KTAR Newsroom: Minnesota High Court Say Online Post Legally Protected

Minnesota High Court Say Online Post Legally Protected 

KTAR Newsroom

January 30, 2013

A man’s online post calling a doctor “a real tool” is protected speech, the Minnesota Supreme Court ruled.

The state’s highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient’s son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor “a real tool,” slang for stupid or foolish.

The decision reversed a Minnesota Court of Appeals decision that would have let the doctor’s lawsuit proceed to trial.

The opinion, written by Justice Alan Page, said the comments posted by Dennis Laurion don’t add up to defamation because they’re opinions that are entitled to free speech protections.

“Referring to someone as `a real tool’ falls into the category of pure opinion because the term `real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false. … We conclude that it is an opinion amounting to `mere vituperation and abuse’ or `rhetorical hyperbole’ that cannot be the basis for a defamation action,” the justices said.

The ruling also said it doesn’t matter whether the unnamed nurse actually exists. McKee’s attorney argued that Laurion might have fabricated the nurse, something Laurion’s attorney denied. And it said the doctor’s objections to Laurion’s other comments also failed the required legal tests.

The case highlighted the tension that sometimes develops on ratings sites, such as Yelp and Angie’s List, when the free speech rights of patients clash with the rights of doctors, lawyers and other professionals to protect their good names.

Experts say lawsuits over negative professional reviews are relatively uncommon and rarely succeed, partly because the law favors freedom of speech.

This dispute was over how McKee treated Laurion’s father, who had suffered a stroke, during a single hospital visit in 2010 that lasted 10 to 15 minutes. Laurion expressed his dismay in several online posts with what he considered the doctor’s insensitive manner.

“I’m sure he and his family are very happy with this result,” Laurion’s attorney, John Kelly, said. “It’s been a long and difficult process for them.”

McKee’s lawyer, Marshall Tanick, said he and McKee plan no further appeals and that they were disappointed with the ruling. “We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse,” Tanick said.

While the decision is not binding in other states, Kelly and Tanick agreed that it might influence how other courts would rule on similar questions. Kelly said lawyers often look at rulings from other jurisdictions when they put cases together, sometimes for leads or guidance.

“Certainly this is a cutting edge issue and I’m sure lawyers and courts in other jurisdictions will pay attention to this decision and give it the weight it deserves,” Tanick said.

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

“Taking Cloaks to the Cleaners” Mentions McKee V Laurion

Taking Cloaks to the Cleaners: A Case Study of Yelp V.Hadeed Carpet Cleaning Reveals the Need for Stronger Unmasking Standards

A THESIS  SUBMITTED TO THE FACULTY OF UNIVERSITY OF MINNESOTA

BY

Kristen Patrow

IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS

Dr. Amy Kristin Sanders

June 2014

This thesis begins with a discussion of the U.S. Supreme Court’s seminal defamation cases. A discussion of the historical protections for anonymous speech follows, providing a foundation for the discussion of anonymous speech online. This paper examines multiple cases to establish the judicial standards that courts have developed to determine whether to unmask the identity of anonymous commenters online. A case study of the recent Yelp decision follows, highlighting the incongruity with these various standards. Next, an in-depth examination of James Carey’s models of communication and the theoretical justifications for protecting anonymous and harmful speech explains the need for a national unmasking standard. To conclude, the thesis proposes an unmasking law that comports with First Amendment protections of speech and societal interest in punishing harmful speakers for their misdeeds.

INTRODUCTION

What happens when negative reviews appear to correspond with a drop in revenue? For Joe Hadeed, owner of Hadeed Carpet Cleaning, it meant it was time to sue the commenters who left the negative reviews of his business.

Over the course of a few weeks in 2012, a long sequence of negative reviews caused Hadeed’s rating on the popular review site Yelp to plummet. According to Hadeed, following the string of unfavorable comments, business dropped by 30% and revenue dropped from $12 million in 2011 to $9.5 million in 2012, which caused Hadeed to lay off 80 workers and sell six trucks.

Hadeed sued Yelp in July 2012, asserting his company had been defamed because the reviewing customers could not be matched to the company’s records, which included “time, location, and sales data.”

Yelp refused to hand over the identifying information of the commenters, but Virginia’s trial and intermediate appellate courts agreed with Hadeed and held Yelp in contempt.

In January 2014, Yelp appealed to the Virginia Supreme Court, asserting that Hadeed had not adequately proved the statements were defamatory.

More and more frequently, businesses are claiming they need protection from false and defamatory postings, often referred to as “revenge reviews,” on websites like Yelp. Yelp, on the other hand, claims the reviews are protected by the First Amendment and has hired a lobbyist to support a federal Anti-SLAPP law.

Anti-SLAPP laws try to prevent powerful plaintiffs from filing unsubstantiated claims against detractors in an effort to silence their speech. Plaintiffs may use costly court fees to threaten defendants with financial hardship when they disagree with the views that are expressed.

Yelp launched in 2004 as a way for consumers “to connect with great local businesses.” It offers a review system that relies on patrons to rate establishments they frequent. Yelp is one of many online rating and reviewing sites, and it had 120 million unique visitors per month in the last three months of 2013. The company states that most of its reviews praise good businesses, but that it encourages negative reviews as  long as they are honest. In its Terms of Use, Yelp asks reviewers to share their personal experiences and not those of a third party because the company remains neutral in review disputes. Yelp asserts that it expects reviewers to “stand behind your review.”

In recent years, various claims for defamation against users of Yelp and similar websites have surfaced because business owners were not pleased with some of the reviews. When a court finds that a reviewer was merely expressing an opinion rather than a false assertion of fact, the speech is generally protected because under the First Amendment, “there is no such thing as a false idea.

For example, in Minnesota, a man used various doctor-review websites to complain about the physician who treated his father. In his suit, the doctor stated that these claims were defamatory, including a statement where the reviewer calls the doctor a “real tool.” The doctor did not win the case because the Minnesota Supreme Court determined that calling someone a “tool” was an expression of opinion and not a statement of fact. ( *** )

As mentioned earlier, many businesses revile Yelp and believe the website provides a breeding ground for unwarranted disparagement and harassment. Studies have shown that small businesses have more to gain from Yelp reviews, so it follows they likely also have more to lose. Some small businesses have filed complaints with the Federal Trade Commission (FTC) asserting that Yelp’s algorithm unfairly targets businesses who do not buy advertising by highlighting negative reviews.

Of course, Yelp denies these claims and asserts that marketing personnel do not have access to the algorithm. Yelp also notes that businesses are free to set up an account and “claim” their page. Claiming a page allows an establishment to monitor its reviews and to dialogue with reviewers both publically and privately. Opening an account is an easy way for businesses to defend themselves against negative reviews on the very same platform that the negative reviews surface. Businesses can also be proactive and ask satisfied regular patrons to review them on Yelp.

Disgruntled business owners have little recourse against Yelp unless they can prove that the website itself is actively violating the law. Though some businesses have tried to hurt Yelp by filing complaints with the FTC, unless they can prove that Yelp is contributing to unprotected speech, the businesses are out of luck. Section 230 of the Communications Decency Act protects Yelp; the Good Samaritan provision immunizes interactive computer services who publish third-party content. This means that businesses receiving negative reviews cannot hold Yelp legally liable for the comments. Instead, the businesses must target the individual reviewers if they wish to recover damages. According to the Wall Street Journal, Yelp receive s an average of six subpoenas a month, and many of them are linked to civil lawsuits.

. . .

CONCLUSION

A proposed national test solidifies First Amendment protection for anonymous speech online by considering the context and content of speech. Implementing a uniform test for unmasking anonymous commenters would provide legal stability that is not dependent upon technology but instead looks to the core principles that support free expression. Anonymity, in itself, is not always harmful either online or off-line, and it should continue to enjoy robust constitutional protection. The Court has recognized that cloaking has productive uses and may be used to fruitfully counter majority’s views. Dissent theory shows the important role anonymity  plays in the democratic process, a role that has many societal benefits.

A national test would also alleviate some of the current jurisdictional issues that arise when courts address speech on the Internet. Tests that do not properly weigh the importance of protecting masked speakers place First Amendment rights in peril and also impede the due process of law. The ruling in Yelp v. Hadeed shows that some unmasking standards currently in use currently tip the balance in favor of plaintiffs.

Of course, the right to anonymity is not absolute, and courts can rescind anonymity if it insulates those who utter words beyond the scope of First Amendment protections. Appropriate tests must balance the needs of society against the individual’s constitutional right to anonymity. A national unmasking standard, such as the one outlined above, would help ensure that courts correctly strike this balance in future cases.

FULL SOURCE WITH REFERENCES

( *** ) David McKee MD V. Dennis K. Laurion

Negative Online Reviews of Psychiatrists

Internet Sabotage: Negative Online Reviews of Psychiatrists

December 8, 2016

Laura Kendall, MD; Timothy Botello, MD, MPH

Psychiatric Annals, December 2016, Volume 46, Issue 12

Online reviews have become an increasingly popular method for rating virtually any business or service. However, there are problems when it comes to rating physicians online, especially psychiatrists, because the doctor–patient relationship is not parallel to the business–consumer relationship. The psychiatrist–patient relationship is even more unique, especially when the patient is receiving involuntary care. Physicians have a fiduciary duty to their patients to uphold certain ethical principles. In fact, a patient’s demands may sometimes conflict with these values, which can be a cause of an unhappy experience.

Like many other businesses and professions, medicine is becoming increasingly consumer-driven, and online reviews are a natural evolution of this trajectory. Some positive features of online reviews include increased patient autonomy, more feedback for doctors, and improved standards of care. However, many physicians fear that such websites encourage negative reviews or even extortion. There is also an inherent conflict of interest with regard to website traffic, because more sensational reviews lead to heavier web traffic; thus, there is little incentive for websites to remove negative reviews.

Many times, the criteria used for rating the physician include nonmedical factors (office staff or wait times). Rating sites can also be manipulated, as many do not require authentication of the user as the actual patient. An unscrupulous competitor could even write and post a negative review, making these websites completely untrustworthy.

Although there is no consequence for the website or patient for posting an untrue or negative review, the consequences for the physician are numerous. It is disturbing to learn there is false, negative information on the Internet about one’s professional self, some of which may even attack the physician’s character and could be considered defamation or harassment. There are also financial consequences, as insurance companies and potential employers are now looking at these sites.

Patient satisfaction scores are now a focus in health care and are used as an indicator of a physician’s performance and sometimes even used to determine hospital funding. Data are collected despite the fact that high patient-satisfaction scores have been correlated with higher odds of inpatient admission, greater expenditures, and higher mortality. Because of this, physicians have reported increased job dissatisfaction, job attrition, pressure to inappropriately prescribe antibiotics or narcotics, and pressure to order unnecessary tests or admissions due to concerns that they need to generate high patient-satisfaction scores. Physicians are now sometimes more selective when accepting patients, avoiding high-risk patients to improve their ratings. One could postulate that the same is true for physician ratings online, as the need to generate higher scores may threaten a physician’s clinical integrity. Such practices could even potentially harm patients and lead to irresponsible management of health care resources.

In psychiatry, the situation becomes increasingly complex. For psychiatrists who work in a private practice setting, there is a certain level of expectation by the patient for payment of service. Yet, just as in any other field of medicine, it can often be counter-therapeutic to give in to the demands of patients. Sometimes, it is a psychiatrist’s duty to set limits. This is particularly true in the treatment of patients with borderline personality disorder. In such patients, their internal emotional experience is chaotic, vacillating between extreme emotions of idealizing and devaluing, often leading to explosive reactions and unstable relationships. For these patients, such limit-setting could be fuel for the fire that leads them to write negative reviews online.

Many psychiatrists work on inpatient units, at state hospitals, or at correctional facilities, all situations in which the patient is on some sort of legal (often involuntary) hold. Such patients have met a legal commitment criteria reviewed by a civil court. Common among such patients are psychotic illnesses such as schizophrenia, schizoaffective disorder, or psychosis in the setting of a mood disorder. Psychotic patients often experience paranoid or grandiose delusions centered on their treating psychiatrist. Making matters worse, psychiatrists often must petition the court to medicate patients with psychiatric medications against their will when patients refuse psychiatric medications. Such interactions can sometimes lead to a contentious doctor – patient relationship. Although psychiatrists are not above being rated, it can be argued that it is not prudent for people who are acutely psychotic to write online reviews of their doctors. A clinical context might be helpful for the reader to understand the basis for the review, but such contexts are not provided by these websites.

Physicians should be held accountable to practicing and upholding good standards of care, but we maintain that there are more constructive ways of providing feedback. Posting a negative, emotionally charged review may not lead to a change in practice. Instead, submitting formal complaint forms to the hospital, which are reviewed by administrators and supervisors, can lead to feedback provided in a constructive way, which may positively affect practice. Another option would be contacting the state medical board or joint commission for investigation of complaints by patients. In fact, evidence shows that feedback is most effective when provided over a period of time by an authoritative source.

We recommend that physicians educate themselves about online reviews and learn what can be done when an untrue or negative review is posted. All physicians should conduct Internet searches on themselves quarterly. If a physician discovers a negative review, it may be prudent to notify one’s malpractice carrier to alert them of any potential legal action to be initiated by a patient or family member against the physician. It is sometimes possible to have the review removed by contacting the website directly; this may be successful if the review violates the website’s terms of service. It is recommended to take screenshots of the original date and time of the review as well as after the review is removed for your records. Such copies will have a digital timestamp, which will be necessary if any litigation ensues. Also, if a similar situation happens in the future, the physician has documented proof of the prior review and evidence that it was removed.

If the website refuses to remove an untrue or unfair review, a physician could write a response to the review, but there could be potential Health Insurance Portability and Accountability Act (HIPAA) violations. It may be impossible to prove who actually wrote the review in the first place, and responding could inadvertently reveal protected information about another patient’s encounter. Therefore, it is advised to keep the responses general and nonspecific. It may also be advisable to contact one’s malpractice carrier before responding to make sure that no HIPAA violations will be made.

Alternatively, legal action could be pursued by the physician if the online reviews are deemed defamatory; however, such cases are difficult to prove in court and often end up just creating more problems. ( *** ) Even if the physician is victorious, the case may later be referred to repeatedly in articles and legal journals, potentially making the negative review permanent.

As a psychiatrist, it is desirable to cultivate a positive online image. It can be beneficial to maintain a personal website and include positive testimonials from patients, especially in private practice. Currently, there are a few services available that help with a physician’s online image or negative reviews.

Lastly, medical professional societies should lobby to protect physicians from false or negative online reviews and create legislation to hold these websites more accountable for their content. Perhaps such legislation could mandate that reviews not be anonymous, or perhaps patients should have to show proof of appointment to post a review. This could help ensure that only patients are writing reviews of their physicians. Also, websites could require that a minimum number of reviews (positive, negative, or both) be reached before they are released to the public, so as to have a more representative sampling. Reviews could also be more carefully moderated, as is the case with Britain’s National Health Choices website.

Physician rating websites are an inevitable part of life that physicians will continue to face in their careers. In the current system, the negative consequences that result from these websites appear to outnumber the positive qualities. Such websites may be especially problematic in psychiatry, especially in the field of involuntary psychiatry. In such cases, a more formal complaint system is likely to be more effective than anonymous reviews posted on the Internet. We advocate for physicians to have more awareness and education about these websites, and to know that there are options they may pursue if negative reviews are discovered. Finally, medical professional societies may be able to advocate for physicians and even possibly change the way reviews are handled on the Internet.

Source

( *** ) David McKee MD V. Dennis K. Laurion

Physicians Can Help Shape Their Presence On Influential Online Rating Sites

MARCH 2017

 Physicians Can Help Shape Their Presence On Influential Online Rating Sites

TexasMedicine, Tex Med. 2017;113(3):33-40.

By Joey Berlin, Associate Editor (joey.berlin@texmed.org)

Chances are, by now, most physicians know online review sites allow patients to post a review of their doctor visit the same way they might review their car mechanic or a local restaurant. Maybe you think review repositories like Yelp or medicine-specific review sites like Healthgrades are mainly places for crabby customers or patients to complain. With that perception in mind, perhaps you think the minuses of setting up a profile on a review site outweigh the pluses, and you don’t even want to get involved in the online review racket. Or maybe you’re undecided about whether to do so. That’s too bad because, in effect, the internet already has decided for you.

You already have an online presence, and you can decide to shape it, says Nashua, N.H., internal medicine physician Kevin Pho, MD, an author and blogger who focuses on social media in health care. And, in fact, research has shown patients don’t just use online reviews to air grievances. “What these sites will do is create profile pages of every single doctor, whether these doctors want one or not,” said Dr. Pho, the founder of the health blog KevinMD.com.

A February 2014 Journal of the American Medical Association (JAMA) article reported 35 percent of prospective patients who sought online reviews chose a physician based on good reviews from a ratings site, and about the same percentage took negative reviews as a cue to look elsewhere for their care.

If physicians aren’t aware that those profiles of them are already out there, Dr. Pho adds, “that’s going to be the first impression of them online. When patients google their doctors’ names, there’s a possibility that these rating sites may come up first, and that will form these patients’ first impressions of the doctor. That’s why it’s imperative that they be proactive.”

Being reactive is important, too. But when physicians and practices react to something they see online ― say, a viciously critical review ― they also must be careful to react in the right way.

Owning Your Presence and Learning the Sites

Dr. Pho and medical content strategist Susan Gay coauthored the 2013 book Establishing, Managing, and Protecting Your Online Reputation: A Social Media Guide for Physicians and Medical Practices. The book notes most review sites pull information on medical practices from commercially available databases, so those practices already will be listed on the sites without any effort from the physician to establish a presence on them.

The review sites generally operate in a similar fashion, Dr. Pho notes. Most of them allow physicians and practices to “claim” their profiles, which allows them to personalize those profiles with photos, a description of the practice, credentials, and other information. Doing so is an important piece of taking command of an online presence, Dr. Pho says.

Although the review sites operate similarly ― usually allowing a user to leave a practice a star rating, as well as a comment ― learning some of the nuances of each can prove valuable. The directory and review site Vitals, for example, allows a profile owner to hide two negative reviews, a useful tool to negate a patient whose criticism crosses the line. The site Healthgrades has a similar option available to hide reviews, says Texas Medical Association practice consultant Brad Davis. “Some of them have a do-it-yourself vault where you can put X number of items in there, whereas some of them have an appeals process [for reviews], so you want to know how those sites work so you can deal with each accordingly,” he said.

Other popular medicine-specific rating sites include http://www.ratemds.com, http://www.healthcarereviews.com, and http://www.drscore.com.

If you’d rather a prospective patient’s first impression of your practice not come from review sites, you can take steps to minimize that from occurring. While search engine optimization (SEO) professionals hinge their reputations on favorably portraying a client or employer on Google, physicians and practices can potentially do some leveraging of Google on their own without any SEO expertise. The easiest way, Dr. Pho says, is to generate online content about yourself and your practice. He says a great way for physicians to get started is simply to establish a profile on either the general professional social networking site LinkedIn or the health care professional network Doximity. Great SEO-shaping potential also comes from generating content on Twitter, Facebook, or a blog, he says. “It depends on how big you want your digital footprint to be; obviously, the bigger, the better, so the more social media platforms that a doctor engages in, the bigger their online presence will be,” Dr. Pho said. “And not only will that expand their digital footprint, it’s going to push down the visibility of third-party rating sites.”

Reacting the Right Way

Dr. Pho offers five tips to handle online reviews:

  1. Listen to or read the review,
  2. Take the conversation offline,
  3. Read the fine print on a review site,
  4. Ask more patients to rate you online, and
  5. Don’t sue over a negative review.

Seeing what patients say can provide valuable insight into not just what they think of you but also what they think of the entire experience.

“If you look at negative reviews, it’s not necessarily the doctor himself or herself,” Dr. Pho said. “It could be the support staff. It could be the nurse. It could be the medical assistant. It could be the fact that there’s not enough parking. It could be the fact that the magazines in the waiting room aren’t up to date. And it’s important for physicians to be aware of problems in a practice that they may not have been aware of previously.”

Writing a quick online response to a positive review is good practice, the Online Reputation book says, but to stay HIPAA-compliant, ask patients for their permission to respond before posting.

The book says physicians can respond generally to negative reviews in a public forum without violating patient privacy laws if they’re responding to complaints about aspects of the visit, such as wait times or inadequate parking. Physicians can explain those aspects without confirming or denying that the reviewer was a patient. Also, if a physician reaches out to the patient and gets written consent, the practice can post a public response or apology, showing readers of the site that he or she is listening to patients.

Dr. Pho’s third tip, reading the fine print, essentially means knowing what the review site’s policies are so you’ll know what your options are if a disgruntled patient does something out of bounds, such as posting multiple negative reviews. As Get Social notes, some sites will allow the subject of a profile to flag reviews as inappropriate and will consider removing such reviews. “You want to report any comments that you think are suspicious because whenever patients post multiple times, that goes against the terms of service agreements for these sites,” and that can lead to the site removing the review, Dr. Pho said.

Dr. Pho says multiple studies have shown the majority of online reviews are actually positive. That’s why physicians should encourage all their patients to write one, instead of dreading it, he says. Get Social notes a 2012 report in the Journal of Medical Internet Research that found nearly half of all physicians get perfect online ratings, and Yelp reported in late 2013 that two-thirds of all reviews on its site were four- and five-star ratings.

“If you ask all your patients to rate you online, chances are those reviews in aggregate will be positive and can make negative reviews more like outliers,” Dr. Pho said.

The fifth tip stresses that a physician pursuing a lawsuit over negative ratings is a high-risk, costly, and ill-advised move. Establishing, Managing, and Protecting Your Online Reputation highlights the case of Minnesota neurologist David McKee, MD, who sued over negative online comments the son of a stroke patient posted in 2009. Dr. McKee sued for defamation, claiming the poster also made false statements to the American Academy of Neurology and the American Neurological Association. A four-year legal battle concluded with the Minnesota Supreme Court dismissing the case in January 2013.

The book said Dr. McKee’s case created a media firestorm and became an example of the Streisand effect, a term for an attempt to suppress a piece of online information that actually results in the information garnering more publicity. The term derives from a Barbra Streisand lawsuit against an organization that published an aerial photo of the singer’s house.

“Whenever McKee’s name is put into a search engine, the publicity generated by his lawsuit will be featured prominently in the search results,” Dr. Pho and Ms. Gay wrote. “By suing the patient, not only is the outcome of the suit in doubt, but he actually made the situation much worse. No matter what kind of merit you think a case might have, doctors who sue patients for online ratings are going to lose in the more influential court of public opinion. Better that doctors take some slanderous lumps online, and instead, encourage more of their patients to rate them.”

SOURCE

JOEY BERLIN

KEVIN PHO, 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

More Doctor Lawsuits

What Happens When Doctors Sue Unhappy Patients? (It’s Not Pretty)

September 20, 2013

What Happens When Doctors Sue Unhappy Patients? (It’s Not Pretty)

Stewart Gandolf

Healthcare Success: Scientific Marketing That Delivers Patients

Experienced doctors tell us that, sooner or later in their career, every physician will face the prospect of legal action. Between 75 and 99 percent of practicing doctors, depending on their specialty, will be threatened by a lawsuit according to a NEJM study.

Although “patient-sues-doctor” rarely makes the news, the reverse situation—doctor-sues-patient—seems to make the headlines with regularity. And the core issue is a negative or unflattering online rating or comment by a patient about a doctor. But the outcome is seldom satisfactory.

Patients are increasingly engaged and empowered regarding their healthcare, due in part by the pervasive Internet. Doctors are understandably—and justifiably—concerned about their professional reputation…also with added muscle of view-anywhere web postings.

In a previous post, Legally Dumb: Should a Doctor or Dentist Sue a Patient for Bad-Mouth Comments?, we sympathized with a practitioner’s frustration and outright anger. Negative comments and online reviews can be untrue, unkind and one sided. But, from a public relations perspective, suing a patient for a negative comment just might be the worst thing to do. In PR terms it likely will grab new and broader media attention, repeat and extend the controversy, patients may sympathize with patients, and generally inflame the original issue.

Bad-mouth comments on personal blogs and collective-comment review sites can be influential among patients and prospective patients. There are dozens of user forums that has expanded to include Angie’s List (initially home improvement services), and Yelp (initially reviews of local restaurants).

Some news reports, The Boston Globe for example, suggest that doctors are firing back at patients’ online critiques, but with mixed results.

“The Digital Media Project at Harvard University tracks lawsuits filed against patients and others for online comments. Its website includes seven such cases filed over the past five years or so, though it’s not a comprehensive list. In some, patients took down their negative comments. In others, judges dismissed the suit, ruling that patients’ comments were protected under the First Amendment guarantee of free speech.”

We’re not offering legal advice here, but as another recent indicator, the Minnesota Supreme Court ruled that an online post about a Duluth neurologist is protected speech. And, according to the AP story about this ruling, “Experts say lawsuits over negative professional reviews are relatively uncommon and rarely succeed, partly because the law favors freedom of speech.”

Seeking professional legal counsel is sound advice for your situation. Our previous post lists some of the possible public relations consequences that should be considered, as well as observations from noted healthcare attorney Stephen Kaufman.

1 Comment:

Dennis Laurion: [QUOTE] We’re not offering legal advice here, but as another recent indicator, the Minnesota Supreme Court ruled that an online post about a Duluth neurologist is protected speech. [END QUOTE]

[COMMENT] In response to a newspaper article about David McKee MD V. Dennis Laurion, Dr. McKee, founder of Northland Neurology and practitioner at St. Luke’s Hospital in Duluth, Minnesota, said that money is money, and he wouldn’t remember the impact in five years. I wrote my review of Dr. David McKee five years ago. I can’t speak for Dr. McKee, but I still remember the impact.

This entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened.

David McKee MD V. Dennis K. Laurion has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents.

While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

What it’s like for a patient or family member to be caught up in a case like McKee V. Laurion was already described by the plaintiff’s lawyer in a Star Tribune newspaper article, “Company sues over info put on Yahoo message board,” August 27, 2001. It said in part: “IF A COMPANY SUES, alleging simple business disparagement or perhaps defamation, ITS GOAL ISN’T NECESSARILY TO WIN,” SAID MARSHALL TANICK, a First Amendment expert at Mansfield & Tanick in Minneapolis. “THE STRATEGY IS TO FORCE THE OTHER PERSON TO INCUR HUGE LEGAL EXPENSES THAT WILL DETER THEM AND OTHERS from making such statements,” he said … “yet very few (cases) go all the way to trial and verdict,” Tanick said. [ Emphasis added ]

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.

It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father’s room. The public could decide what to believe and what – if any – impact it had on them: insensitive doctor or overly-sensitive consumer?

Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit – for fear of creating the “Streisand Effect.” As a retired layman, I brought far less resources to the battle of financial attrition.

The Minnesota Supreme Court compared every statement I attributed to Dr. David McKee against every statement he claimed he really said. The Court concluded the impact of each set of statements was the same. For instance, the Minnesota high court said that Dr. David McKee’s version of his comment about the intensive care unit was substantially similar to mine.

I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

During the existence of David McKee MD vs Dennis Laurion, I heard Dr. McKee’s lawyer tell the Minnesota Supreme Court how I could have commented without being defamatory. I am upset. I think Doctor McKee did not treat my father well. I think he was insensitive. He did not spend enough time in my opinion. [END COMMENT]

Stewart Gandolf, MBA, is CEO of Healthcare Success, a medical marketing and health care advertising agency. He is also a frequent writer and speaker. Most importantly, he is happily married and a “rock-n-roll daddy” to two wonderful girls.

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

More Doctor Lawsuits

Legally Dumb: Should a Doctor or Dentist Sue a Patient for Bad-Mouth Comments?

 August 4, 2013

Legally Dumb: Should a Doctor or Dentist Sue a Patient for Bad-Mouth Comments?

Stewart Gandolf

Healthcare Success: Scientific Marketing That Delivers Patients

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.

1 Comment:

Dennis Laurion: [QUOTE] 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.” [END QUOTE]

[COMMENT] In response to a newspaper article about David McKee MD V. Dennis Laurion, Dr. McKee, founder of Northland Neurology and practitioner at St. Luke’s Hospital in Duluth, Minnesota, said that money is money, and he wouldn’t remember the impact in five years. I wrote my review of Dr. David McKee five years ago. I can’t speak for Dr. McKee, but I still remember the impact.

This entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened.

David McKee MD V. Dennis K. Laurion has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents.

While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

What it’s like for a patient or family member to be caught up in a case like McKee V. Laurion was already described by the plaintiff’s lawyer in a Star Tribune newspaper article, “Company sues over info put on Yahoo message board,” August 27, 2001. It said in part: “IF A COMPANY SUES, alleging simple business disparagement or perhaps defamation, ITS GOAL ISN’T NECESSARILY TO WIN,” SAID MARSHALL TANICK, a First Amendment expert at Mansfield & Tanick in Minneapolis. “THE STRATEGY IS TO FORCE THE OTHER PERSON TO INCUR HUGE LEGAL EXPENSES THAT WILL DETER THEM AND OTHERS from making such statements,” he said … “yet very few (cases) go all the way to trial and verdict,” Tanick said. [ Emphasis added ]

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.

It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father’s room. The public could decide what to believe and what – if any – impact it had on them: insensitive doctor or overly-sensitive consumer?

Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit – for fear of creating the “Streisand Effect.” As a retired layman, I brought far less resources to the battle of financial attrition.

The Minnesota Supreme Court compared every statement I attributed to Dr. David McKee against every statement he claimed he really said. The Court concluded the impact of each set of statements was the same. For instance, the Minnesota high court said that Dr. David McKee’s version of his comment about the intensive care unit was substantially similar to mine.

I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

During the existence of David McKee MD vs Dennis Laurion, I heard Dr. McKee’s lawyer tell the Minnesota Supreme Court how I could have commented without being defamatory. I am upset. I think Doctor McKee did not treat my father well. I think he was insensitive. He did not spend enough time in my opinion. [END COMMENT]

Stewart Gandolf, MBA, is CEO of Healthcare Success, a medical marketing and health care advertising agency. He is also a frequent writer and speaker. Most importantly, he is happily married and a “rock-n-roll daddy” to two wonderful girls.

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

More Doctor Lawsuits

Sten Hoidal: Five Key Social Media Questions All Health Care Employers Should Consider

June 24, 2015

netWORKed

Five Key Social Media Questions All Health Care Employers Should Consider:

Question #5: How Can We Protect The Online Image Of Our Organization?

Sten Hoidal, Fredrikson & Byron, P. A.

We have all read, relied upon or at least considered online reviews … you know, the ratings, stars or “opinions” that represent a person’s experience with a product or service. Healthcare consumers frequently use these reviews to evaluate which hospital or clinic to use and which provider to see. Job applicants also use their sites in evaluating employment opportunities. Many times the online review process will actually help, not harm, health care employers.  At other times, unfortunately, health care employers will be faced with negative online reviews.

Let’s take a hypothetical. A former employee (or patient) anonymously posts false and misleading information about one of your physicians on Vitals. The posts relate to allegedly disrespectful treatment of employees, poor patient care, and poor bedside manner. You investigate and confirm that these statements are not true.  But what are your options?

You certainly have the right to respond to any negative online post. For example, Glassdoor provides companies the opportunity to post “their side of the story.” But before you decide to react to a bad online review, we recommend that you step back and think about the following:

Does the post contain HIPAA-protected information, or other sensitive, confidential information? If the answer is yes, then seek legal counsel as you may have a legal obligation to take action (not just to respond to the negative review).

Is the post believable – that is, will it really hurt your organization? And does the post violate any laws? Many sites won’t take down posts unless you can show that there is a violation of law (i.e. release of HIPAA-protected information), or the posts are threatening (think violent) to a particular person or entity, or the like.

Does the post rise to the level of defamation? If the posts are clearly false statements of fact (not opinion) and are likely to harm your business reputation, then seek legal counsel – but remember, defamation claims can be long fought battles and often hard to win.

For example, in McKee vs. Laurion, Dr. McKee sued Laurion (the son of one of his patients) for his online posts on a “rate your doctor” site. Following several years of court action, the Minnesota Supreme Court concluded that none of the statements posted online by the patient’s son, Laurion, regarding Dr. McKee’s care amounted to defamation. The court dismissed the defamation lawsuit altogether and Dr. McKee gained nothing from bringing the legal action.

Keeping in mind the uphill battle of a defamation lawsuit, what are some other options?

If the post does not reveal patient information or other confidential business information, does not implicate any laws and is not violent/threatening, you may want to stop and consider whether any response at all is warranted. Sometimes simply ignoring the post is the better course of action so as not to escalate the situation or draw greater attention to it.

If ignoring the post altogether seems like a bad idea – and you feel you have a good story to tell – then consider writing a neutral, objective response. While this might prompt your anonymous poster to rage on, it also might help to even the playing field and show the reading public that the poster’s statements may not be legitimate.

Or, consider options for increasing your organization’s positive online image. For example, create (and maintain) a Google Plus Account and write about all of the great things your organization does! Maintain a Facebook or LinkedIn page for the organization, providing general guidance and educational information, not medical advice, on how patients can improve their health, or feature “star” employees (with their consent of course).

Using social media as a platform to highlight your organization’s accomplishments, community involvement, and areas of expertise will hopefully leave the online public with favorable impressions of your organization while minimizing the impact of the occasional negative review.

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

More Doctor Lawsuits