LEGALLY DUMB

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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

“CALIFORNIA LAWYER: Online Libel Claims Abound”

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JUNE 2009

“Online Libel Claims Abound”

June D. Bell, CALIFORNIA LAWYER

 Since its founding in 2005, Yelp.com—a website where consumers review everything from cappuccinos to car mechanics—has published more than 5 million write-ups of local merchants. But in the past twelve months its online reviews have also triggered at least three defamation lawsuits.

Positive reviews can attract new customers—but negative reviews may inspire the subjects to head to court. One suit, waged by a chiropractor who was poorly reviewed on Yelp, settled in mediation earlier this year, and a second suit, filed last year by a pediatric dentist, is pending on appeal. A third case, also involving a dentist, settled last year after a superior court judge in San Francisco, where Yelp is based, granted the defendant’s anti-SLAPP (Strategic Lawsuits Against Public Participation) motion. California attorneys, meanwhile, say they’re fielding an increasing number of calls from angry business owners seeking recourse.

“It shouldn’t come as a surprise, due to the sheer increase in popularity of these sites in the past year,” says Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation, a nonprofit civil liberties law firm in San Francisco that specializes in high-tech legal issues.

Suing the host sites for their user-generated content is, of course, fruitless: Section 230 of the federal Communications Decency Act (CDA) shields the sites from defamation suits as long as they didn’t create the objectionable materials.

The aggrieved parties, however, can and do go after the reviewers (known as posters) who publish their opinions online. Legally, posters have plenty of leeway – as long as they don’t cross the line into defamation, says Karl Kronenberger, a partner at San Francisco’s Kronenberger Burgoyne who represents businesses in such matters. And California’s anti-SLAPP law shields people who speak out on issues of public interest—a protection that broadly extends to consumer matters.

In addition to being difficult to prove and win, allegations of online defamation can also backfire: A stray negative posting may fade into obscurity, but a lawsuit over it can provoke exactly the kind of negative publicity that business owners are desperate to avoid, notes Mark Lemley, who teaches Internet law at Stanford Law School and is a partner at Durie Tangri Lemley Roberts & Kent in San Francisco.

This is a key reason many experts advise that, whenever possible, attorneys should help their clients settle such matters. In fact, Yelp is among the sites that try to mediate between merchants and consumers by hooking them up to smooth out their differences. And in April, Yelp followed sites such as Trip Advisor and eBay by letting merchants respond online to negative feedback.

In the meantime, the smartest strategy for merchants who’ve suffered a withering critique may be to rally patrons to post rave reviews. “The answer to negative speech, especially online, isn’t to try to silence people,” Zimmerman says, “but to encourage more speech.”

FULL ARTICLE

BRAVERMAN V. YELP

DENTISTS WHO SUE FOR DEFAMATION

Kimberly HENRY, MD

Jean LOFTUS, MD

Sagun TULI, MD

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

 

ACP INTERNIST: “Physicians Who Sue Patients Don’t Get What They Want”

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MAY 2, 2011

“Physicians Who Sue Patients Don’t Get What They Want”

ACP Internist

A physician claiming he was defamed online by a former patient’s son lost his court case after the judge dismissed the suit. The case illustrates the perils of suing when a patient criticizes a physician online.

The judge in the case said that the patient’s son expressed emotional responses to his father’s care on the Internet, but that’s allowed in society. And, the judge wrote, expressing it on the Internet doesn’t make the opinions more defamatory.

Patient feedback via the Internet can be negative, anonymous, and even unfair, and physicians often sue to protect carefully cultivated professional reputations. For example, plastic surgeon Kimberly Henry, MD, is pursuing by their online aliases 12 defendants who posted critical comments. That case is ongoing.

The case in Minnesota was against one known defendant, the son of a patient who alleged that neurosurgeon (sic) David McKee, MD, became upset in consulting with the family about the patient’s condition, and that McKee didn’t treat the patient with dignity.

The lawsuit alleged that the son complained to 19 medical and professional societies, government agencies at all levels, the hospital and to other physicians (as well as posted Internet comments using several aliases).

The neurologist told the Duluth News Tribune that, “I’ll make the observation that every one of those organizations that was required to make an official decision or take an official action either determined that the statement that he made was so ludicrous that it required no response from me at all or decided that his complaint had no merit.”

But the judge decided that physician’s complaints didn’t merit a jury’s consideration.

“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.”

The outcomes for physicians who sue patients for online reviews can be mixed, at best. California dentist Gelareh Rahbar, DDS, sued a former patient who described a procedure as “mouth torture.” But a judge tossed the suit under the state’s anti-SLAPP law, which stands for Strategic Lawsuit Against Public Participation–any attempt to use the courts to squelch allowed free speech. The dentist had to pay $43,000 for his patient’s legal fees.

SOURCE

Comments:

Anonymous said: The judge’s order has been publicly posted.

Ryan DuBosar said: In an update to this post, the physician involved has filed an appeal to the dismissal of his suit, claiming that the alleged defamation by his former patient’s son not only continued, but increased.

Reddit Reader said: The Minnesota Court Of Appeals has scheduled David McKee MD v Dennis Laurion for a hearing by a panel of three judges. The oral hearing will be November 10, 2011, at 10:00 AM in the Sixth District Court House of Duluth.

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