used the Internet to check out a doctor since… let’s see… yesterday. Usually, though, I’m only looking for confirmation of the spelling of the doctor’s name, or to verify an address or phone number. I personally don’t put much stock in so-called “reviews.” On any random site, some reviews will seem as if they’d been written by the doctor’s mother. Others read as if they’d been written by the doctor’s bitter ex-spouse.

Nevertheless (and understandably), doctors are a bit sensitive about how they are portrayed online. See, “Why doctors hate online reviews,” by Dr. Rahul Parikh, in the “Pop Rx” column on Salon.com, September 5, 2011.

There are services that promise to provide some protection to the small businessperson who suffers the slings and arrows of outrageous Internet attacks. Reputation Defender is one product that advertises heavily in this market (and the website seems to pitch at doctors in particular); TheReviewBuster.com is another one I found in a quick search today. Public relations firms would, presumably, be able to offer some assistance to the aggrieved professional in straits similar to those in which Dr. McKee apparently found himself.

But Dr. McKee decided to sue instead.

The trial court entered summary judgment against McKee. The various sources I’ve consulted today dispute whether Dennis Laurion voluntarily removed his comments from ratings sites when Dr. McKee asked. Depending on the point of view of the poster, McKee’s suit was either an honorable response to vicious online attacks or a callous attempt to stifle the Laurion family’s free speech rights. And there may have been a SLAPP angle, too: In addition to posting negative reviews, Dennis Laurion made a complaint to the hospital where Dr. McKee worked and to the Minnesota Board of Medical Practice. Supposedly, just before the summary judgment motion was resolved against McKee, a hundred new negative reviews appeared on line about Dr. McKee. McKee’s lawyer blamed Laurion; Laurion denied it. I have to wonder whether these additional postings might have been a product of the Streisand Effect.

In the course of today’s efforts, I do not claim to have peeled through the many layers of conflicting opinion to reveal any hard kernel of truth about this case. The headline on this post, however, “Doctor sues patient’s family — and everybody loses” (HealthExecNews.com, May 10, 2011), struck me as probably accurate. I can report that McKee’s appeal is scheduled for a hearing before the Minnesota Court of Appeals, in Duluth, on November 10.

Not knowing the actual facts and being unschooled in Minnesota law (and being unlicensed in that state), I venture no prediction about the outcome of the doctor’s appeal.

But the question arises how a similar suit might fare in Illinois. Would our Citizen Participation Act (735 ILCS §110/1 et seq.) apply? Shoreline Towers Condominium Association v. Gassman, 404 Ill.App.3d 1013, 936 N.E.2d 1198 (1st Dist. 2010), may provide some guidance. Ms. Gassman kept installing a mezuzah outside the front door of her condominium; the homeowners’ association kept taking it down, insisting it was prohibited by a policy that prohibited “[m]ats, boots, shoes, carts or objects of any sort… outside Unit doors.” Gassman, a lawyer, initiated a raft of lawsuits and religious discrimination complaints with a number of state agencies, challenging the association’s ban.

The association changed its policy. And, for good measure, the City of Chicago passed an ordinance and the State of Illinois passed a law prohibiting others from attempting similar bans.

But relations between Gassman and the Association had soured in the meantime to the point where all sorts of accusations were made by one side and the other. Ultimately the Association filed a 10-count complaint against Gassman alleging a variety of theories. Gassman moved to dismiss all counts under the Citizen Participation Act (or, as it also sometimes called, the anti-SLAPP Act). The trial court agreed that the Act applied to some, but not all of the counts.

On appeal, the Association argued that the Act shouldn’t have applied to any of its claims (404 Ill.App.3d at 1020): Shoreline argues that SLAPP suits are “lawsuits brought to silence public outcry regarding issues of significant public concern,” and it characterizes SLAPP suits as actions brought against “a person or group [who] was using a public forum to voice an opinion regarding a public issue.” It suggests that “[i]t could hardly be argued that [Gassman’s] campaign of defamation, tortious interference, harassment, intimidation, and personal attacks, as to the affairs of a private condominium association, and against the members of the Board personally, rises to the level of an ongoing attempt to petition a governmental entity for public redress.”

But the Appellate Court disagreed (404 Ill.App.3d at 1021-22):

[T]he Act does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected. Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action.

To the extent, then, that our hypothetical Illinois doctor’s suit might be seen as retaliation for complaints to licensing authorities, my suspicion is that an Illinois court might find that the anti-SLAPP statute applicable. Maybe.

But the anti-SLAPP statute provides no license for Internet trolls out to sabotage a professional’s 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