Comparative Defamation Law: England and the United States

8-28-2017 

“Comparative Defamation Law: England and the United States” 

Vincent R. Johnson 

University of Miami International and Comparative Law Review

University of Miami Law School

SHARED PRINCIPLES

In many respects, the relevant principles of English and American defamation law are so similar that they seem to have been written with the same pen. For example:

  • “Substantially true” statements are not actionable.
  • A defamatory communication must have been published to a third third person other than the plaintiff.
  • Whether an assertion is defamatory is determined from the perspective of a reasonable person.
  • Printers, distributors, and sellers of publications are not liable for defamation if they are unaware of a publication’s libelous content.
  • In limited circumstances, liability is imposed for failure to remove a defamatory statement posted by another.
  • Aggregate communications are governed by a single publication rule for purposes of the statute of limitations.
  • The originator of a defamatory utterance may be responsible for damages caused by foreseeable republication, and thus the sender of a defamatory letter may be liable for publishing its contents to a third person other than the addressee who reads the letter.
  • Slanderous imputations of a serious criminal offense or incompetence in business, trade, or profession may be actionable without proof of special damages.

IMPORTANT DIFFERENCES

One of the major differences between English and American defamation law relates to the governing provisions. In England, a unified body of common law and statutory principles governs all libel and slander cases. In contrast, in the United States, tort law is mainly state law, and therefore it differs to some extent throughout the fifty states and the District of Columbia. Consequently, it is sometimes easier to speak confidently about the substance of English law than to summarize the content of the corresponding American principles.

CHOICE OF VALUES

English defamation law is in many respects pro-plaintiff, whereas  American defamation law is largely pro-defendant. This is true because of a choice of values. In any society, the law governing defamation reflects “the assumptions of that society respecting the relative importance of an untarnished reputation, on the one hand, and an uninhibited press, on the other.

  1. ENGLISH LAW IS PRO-REPUTATION, PRO-PLAINTIFF

English defamation law places a priority on protecting the reputations of potential plaintiffs. That choice is today anchored in the text of the European Convention on Human Rights (ECHR) and in the United Kingdom’s Human Rights Act. Article 10 of the ECHR, which deals with freedom of expression, provides that:

  • Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
  • The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
  1. AMERICAN LAW IS PRO-SPEECH, PRO-DEFENDANT

In contrast to England, the United States has decided, in a wide range of cases involving matters of public interest, that free expression and vigorous public debate are often more important than compensating plaintiffs for harm caused by defamatory falsehood. “It is hardly an exaggeration to describe the United States as exceptional in its commitment to free speech as a right.” In the field of libel and slander, “dozens of rules conspire to favor defamation defendants, which means that victims of false and defamatory statements are often left without effective remedies.” Notably, “in the United States, reputation is not one of the fundamental rights protected by the Fourteenth Amendment to the Constitution.

FALSITY AND FAULT

As indicated above, England and the United States agree that a plaintiff cannot prevail in a libel or slander action based on an expressed or implied statement that is true or substantially true. However, the two countries differ as to whether the plaintiff or defendant has the burden of proof regarding the truth or falsity of the defamatory statement.

STATEMENTS OF OPINION

England and the United States both struggle with the issue of whether statements of opinion can form the basis for a defamation action. Both countries recognize that some comments cloaked in the language of opinion are really statements of fact, or imply facts, and are therefore actionable if the asserted or implied facts are false. Both countries also recognize that some comments expressing opinions are not actionable. However, England and the United States differ in where they locate the relevant legal analysis, and how they define its operative terms. This is an important difference.

In the United States, the analysis is usually part of the plaintiff’s prima facie case, for in a tort action based on expression, the federal constitution requires the plaintiff to prove that the defendant published a false statement of fact. Thus, if there is an issue as to whether an opinion was really an assertion of fact, or implied false facts, the plaintiff bears the burden of proof, and the risk of non-persuasion.

American courts have ruled that statements were incapable of implying false facts where the defendant described a physician as a“real tool” (McKee v. Laurion);  called a union’s attorney “a very poor lawyer ” (Sullivan v. Conway); and characterized the chairman of an election board as a “lying asshole” (Greenhalgh v. Casey). Other American courts found that a jury could find that a statement was an assertion of fact where a talk show moderator repeatedly accused a judge of being “corrupt” ( Bentley v. Bunton);  a directory described a lawyer as an “ambulance chaser” (Flamm v. American Ass’n of Univ. Women) and fictional literature labeled the plaintiff a “slut” (Bryson v. News Am.Pubs.)

In contrast, in England, the issue is normally addressed in the context of an affirmative defense, that allows the defendant to escape liability for certain statements of opinion. Thus, in England, the burden of proof and risk of non-persuasion fall on the defendant.

FULL ARTICLE

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Baltimore County Doctor Sues Client Over Online Review

May 7, 2015 

Baltimore County Doctor Sues Client Over Online Review

Lauren Kirkwood,  Daily Record

A Baltimore County doctor is suing a client who posted a negative review online after a visit to his clinic, alleging her statements were defamatory and have resulted in a significant drop in revenue for his business. After visiting Carr Medical Specialities LLC in Lutherville for a massage and facial spa treatment, Tammie J. Monaco sent Dr. Kevin L. Carr, the owner of the practice, an email expressing her dissatisfaction and intent to share her experience online through social media. In a review posted on Yelp, Monaco described the practice as “unprofessional,” the clinic’s bathroom as “filthy” and Carr as a “scam artist.”

Source


May 13, 2015

Baltimore Doctor Sues Former Patient For Bad Review

Medical Malpractice Lawyers

A Baltimore doctor who operates a skin care clinic in Baltimore County, Maryland has filed a defamation lawsuit seeking compensatory damages in excess of $75,000 and punitive damages in the amount of $1 million against a former patient who wrote a negative review of him and his clinic and posted it on Yelp.

At the conclusion of a hearing on May 7, 2015, a Baltimore judge granted the doctor’s request for a temporary restraining order that orders the former patient to remove all online posts regarding the doctor and his clinic, and further preventing the patient from posting online anything regarding the doctor or his clinic.

The patient had gone to the doctor’s skin care clinic on April 1, 2015 for a facial treatment and a massage. According to the doctor’s lawsuit, the patient arrived twenty minutes late for her appointment and complained about having to wait in a treatment room after agreeing to an abbreviated treatment time. The doctor alleges that his employee offered to stay late for the patient’s treatment but the patient left the clinic.

The doctor’s lawsuit reportedly alleges that the patient had sent him an email complaining about her experience at the clinic and advising the doctor of her intention to post about her experience at the clinic on social media.

The patient reportedly posted online comments to the effect that the doctor was a “scam artist,” that his practice was “unprofessional,” and that his clinic’s bathroom was “filthy.” The patient allegedly posted false allegations that the doctor’s clinic was understaffed and that the doctor had failed to “show up for work” on the day of the patient’s appointment, and she allegedly failed to note in her review that she had appeared for her appointment late after rescheduling her appointment at the last minute, and that she had been refunded the $40 that she had paid for her appointment, according to the doctor’s lawsuit.

In seeking the temporary restraining order, the doctor alleged that his clinic suffered a significant reduction in its business after the Yelp review appeared. The doctor’s lawsuit alleges that a significant part of the clinic’s business results from Yelp and that the reduction in the number of visitors to its website and patients to the clinic since the defendant’s negative false Yelp review appeared represents an immediate, substantial and irreparable harm to his business for which he is entitled to the issuance of a temporary restraining order against the defendant.

If you suffered an unexpected injury in Baltimore or elsewhere in the United States that may be due to medical negligence, you should promptly find a medical malpractice attorney in Baltimore, in Maryland, or in your U.S. state who may investigate your medical injury claim for you and represent you in a medical malpractice case, if appropriate.

Source


Case Information:

Court System: Circuit Court for Baltimore County – Civil System

Case Number: 03C15004927

Title: Carr, et al V. Monaco

Case Type: Tort

Plaintiff 1: Kevin L Carr

Plaintiff 2: Carr Medical Specialties LLC

Defendant 1: Tammie J Monaco

Filing Date: 05.06.2015

Case Disposition: Dismissal 11/25/2015

Source Carr, et al. v. Monaco, Circuit Court for Baltimore County, Case No. 03-C-15-004927.


Doctors Who Sued Their Patients

Star Tribune: Judge Throws Out Neurologist’s Defamation Lawsuit Against Patient’s Son

APRIL 29, 2011

Judge Throws Out Neurologist’s Defamation Lawsuit Against Patient’s Son”

STAR TRIBUNE

DULUTH, Minn. – A judge has dismissed a lawsuit filed by a Duluth neurologist who claimed he was defamed by a patient’s son who criticized the doctor’s bedside manner.

Dr. David McKee alleged in his lawsuit that Dennis Laurion of Duluth made false statements about McKee’s treatment of Laurion’s father to the American Academy of Neurology, St. Luke’s Hospital, colleagues and others. The lawsuit said Laurion alleged McKee failed to treat his father with dignity following a stroke and told him he didn’t need therapy.

SEE FULL STORY

Duluth News Tribune: “Judge Tosses Doctor’s Suit Against Patient’s Family”

APRIL 28, 2011

“Judge Tosses Doctor’s Suit Against Patient’s Family”
Mark Stodghill, DULUTH NEWS TRIBUNE

A judge threw out a lawsuit filed by a Duluth physician who said he was defamed by a man who publicly criticized his bedside manner.

Dr. David McKee, a neurologist with Northland Neurology and Myology, alleged that Dennis Laurion of Duluth defamed him and interfered with his business by making false statements to the American Academy of Neurology, the American Neurological Association, two physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s Hospital, among others.

Laurion was critical of the treatment his father, Kenneth, received from McKee after suffering a hemorrhagic stroke and spending four days at St. Luke’s Hospital from April 17-21 last year. Kenneth Laurion recovered from his condition.

Dennis Laurion claimed that any statements he made about the doctor were true and that he was immune from any liability to the plaintiff.

In his 18-page order dismissing the suit, Sixth Judicial District Judge Eric Hylden wrote that looking at Laurion’s “statements as a whole, the court does not find defamatory meaning, but rather a sometimes emotional discussion of the issues.”

Hylden addressed the fact that Laurion posted some of his criticisms of McKee on websites. “In modern society, there needs to be some give and take, some ability for parties to air their differences,” the judge wrote. “Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory.”

Hylden concluded his order by stating that there wasn’t enough objective information provided to justify asking a jury to decide the matter.

Laurion was relieved by the court’s ruling. “My parents, who are now 86, my wife, and I have found this process very stressful for the past year, since my father’s stroke. There was never just one defendant,” he said. “We’re grateful that Judge Hylden found no need for a trial.”

In his suit, McKee alleged that Laurion made false statements including that McKee “seemed upset” that Kenneth Laurion had been transferred from the Intensive Care Unit to a ward room; that McKee told the Laurion family that he had to “spend time finding out if [the patient] had been transferred or died;” that McKee told the Laurions that 44 percent of hemorrhagic stroke victims die within 30 days; that McKee told the patient that he didn’t need therapy; that McKee said it didn’t matter that the patient’s gown was hanging from his neck with his backside exposed; that McKee blamed the patient for the loss of his time; and that McKee didn’t treat his patient with dignity.

David McKee, MD, V Dennis K Laurion 2011

McKee V Laurion: Court’s Order On Defendant’s Motion For Summary Judgment

APRIL 27, 2011

Excerpted from McKee V. Laurion


STATE OF MINNESOTA

DISTRICT COURT

ST. LOUIS COUNTY

SIXTH JUDICIAL DISTRICT


David McKee, M.D., Plaintiff

V.

Dennis K. Laurion

File No. 69-DU-CV-10-1706

Court’s Order On Defendant’s Motion For Summary Judgment


The above-captioned matter came before the undersigned judge of District Court on February 10, 201 1, pursuant to Defendant’s motion f or summary judgment.Plaintiff was represented at the hearing by his attorney, Marshall H. Tanick. Defendant was represented at the hearing by his attorney, John D. Kelly. The Court reviewed all of the submissions made by the parties, including the affidavits, and also requested and received the whole deposition transcript of Defendant [sic] McKee.

Based on all of the foregoing, and deeming itself fully advised on the premises, the Court hereby issues the following:

ORDERS:

  1. Defendant’s motion for summary judgment is granted.
  2. Plaintiff’s claimed is dismissed, with prejudice.
  3. The attached memorandum of law is incorporated herein by reference.

Dated this 27th day of April, 2011

BY THE COURT:

Eric L. Hylden

Judge of District Court

The foregoing constitutes the judgment of the Court in this matter.

Dated this 27th  day of April, 2011.

/S/

Marietta Johnson

Court Administrator

MEMORANDUM OF LAW

This is a defamation lawsuit by a doctor against the son of one of his patients, who had posted unflattering comments about Plaintiff on certain Internet websites and sent letters to various groups about what he saw as Dr. McKee’s insensitive treatment of his father.    Dr. McKee sued approximately one month after the statements w ere made, and Defendant Laurion has now brought a motion, asking the entire case be dismissed, as none of the statements are actionable.

STATEMENT OF FACTS

On April 20, 2010, Defendant Dennis Laurion’s father, Kenneth Laurion, was in St. Luke’s Hospital in Duluth, having suffered a hemorrhagic stroke. On that day, he was moved from the intensive care unit ( ICU) to a standard hospital room. Mr. Kenneth Laurion’s family, including the Defendant, were with him in his room. A referral had been made to Dr. McKee internally within St. Luke’s, as Dr. McKee is a neurologist and would commonly evaluate patients who just had a stroke. Upon receiving the referral, Dr. McKee was at first unaware that Kenneth Laurion had been transferred out of the ICU, but eventually tracked him to the right room.Once Dr. McKee arrived, there is disagreement about what was said or done by Dr. McKee. The Court believes that the differences, however, tend to be issues of tone, feeling and nuance – overall the parties agree on the substance of how things went. Essentially, Dr. McKee did a neurological examination of Kenneth Laurion, but Dennis Laurion felt that the things he said and did before, during and after the examination were insensitive to Kenneth Laurion’s dignity. Defendant Laurion then posted a ‘factual recitation’ on some Internet doctor rating sites, and later sent letters to a number of individuals and organizations, making statements about how his father w as treated by Dr. McKee. The statements (and Dr . McKee’s response to them) as alleged in paragraphs 3 and 5 of Plaintiff’s complaint are as follows:

  1. Mr. Laurion alleged that Dr. McKee “seemed upset” that his father had been transferred from ICU to a general hospital room (Dr. McKee denies this);
  2. And that Dr. McKee said he had to “spend time finding out if you ( Kenneth Laurion) were transferred or died.” (Dr. McKee states that he had attempted to add some levity to the situation by making the ‘transferred or died’ comment.);
  3. Dennis Laurion goes on to quote Dr. McKee for the statistic that “44 percent of hemorrhagic strokes die within 30 days.I guess this is the better option.” (Dr. McKee vehemently denies that he ever gave anything like a percentage, and in fact accuses Defendant of pulling the number off of Wikipedia after the f act. He does, however, admit that he would have said something about there being only one of two ways to leave the ICU – improving to a transfer into a regular hospital bed, or dying.);
  4. Dennis Laurion’s Internet postings stated that when Dr. McKee had been told of some physical therapy Kenneth Laurion had been doing, he w as told, “You don’t need therapy.” (Dr. McKee denies making any such statement.);
  5. At one point in the examination, Dr. McKee was having Kenneth Laurion sit up and move to the edge of the bed to see if he could stand. His hospital gown (as they are wont to do) came open in the back and someone mentioned a concern about that. Dr. McKee allegedly said that “it doesn’t matter.” (In his deposition, Dr. McKee testified about hearing the family member’s comment: “By the way that he said this, l thought that his concern was that the gown might fall off . But I could see the knot was well tied and told him I thought it would be fine. It never crossed my mind that he was concerned about his father’s modesty with the back of the gown open.”);
  6. Next, the complaint alleges that Defendant defamed Dr. McKee by publishing that Dr. McKee strode out of the room at the end of the examination without talking to the family. (Dr. McKee states that after leaving the room, he told the family that they could go back into the room.);
  7. Dennis Laurion’ s Internet postings indicate that after this incident, he bumped into a former coworker who is a nurse. After describing the incident, this friend allegedly guessed that it was Dr. McKee, and that she had said that Dr. McKee “is a real tool!” Mr. Laurion repeated that phrase in his Internet postings. (Dr. McKee doubts the very existence of this ‘friend,’ as Mr. Laurion, at his deposition, was unable to even provide a very good description of her, much less a name or other identifying information. Dr. McKee hired a private investigator, who was unable to come up with anything more detailed.);
  8. In some of the post-incident letters, Mr. Laurion characterizes Dr. McKee as blaming Kenneth Laurion for the loss of his time.
  9. Next, Mr. Laurion’s letter indicates that when Plaintiff left the patient’s room, that he was “scowling.”
  10. Defendant’s letters say that Dr. McKee treated their relative as a “task and charting assignment.”
  11. Finally, Defendant’s letters allege that Plaintiff did not treat Kenneth Laurion with “dignity. “

LEGAL STANDARD

Rule 5 6.03, Minn.R.Civ.P. provides that a motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. Summary judgment is not appropriate when reasonable persons might draw different conclusions from evidence presented.

To preclude entry of summary judgment, genuine issues of   material f acts must be established by substantial evidence. “Substantial evidence” refers to legal sufficiency and not to quantum of evidence.   DLH, Inc. v. Russ, et. al, 566 N.W.2d 60 (Minn. 1997).   The Court must not weigh evidence in deciding whether a genuine issue of material f act exists. However, the Court is not required to ignore its conclusion that a particular piece of evidence may have no probative value.

A material fact is one that will affect the outcome or result of the case.   Zappa   v.   Fahey, 245 N.W.2d 258 ( 1976) . The facts must be viewed in a light most favorable to the non-moving party, and all doubts and factual inferences must be resolved against the moving   party. Hopkins by LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209 ( Minn. App. 1991).

The trial court is not to decide or resolve the fact issues at the summary judgment hearing, but rather determine if there is room for an honest difference of opinion among reasonable people, and deny the motion where such debate is possible.     Trepanier   v.   McKenna, 125 N.W.2d · 603, 606 (Minn. 1963) ; Jonathan v. Kvaal, 403 N.W.2d 256, 259 (Minn. ·App. 1987), review denied (Minn. May 20, 1987) .

Defamation consists of a false statement of fact made to third parties that harm the reputation of the subject of the   statements. Milkovich v. Lorain Journal   Co., 497, U.S. 1, 17-18 ( 1990) and Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn. App. 1995). A trial court is to review the statements, which must be set forth in the complaint ( See, Benson v Northwest Airlines, Inc., 561 N.W.2d 530, 538 (Minn. App. 1997) review (Minn., June 11, 1997.), and see whether any fact disputes would prevent summary judgment, as well as whether either party would be entitled to summary judgment as a matter of law. This Court will look at individual statements, but also looks at the postings and letters as a whole.      See Jadwin, Supra, 390 N.W.2d at 443.

“The district court makes an initial determination of whether the statements are reasonably capable of carrying a defamatory meaning.” Schlieman v Gannett MN Broadc asting, Inc., 637 N.W.2d 297, 307 {Minn. App. 2001 ) , citing Utecht v Shopko Department Store, 324 N.W.2d 652, 653 { Minn. 1982). Of course, “True statements, however disparaging, are not actionable. “Lewis v Equitable Life Assurance Society, 398 N.W.2d 876, 888 {Minn. 1986), citing Stuempges v Parke, Davis & Co., 297 N.W.2d 252, 255   ( Minn. 1980).

“However, statements about matters of public concern that are not capable of being proven true or false, and statements that cannot be interpreted as stating facts are protected from defamation actions by the First Amendment.”   McGrath v TCF Bank Savings, 502 N.W.2d 801, 808 {Minn. App. 1993), citing Milkovich v Lorain Journal, Co., 497 U.S. 1, 19-21, 110 S. Ct. 2695, 2706-07, 111 L.Ed. 2d 1 ( 1990). Minnesota courts apply for a four part test to determine if a statement is actionable: ( 1)the statement’s precision and specificity; ( 2) the statement’s verifiability; ( 3) the social and literary context in which the statement was made; and (4) the statement ‘s public context. ”      (Huyen v Driscoll, 479 N.W.2d 76, 79 (Minn. App. 1991 ) . The Court applies this test, because “Whether a statement can be proven false or interpreted as stating facts is a question of law.”    McGrath, supra, 502 N.W.2d at 808.

Some guidance is provided to the courts in this endeavor by other appellate decisions: “Expressions of opinion, rhetoric, and figurative language are generally not actionable if in context, the audience would understand the statement is not a recitation of fact.”  Jadwin, supra, 390 2d at 441. Put another way, “[l]f it is plain that the speaker is expressing a ‘subjective view, an interpretation, a theory, conjecture or surmise,’ rather than claiming to be in possession of ‘objectively verifiable f acts,’ the statement is not Schlieman, supra, 637 N.W. 2d at 308, citing Haynes v Alfred A. Knopf , Inc., 8 F.3d 1222, 1227 ( 71h Cir. 1998).

Taken as a whole, the statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by a physician.  While Dr. McKee’s complaint alleges that all of the comments made by Mr. Laurion are utterly false, there is a common thread tying together both sides of this story. Some of that common thread comes from Dr. McKee’s own testimony.  In modern society, there needs to be some give and take, some ability for parties to air their differences.  Today, those disagreements may take place on various Internet sources.   Because the medium has changed, however, does not make statements of this sort any more or less defamatory. Looking at the statements as a whole, the Court does not  find defamatory meaning, but rather a sometimes emotional discussion of the issues.

Taking each of the statements individually, the Court also finds no individual statement to be defamatory:

  1. Dr. McKee seemed upset about the transfer from ICU – From the Court’s perspective, this is a completely subjective opinion expressed by Mr. Laurion.      For a number of statements like this, the Court considered the question of what exactly the jury would be asked to decide: Here, the question would have to be whether Dr. McKee seemed upset to Mr. Laurion. In summary, there simply is no ‘fact’ that might be proven false.
  2. Dr. McKee ‘had to find out if you transferred or died’ – Dr. McKee admits in his deposition that he made a statement substantially similar to this one, characterizing is as a ‘jocular’ comment. While Dr. McKee recalls the language that he used slightly differently, the import was the same.   Given that truth is a complete defense to a claim of defamation, the Court finds no basis for a defamation claim on this item.
  3. The 44 percent comment – Dr. McKee finds this statement especially offensive, given that he had never heard of the percentage quoted by Mr. Laurion and because he posits, somewhat convincingly, that Mr. Laurion may have made this up after the fact based on a figure he obtained from Wikipedia.    The problem is that, even if the figure used was made up, and therefore false, the general import of the conversation (that some stroke patients never make it out of the ICU alive) is true, as confirmed by Dr. McKee in his deposition. Where the ‘gist’ or ‘sting’ of the alleged statement is true, the Jadwin Court instructs us it is not def amatory, even if some particular of the statement is false. See Jadwin, 390 N.W. 2d at 441.
  4. “You don’t need therapy” – The Court finds this statement is not capable of carrying a defamatory meaning.Even if we assume that Dr. McKee never said those words, it is difficult to see how such a statement would lower anyone’s opinion about Dr. McKee. Based on the information available, that could well be a perfectly valid medical opinion. There is nothing about it that suggests that Dr. McKee does not meet up to any personal or professional standard.
  5. The gown incident – Dr . McKee also complain about Mr. Laurion’s retelling of the hospital gown incident – specifically, that Dr. McKee had said “that doesn’t matter.”In his deposition, however, Dr. McKee describes essentially the same incident, noting his perception that since the top of the gown was tied securely, it would not f all off entirely, and stating that it never even crossed his mind that the Laurion family might be concerned about the back of the gown falling open. Thus, the ‘gist or sting’ of Defendant’s postings and letters on this subject are true, although they have a different perspective.
  6. He left the room without talking to the family – The next allegedly defamatory statement is that Dr. McKee left the room without talking to the family.      Dr . McKee’s version is that he left the room and told the family “You can go in now.” Again, the parties are talking about the same thing, from different perspectives.It is hardly worth calling a jury together to determine if “not talking to the family” was meant literally as in not a single word, or figuratively in that Dr. McKee did not say anything substantive about his examination of Mr. Laurion. There is simply nothing for a jury to decide here.
  7. “A real tool” – Plaintiff also complains of Mr. Laurion republishing another person’s description of him as ‘a real tool.’ Interestingly, no one could say what the term means, although everyone assumed that it w as not complimentary.      Either w ay, it does not matter because the term falls squarely into the same category as ‘troublemaker’ and ‘brown nose,’ as outlined in McGrath and Lund, supra.As is evidenced by the f act that no one knows its meaning, the term is too vague to be defamatory.
  8. The Plaintiff blames his patient for the loss of his time – This is the first of the statements not published on the Internet, but included in letters Defendant sent out to various individuals and organizations. All of them simply offer Defendant Laurion’s perception.  This is fatal to Dr. McKee’s lawsuit on summary judgment, because it is evident that none of them constitute provable facts. With this allegation, for example, it would be impossible for one side or the other to prove or disprove Mr. Laurion’s perception – that Dr. McKee blamed Kenneth Laurion for the loss of Dr. McKee’s time. Clearly, Dr. McKee could come in and testify that he did not. Similarly, Mr. Laurion could come in and testify that this was his perception of Dr. McKee’s demeanor. In the end, the jury would be left to divine the internal feelings of others, rather than whether a given fact was probably true or false.
  9. “Scowling” – Similarly, Mr. Laurion’s perception that Dr. McKee was scowling as he left the room is not a provable fact. What some people might perceive as a scowl might simply be another person’s standard facial expression.Even if we had a videotape that recorded the expression, the jury would be left with an allegation on one side and a denial on the other as their only basis for making a decision on whether defamation had occurred. This is not enough.
  10. The patient was a task or a charting assignment – Dennis Laurion’s subjective evaluation of how his father was treated falls into the category of opinion. As with the preceding items, this leaves nothing for the jury to decide.
  11. Dr. McKee failed to treat the patient with dignity – This, more than any other allegation, constitutes an unprovable subjective opinion. As with the others, both parties could undoubtedly produce testimony to support their version of things, but it would be impossible for Plaintiff or Defendant to prove an opinion – whether Kenneth Laurion was treated   “with dignity.” We could certainly ask a jury to form their own opinion, but the jury ‘s proper role is to find facts. Based on the information provided to the Court, there would not be enough objective information to justify a jury trial in this matter.

ELH

SOURCE

ALERT PRESENCE: “A Physician Review Gone Wrong”

MARCH 24, 2011

“A Physician Review Gone Wrong”

Brett Pollard, ALERT PRESENCE

For several years now, I have been actively involved in issues related to reputation management for physicians. It’s an issue I’ve discussed at length with clients and offered thoughts on this blog. Through my research, I have come across some pretty interesting examples of the challenges physicians face in a world where there are dozens of online review sites. However, I stumbled across a very interesting situation where a doctor’s decision to sue the son of one of his patients for a negative review resulted in a reputation disaster.

After the lawsuit was detailed twice in a Minnesota newspaper, a local resident took action by posting a critical comment and link (screenshot below) on the social news site, Reddit. With a user-controlled ranking system Reddit features the most popular posts to an audience generating over 1 million page visits per day. As you might expect, negative exposure on a site like this leads to undesirable consequences.

I have no interest in offering insight into the specifics of the legal matter as my knowledge of how this all transpired is limited to the information provided in the newspaper articles. However, the fallout from the lawsuit certainly warrants exploration. There is something to be learned from this for those in a position to advise physicians about appropriate responses to negative reviews. It’s necessary to have an understanding of the potential backlash if your response is not well received by the general public. This situation also illustrates the need to have a strategy to help prevent a scenario that may lead to irreparable harm to the physician’s reputation.

Timeline and Consequences

June 2010 – A doctor from Duluth, Minnesota files a lawsuit against the son of a former patient claiming the son made defamatory statements about his father’s care. The statements were allegedly posted on a physician review site in addition to complaints lodged with the associated hospital and other third parties. The local paper publishes an article reporting the lawsuit where the defendant’s lawyer admits his client posted the negative review but later requested successfully for it to be removed from the site.

February 2011 – The local newspaper publishes a follow up story regarding the lawsuit with an update of the legal proceedings.

March 2011 – A regular user of the social news website, Reddit, posted a link to the story on March 21st, 2011 while suggesting the Reddit community should post poor ratings for this doctor on various physician review sites.

A simple Google search reveals this is exactly what happened. After examining some of the top search results for the doctor’s name, it is clear the Reddit post triggered a large number of negative reviews – many of which are clearly fabricated. The following is just a sample of what I found.

Google Place Page – Since Google pulls in reviews from various sources, my focus was only on those reviews posted through the Google Review service. There were 33 reviews (all of which were negative) and every one was posted on March 22nd or later.

Vitals – There were a total of 39 written reviews. 32 of the reviews were posted on March 21st or later and each one was negative.

Healthgrades – There were 34 patient ratings on Healthgrades (mostly negative). In this case, the dates of each review are not posted so it’s unclear how many of them are a result of the Reddit community response.

I’m not all that surprised by the backlash – especially considering the story gained considerable traction on Reddit. It’s just another good example of the viral power social media possesses.

Filing a lawsuit against a patient for a negative review is a very slippery slope – even if the statements are defamatory. What alternative actions exist for dealing with a harmful or misleading review? This question is generic and does not imply the patient in this case made any defamatory statements. That is for the courts to decide.

Brett Pollard is an online marketing consultant specializing in web 2.0 strategies, local search, SEO, ORM and social media for the healthcare industry and small/medium-sized businesses. With over a decade of Internet marketing experience for private ventures, Brett now shares his expertise with clients throughout North America.

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Comments:

Lora Baker:

Wow -just checked his Google reviews. They are so obviously fake that it is hard to believe they are still posted. Unfortunately for this doctor, his choices have resulted in nationwide backlash. If any prospective patient looks him up before calling, they will clearly choose another doctor. I recommend to our clients to work out bad reviews with the reviewer if possible – behind the scenes. If not, most potential clients understand that everyone can end up with a bad review or 2 -most people are more motivated to leave a review if they are upset. Now, Dr. David McKee has so much (fake) bad feedback out there that his reputation is in tatters. Yikes -so glad he is not my client!

Susan January:

The Minnesota State Court of Appeals has issued an opinion. Filed January 23, 2012. Affirmed in part, reversed in part, and remanded. The interfering with business claim was dismissed as being without merit. The patient’s son’s comments are exhaustively reviewed by the court and classified as either opinion (dismissed) or factual assertions. Since the asserted facts of the situation are for a jury to decide, on 6 picky little points the doctor is entitled to a jury trial to determine the facts. The factual assertions that are in dispute verge on opinions or beliefs, because the doctor and the patient’s son dispute what was said and/or what was meant by what was said. They thought he was a jerk, the doctor says he was joking or being friendly or didn’t see them or they don’t understand what he meant. Good example of taking things way too far and doing more damage in the process. Good grief.

Susan February:

My husband is a top performing Cardiac surgeon with great results.But a colleague of his who has been banned from operating due to disruptive behavior is writing bad reviews of him on vitals. How I know this is that every time he gives himself a great review,he gives my husband a bad one. And a doctor who has not done heart surgery for 6 months is getting great reviews and a doctor working every day – 24hrs with all his patients going home in less than 3-4 days is getting bad reviews –on VITALS -something needs to be seriously done.

Samantha Theras:

This can be so frustrating to deal with. Numerous websites online are misleading and fighting bad online reviews with litigation has proven itself time and again to have the worst consequences. The results are never what you expect them to be. I’m sympathetic to some situations in where it is a legitimate review with constructive criticism although, some reviews can be and are bogus.

DULUTH NEWS TRIBUNE: “Duluth Man Fights Defamation Suit By Doctor He Criticized”

FEBRUARY 10, 2011

“Duluth Man Fights Defamation Suit By Doctor He Criticized”

Mark Stodghill, DULUTH NEWS TRIBUNE

A Duluth physician who sued a patient’s son for defamation was in court as the son attempted to have the case thrown out. Dr. David McKee, a neurologist with Northland Neurology and Myology, Duluth, Minnesota, filed the lawsuit against Dennis Laurion of Duluth in St. Louis County District Court in 2010. McKee alleges that Laurion defamed him and interfered with his business by criticizing him by making false statements on websites and to various third parties including other physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee, St. Luke’s hospital and professional organizations.

Laurion’s father, Kenneth, now 85 and a Navy combat medic in the Solomon Islands during World War II, suffered a hemorrhagic stroke and was treated by McKee at St. Luke’s hospital April 19. He recovered from his condition. However, he and his family allege that McKee was rude and insensitive to the patient in his actions and comments.

The defendants claim that when McKee didn’t find Kenneth Laurion in the Intensive Care Unit, he said: “I had to find out whether you had transferred or died.” McKee confirmed in deposition that he made the statement, but claimed it was a jocular comment meant to relieve tension.

Kenneth Laurion, his defendant son, and daughter-in-law were in the courtroom Thursday, as was plaintiff McKee. McKee is asking for more than $50,000 in damages. Laurion claims that any statements he made about the doctor were true and that he is immune from any liability.

Duluth defense attorney John Kelly argued that his client’s statements were substantially true, were statements of opinion and couldn’t be demonstrated to be false. “He is standing up and speaking out for his father. That is his motivation … in the hope that something gets done,” Kelly told the court.

McKee is represented by Minneapolis attorney Marshall Tanick. Tanick told the court that Laurion used the websites as a “weapon of mass destruction” to injure the reputation of McKee, place the doctor in a negative light and impugn his professional practice.

In a written motion, Tanick wrote, “The totality of statements made on these websites would be injurious to the reputation and standing of a doctor in the eyes of others who might see it, including patients or prospective patients, colleagues, peers, referral sources, and others.”

Sixth Judicial District Judge Eric Hylden is presiding over the case. As the parties introduced themselves to the court, Hylden told them it was a “very interesting type of case.”

Thinking out loud, Hylden suggested that Laurion has a constitutionally protected right to an opinion, but “isn’t there some limitation on what a person can say in that public forum?”

Kelly said his client made his statements of opinion in good faith and they were not demonstratively false. “There has to be a protected area in which someone like Dennis Laurion can come forward, stand up and speak for his father and say, ‘Look, in this particular instance, my father didn’t get treated very well and you ought to know that.’ ”

Tanick argued that Laurion’s criticism goes much farther than that. “He chose to tell the world at large in a way that was injurious to Dr. McKee’s reputation,” Tanick said.