Fundamentals of Business Law Today: McKee V Laurion

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Cengage Advantage Books:

Fundamentals of Business Law Today: Summarized Cases

By Roger Leroy Miller

Page 75

Case 4.1 McKee V. Laurion, Supreme Court of Minnesota, 825 N. W. 2nd 725, 2013

FACTS: Kenneth Laurion was admitted to St. Luke’s Hospital in Duluth, Minnesota, after suffering a hemorrhagic stroke. Two days later, he was transferred from the intensive care unit (ICU) of St. Luke’s to a private room. The attending physician arranged for Dr. David McKee, a neurologist, to examine him. Kenneth’s son, Dennis, and other Laurion family members were present during the examination. After Kenneth was discharged from the hospital, Dennis posted the following statements on websites for rating physicians.

[ Dr. McKee ] seemed upset that my father had been moved [ into a private room. ] Never having met my father or his family, Doctor McKee said, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” When we gaped at him, he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” . . . When my father said his gown was just hanging from his neck without a back, Dr. McKee said, “That doesn’t matter.” My wife said, “It matters to us; let us go into the hall.”

After learning of the online posts, Dr. McKee filed a suit in a Minnesota state court against Dennis, asserting defamation. The court issued a summary judgment in Dennis’ favor. A state intermediate appellate court reversed this judgment.

ISSUE: Were the statements that Dennis posted online about Dr. McKee defamatory?

DECISION: No. The Minnesota Supreme Court concluded that the lower court properly granted summary judgment in favor of Dennis and reversed the decision of the state intermediate appellate court.

REASON:  The state’s highest court pointed out that truth is a complete defense to a defamation action and that true statements, however disparaging, are not actionable. “If the statement is true in substance, minor inaccuracies of expression or detail are immaterial. Minor inaccuracies do not amount to falsities so long as the substance, the gist, the sting of the libelous charge is justified.” Dr. McKee acknowledged in his deposition that when he examined Dennis’ father, Kenneth, he did communicate to those present that some intensive-care-unit patients die, although he denied referencing  a specific percentage.

The court believed that even without an exact percentage in his statement, Dr. McKee’s statement satisfied the test “for substantial truth because it would have the same effect on the reader regardless of whether a specific percentage is referenced [ or whether the percentage is accurate ].” Thus Dennis’ online statements were not actionable as defamation because there was no genuine question as to the falsity of the statements – they were substantially true.

SOURCE

PURCHASE

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

Major Principles of Media Law: McKee V. Laurion

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Major Principles of Media Law, 2016

By Wayne Overbeck, Genelle Belmas, Jason Shepard

Pages 175 and 176

Libel On Online Review Sites:

As consumer review services like Angie’s List, Yelp, RateMyProfessors, and various doctor review sites become more popular, those who get poor reviews have taken their claims to court. In perhaps the highest profile of these cases, McKee v Laurion (825 N. W. 2nd 725, 2013), the Minnesota Supreme Court said that negative comments posted by a man about the care given to his ailing father by a hospital neurologist were opinion and not actionable. [ Dennis ] Laurion posted comments about Dr. David McKee’s interactions with his father and the family (“Dr. McKee said, ‘When you weren’t in ICU, I had to spend time finding out if you transferred or died.’ When we gaped at him, he said, ‘Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option’.”) on various “rate your doctor” sites, and McKee sued. The State Supreme Court evaluated each of six statements and found none of them individually or as a whole were defamatory.

SOURCE

PURCHASE

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

The Reporters Committee For Freedom Of The Press Cites Mckee V. Laurion In Its Supreme Court Of Oregon Amicus Brief About Carol C. Neumann And Dancing Deer Mountain V. Christopher Liles

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SEPTEMBER 24, 2014

IN THE SUPREME COURT OF THE STATE OF OREGON

CAROL C. NEUMANN and DANCING DEER MOUNTAIN, LLC, an Oregon Domestic Limited Liability Company, Plaintiffs-Appellants, Cross-Respondents, Respondents on Review

v.

CHRISTOPHER LILES, Defendant-Respondent, Cross-Appellant, Petitioner on Review

Lane County Circuit Court

Court of Appeals A149982

Supreme Court S062575

BRIEF OF AMICUS CURIAE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS IN SUPPORT OF PETITION FOR REVIEW. AMICUS CURIAE INTENDS TO FILE A BRIEF ON THE MERITS OF THE CASE ON REVIEW

Court of Appeals opinion dated: March 12, 2014

I. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION ACTIONS

The Reporters Committee for Freedom of the Press (“Reporters Committee”) urges this Court to take review of the Court of Appeals’ decision (the “Decision”) in order to resolve a conflict between state and federal courts in Oregon on an issue of fundamental importance to free speech: the proper analysis of opinion in a defamation action. The Decision’s narrow application of that doctrine is at odds with recent federal case law originating from Oregon, creating uncertainty that makes it not only difficult for journalists to report news to the public without increased fear of civil liability, but also harms the public’s ability to engage in public discourse online. The confusion the Decision creates concerning what may be stated in an online review, and what will expose a commenter to liability, could effectively limit free speech and thus have serious consequences for public debate.

The news media has a substantial interest in advocating for robust protections for statements of opinion, and in ensuring that the hyperbole commonly employed in the context of online speech is fully considered when analyzing whether challenged speech constitutes protected opinion. The right to express one’s opinion is a cornerstone of the promotion of public discourse and the free flow of ideas. The internet provides a wealth of opportunities for consumers to offer reviews of products and services, and for other consumers to make more informed decisions based on others’ opinions. Because the internet is a forum that thrives on immediate give-and-take, discourse naturally tends to be more hyperbolic, and it is vital for courts to take that context into account when determining whether online speech is actionable. It is crucial that Oregon courts not adopt an analysis that will limit the free flow of ideas and opinions in online forums.

II. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION

The Decision’s analysis places state and federal courts in Oregon at odds over the proper interpretation of the opinion doctrine under the First Amendment. This case thus presents an important opportunity for this Court to address the non-uniform application of the opinion doctrine in Oregon courtrooms.

The Court of Appeals rejected defendant Christopher Liles’s argument that numerous statements that he made in his review of Dancing Deer Mountain on the website Google.com were not actionable as opinion and/or hyperbolic statements, and therefore not defamatory. In particular, the Decision concludes that, in the context of an online review of a consumer’s business experience, the words “rude” and “crooked” to describe the plaintiff were defamatory.

See Neumann v. Liles, 261 Or App 567, 578-79 (2014). That analysis is difficult to reconcile with the Ninth Circuit’s recent opinion in Obsidian Finance Group, LLC v. Cox, 740 F3d 1284 (9th Cir 2014), which held (in an appeal from the District of Oregon) that the defendant’s use of such terms as “immoral,” “thugs,” and “evil doers” to describe the plaintiff on her website was not defamatory. Obsidian Finance, 740 F3d at 1294. The Ninth Circuit based its decision on the context of the statements, including the general tenor of the posts and the fact that they were made on an online blog in which the defendant used “extreme language,” indicating to the court that much of what the defendant wrote was hyperbole. See id. In short, the Ninth Circuit’s analysis factored in the realities of the online medium of communication in evaluating the context of the statements.

The Decision here, in contrast, rejects the argument that defendant’s challenged statements were hyperbole. Neumann v. Liles, 261 Or App at 579. The Decision reached that conclusion despite the fact that defendant titled his online review “Disaster!!!!! Find a different wedding venue” and included the statement “The worst wedding experience of my life!” Both statements signify that the defendant was using hyperbole of the type common in online forums. Yet the Decision concludes that the “bulk of the post is not rhetorical and factual,” apparently including the challenged statements “rude” and “crooked.” Neumann v. Liles, 261 Or App at 578-79. As discussed below, that analysis is flawed in that it fails to properly consider the context of the statements.

But in any event, just as significant for purposes of this Court’s review is the Decision’s suggestion that such an analysis may be of only limited relevance to Oregon courts, because it is based on “extra-jurisdictional authority” from the Ninth Circuit’s “First Amendment jurisprudence.” See 261 Or App at 579 (“To the extent that extra-jurisdictional authority informs our analysis, we disagree that defendant’s statements, as a whole, are hyperbolic”).1 The protection afforded to speech should not depend on whether a defendant is in a state or federal court in Oregon. The Decision’s analysis, however, suggests that reality.

It is not simply an issue of an inconsistency with Ninth Circuit authority. If this Court grants review, the Reporters Committee intends to file a brief addressing why binding United States Supreme Court precedent supports a more robust evaluation of context in determining whether a challenged statement is actionable, focusing on two broad principles reaffirmed by the United States Supreme Court in Milkovich v. Lorain Journal Co., 497 US 1 (1990): First, “a statement on matters of public concern must be provable as false before there can be liability.” Id. at 19-20 (citations omitted). And second, a statement is not defamatory if it “cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual,” a requirement that the Court described as “provid[ing] assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Id. at 20 (citations omitted). The Reporters Committee intends to argue how these principles, and the case law on which they are based, support a fuller analysis – and a different result – than that in the Decision.

It was error for the Court of Appeals not to fully consider the context of the purportedly defamatory statements. The Reporters Committee urges this Court to grant review in this case to establish the framework for Oregon courts to consider that context in the future. That framework should provide that any evaluation of opinion or hyperbole in an online setting must include consideration of both the importance of contributing to a robust public discourse on issues of public concern as well as the more informal and hyperbolic context of online reviews.

Failure of the courts to take such context into account could result not only in the imposition of excessive liability on members of the public who choose to share their opinions online, but the chilling of this type of speech.

Online sites such as Yelp, TripAdvisor, and Google Plus provide public forums for consumers to post their opinions of service providers for other members of the public to read and use to make their own consumer choices. Such sites are invaluable resources for today’s average consumer, who can now look to innumerable reviews available online to decide where to eat, which doctor to visit, or how to choose a provider of virtually any service imaginable. Sharing information and views on these services is unquestionably a matter of public interest and concern. It is critical that consumers be able to post reviews without fear that their negative opinions and frequent hyperbole will result in a lawsuit, and a potentially staggering amount of financial penalties.

This emphasis on the statement’s context is particularly applicable in cases involving online consumer reviews. Such reviews must be evaluated in a way that recognizes their informality of expression and tendency toward hyperbole. Like online message boards, review websites encourage a “looser, more relaxed communication style,” allowing users to “engage freely in informal debate and criticism.” Krinsky v. Doe, 159 Cal App 4th 1154, 1162-63 (Cal Ct App 2008). In this setting, “[h]yperbole and exaggeration are common, and ‘venting’ is at least as common as careful and considered argumentation.” Larissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke LJ 855, 863 (2000). Online forums for consumer reviews—which are in many ways designed for “venting”—encourage posters to use a different tone, and that is the context in which writers and readers understand the reviews.

The question of how to evaluate online review opinions in defamation actions is one that many courts around the country are facing.  As these suits For example, the United States Court of Appeals for the Sixth Circuit recently held that a TripAdvisor ranking of the “Dirtiest Hotels” on their website was protected, non-actionable opinion because the tone of the list made clear that actual facts were not being stated. See Seaton v. TripAdvisor LLC, 728 F3d 592 (6th Cir 2013); see also, e.g., McKee v. Laurion, 825 NW2d 725 (Minn 2013) (dismissing doctor’s defamation claims against patient’s son who wrote negative reviews on rate-your-doctor websites about the care his father received)  The Reporters Committee urges this Court to take review and establish that framework for Oregon courts.

III. CONCLUSION

For the foregoing reasons, the Reporters Committee urges this Court to accept review of the Decision. If such review is granted, the Reporters Committee expects to file a brief on the merits.

DATED this 24th day of September, 2014.

SOURCE

Newman V. Liles History

McKee V. Laurion History

Physicians Can Help Shape Their Presence On Influential Online Rating Sites

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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

Minnesota Court of Appeals Cites McKee V. Laurion In Remanding Shelly Dixon, Respondent, V. Progressive Insurance Company, Appellant

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STATE OF MINNESOTA IN COURT OF APPEALS A12 – 2183 

Shelly Dixon, Respondent, vs. Progressive Preferred Insurance Company, Appellant. 

Filed June 17, 2013

Affirmed in part, reversed in part, and remanded.

Peterson, Judge  Hennepin County District Court File No. 27 – CV – 12 – 9854

Jed Benjamin Iverson, St. Paul, Minnesota (for respondent)

Nicholas Leander Klehr, Hopkins, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Klaphake, Judge.

In this appeal from a summary judgment enforcing a settlement agreement for  respondent’s no – fault claim, appellant insurer argues that the district court erred in determining that respondent’s acceptance of appellant’s settlement offer created a binding contract that could not be rescinded based on mutual or unilateral mistake.  We affirm in part, reverse in part, and remand.

FACTS 

After she was injured in an automobile accident, respondent Shelly Dixon  submitted a claim for no – fault medical – expense benefits to her insurer, appellant Progressive Preferred Insurance Company. Respondent’s policy with appellant provided a maximum of $40,000 in no – fault benefits, $20,000 for medical – expense benefits and $20,000 for wage – loss benefits.

After paying part of respondent’s medical – expense claim, appellant required an independent medical examination (IME), and, following the IME, appellant stopped paying benefits to respondent.  Respondent petitioned for mandatory no – fault arbitration of her claim for unpaid medical – expense benefits.

The arbitrator awarded respondent her entire claim of $12,977.11. After appellant paid the arbitration award, the medical – expense benefits paid totaled $15,384.38, which left $4,615.62 remaining of the $20,000 policy limit.

In a March 31, 2011 letter to respondent’s attorney, a no – fault specialist  employed by appellant stated: I have recently completed a thorough review o f this file which included the accident facts, your client’s alleged injuries, treatment and medical history. Based on the current treatment status, I feel that this is an appropriate time to attempt to bring this file to conclusion. As a result of my evaluation of this file I am willing to offer $10000.00 in  exchange for a full and final release of the No – Fault claim.

By letter dated April 6, 2011, respondent’s attorney accepted the settlement offer on respondent’s behalf.

The next day, the no – fault specialist responded by letter stating that the “$10000” was a typographical error, she could not offer that amount because it exceeded the remaining benefits available to respondent, and she had intended to make a settlement offer of $1,000.

Respondent maintained that her April 6, 2011 acceptance created a binding contract not subject to rescission and brought this breach – of – contract lawsuit against appellant, seeking to  enforce the $10,000 settlement agreement. The parties filed cross – motions for summary judgment.

The district court concluded that , as a matter of law, respondent’s acceptance of appellant’s offer to settle respondent’s no – fault claim for $10,000 created a binding contract that could not be rescinded based on mutual or  unilateral mistake.   The district court denied appellant’s motion for summary judgment  and granted respondent’s motion for summary judgment. This appeal followed.

D E C I S I O N 

Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that  there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from a summary judgment, this court reviews de novo whether any genuine issues of material fact exist and whether the district court erred in applying the law. The evidence is viewed “in the light most favorable to the party against whom summary judgment was granted.” McKee v. Laurion , 825 N.W.2d 725, 729 (Minn. 2013).

. . .

Meso RX Forums: Minnesota Doctor Loses Effort To Sue Patient’s Son For Defamation

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May 16, 2011

Minnesota Doctor Loses Effort To Sue Patient’s Son For Defamation

cvictorg in Meso RX Forums May 16, 2011

Dr. David McKee, a neurologist with Northland Neurology and Myology, has failed in his bid to sue the son of a former patient for complaining about his bedside manners, including statements to professional associations and posting comments on the Internet. Sixth Judicial District Judge Eric Hylden wisely dismissed the action.

Dennis Laurion of Duluth complained to the American Academy of Neurology, the American Neurological Association, two physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee, and St. Luke’s hospital, among others.

Dennis was shocked by what he viewed as McKee poor treatment of his father, Kenneth Laurion. Dennis listed an array of statements that he said were made by McKee including:

1. Angry comments by McKee over the fact that Laurion had been transferred from the Intensive Care Unit to a ward room;

2. Verbal complaint by McKee that he had to “spend time finding out if [the patient] had been transferred or died;”

3. Observations that 44 percent of hemorrhagic stroke victims die within 30 days;

4. Dismissive statements that Laurion didn’t need therapy;

5. Dismissive statements that he did not care about the fact that the patient’s gown was hanging from his neck with his backside exposed;

6. Blaming the patient for the loss of his time; and

7. Generally treating Laurion with a lack of respect or dignity.

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

 

 

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

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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