McKee V. Laurion: Dr. David McKee Is Deposed About Circumstances And Events After His Encounter With The Laurion Family

The following text is copied from Exhibit AA-156 of David McKee, MD, V. Dennis K. Laurion.

State of Minnesota District Court
Sixth Judicial District
File # 69DU-CV-10-1706

David McKee, MD, Plaintiff, vs. Dennis K. Laurion, Defendant

Deposition of David C. McKee, MD, January 7, 2011

Carol Danielson Bille, RPR, Danielson Court Reporting, LLC The following is the deposition of David C. McKee, MD, taken before Carol Danielson Bille, RPR, Notary Public, pursuant to Notice of Taking Deposition, at the law offices of Hanft Fride, PA, 1000 U. S. Bank Place, 130 West Superior Street, Duluth, Minnesota, commencing at approximately 11:43 a.m., January 7, 2011.

Appearances

For the Plaintiff:
Marshall H. Tanick, Esq.
Mansfield, Tanick, and Cohen, P. A.
1700 U. S. Bank Plaza South
220 South Sixth Street
Minneapolis, Minnesota, 55402-4511
612-339-4295

For the Defendant:
John D. Kelly, Esq.
Nathan N. LaCoursiere, Esq.
Hanft Fride, PA,
1000 U. S. Bank Place,
130 West Superior Street,
Duluth, Minnesota, 55802
218-722-4766

Proceedings

MR KELLY: The hospitals and the medical profession have promulgated what is known as a patient’s bill of rights. Correct?

DR MCKEE: Yes.

MR KELLY And, among other things, that bill of rights encourages patients to express concerns that they may have about their or a near relative’s patient care?

MR TANICK: I’m going to object to that. Calls for a legal conclusion. The statute says what it says.

MR KELLY: Go ahead.

DR MCKEE: I don’t know offhand what the details of the patient’s bill of rights includes.

MR. KELLY: Have you ever – –

DR MCKEE: I suspect that it’s – –

MR. KELLY: Have you ever read it?

DR MCKEE: You know, I probably have. But I certainly haven’t read it anytime recently. I’m aware – – excuse me.

MR. KELLY: Sure.

DR MCKEE: I’m aware of the patient’s bill of rights and – – and have a rough idea as to what’s in there, but I don’t think I can answer specific questions about it.

MR. KELLY: I’m showing you what’s been marked as Exhibit Number 6 (Handing).

DR MCKEE: (Reviewing document.)

MR. KELLY: Exhibit Number 6 is Mr. Tanick’s letter of May 7, 2010?

DR MCKEE: Yes.

MR. KELLY: If you turn to page 2 of the letter, you are not shown as having been copied on that letter. Would you agree?

DR MCKEE: Yes.

MR. KELLY: Had you seen this letter before it was sent to Dennis Laurion?

DR MCKEE: (Reviewing document.) I – – I don’t recall. I know I’ve seen the letter – – this letter before. I don’t recall whether or not I saw it before it was sent or after it was sent.

MR. KELLY: Were you told that Mr. Laurion had, to use the term that has been employed here earlier, taken down his comments from the Web sites?

DR MCKEE: I’m sorry. Could you say that again.

MR. KELLY: Yes. Were you told that Mr. Laurion took down the comments he posted on the Web sites?

DR MCKEE: There was some point at which I was told that – – that he had communicated that he had removed some of what he had posted on the Web.

MR. KELLY: Did you look to see whether in fact that has been accomplished?

DR MCKEE:  Yeah, and it hadn’t been accomplished.

MR. KELLY: Do you know whether or not by that point in time he had requested that it be taken down?

DR MCKEE: I think I know that he claimed to have made an effort or tried to take some of this down.

MR. KELLY: Do you have some reason to believe that he had not?

DR MCKEE: Well, I suppose you’re asking me to speculate, and – –

MR. KELLY: No, I’m asking whether – – I’m not asking you to speculate. I’m asking whether you have some reason to believe that, in fact, Dennis Laurion had not requested that those Web sites be taken down – – or that his comments be taken off?

DR MCKEE: You know, I think I do have some reason to suspect it. If you ask if I think that he did make an effort to remove some of what he had done, my answer is – – my best guess is that he made some effort to remove some of what he posted. But how certain of that am I? I don’t know. I’m not entirely certain at all. I – – I think he – – Dennis Laurion is a very dishonest person, and I think there have been any number of examples of contradictions and out – and – out untruths that he has made verbally in the last two days, and – – and more importantly, in print and electronically before this. Frankly, I think you know that too, because there have been any number of inconsistencies that have come to light in these two days of depositions.

MR. KELLY: The – – the letters that you submitted here to the Board of Medical Practice, two letters, and the one letter to Dr. Peterson, represented your considered response to Mr. Laurion’s complaints about you. Am I correct?

DR MCKEE: Yes.

MR. KELLY: Now, Doctor, tell me, if you would, in your own words, to what extent you believe you have been harmed or damaged by Dennis Laurion’s criticisms of your conduct of your examination or during your examination of Kenneth Laurion on April 19th of 2010. Would you, please?

DR MCKEE: I think I’ve been harmed to a great extent. That’s a qualitative, not a quantitative term, but, you know, but I can give you some rough idea as to what I’ve been through since then. This has been extraordinarily stressful. There hasn’t been a four – day stretch since this happened in April that I haven’t had at least one night where, in the wee hours of the night, I haven’t been wide awake thinking about this. My three daughters, 16, 13, 9, at various points along the history of all of this, became aware of Mr. Laurion’s work and comments, always in very unpleasant circumstances. My 9-year-old actually had the mother of a friend of hers confront her very undiplomatically about this. All of them have come to me very upset on different occasions about the results of Mr. Laurion’s efforts. The amount of time that I’ve invested related to this is probably much more than you would imagine. During the first three or so months following his postings, I was easily taking an hour a day out of my work schedule to deal with this. It’s been less since then, but – – and that’s just time out of my work schedule. I would say that since late April, in an average week, I’ve probably spent, you know, probably seven to ten hours related to – – to these issues, more again in the first half of that time frame than the second half. It’s been – – it’s been frustrating, infuriating, and anxiety-provoking, and at times very embarrassing. And I will give you a specific example that occurred just a short time ago, some weeks back. I don’t know if you’re familiar with the Integrity Health Network. It’s a relatively new organization, but it’s effectively a merger of Northland Medical Associates, North Star Physicians, and half a dozen clinics within, oh, a 100 and – – 150 mile radius or so of Duluth, and it – – it includes around 220 physicians. It has a CEO, a director of quality assurance, two medical directors, one in charge of the specialists and specialty care, and one in charge of primary care, and a COO, and I am the medical director in charge of specialty services. At a meeting that we had of the – – the officers that I just mentioned not very many weeks ago, it came up somewhat parenthetically that the CEO mentioned that there is an iPhone ap that a lot of the primary care physicians were using and finding very helpful called iTriage, nothing that I had ever heard of before. And he described this – – this application. It’s essentially a – – something that can be downloaded into an iPhone, and once you go into this ap, there – – there are sections that allow primary care physicians to input symptoms and – – and physical signs of a patient, and then the application gives a list of potential diagnoses and – – and suggestions for work-up. The other major component of the ap is a database for making referrals to specialists, and it can be entered by a physician’s name or by specialty. You can choose to – – you know, you can say, “I want a gastroenteroologist, but I want one within a thirty-mile radius,” and this sort of thing, and then it spits out names, and as it happens, ratings of those doctors. And as a point of demonstration, he – – he punched in, obviously never having done this before, “Well, let’s just say we need a neurologist that it within 25 miles of Cloquet,” and he ran this through. And – – and all of the neurologists that practice in Duluth – – there are none that are based in Cloquet, but all of the neurologists that practice in Duluth, and even some that no longer practice in Duluth, came up on the listing. Only one of them had ratings, and that – – that was me. And they were all – – the ratings were essentially Mr. Laurion’s work.

MR. KELLY: Were the – –

DR MCKEE: So this – – these Web-based projects have sort of metastasized throughout the Internet, well beyond where he initially entered them. And this – – he – – he punched this in, and one of the others was sitting right next to him in a position to see the result that he had, and suddenly the smile came off of his face and he didn’t say anything and just shut the phone off and set it down on the table. Well, it was pretty obvious that what he had seen was quite derogatory.

MR. KELLY: Did you look to see what he saw?

DR MCKEE: Today, I did, yes.

MR. KELLY: And what did you find?

DR MCKEE: I found that the – – there was some scoring there obtained from Health Grades.

MR. KELLY: And Health Grades is a website?

DR MCKEE: It’s one of the ones that Mr. Laurion worked on, yes.

MR. KELLY: All right. And was there text or were there numerical scores or stars? What I’m trying to figure out is what you saw.

DR MCKEE: What I saw were numerical scores, but what they had told me at the time was that there was text available too. So I don’t know if the text is now reviewed, but the numerical scores are still there.

MR. KELLY: And how do you know whose numerical scores they are – –

DR MCKEE: Well, after – –

MR. KELLY: – – or were?

DR MCKEE: After the patient brought to my attention Mr. Laurion’s handiwork on the Web, as I’ve already testified, I did soon thereafter look on the Internet to – – you know, and found these Web sites and – – and found what he had entered and saw that he had given me the very lovely objective scores of 1 on a scale of 10 and so forth. And, actually, most of these – – in fact, all of these sites, there was very little data, so it’s – – it’s a simple mathematical calculation if you know that there are – – you know, all of them tell you how many people have given a score.

MR. KELLY: If I can stop you right there, do you know from your own observations or investigations how many people have scored you on these Web sites?

DR MCKEE: It’s just a very few. It’s – – it’s, you know . . .

MR. KELLY: But how many is a very few?

DR MCKEE: I don’t remember offhand. We’re talking, you know, very much single digits. Three, four, five, in that ballpark. It wasn’t the same number on each site, but it’s a small number, and in each case it was very easy to do the math to figure out what the average score would have had to be before getting a bunch of 1’s to bring it down to what it is now. That’s – – that’s, you know sixth grade math.

MR. KELLY: Did you find – –

DR MCKEE: And I ran the – – I did these calculations. My scores prior to Mr. Laurion’s efforts were not mediocre. Well, I guess we don’t know what he means exactly by “mediocre,” but they were not low scores before – – his input.

MR. KELLY: How do you know what your scores were before Mr. Laurion’s input if you never looked?

DR MCKEE: Because it’s – – as I said, the math is very simple. If – – if you – – let’s – – let’s take an over-simplified example. Let’s suppose it’s a 5-point scale and you know that there are – – that there have been only two people who have input scores, and that one of them has given you 1’s because they show up as the most recent entry and there are a bunch of 1’s, and you know that your average – – the average score, which is also given by these sites is a 3. Well, the mathematics are very simple. What number, averaged with 1, gives you 3, when there are two numbers to average. The answer is 5. So it’s only slightly more complicated to find out that, say, there are a total of four entries, and let’s suppose the average is now 2. You can still work backwards, carry out the calculations, and figure out what the average had to be before you were given a bunch of 1’s or zeros or whatever. And – – and I did do that.

MR. KELLY: Mm-hmm.

DR MCKEE: So it’s – – it’s – – it’s a simple mathematical exercise.

MR. KELLY: I have seen, and perhaps you have, several of these Web sites’ ratings on which you received very favorable comments. Have you seen those?

DR MCKEE: Yes, I have.

MR. KELLY: And do you think that it is possible that different people would have different perceptions, different reactions to their interactions with you?

DR MCKEE: Of course.

MR. KELLY: And that those may be reflected in these crude numerical appreciations of – – that are expressed in these ratings.

DR MCKEE: Yes.

MR. KELLY: There’s nothing scientific about them?

DR MCKEE: Well, nothing very scientific; I’ll grant you.

MR. KELLY: And have you found, Doctor, in your inquiries or discussions with people that these rating services have any real significance among the patient population?

DR MCKEE: It’s hard to know. The – – for me, this – – this finding on this iPhone applcation was much more disturbing. It – – it is the result of Mr. Laurion’s handiwerk. It has much more potential to impact me, I think, than the – – you know, the – – the initial location of these. And I say that because, first of all, I don’t know how – – how often these things are consulted. I suspect that, among younger patients, probably quite routinely. Among older patients who I suspect don’t use the Internet very much, probably not as often. But for – – for a neurologist, at least in my practice, to some extent, to a large extent from a – – let’s say, a business standpoint rather than a professional one, my customers, if you will, are not so much the patients as their referring doctors. In fact, as – – the practice in – – in my clinic is that we, since the middle of 1993, don’t normally allow patients to self-refer. We make exceptions. You know, we very routinely let physicians and nurses self-refer, but we don’t let most patients self-refer because we used to find that maybe a quarter of patients that – – that would make an appointment, we would get them in and find out that they didn’t really have a neurologic problem, that they would have been better off seeing some other specialist.

MR. KELLY: Or their GP or their family physician, perhaps?

DR MCKEE: Perhaps, but usually this is a situation where the family doctor or GP has given the person some reason to think that – – that this is outside his or her area of expertise and, you know, for whatever reason, hasn’t made a referral, so then the patient takes it upon himself to do this. But they get it wrong. You know, they – – not intentionally, of course, but just basically end up in the – – not seeing the most appropriate specialist. So many years back we took the policy of not allowing patients to self refer. And so if we think, from a business viewpoint that – – that my flow of patients depends on what their – – their primary physicians, and also some other types of specialists refer a lot to neurology and neurosurgeons – – orthopedic surgeons, rheumatologists, a few others. But – – but, you know, our flow of patients depends on the reputation that I have among these other physicians. And I hear from – – from the chief nonmedical person in our organization, who very much has his fingers on the pulse of what the primary care doctors do, that there’s this wonderful ap that you can get on your iPhone that they’re using a lot now for initial work-up and for referrals, that my name pops right up there, when you input neurologists, with these very unfavorable results. It would be hard to precisely quantify how much business I’ve lost from that, but it darn well isn’t a good thing. And I guess – – I apologize because I know that this has been a longwinded answer, but I want to make one other point about the harm here, and I mean this very sincerely. The work that I do is not – – I do not see my – – my job as, you know, see patients, dictate report, go home, get paid. It – – it isn’t anywhere near that simple. A very large part of what I consider to be the reward of my work is my reputation. If I worked solely with financial consideration in mind, my practice would be very different than what it is. About 10 percent of the patients I see are not able to pay, and we know that from the get-go.

MR. KELLY: Mm-hmm.

DR MCKEE: And another 30 percent or so are not able to pay. These are primarily people on Medical Assistance. They are not going to be paying adequately to cover the overhead that I encounter during the time that I’m seeing them, so I’m getting paid something, but I’m losing money in seeing them. So this is in the ballpark of 40 percent of the practice time in terms of time spent seeing people that either aren’t go to pay anything – – you know that up front – – or that you will not get enough money to cover your overhead and you’ll be losing money. If – – if my sole motivation as a physician were to make money, I could very easily change my practice around. I could say, “We don’t see Medical Assistance and we don’t see people that don’t have verified insurance of some form, and if they don’t have insurance, they have to pay in advance.” If I did that, instead of working typically 65 hours a week and being on call for half the hours in a week, for which I get no compensation at all, I could work probably 35 or 40 hours a week and probably completely eliminate my call responsibilities, and I would make the same amount of money that I make now, and my lifestyle would greatly improve. So since that would be a very simple thing to do, and I don’t do it, it – – it should be fairly clear to see that – – that I do the work that I do for reasons that aren’t limited to financial compensation. So, you know, reputation is an awfully large part of that, and to have somebody make a cottage industry of out destroying my reputation, contacting fourteen physician groups and professional organizations, three media sources, four or five Web sites over the course of weeks, and – – and continuing to post and re-post what’s at his disposal, this is extraordinarily disturbing. I think you can understand why I’ve lost an awful lot of sleep over this over – – over the last months and why I felt compelled to pursue this.

MR. KELLY: If a patient or a close member of a patient family had what he or she considered to be a legitimate criticism or complaint about some aspect of your practice with a particular patient, it would be right for that person to articulate the criticism. Don’t you agree.

DR MCKEE: I agree.

MR. KELLY: And for a layman, the precise target of that criticism, that is the place to lodge it, might not be well-known. Would you agree?

DR MCKEE: I agree. I think that – – that the obvious first place to – – to place that concern is with a face-to-face or phone-to-phone encounter with the physician, that anything short of that is – – is somewhat passive aggressive.

MR. KELLY: Doctor – –

DR MCKEE: Making over two dozen contacts without having made any effort to interact with the physician is not just passive aggressive; it’s malicious.

MR. KELLY: When you were first apprised of Dennis Laurion’s response, reaction, as he wrote it down, your encounter with Kenneth Laurion, as I recollect it, it was when this patient of yours brought this Web site posting to your attention. Am I right?

DR MCKEE: That’s correct.

MR. KELLY: Did you ever once attempt to contact Dennis Laurion?

DR MCKEE: Essentially, yes.

MR. KELLY: How?

DR MCKEE: Once that was brought to my attention, that same day I asked my office manager when Kenneth Laurion’s follow-up appointment was scheduled, and she checked and found that at the time of discharge they had erred and had not made a follow-up appointment. I say “erred” because making a follow-up appointment, a post-hospitalization appointment for somebody who’s had a stroke is pretty routine. And so once she related this to me, and very much with the knowledge in mind that Dennis Laurion had made these postings, I told her to be sure to contact Kenneth Laurion and schedule him for a follow-up appointment and to do it as soon as was practical.

MR. KELLY: Did she?

DR MCKEE: She – – she did.

MR. KELLY: And what did she report back to you?

DR MCKEE: I will tell you what she reported back to me. She reported that she made the appointment and talked to Lois Laurion, Ken – –

MR. KELLY: Kenneth’s wife, Lois?

DR MCKEE: – – Kenneth’s wife.

MR. KELLY: Yes?

DR MCKEE: And that she related that she would be happy to bring him in for his appointment. But either in that conversation or in one that occurred the next day, and I can’t remember which, Lois Laurion conveyed to my then office manager that Dennis Laurion had told her that he would under no circumstances bring his father in for this follow-up appointment, and so she regretted – – Lois Laurion regretted that, as they depended on Dennis Laurion for transportation and that he was refusing to bring his father in, that they probably would not be able to keep his appointment. So it was very much my goal, in having this follow-up appointment made, to have the opportunity to talk to Dennis Laurion, with the expectation that he would be there.

MR. KELLY: All right. Bearing in mind what you’ve told me, did you, in follow up, attempt, not through your office manager or through a nurse, but yourself directly, to make contact with Kenneth Laurion or with Lois or with Dennis or with Bonnie – –

DR MCKEE: Her – –

MR. KELLY: – – to see if you could – –

DR MCKEE: Sorry.

MR. KELLY: – – clear this thing up?

DR MCKEE: It – – it was the impression of my office manager that Lois Laurion and Kenneth Laurion wanted to come in for a follow-up appointment, and so therefore it was my understanding, from what she told me, that they didn’t perceive a problem. Obviously, Dennis Laurion did, since there didn’t appear to be a problem from the standpoint of the patient, who, in fact, is my principal concern, really; my only professional concern. It – – it seemed somewhat less of an issue and definitely less of a medical quality of care issue.

MR. KELLY: So the answer to my question is no?

DR MCKEE: No. You’re – – it’s correct.

MR. KELLY: All right. I just have these few questions and we’ll quit, Doctor. Your practice is primarily a practice based on referrals from various family practitioners and specifically groups that you’ve already told me about. Correct?

DR MCKEE: That’s correct.

MR. KELLY: And the success or lack of success of your practice or that of any specialist in this or any other medical community is very much dependent on how these other practitioners view how you’re treating their patients. Correct?

DR MCKEE: Yes.

MR. KELLY: And I gather that, in this community, you have the esteem of the other practitioners in the clinics in this city. Would you say that’s true?

DR MCKEE: Well, I – – I think I would say very definitely. But, of course, esteem isn’t something that – – you know, it’s not like $5 bill. You either have one in your pocket or you don’t. There are all levels of esteem – –

MR. KELLY: Okay.

DR MCKEE: – – that a person can have.

MR. KELLY: Have you noticed that any of the physicians who have referred to you patients have ceased referring you patients?

DR MCKEE: It’s not something that would be easy for me to notice. My referral base is huge.

MR. KELLY: Mm-hmm.

DR MCKEE: It’s – – it’s literally hundreds of physicians, and a lot of those physicians could – – could go quite a few months before there was any need to refer a patient to me. So this isn’t something that, you know, you would – – you know, it’s – – it’s not as if to say there are ten doctors that refer to me, and I can say, “Gosh, three of them have stopped.” There are truly hundreds of physicians that refer to me, and apart from from a, you know, large handful, most of these refer a relatively small number of patients in a given year. And so it would – – it would really take quite a while to – – to reach any conclusions like that. If somebody didn’t refer a patient to me for three months, you say, “Oh, my gosh, Dr. Smith hasn’t referred to me in these last three months.” You wouldn’t think anything of it. You would realize that he could easily go that many or more months without referring you to, and then the next week he might refer three patients to you. Just – – just, you know, luck of the draw in terms of his need to make referrals.

MR. KELLY: Is it often the case, Doctor, that after you have had a chance to examine a patient referred to you that you will write a note or some type of communication to the referring physician?

DR MCKEE: Essentially, always.

MR. KELLY: Yeah. And, you know, just because – – you’ve already done a note for the chart, but you usually send a little letter that will say, you know, “This is my basic finding, and thanks a lot for sending the patient to me”?

DR MCKEE: The fact of the matter is that my normal format, except in the case of hospital consultations, where there’s a set format, is to do my consultation report in the form of a letter. So, “Dear Dr. Smith: Thank you for referring Mr. Jones for evaluation of his left-hand numbness. You will recasll that Mr. Jones is a pleasant 72-year-old gentleman who developed left-handed numbness very suddenly seventeen days ago,” and – –

MR. KELLY: Etcetera?

DR MCKEE: – – so on from there.

MR. KELLY: Do you typically get any feedback from these letters that you send to referring physicians?

DR MCKEE: In the vast majority of cases, no.

MR. KELLY: Do you have any reason, as you sit here, to believe that any of the physicians from whom you have received referrals in the past have stopped or diminished their referrals to you because of anything that Mr. Laurion has done?

DR MCKEE: I don’t have any reliable way of assessing that. There would be no way for me to say with certainty that there had been a drop in referrals.

MR. KELLY: Are you – – you have alluded to at least one medical organization that you spoke of?

DR MCKEE: Well, I’m active in a lot of medical organizations.

MR. KELLY: I know, and that’s what I’m getting to.

DR MCKEE: Yes.

MR. KELLY: What are the other local organizations that you participate in? We all belong to professional societies.

DR MCKEE: Right.

MR. KELLY: I’m just wondering which ones you are active in.

DR MCKEE: I am – – Marshall, do you have a copy of my c. v.?

MR TANICK: Well, just answer. I do, but why don’t you just answer the question as best you can, to your recollection.

DR MCKEE: I’m, of course, active on the medical staff at St. Luke’s Hospital. I’m active – –

MR. KELLY: Do you have a position? Chief of Staff or something of that nature at St. Luke’s Hospital at the present time?

DR MCKEE: No.

MR. KELLY: Have you had such a position in the past?

DR MCKEE: I was the – – the Chief of the Section of Neurology for quite a few years.

MR. KELLY: Mm-hmm.

DR MCKEE: Up to about 2003.

MR. KELLY: Okay.

DR MCKEE: I’ve – – I am on the executive committee and the board for Northland Medical Associates. I’m on the executive committee and the board for Integrity Health Network.

MR. KELLY: How did you get that position?

DR MCKEE: It’s an elected position.

MR. KELLY: All right. Thanks.

DR MCKEE: I’m not sure where to draw the line here. I – – I’m on the medical staffs of, you know, the hospitals that we mentioned before, and that all involves interactions with – – with physicians and – – and that sort of thing. Are you asking me about – – when you say “active,” are you asking about positions with titles or just – –

MR. KELLY: No. For example, do you belong to the St. Louis County Medical Society?

DR MCKEE: No.

MR. KELLY: All right. Are there any other local medical societies?

DR MCKEE: Well, if you consider the Minnesota Medical Association local.

MR. KELLY: Are you a member of that?

DR MCKEE: No.

MR. KELLY: Are you a member of the AMA?

DR MCKEE: No.

MR. KELLY: Okay.

DR MCKEE: Those three basically come as sort of a set. You normally belong to your county, state, and the AMA or you don’t belong to any of them.

MR. KELLY: The last time I looked, 20, 25 percent of physicians were in the AMA these days.

DR MCKEE: Right.

MR. KELLY: Okay, those are all the questions I have for you, Doctor. Appreciate your patience and your being here today. Thank you.

MR TANICK: Why don’t we take a short break and see if there’s anything I want to ask him.


Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

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

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

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

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

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

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

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

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

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

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

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

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

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

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

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

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

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

Minnesota Court Of Appeals Announces Decision

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

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

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

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

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

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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