Sandusky Register: Critical Online Reviews Can Carry Legal Risks

“Critical Online Reviews Can Carry Legal Risks” 

Sandusky Register

October 26, 2012

Dr. David McKee sued a patient’s son for defamation after critical remarks about him were posted on some rate-your-doctor websites. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial. “His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick.critical

McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names. “Patients now have power to affect their businesses in ways they never had,” said Eric Goldman, a professor at the Santa Clara University School of Law who studies the issue. Health care providers are “evolving how to deal with patient feedback, but they’re still in the process of learning how to do that.”

Most online reviews never provoke any response. And successful challenges to negative reviews are rare. Americans are legally entitled to express opinions, as long as they don’t knowingly make false statements. But if the two sides contest basic facts, disputes can swiftly escalate.

At issue are six of Dennis Laurion’s statements, including the account of the nurse’s name calling. McKee and his attorney say the unnamed nurse doesn’t exist, and that Laurion invented her to hide behind. Laurion maintains she is real, but he can’t recall her name.

In arguments before the court in September, Laurion’s attorney John Kelly said his client’s statements were legally protected opinion that conveyed dismay over how McKee treated Laurion’s father, who had suffered a stroke. The posts described a single visit that lasted 10 to 15 minutes.

The review said McKee seemed upset that after Laurion’s father had been moved from intensive care to a regular hospital room, the doctor “had to spend time finding out if you transferred or died.”

Laurion also complained that McKee treated them brusquely and was insensitive to the family’s concerns about the patient being seen in public in a gown that gaped open in the back.

In an interview, Kelly said nothing Laurion posted was defamatory — a false statement that harms a person’s reputation.

The court is expected to rule on the case sometime in the next few months.

Lawsuits over professional reviews are uncommon in part because most patients write positive reviews, Goldman said. And many states have passed laws that block the kind of lawsuits that are filed mainly to scare someone into shutting up on matters of public concern. Known as “strategic lawsuits against public participation,” those complaints are often forbidden by broad laws that protect criticism even if it’s wrong, Goldman said.

When health care providers do sue, they rarely succeed. Of 28 such lawsuits that Goldman tracked, 16 had been dismissed and six settled. The others were pending.

One notable exception was a Maine case in which a chiropractor sued a former patient for postings on Facebook and websites that accused him of sexually assaulting her. The courts concluded she probably fabricated her story. In June, a judge ruled that the chiropractor could legally attach $100,000 worth of the patient’s property to his claim as security pending further proceedings in the case, which remains open.

Yelp says reviewers are well within their rights to express opinions and relate their experiences. Spokeswoman Kristen Whisenand says the company discourages professionals from using what she called the “nuclear option” of suing over a negative review. She said they rarely succeed and wind up drawing more attention to the review they dislike.

Angie Hicks, co-founder of Angie’s List, said people shouldn’t be afraid to post honest opinions about health care or other services. “Everyone has the right to free speech,” Hicks said. “The key here is giving your honest opinion. Honesty is your best defense. Truth is your best defense.”

Jeff Hermes, director of the Citizens Media Law Project at Harvard University’s Berkman Center for Internet and Society, said people who want to post critical reviews should think about whether they can back up their statements. And they can strengthen their position by stating the facts on which their opinions are based.

Goldman advises reviewers to remember that they are still taking a risk anytime they criticize someone in a public forum. “The reality is that we bet our house every time that we post content online,” Goldman said. “It’s a lousy answer from a societal standpoint because we need people to share their experiences so vendors will be punished or rewarded as appropriate.”

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

David McKee MD v. Dennis Laurion References And Precedents

Advertisements

Thomson Reuters: Hold That Rating

OCTOBER 25, 2012

“HOLD THAT RATING”

Peter Rudegeair, Thomson Reuters Legal News

Image-Think-Before-Posting

A neurologist in Minnesota has sued the son of a patient who posted critical online comments about the doctor’s performance, a case that has now gone all the way to the state’s Supreme Court, the Associated Press reports.

In the lawsuit, David McKee has questioned the veracity of six critical statements Dennis Laurion made about his bedside manner on a rate-your-doctor website, including a comment from a nurse who purportedly called McKee “a real tool.” Laurion asserted that the nurse existed but couldn’t remember her name, while McKee alleges she was contrived by Laurion. He told the Minneapolis Star Tribune in March that he had to spend more than $7,000 to remove more than 100 vitriolic comments from the Internet, many of which could be traced to a single IP address. A district court in Duluth tossed his suit last year, but an appeals court reinstated it in January.

The Associated Press notes that lawsuits over professional reviews are rare, given that most are positive and that a plaintiff must prove that reviewers posted knowingly false statements. Eric Goldman, a professor at Santa Clara University’s School of Law, has tracked 28 lawsuits healthcare providers brought against negative reviewers, 16 of which were dismissed. One Maine chiropractor won a defamation suit against a former patient who accused him on Facebook of sexually assaulting her, a claim the courts ruled was probably false.

Thomson Reuters

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

 

LEGALLY DUMB

5e7a4-defamation

DECEMBER 14, 2011

“Should a Doctor or Dentist Sue a Patient for Bad-Mouth Comments?”

Stewart Gandolf, Healthcare Success

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

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

We can sympathize with a practitioner’s frustration and outright anger. Negative comments and online reviews can be untrue, unkind and one sided. What’s more, we’ve never met a doctor, dentist, physician, surgeon or other healthcare provider who isn’t fiercely protective of his or her personal and professional reputation.

Their reputation—real or perceived, in person or online—is the sum of everything they do. And from a physician marketing perspective, their personal and practice reputation is at the heart of their brand and branding message. It’s no wonder that healthcare providers—doctors in particular—are highly sensitive and sometimes nearly fanatical about any and all reflections on their reputation.

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

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

The “doctor-sues-patient” story is likely to grab much more media attention than the original patient review. A small local story can suddenly go national. It’s the PR equivalent to throwing gasoline on embers. It’s going to ignite a flash fire with an explosive downside and not much of an upside.

The general public is likely to identify with–and sympathize with–the patient, not the doctor. Other doctors might quietly commiserate a little, but in the larger “court of public opinion” the doctor may be seen as the villain for starting a fight.

The Internet Search Engines will also take notice. Any ensuing controversy about the lawsuit will itself capture high page rankings and will continue to appear in Google search results—and overshadow any positive marketing efforts—perhaps for years.

And then there are the legal costs, the prospect of counter claims and the drain on personal and professional time and resources.

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

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

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

Stewart Gandolf  is CEO of Healthcare Success Strategies, a medical marketing and health care advertising agency. He is also a frequent writer and speaker.

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

Fierce Health Care: “Chiropractor sues patient over negative online review”

JANUARY 9, 2009

“Chiropractor sues patient over negative online review”

Anne Zieger, Fierce Health Care

cropped-cropped-wordpress-trying-our-patients21.jpg

Some insurance companies have been starting to experiment recently with allowing their customers to rate doctors and then make that information generally available. But third-party sites to do the same thing have been around for several years. So what if a user writes a review that is not accurate?

A San Francisco chiropractor is trying to find a way to respond to a negative review that he believes was completely unfair. Originally, the patient published a review on a site called Yelp after visiting the chiropractor for the first time; in it, he didn’t complain about the care he received but did complain about the chiropractor’s billing practices.

Then the chiropractor complained about the review, saying that his billing practices were perfectly standard and that a negative review could drive customers away. So the patient replaced his review with another one, intimating that this was how the chiropractor responded to all negative reviews, and therefore his overwhelmingly positive reviews couldn’t be trusted.

Now the chiropractor is suing the patient. Many observers are saying that the chiropractor simply generated a lot of bad press, and lost himself a lot more patients than if he had just left well enough alone. But the whole case brings up a valid point: What should doctors do if patients are publishing negative, false reviews about them on the Internet?

Showing 5 comments

Alguien: Why are you automatically assuming that the patient’s statements were false?

Howard: Posting a statement about another person (or organization) on the internet should not shield the poster from libel or slander laws – if I accuse a licensed professional, regardless of his or her specialty, of conduct unbecoming etc. I should be prepared either to prove it or deal with the consequences. I am professionally licensed in my field, and someone accusing me of incompetence or dishonesty had better be prepared to document the charge or face the legal consequences. And the cloak of anonymity that the internet offers is a very thin cloak indeed – every posting leaves a trail that can be traced back to the poster. Take my word for it.

JG: The doctor should be able to rebut the negative information (like on EBay). There are two sides to every story and sometimes they’re both true! The consumers should be able to weigh them and make an informed decision.

Someara: This article lead very skillfully conflates “negative” with “false,” and would suggest the reader make the same mistake. Given the documented and well-known medical error rates that lead to roughly 100,000 avoidable deaths every year in the U.S., and even greater numbers of poor outcomes, it seems not genuine at the very least for medical practitioners to claim abuse by consumer feedback on the Web. I don’t see similar concern expressed about the abdication of regulatory responsibility by medical review boards across the U.S. who refuse to police, censure or control incompetent and reckless medical practice. Given how long and hard it took the AMA to buy into the concept of “patients rights,” it’s not surprising that many of its members would be more interested in denying patients’ inalienable rights of speech rather than investigating deficits within individual or group practice.

Anonymous: Whether the client’s statements were false or not is not the issue here. The issue is the negative reviews triggered this kind of response from the chiropractor. I don’t think he really had to sue. He could’ve just hired an online PR firm like Reputec to get rid of the bad links by replacing them with good ones.

http://www.fiercehealthcare.com/story/chiropractor-sues-patient-over-negative-online-review/2009-01-09