MPR: Calling A Doctor ‘A Tool’ Is Protected Speech

 JANUARY 30, 2013

“Calling A Doctor ‘A Tool’ Is Protected Speech”

Bob Collins, Minnesota Public Radio News Cut

 Image-Doctor-With-Tool

The Minnesota Supreme Court has thrown out the case against a man for rating a doctor online.

Kenneth Laurion had a stroke in 2010 and was examined in St. Luke’s Hospital by neurosurgeon (sic) Dr. David McKee in Duluth. Laurion’s son found McKee to be “rude and insensitive” during the 20-minute examination. So he posted the following on some “rate-your-doctor” websites:

My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and a physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his 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.” My father mentioned that he’d been seen by a physical therapist and speech therapist. Dr. McKee said, “Therapists? You don’t need therapy.” He pulled my father to a sitting position and asked him to get out of bed and walk.[] 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.” Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or myself. When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!”

McKee sued for defamation. A district court judge court threw the case out, but an appeals court kept the defamation claims intact.

The Minnesota Supreme Court threw those claims out, too, saying there’s no indication they were false, and there does not appear to be any harm to the doctor.

Statement 3 was published as follows: “Dr. McKee said, ‘Therapists? You don’t need therapy.’ ” We fail to see how this statement, standing alone, is capable of a defamatory meaning that would harm Dr. McKee in the eyes of the community. By itself, Statement 3 is harmless. Doctors routinely evaluate whether therapy is appropriate for a given patient.

Of particular interest in the case is the debate over whether calling a doctor “a tool” is protected speech. It is, the court said today:

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…. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990). 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. (explaining that people often engage in name-calling “without any real intent to make a defamatory assertion, and it is properly understood by reasonable listeners to amount to nothing more”).

Nonetheless, the assertion that a nurse told Laurion that Dr. McKee is a “real tool” is one of fact because whether a nurse actually made the statement to Laurion is an assertion that can be proven true or false. Dr. McKee argues that Laurion’s possible fabrication of the existence of the nurse, and thus the statement attributed to the nurse, creates a genuine issue of fact as to the falsity of Statement 6. As described above, Laurion’s assertion that the nurse made the statement to him and the implicit assertion that the nurse exists are susceptible to proof. We nevertheless conclude that even though Statement 6 includes a factual assertion that can be proven true or false, Statement 6 is not actionable because the statement is incapable of conveying a defamatory meaning. First, the part of the statement that can be proven true or false–whether a nurse made the statement to Laurion–does not itself place Dr. McKee in a negative light even if it is false. The assertion that a nurse made the statement only has the potential to cast Dr. McKee in a negative light when combined with the second part of the statement–that Dr. McKee is a “real tool.” However, attributing the statement to an unidentified nurse does not add defamatory meaning to the statement.

As a final matter, a review of Laurion’s online posting as a whole does not change our holding in this case. Given the reasoning underlying our conclusion that the six individual statements at issue are not actionable, it would defy logic to conclude that the posting, when viewed as a whole, is somehow actionable. Therefore, we reject any argument that the totality of Laurion’s statements makes his online posting actionable.

Nonetheless, there’s clearly a lesson here regarding posting material online: Be careful.

Jeff Hermes, director of the Citizens Media Law Project at Harvard University’s Berkman Center for Internet and Society, told the Associated Press at the beginning of the case that “people who want to post critical reviews should think about whether they can back up their statements. And they can strengthen their position by stating the facts on which their opinions are based.”

“The reality is that we bet our house every time that we post content online,” Professor Eric Goldman told the Associated Press. “It’s a lousy answer from a societal standpoint because we need people to share their experiences so vendors will be punished or rewarded as appropriate.”

Comments

GT: Wow, if I sued when someone called me a name, people might think I was a real tool!

Joanna: I notice that the court did not rule on whether or not the doctor exhibited toolish behavior in their consideration of whether or not the statement concerning his toolhood was fact or opinion. It is my opinion that the description of the doctor’s behavior suggests a violation of the hospital’s Patients’ Bill of Rights.

Bob Collins: They did not rule on whether or not the doctor exhibited toolish behavior in their consideration. They weren’t asked to rule on that.

Gary: So now thousands of people are made aware of Dr. McKee’s “toolish” behavior who would never have heard of it otherwise. If the good doctor was hoping to protect his reputation, I think he actually did the exact opposite. Which is another lesson we can take away from the whole affair.

BJ: Another lesson we can take away from the whole affair is that bullying works? I’m sure many people think the doctor is a tool (even I do) but if the lesson is to let bullies get away with something – because you deserve it – is still bullying. Free speech has limits – this person doesn’t appear to have come close to crossing it. But that doesn’t mean that just because you can say a thing, that you should say a thing. Like the title implies the opinion of the doctors behavior, calling this guy a tool, is protected. It appears that his skills as a doctor (besides beside manor) were not discussed in the online postings.

tribune reader: Doctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.

The Star Tribune said it’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts.

“The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”

McKee’s lawyer, Marshall Tanick, told the Associated Press that 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.

From the American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

From the Business Insurance Blog: The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine
issue as to falsity.”

From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.

In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from “an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it’s “an endorsement that statements of
opinion are protected under the First Amendment.”

According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in
libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”

The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being
sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”

In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for online reviews. . . doctors usually lose or voluntarily drop these lawsuits. Indeed, with surprising
frequency, doctors end the lawsuit by writing a check to the defendant for the defendant’s attorneys’ fees where the state has a robust anti-SLAPP law. Doctors and other healthcare professionals thinking of suing over online
reviews, take note: you’re likely to lose in court, so legal proceedings should be an absolute last-resort option–and even then, they might not be worth pursuing.”

Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”

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 – A Texbook Case

 

Duluth News Tribune – Website Comments About Duluth Doctor Not Defamatory

JANUARY 30, 2013,

“Minnesota Supreme Court – Website Comments About Duluth Doctor Not Defamatory”

Steve Kuchera Image-Duluth-News-Tribune

Criticisms a patient’s son made about a Duluth neurologist — including one referring to the physician as a “real tool” — are not cause for a lawsuit, the Minnesota Supreme Court ruled.

In an opinion filed Wednesday, the court found for Dennis Laurion, the patient’s son, reversing a Minnesota Court of Appeals decision that had sent Dr. David McKee’s defamation lawsuit against him back to the District Court in Duluth.

Laurion had posted his comments on a website where patients review their doctors. The case has been watched with interest because of the potential conflict between free speech versus protection of professional reputations on the Internet.

The opinion, written by Justice Alan Page, said the statements Laurion wrote about McKee were not defamatory because they’re opinions 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,” the justices said. “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 ruling also said it doesn’t matter whether an unnamed nurse to whom Laurion attributed the “real tool” comment actually exists. McKee’s attorney argued that Laurion might have fabricated the nurse, something Laurion’s attorney denied.

Image-Boxing-Doctor

Laurion said the entire experience was stressful on his family. “The initial excitement has not worn off,” he told the News Tribune. “I’m very gratified it’s all over.”

Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said on Wednesday the justices made the right decision.

That being said, “You can’t blame a guy like Dr. McKee for being upset,” Anfinson said. “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.” Before the Internet, people who complained about others typically did so to a small group of family, friends and acquaintances. “No one in the wider world ever heard them,” Anfinson said. That is no longer the case. “If you’re a practicing physician or other professional in a highly competitive environment, and this stuff is out there for any potential patient or client to see, it isn’t as simple as a superficial reading of the Supreme Court opinion would suggest,” he said. “I kind of feel for the guy, but the law as it is currently constituted really doesn’t provide him much of a remedy. That is the moral of the story.”

McKee, a neurologist with Northland Neurology and Myology, said Wednesday he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.

McKee filed the lawsuit against Laurion, of Duluth, in 2010. McKee alleged that Laurion defamed him and interfered with his business by posting false statements on the Internet and to various third parties, including the American Academy of Neurology, the American Neurological Association, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s hospital, among others. McKee asked for more than $50,000 in damages.

Laurion was critical of how his father, Kenneth, now 88, and his family were treated by McKee after his father suffered a hemorrhagic stroke and spent four days at St. Luke’s hospital April 17 through 21 of 2010. Laurion claimed that any statements he made about the doctor were true and that he is immune from any liability to the plaintiff.

In 2011, State District Judge Eric Hylden ruled that McKee was not defamed by the criticism and dismissed the doctor’s lawsuit.

McKee appealed to the Minnesota Court of Appeals and in January 2012 that court sent the case back to the district court for a jury to decide whether six statements Laurion posted about McKee on rate-your-doctor websites and distributed elsewhere were defamatory.

To establish a defamation claim, a party must prove that the defendant communicated to a third party a factual assertion that is false and tends to harm a plaintiff’s reputation in the community.

Laurion appealed the Court of Appeals decision to the Supreme Court and the case was heard in St. Paul in September.

The Associated Press contributed to this report.

REMARKS

Alysia Colandrea says: When Dennis Laurion posted his personal opinion about Dr. David McKee online and how he believed that he and his family were treated poorly under his medical watch, he was completely protected by his first amendment right to free speech when doing so. Laurion was not putting off his opinion as fact that the doctor was an awful doctor, he was stating HIS personal opinion. By taking Laurion to court on a libel case, he failed to recognize the fact that this opinion based article posted by Laurion was nothing more than an OPINION. He was not defaming him– he was stating his personal experience with the doctor, as well as comments that his own nurses had shared about him, such as “he’s such a tool.” As the case was appealed to different courts, the rulings were always in favor of Laurion. However, since it’s a case containing a First Amendment issue, it was brought to Supreme Court and was continually ruled in Laurion’s favor.

Brian Lambert says: I think I mentioned this before. But if every journalist ripped in the comments section took his complaint to court …

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

 

 

Reporting On Health: “Patient Punished For Rate-Your-Doctor Posts”

Defamation Montage

FEBRUARY 3, 2012

“Slap: Patient Punished For Rate-Your-Doctor Posts”

William Heisel, Reporting On Health

 I’m not so worried about the ability of Kim Dotcom to keep letting people download free movies from the Web. I’m more worried about Dennis Laurion.

You haven’t heard of Dennis Laurion? To me, he’s a bigger victim of overreach in the new world of online idea exchange.

Laurion’s father had been treated by Dr. David McKee, a neurologist in Duluth, Minnesota. Laurion apparently did not like some of the things that happened during that treatment, and so he posted his thoughts on at least three consumer rating sites. That’s why those sites exist, so that patients can share their knowledge But McKee thought that Laurion was hurting his business, and so he sued to shut Laurion up.

One would think that a suit like this would be laughed out of court, and it was by St. Louis County District Court. But McKee did not take no for an answer. He appealed, and last month, the Minnesota Court of Appeals, sent the case back to district court for trial.

As Mark Stodghill wrote in the Duluth News Tribune:

[[ Laurion was critical of the treatment his father, Kenneth, received from McKee after suffering a hemorrhagic stroke and spending four days at St. Luke’s hospital from April 17-21 of 2010. The appellate court determined McKee’s defamation suit should proceed regarding six claims Laurion publicly made about McKee.

[[ That McKee told the patient he had to “spend time finding out if you were transferred or died.’’

[[ That McKee said, “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option.’’

[[ That McKee said, “You don’t need therapy.’’

[[ That McKee said, “It doesn’t matter’’ that the patients gown did not cover his backside.

[[ That McKee left the patient’s room without talking to the patient’s family.

[[ That a nurse told Laurion that McKee was “a real tool.” ]]

McKee sounded a triumphant note in the Tribune, but Laurion was understandably bummed by the ruling. He wrote to the Tribune: ” 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, writing 19 letters, and posting 108 adverse Internet postings in person or through proxies. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again, although, to the best of my knowledge, the published statements were made with sincerity.”

Frequent Antidote readers might recognize a pattern here. We wrote last year about doctors and clinics have been trying to force patients to sign away their rights to review medical services on websites. And we wrote about one dentist who had threatened to sue a patient who had written a Yelp review about him.

Might McKee have a point? He very well might. Patients and their families are often emotional and under extreme stress during an illness or surgery. Sensitivities can run high, and something could be misinterpreted. But what disturbs me is the trend toward creating an environment where patients are too scared to report their legitimate criticisms.

Online review sites should not be a forum for falsehoods, but defamation suits against patients who post legitimate critiques of medical services are a threat to free speech and a threat to safe medicine.

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

This Internet Doctor Review Started David McKee, MD, V. Dennis Laurion, Minnesota Case 69DU-CV-10-1706

APRIL 22, 2010

[ This text is copied from Exhibits AA-358, AA-359, and AA-360 of the Minnesota Defamation Lawsuit of David McKee, MD, V. Dennis K. Laurion, Minnesota Sixth Judicial District Case 69DU-CV-10-1706, Filed June 9, 2010. ]

Reviewer: Dennis Laurion

Submitted to INSIDER PAGES, HEALTH GRADES, VITALS:

My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and physical therapist for evaluation. About 120 minutes after my father transferred from ICU to a ward room, Dr. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his 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. My father mentioned that he’d been seen by a physical therapist and speech therapist. Dr. McKee said, “Therapists? You don’t need therapy. He pulled my father to a sitting and asked him to get out of bed and walk. 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.” Five minutes later, Dr. McKee strolled out of the room. He did not talk to my mother or myself. When I mentioned Dr. McKee to a friend who is a nurse, she said, “Dr. McKee is a real tool.


 

[ In January 2011, Defendant Laurion was deposed about his submissions to Insider Pages, Health Grades, and Vitals. That deposition transcript became an Exhibit in the Minnesota Defamation Lawsuit of David McKee, MD, V. Dennis K. Laurion, Minnesota Sixth Judicial District Case 69DU-CV-10-1706, Filed June 9, 2010. ]

LAURION: I originally thought I had posted the same paragraph on all four of them. However, when I went back to look a couple of days later, it was only posted on two of them.

TANICK: Well, the next thing, I take it, is you posted on somewhere.

LAURION: Yes

TANICK: Okay.

LAURION: I posted on two of those Web sites.

TANICK: All right. And you thought you posted on four. Right?

LAURION: Yes.

TANICK: What accounts for that discrepancy?

LAURION: I don’t know, but when I went back to look a couple of days later, there was no remark on DoctorScorecard, and when I wrote to ask the sites to delete them, HealthGrades wrote back something to the effect that “You must be mistaken. We don’t accept narratives. All you could have done is filled out the number of stars.”

TANICK: All right. So you think your posting only appeared on InsiderPages and Vitals?

LAURION: Yes.

TANICK: Didn’t you have to enter the two other ones too? You thought you did at least?

LAURION: I thought I had, but apparently was mistaken.

TANICK: Okay.

TANICK: Well, if I understand you correctly, you’re telling us that this was posted on InsiderPages. Com, Doctors  Vitals, and you thought you posted it on the other two, but those apparently didn’t get on there, according to what you know?

LAURION: It was actually only posted on Insiders and –

TANICK: Vitals?

LAURION: Vitals.

TANICK: Okay, and I take it the reason you were drawn those two web sites is because – after Googling his name –

LAURION: Yes.

TANICK: – it came up that he was listed on those two. Right?

LAURION: He was listed on all four of them.

TANICK: On all four? Right. Was he listed on anything else?

LAURION: I think he was, but I didn’t go any farther than the first four.

LAURION: I looked at the sites to see if my comments were posted.

TANICK: And they were posted on two, but not the other two. Right?

LAURION: Exactly.

TANICK: When you did your posting on the three – or the two Web sites that you say you posted, InsiderPages and Vitals.com. Right?

LAURION: Okay.

TANICK: I think you told us what prompted you to put the postings on Vitals and InsiderPages, but what was your purpose in doing it?

LAURION: In doing what?

TANICK: In posting – in making those postings about your encounter with Dr. McKee. You told us, I think, that you said you saw he had a profile there and he was kind of mediocre, and that kind of prompted you to put something on there. But what was your purpose? What was your goal or objective?

LAURION: I think it was simply to state a case of bad behavior from that individual while sticking to not causing any conclusions. I didn’t make any reference to his skill as a doctor, but I –

TANICK: Well – go ahead.

LAURION: – felt the site exists for that purpose.

TANICK: For what purpose?

LAURION: If you see a doctor, you can go there and rate him. You can tell good things about him and you can tell bad things about him.

TANICK: And you told bad things?

LAURION: I told that one episode. I didn’t make any predictions or characterizations.

TANICK: Fair enough.


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

DOCTOR BASE: “What Not To Do With A Negative Review”

Doctor David McKee

SEPTEMBER 6, 2010

“What Not To Do With A Negative Review”

Mike Haverhals, DOCTOR BASE

We get a lot of questions about what to do about the dreaded negative review if-and-when it rears its ugly head. Obviously, the first thing you should do is contact the patient privately to resolve the issue. More often than not, these issues can be easily resolved when the doctor takes the time to listen to the patient’s concerns. In the event that you can’t resolve the problem at hand, the next thing to do is even simpler – do nothing. The truth is, a negative isn’t the worst thing ever – unless you make it the worst thing ever.

You could reply publicly to the review, dragging yourself down into a online mud-slinging contest & potentially violating HIPAA laws by disclosing the patient’s Protected Health Information in an attempt to defend yourself.

You can always threaten to sue the review site, incurring a massive legal bill for nothing since review sites are only ‘content providers’ and not legally responsible for what users post.

You could also threaten to sue the reviewer, again incurring a massive legal bill for nothing since the lawsuit will be thrown out under the anti-SLAPP law. (The law barring any “Strategic Lawsuit Against Public Participation.)

Unfortunately, all of these approaches will also serve to do you more harm than good. It’s something we online geeks refer to as the “Streisand Effect.” When Streisand took legal action to force the removal of online images of her beachfront property from a website documenting the California Coastline, what resulted was even more publicity around the images, along with negative publicity around Streisand’s attempt to censor the photographer. (Which failed, as the lawsuit was thrown out under anti-SLAPP laws.) Don’t fall into the same trap.

Simply let it go. Instead, focus on getting more positive reviews online to drastically outweigh the occasional negative one. Like we always tell doctors – people don’t expect perfection, they do expect honesty. When potential patients find out you’re trying to muzzle your exiting patients, they’ll go elsewhere looking for an honest doctor. One who’s confident enough in their own abilities not to be concerned with covering up a negative review.

FULL ARTICLE

David McKee, MD, v. Dennis K. Laurion

Yvonne Wong, DDS, v. Tai Jing

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

Health Care News Feed Reacts To Mckee V. Laurion

MARCH 21, 2013

“Have You Heard The One About The Physician Who Sued A Patient’s Son For Online Comments? Some People Just Never Learn.”

By Dan Hinmon, Health Care News Feed

A four-year legal battle over a patient’s right to make negative comments about a doctor in social media ended last week when the Minnesota Supreme Court ruled unanimously that the comment was protected speech. We covered the case in an earlier blog post.

The battle started when Dr. David McKee sued Dennis Laurion for calling him “a real tool” on physician rating sites after McKee treated Laurion’s father poorly during a hospital stay.

“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,” wrote the court.

Laurion, who was forced to deplete his savings and borrow from relatives to pay for his defense, was not surprisingly relieved.

The shocker, though, was the response of McKee. According to the Star Tribune [ 1 ], McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee “hasn’t ruled out a second lawsuit stemming from these posts.”

Yes, you read that right. After spending “at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,” McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in.

I’m speechless.

FULL ARTICLE

[ 1 ] STAR TRIBUNE ARTICLE about McKee V. Laurion

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

Read Before You Rant – Online Reviews And Defamation Suits

MAY 25, 2014

“Rants, Raves and Disses — Your Target May Shoot Back”

Gary L. Bostwick, Huffington Post

Simpler Freedom of Speech

An Oregon man wanted to tell the world he had attended a wedding two days before at a place called Dancing Deer Mountain, and if you were looking for a location to get married, this was not the place. It had been a “disaster.” Christopher Liles wanted to express himself, as many folks do, by posting a negative review on the Internet. It may cost him.

Posting is so easy. You think you can say whatever you want on the Internet. Think again.

People reviewed negatively are fighting back, using the law: merchants, restaurants, contractors, physicians, yoga teachers and others — among them, Carol Neumann and her husband, the owners of Dancing Deer Mountain.

It sounds pleasant enough, like a scene from a Disney movie. But Liles wasn’t enchanted. Here’s his post:

[[ Disaster!!!!! Find a different wedding venue.

[[ There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guests. I was only happy with one thing: it was a beautiful wedding, when it wasn’t raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same. In my opinion She will find a why [sic] to keep your $500 deposit, and will try to make you pay even more. ]]

Doesn’t Liles have a right to speak out? Well, as the first issue of this blog told you, “Not always.” Free expression is restricted by the government in many ways, despite what the First Amendment says. One of those ways is by passing laws giving a person harmed by claimed lies the right to go after your money in court.

And that’s what Carol Neumann did. She sued Liles for $7,500, claiming Dancing Deer’s business dropped off severely after the post. So far she has fought off Liles’ attempts to dismiss her case. Neumann and other witnesses say that some of Liles’ statements are false so it is headed for a trial.

But Neumann can’t be compensated for everything Liles said. Can you figure out which statements above are claims the Oregon court says she can sue on and which she can’t?

Don’t be ashamed if you can’t. Liles’ rant is a great example of court cases all over the country deciding whether a person’s statements are “opinion” or “factual statements.”
•    If they are opinion, the law protects our right to express them. The law can’t punish you for opinions, evil or crazy as they might be.
•    But if your statements are facts, you’re fair game for a person who says you’re lying and your lies hurt them.

You ask yourself, “How do I know an opinion when I read it?” As lawyers say, “It’s complicated.” The question keeps lawyers all over the country occupied for many hours a year. Don’t think you’ll find the definitive answer here. It depends on the facts and circumstances in a case, people don’t agree on the answer most of the time and, most importantly, any state or judge may come up with a different result from the state next door or another judge down the hall. And… it’s complicated. But some guidelines are clear.

If someone can’t prove something either true or false, then it’s an opinion. My meal was too cold is an opinion. He broke my rear molar is not. A Wal-Mart was called “trashy.” The court said “trashy” could be interpreted many ways. So the person who said it was safe. Another person stated that a painter had “f***** up the paint job.” No precise meaning there, so it was safe. People were called the “biggest crooks on the planet,” others “boobs, losers and crooks”; the courts said these statements were the kind of extreme speech or juvenile name-calling that readers understand as “exaggerated rhetoric,” roughly speaking, hot-air. Readers wouldn’t believe the speakers really meant the literal words and they couldn’t be proved true or false. (How do you prove someone is a boob or a loser or the biggest crook on the planet?) Those posters were safe. But in California, a Yelp review that accused the poster’s landlord of “abhorrent behavior that (likely) contributed to the death of three tenants” was not OK because they were “facts.” A court said that just because it’s on the Internet, people don’t assume it’s just loose talk or raving. Courts can “… dispense quickly with defamation claims arising from true rants and raves, [but] they do not preclude the courts from taking serious Internet speech seriously.”

Tacking on “IMHO” (in my humble opinion) or a similar phrase won’t protect you. If Susan says, “In my opinion John Jones is a liar,” the reader believes she knows facts proving Jones lied. If she doesn’t also tell the reader those facts, what she said is considered a fact, even if she said it was only her opinion. Sooner or later, she must prove her statement was founded on evidence. Once she does that, they better be correct. If she says, “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin,” she’s probably safe if he actually did accept those teachings.

Liles did not protect himself. Most of us don’t. The Internet makes it easy to spout off, so we just type whatever we’re feeling and get it off our chest. That’ll teach ’em!

And as for Dancing Deer Mountain? The appellate court two weeks ago decided that Neumann could go ahead with her case despite freedom of speech, because some things that Liles said were not opinion. Why? Although the court said that “some” of what Liles said was protected opinion, its only example was “The worst wedding experience of my life!” Yep, can’t be proved, so it’s an opinion.

I see other candidates: “there are … great places to get married, this is not that place”; “I was only happy with one thing”; and how in the world can words like “two faced” and “rude” be considered anything but opinion?

The court said Neumann could go forward on her claims based on the whole post including, these statements: “[t]he owners did not make the rules clear”; “when they saw something they didn’t like they waited until the day of the wedding to bring it up”; “[w]e were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately”; and “[t]he ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same”).

FULL ARTICLE