Health Matrix: “I Hate My Doctor”: Reputation, Defamation, and Physician-Review Websites

“I Hate My Doctor”: Reputation, Defamation, and Physician-Review Websites 

Sean D. Lee 

Health Matrix, The Journal Of Law – Medicine

Volume 23, Issue 2 

Case Western Reserve University School Of Law 

2013

Health care quality reporting is not a new phenomenon, and information about patient experiences and satisfaction is available in many forms. For example, as part of its “Hospital Compare” initiative, the federal government publishes hospital patient experience ratings based on criteria like “nurses’ and physicians’ communication skills, pain control, cleanliness, and whether the patient would recommend the hospital to friends and family.” Some state governments, nonprofit organizations, and health insurers publish similar reports of patient satisfaction based on a variety of subjective and objective criteria. According to one commentator, this trend toward quality reporting has increased due to factors like greater attention to health care quality concerns and cheaper, more widespread access to technology.

Consumers are increasingly going online to inform their health care decisions. As of 2009, more than forty websites like Angie’s List, Yelp, and RateMDs offer reviews of medical care providers. Even Zagat, best known for its travel and leisure guides, entered the business of physician reviews in 2008. In addition to providing basic information about a provider’s licensure, office locations, and disciplinary record, these physician-review websites allow patients to rate their experiences—often anonymously—on criteria like the physician’s punctuality, knowledge, bedside manner, and even staff friendliness. Based on these categorical ratings, review sites calculate an overall “score” for the provider, usually represented numerically (e.g., “8/10” or “four stars out of five”). Some review sites allow patients to supplement their grades with comments or narratives while others compile only numerical data.

Commentators debate the usefulness and legitimacy of physician-review sites. For example, while one analyst argues that these websites can improve standards of care by physicians by providing timely and detailed feedback to providers, another responds that the anonymous and unscientific data gleaned from these sites is worthless or even detrimental. The American Medical Association (AMA) and some states’ attorneys general have expressed concerns that these ratings merely reflect disgruntled patients’ venting and can be misleading. Similarly, the American Academy of Family Physicians has warned that “choosing a physician only according to consumer ratings can deprive patients of high quality medical care, particularly if those ratings are based on unrecognized and unvoiced anger or unjustified allegiance.”

So how do physicians fare on these websites? For all the wrath these sites have provoked, the result is surprising: studies show that doctor ratings are overwhelmingly positive. For example, one study of thirty three physician-rating websites found that 88 percent of reviews were positive, while 6 percent were negative, and 6 percent were neutral. Another study analyzing 15,000 reviews from 2004–2010 on the site DrScore.com found the average doctor rating was 9.3 out of 10, with an astonishing 70 percent of reviewed physicians receiving perfect scores.

Although review sites are increasingly popular, they may not yet factor significantly in consumers’ health care purchasing decisions. A 2011 study conducted by the Pew Research Center’s Internet & American Life Project concluded that physician-review sites “have not yet become health care decision-making tools for most consumers.” Indeed, only 16 percent of Internet users have consulted online rankings or reviews of doctors or other providers, while 4 percent of Internet users have posted an online review of a doctor. Another study, however, reports higher figures: that 37 percent of adults have consulted physician-rating sites, and 7 percent of people who sought information about their provider posted a review online.

Based on these findings, it seems strange that doctors and medical organizations have reacted so strongly to online reviews. There may be several explanations for their discomfort. While provider reviews on the whole are positive, individual doctors may still dislike negative ratings. Obviously, no one wants to be criticized, especially on such a public and enduring forum as the Internet. Reviews of individual doctors also tend to be spread out over different websites. For example, a physician who has four ratings on RateMDs, two of vwhich are negative and neutral, may feel that his practice is unfairly represented to those who consult only that website. And the subjective nature of review sites may particularly rankle scientifically minded medical professionals.

But there may be more intriguing practical and philosophical issues at play: online reviews might present harms and challenges that uniquely affect the medical profession. First, patient privacy protections restrict how and when doctors can respond to critical reviews. Second, doctors may believe that they are unfairly criticized by patients who lack the specialized medical knowledge to comment meaningfully on their treatment. Third, certain professional and societal factors may intensify the sting of patient criticisms.

While some review websites like Yelp allow critiqued businesses to respond directly to criticism, physicians may not be able to post detailed rebuttals because of patient-privacy protections under state law and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Specifically, the HIPAA Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral; this information is termed “protected health information (PHI).” Patients may freely self-disclose PHI—and many do when they volunteer detailed accounts of their care online. But this does not mean that a patient automatically authorizes the doctor to discuss all aspects of the patient’s treatment. If a physician discusses or transmits PHI without a patient’s consent, she faces penalties of up to $50,000 per violation depending on its nature and extent and resulting harm. Thus, while a hotel manager may be able to mitigate a negative review by directly and thoroughly responding to a critical review, a physician risks violating a patient’s privacy rights if she provides specific details about a reviewer-patient’s care. In the words of one chagrined dentist, “Patients get to lie on Yelp, but because of HIPAA, we cannot tell the truth about the patient and what really happened.”

Although HIPAA’s privacy safeguards uniquely restrict a physician’s ability to thoroughly respond to poor reviews, doctors may still effectively respond to criticisms with general information about their practices and procedures. Thus, a physician can respond to complaints about parking, staff, or billing structure without fear of violating a patient’s privacy. According to the founder of one physician-review website, complaints about wait times are a “huge issue,” as are comments about poor bedside manner and curtness. Physicians may even respond to specific criticisms about medical care by describing their practice’s procedures and standard of care without confirming or denying that a reviewer is a patient.

Physicians may feel that they are unfairly maligned by patients who lack the specialized medical knowledge to comment objectively on their treatment. Some commentators argue that the typical lay patient cannot—and therefore should not—make technical assessments that others might rely on.

Yet studies have revealed that patients’ online reviews are not typically objective, technical critiques; rather, they focus heavily on nonclinical factors like the amount of time the doctor spends with them, parking accommodations, and ease of scheduling appointments. For example, one study found a very strong correlation between online patient satisfaction ratings and shorter office wait times. Available data indicates that patients simply are not evaluating “surgical technique or diagnostic abilities” despite what many doctors seem to fear. While these types of findings naturally raise arguments about the value of subjective “customer service” focused reviews, physician-review websites are best understood as just one resource that consumers can consult when making health care decisions, alongside other objective quality measures like aggregated clinical data. The subjective experience does matter to patients, and patient reviews can capture things that do not show up well in objective statistics; for example, whether the doctor includes the patient as a partner indecision-making or whether the office staff is rude or unhelpful.

Opponents of review sites may also argue that these sites ignore the collaborative nature of medical care. For example, if a non-adherent patient fails to be responsible in her own care, the physician should not be blamed for a poor treatment outcome. Furthermore, because receiving shoddy health care can have devastating consequences on a patient’s well-being, consumers may be unusually sensitive to any negative comments about providers.

While non-adherent patients are an unfortunate reality, doctors should not fear the occasional negative review. Studies indicate that some mediocre or negative ratings actually improve consumer confidence in reviews because mixed reviews are perceived as more genuine.

Physicians must also trust that prospective patients will be savvy consumers of review data who can decide what is trustworthy. And even if patients are especially impressionable to health review data, physicians should embrace review sites and proactively use them as a tool to actively increase business and respond to patients’ concerns. Today, “physicians compete for patients just as business people compete for customers.” Doctors disadvantage their practices when they ignore anecdotal reviews or passively wait to receive feedback.

A significant component of medical education aspires to make doctors skillful, knowledgeable, and moral practitioners. Reflecting this goal, Principle 1 of the AMA’s Principles of Medical Ethics provides that a physician “shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.” Principles 2 and 8 further state that a physician should “uphold the standards of professionalism, be honest in all professional interactions[,]” and “regard responsibility to the patient as paramount.” Beneficence and nonmaleficence, the respective duties to do good and to do no harm, are foundational principles in the ethos of medicine. When a patient alleges in a review that a doctor harmed her, whether through a medical error or even an offensive bedside manner, that criticism strikes at the heart of the doctor’s professional integrity. Even unflattering remarks about staff friendliness or parking accommodations may be interpreted to impugn a physician’s ability to run her practice well.

As discussed below, however, doctors should recognize that critical patient reviews, although sometimes uncomfortable to read, can give them direct insights into their patients’ preferences and priorities. Doctors should interpret these criticisms constructively and consider whether changing certain behaviors or aspects of their practices would be in their best financial and professional interests.

With the rise of physician-review websites, doctors have increasingly been suing and threatening to sue their patients over their reviews. This section explores defamation law.

Defamation law attempts to balance a plaintiff’s interest in an untarnished reputation against a defendant’s First Amendment right to freedom of speech. Many legal experts and health care professionals believe that the tort of defamation is the proper legal response to addressing injurious or false reviews. On the other hand, defamation law frequently skews toward the protection of free speech, and cases are notoriously difficult for plaintiffs to win: one study found that only 13 percent of defamation plaintiffs prevail. This is primarily for two reasons. First, plaintiffs must meet a high prima-facie burden in demonstrating defamation. Second, a defendant can escape liability through a “panoply of privileges and affirmative defenses.” Historically complex, defamation law becomes even more complicated when applied to online reviews, implicating issues like author anonymity and questions of service provider liability.

Defamation is a creature of state law, so the precise requirements vary from state to state. However, a cause of action for defamation generally requires: (1) a false and defamatory statement concerning another; (2) an unprivileged communication of that statement to a third party; (3) fault amounting to at least negligence on the part of the speaker; and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). A communication is defamatory if it “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Courts consider the circumstances surrounding the communication and evaluate its effect upon the average reader or listener.

Analysis depends on whether the statement was slander (oral defamation) or libel (written defamation). At common law, if the communication was slanderous, the plaintiff must prove that the statement caused economic loss. On the other hand, if the communication was libelous, the plaintiff ordinarily does not have to prove economic harm. The rationale behind this distinction is the permanence of written communications as opposed to the ephemeral qualities of spoken ones. In all cases challenging online patient reviews, plaintiff physicians have proceeded under the theory of libel.

Certain categories of speech are so plainly defamatory that they do not require a plaintiff to show any special (i.e., economic) harm. Injury to reputation is presumed merely from the fact of publication. A statement can be defamatory per se if it imputes the commission of a crime or “incompetence, incapacity, or unfitness in the performance of [one’s] trade, occupation or profession.” Thus, statements that a physician acted unprofessionally or unethically are presumptively defamatory. For example, in Nasr v. Connecticut General Life Insurance Company, the court upheld the per se defamatory characterization of slanderous statements that a physician was a “quack,” operated a “racket,” prescribed ineffective treatments, and was “under investigation.” Similarly, in Fuste v. Riverside Healthcare Association, Inc. , the court held that slanderous statements that two doctors “abandoned” their patients and that there were “concerns about their competence” prejudiced the doctors in the practice of their profession and were defamatory per se.

While critical patient reviews might inherently seem defamatory per se, that is not necessarily the case: “a mere expression of dissatisfaction with a person’s professional performance is not defamatory per se.” As discussed below, the powerful defenses of opinion and substantial truth can also shield patient-reviewers from liability for statements criticizing a doctor’s fitness as a practitioner.

When a plaintiff is a private citizen defamed about a private matter, the defendant must be at least negligent with respect to the truth of the statements. A defendant is generally negligent when she fails to act reasonably in attempting to learn whether a statement is true or false. On the other hand, plaintiffs who are “public figures” must meet an additional burden, showing that the defamer acted with “actual malice.” To prove actual malice, the plaintiff must show that the defendant acted with knowledge of falsity or reckless disregard for the truth.

The fact that an individual practices medicine does not automatically make her a public figure, though she may become one if she holds herself out as a pioneer, “seek[s] to develop and advance a new treatment option,” or seeks publicity or injects herself into a matter of public controversy. For example, in Rodriguez-Erdmann v. Ravenswood Hospital Medical Center, a physician was denied staff membership at the hospital where he worked. After the physician held several press conferences alleging that he was discharged in retaliation for “speaking out about problems of malpractice,” the hospital circulated a memo stating that the physician was merely acting out of disappointment. In the resulting libel suit, the court held that the doctor was a public figure in this instance because he “thrust himself to the forefront of the controversial issue of medical malpractice.” Because the physician could not prove actual malice, the court affirmed dismissal of his suit. Thus, a “public figure” physician must satisfy the higher burden of proving actual malice to sue a patient for a review implicating that status.

Physician-review websites frequently allow users to post their impressions without requiring any personally identifying information. Because the First Amendment protects the rights of individuals to speak anonymously, even on the Internet, physicians may have difficulty identifying anonymous and pseudonymous defendants. A doctor may have to issue a special production of evidence subpoena to a website administrator or web host to compel them to reveal identifying information about an anonymous poster. Once the poster is “unmasked,” the defamation suit can proceed as usual. Courts, however, have expressed discomfort with issuing these types of subpoenas, citing the potential of impermissibly chilling free speech.

There is no clear standard that courts apply when asked to identify an anonymous defamation defendant on the Internet. One authority, however, is Dendrite International, Inc. v. Doe No. 3, in which the court articulated a four-part test for when an anonymous poster’s identity may be revealed. First, the plaintiff must make an effort to notify the anonymous poster that an order for disclosure is pending against him and to allow the anonymous defendant reasonable time to oppose the application. Second, the plaintiff must specifically identify the allegedly defamatory material. Third, the plaintiff must present a prima facie case of defamation against the anonymous poster. Fourth, the court must balance the defendant’s First Amendment right to anonymous free speech against the strength of the plaintiff’s prima facie case and the need for the defendant’s identity to be revealed for the case to go forward.

Even if a physician can successfully establish a prima-facie case of defamation, a complex set of protections and affirmative defenses may shield a poster’s online comments. Aggrieved doctors are further stymied by the Communications Decency Act (CDA), which protects websites that host disparaging comments. Finally, the threat of anti-SLAPP (Strategic Lawsuits Against Public Participation) suits and negative publicity resulting from a defamation suit may effectively be defenses by barring or deterring a physician from bringing a defamation suit.

In an online defamation case, both the author of the defamatory statements and the operator of the service displaying the defamatory material are potential defendants. For economic reasons, plaintiffs might prefer to sue Internet Service Providers (ISPs) and website administrators rather than individual authors who are less likely to have “deep pockets.” However, Section 230 of the CDA largely immunizes ISPs from liability for content posted on their websites. Specifically, subsection 230(c)(1) provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher of any information provided by another information content provider.” In other words, even if a website allows users to post potentially actionable content, these sites are immunized from liability. As a result, “nearly all of the cases interpreting Section 230 defenses have found ISPs immune.” However, ISPs or site administrators may still be liable if they “interact[] with the content or its source” or are “responsible for the creation or development of the content.” Perhaps the clearest example of this exception is editing user comments: if a review website alters a user’s statements in such a way that they can be read defamatorily, the site loses Section 230 immunity.

In Reit v. Yelp!, Inc., dentist Glenn Reit sought a preliminary injunction requiring the consumer review website Yelp to remove an anonymous comment alleging that that his office was “small,” “old,” and “smelly” and that the equipment was “old and dirty.” Reit blamed the post for reducing the number of appointment calls he received from ten to fifteen per day to four or five per day. The court denied Reit’s request for an injunction, finding that Yelp was an “internet computer service” within the contemplation of Section 230 and therefore free to display the post. *

Although it is largely fruitless for doctors to sue review websites directly, physicians still have a strong interest in pursuing the individual authors of offensive material. Aside from the obvious desire to remove reviews, a physician may act to recover damages or for personal vindication. We turn now to the defenses available to the individual authors of defamatory content, including truth and opinion.

It is axiomatic that truth is an absolute defense to defamation. To be clear, however, a defendant does not have to prove that a statement is entirely true to escape liability, only that it is substantially true. Courts may “overlook[] minor inaccuracies” in allegedly defamatory material and focus instead on the overall gist of a statement when considering its veracity.

But even true statements can be defamatory when they are misleading or mischaracterize the plaintiff. For example, in Wong v. Tai Jing, a father posted a scathing review of his child’s dentist on Yelp. In his post, he implied that the dentist dangerously administered general anesthesia, failed to disclose that the child’s fillings contained mercury (a potentially dangerous heavy metal), and misdiagnosed the child. While the dentist did in fact apply general anesthesia, implant a filling with mercury, and did not discover all of the child’s cavities, the court found that the father’s review deliberately omitted the legitimate reasons underlying these circumstances. Thus, even though the review was technically factual, its accusatory tone and misleading implications transformed it into libel. **

The defense of opinion is another privilege that may be remarkably difficult for an aggrieved physician to overcome. As a threshold matter, courts must determine whether allegedly defamatory speech asserts facts or opinions. The First Amendment protects pure statements of opinion, no matter how derogatory. On the other hand, a disparaging statement may be actionable if an average reader or listener might reasonably believe that it is an assertion of fact. Courts look to the nature and context of a statement to determine if it is a protected opinion. A statement that “appears in a place usually devoted to, or in a manner usually thought of as representing personal viewpoints, is . . . likely to be understood—and deemed by a court—to be nonactionable opinion.” A comment is not usually defamatory when it is hyperbolic, wildly offensive, or consists of “loose, figurative language.”

Thus, a physician who believes that she is defamed on a review site must show that an offending comment could reasonably be interpreted as factual. Ironically, outrageous accusations that might offend a physician the most are likely protected because of their hyperbolic quality. For example, a statement maligning a physician as “the biggest idiot I have ever met” likely would be nonactionable.

Physicians who sue a patient for posting a negative review may also be subject to an anti-SLAPP (Strategic Lawsuits Against Public Participation) motion to strike the complaint on the grounds that the online posting is protected public interest speech. Over half of the states have adopted anti-SLAPP legislation to curb frivolous lawsuits that defamation plaintiffs frequently bring to harass, bully, and intimidate critics into silence. Although these laws vary from state to state, they share two key features. First, they provide an expedited procedure to short-circuit SLAPPs, conserving all parties’ time and resources. Second, successful defendants are awarded legal defense costs. Thus, facing the double risks of a dismissed suit and having to pay the defendant’s fees, physicians must think carefully about the merits of a case before bringing a potential SLAPP.

Finally, one of the most significant challenges facing potential online defamation plaintiffs is a phenomenon humorously referred to as the “Streisand Effect.” In 2003, Barbra Streisand unsuccessfully attempted to sue photographers for $50 million to remove an aerial photograph of her mansion from the Internet. Before Streisand filed the suit (claiming invasion of privacy), hardly anyone knew the picture existed; after she filed the suit, the photo was downloaded and viewed 420,000 times. Thus, the Streisand Effect “covers those situations where the threat of legal action has brought publicity to the information sought to be suppressed.” When physicians choose to pursue an online defamation case, they risk calling attention to a statement that might otherwise go unnoticed; this heightened publicity is exactly the opposite of what the physicians want. In the words of one commentator, “the remedy may be worse than the problem.”

Indeed, the Streisand Effect has played out with surprising ferocity when physicians have attempted to suppress negative online reviews. For example, in 2010, a Minnesota physician filed a $50,000 defamation lawsuit against the son of a former patient. Angered by the physician’s alleged mistreatment of his eighty-five-year-old father, the son posted several negative reviews online that criticized the doctor’s poor bedside manner, disinterested attitude, and insensitivity. After the doctor filed suit, news of the litigation reached Reddit.com, a popular social media website, where readers promptly set out to excoriate the doctor online. As a result, Reddit users churned out over a hundred scathing comments across the web about the physician and the lawsuit. ***

For a physician who simply wants to remove a review she believes or  knows is unfair or untrue, resorting to defamation law can be a nightmare. It is frustratingly complex, with a dizzying array of factors to juggle. Physicians may have difficulty establishing a prima-facie case, and even if they can, defendants may escape liability through a vast network of defenses and privileges. Litigation may attract publicity to an otherwise unremarkable claim. And practically speaking, lawyers are rarely willing to offer a contingency fee arrangement in defamation practice; many patient-reviewers will likely be judgment-proof as well.

This Note does not call for physicians to entirely abandon defamation law. For example, if a review falsely alleges serious misconduct, a doctor should consider filing suit. But in less extreme cases, this Note advocates looking to defamation as a measure of true last resort, and only after careful and realistic consideration of the case’s merits.

SOURCE

* Reit V. Yelp

** Wong v. Tai Jing

*** McKee v. Laurion

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The Good, The Bad And The Ugly With Online Reviews

May 1, 2013

The Good, The Bad And The Ugly With Online Reviews

Carol M. Langford, Contra Costa Lawyer

A search on the business rating site Yelp for attorneys in San Francisco yields 5,681 results. Although Yelp and similar sites are probably best suited for restaurants and night clubs, many people use the site to review professionals. These reviews influence potential clients. The Lawyerist.com, a blog for legal professionals, recently polled a thousand people with the question: “When you need to find a specialty lawyer, how would you start your search?” Twenty-two percent said that they search Google or another search engine, 10 percent said that they “look elsewhere on the internet” and 2 percent said that they “ask on my favorite social network.”

Yelp is not the best indicator of an attorney’s ability—but most people using Yelp don’t know that. Most experiences with Yelp reveal that generally bad restaurants get bad reviews and good restaurants get good reviews. However, some places of business and now some attorneys either pay people to write good reviews or ask their dearest friends to rate their lawyer skills online. Thus, inexperienced lawyers who are savvy with social networking can have outstanding reviews and more seasoned, but less Internet-savvy attorneys can have bad reviews and not even know about it. In some instances, attorneys might be rated for things that have nothing to do with their legal abilities. There is really no way to tell why someone rated a particular attorney with high marks.

However, the troubling question is, what can a lawyer do to fight back when he or she receives a negative review on Yelp? According to some ethics experts: not much. In the Los Angeles County Bar Association’s Formal Ethics Opinion #525, the authors concluded that any public response to a negative review online must not “disclose confidential information,” must “not injure the former client in any matter involving the prior representation” and must be “proportionate and restrained.” The part about not disclosing confidential information can leave attorneys at a huge disadvantage when responding online.

Because opinions are protected by the First Amendment, clients are usually within their rights to log onto social media sites and trash their attorney, as long as they don’t knowingly make false statements—a hard standard to prove. Further complicating matters is the attorney-client privilege, which restricts the attorney as to what he or she can say to respond, if that requires divulging privileged information. For instance, imagine a client that hired a personal injury attorney with unreasonable expectations of receiving millions of dollars in settlement, or a client that ended up slighted in a divorce settlement because of his or her own bad behavior. The client could then go on Yelp, AVVO, LawyerRatingz, Angie’s List, etc., and tell the world that the attorney botched the case. In this situation most people would reasonably want to defend themselves against these accusations by pointing out the client’s own bad behavior. But as lawyers we cannot. So what can we do?

A professional can always sue over a bad review for defamation—but only if the statements made in the review were false. Even then, it’s probably not a good idea. The Associated Press recently reported about a Minneapolis Neurologist, David McKee, who sued a patient’s son for defamation after he wrote a scathing review, including disparaging comments allegedly said by the doctor to him and his family following his father’s stroke. McKee claims that the statements attributed to him were not true. This particular case has not been decided ( * ), but such suits are rarely successful. A study by Eric Goldman, a professor at Santa Clara University School of Law, revealed that of the 28 physicians who have recently filed similar suits, 16 of them were dismissed and six of them settled.

 

Defendant Dennis Laurion

Defendant Dennis Laurion

 

Tendentious Lawyer

Plaintiff Attorney Marshall Tanick

Plaintiff David McKee MD

Plaintiff David McKee MD

 

 

 

 

 

 

 

The outcome of such suits can be devastating. In a July 13, 2009, article the San Francisco Chronicle reported about a California dentist, Yvonne Wong, who sued a patient and Yelp after the patient posted a negative review on Yelp’s site. Ultimately, Ms. Wong was ordered to pay more than $80,000 in attorney’s fees to her patient and Yelp. The judge ruled in that case that California’s stringent anti-SLAPP law could be applied because the patient had mentioned mercury fillings in her review, and thus the review furthered discussion of an issue of public interest.

Even Yelp’s spokeswoman Kristen Whisenand recommends against using the “nuclear option” and suing for a negative review. Why? Because it usually only brings more attention to the negative review—which is what the professional didn’t want in the first place. For example, in 2007, the New York Times reported about attorney John Henry Browne who sued the lawyer-ranking site Avvo alleging that his 5.7 (out of 10) ranking was damaging to his law practice. A federal judge held that the reviews were protected under the First Amendment right to express opinions and dismissed the case. The case brought more public notice to the negative Avvo reviews that the attorney wanted removed in the first place. A search of the same attorney now shows that he was able to raise that number to 6.6, so maybe he learned a thing or two since then. Or maybe he simply became more Internet-savvy and learned how to work the system.

The best option for attorneys is to check the ratings websites, and respond to the reviews in a friendly, proactive manner. For example, one San Francisco attorney with a rating of 2.5 stars on Yelp (out of 5 possible stars) responded to each and every one of his negative reviews in a polite manner that did not divulge privileged information. Although measures such as these may seem distasteful, the reality is that social media exists, people do check it when searching for an attorney, and the only thing attorneys can do is to stay on top of things.

Carol M. Langford has a practice in State Bar defense and professional licensing disputes in Walnut Creek. She teaches professional responsibility as an adjunct at U.C. Berkeley, Boalt Hall School of Law, and Hastings College of the Law. Additionally, Ms. Langford serves as an expert witness in cases involving complicated ethics issues and presents at conferences and symposiums across the state. She is a past Chair of the California Committee on Professional Responsibility and Conduct.

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

Duluth Doctor’s Claim For Defamation Based On An Online Review Reaches The Minnesota Supreme Court

FALL 2012

Duluth Doctor’s Claim For Defamation Based On An Online Review Reaches The Minnesota Supreme Court

Cassie Batchelder, Silha Research Assistant

Silha Center For The Study Of Media Ethics And Law

University Of Minnesota School Of Journalism And Mass Communication

Image-University-Of-Minnesota

Displeased by the treatment his father received in the hospital, Dennis Laurion took his complaint online. Laurion wrote a review of Dr. David McKee, a neurologist who treated his father at St. Luke’s Hospital in Duluth, Minnesota. following a stroke, on a rate-your-doctor website.

Laurion wrote in the online review that his family was displeased with McKee’s “bedside manner.” The review read, “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’” according to a March 24, 2012 story in the Minneapolis Star Tribune. Laurion’s complaint focused on Dr. McKee’s “body language and comments” when he treated Laurion’s father on April 20, 2010.

McKee reportedly read the comments online after another patient alerted him to their existence. McKee responded by filing a lawsuit for defamation and sought more than $50,000 in damages in district court in Duluth. He claimed he has spent $7,000 attempting to eliminate the comments from the Internet. “It’s like removing graffiti from a wall,” McKee’s lawyer, Marshall Tanick, a partner with Mansfield, Tanick & Cohen, P.A. told the Star Tribune. He argues Laurion has continued to distort the facts of the situation, both online and in complaints he has filed with various medical groups since the original online complaint. “He put words in the doctor’s mouth,” and made McKee “sound uncaring, unsympathetic or just stupid.”

In St. Louis County District Court in Duluth, District Judge Eric Hylden agreed with Laurion, writing, “The statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by a physician.” Hylden dismissed McKee’s lawsuit in April 2011. The Minnesota Court of Appeals, however, disagreed. The court reversed and remanded the dismissal in January 2012, finding that some of Laurion’s comments could subject him to liability for defamation.

Laurion appealed the decision to reverse and remand the case to the Minnesota Supreme Court, which heard arguments on September 4, 2012. The issue in McKee’s appeal is whether statements Laurion published describing McKee’s treatment of his father are not pure opinion but, rather, factual assertions capable of being proven true or false. This is the standard the United States Supreme Court set forth in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), for what establishes opinion protected by the First Amendment.

“I argued that the posting to a website is part of the context that colors or shapes what Mr. Laurion was trying to do, and the essential nature of one of these websites is to provide subjective feedback and people get lots of subjective feedback from different perspectives and from different experiences,” John Kelly, an attorney with Hanft Fride, P.A., who represented Laurion before the Minnesota Supreme Court, told the Duluth News Tribune for a September 5, 2012 story.

“We argued to the court that Mr. Laurion published both on the Internet and to approximately 20 others, including medical organizations, false statements about Dr. McKee that disparaged his professional abilities and hurt his reputation,” Tanick, who also represented McKee before the Minnesota Supreme Court, told the Duluth News Tribune. “We asked the court to affirm the decision of the Court of Appeals so that Dr. McKee has the opportunity to present this to a jury and get his day in court.”

Lawsuits like McKee’s are rare, Eric Goldman, professor at Santa Clara University School of Law told the Star Tribune. However, Goldman said “they’ve been popping up around the country as patient review sites such as Vitals and Rate Your Doctor have flourished.” Lawsuits claiming defamation are “kind of the nuclear option,” Goldman said. “It’s the thing that you go to when everything else has failed.” Goldman tracks lawsuits healthcare providers file against online reviewers, and told the Reporters Committee for Freedom of the Press (RCFP) for the Fall 2012 issue of The News Media and The Law that, of the 28 lawsuits he has tracked, courts dismissed 16 of them, six settled, and the other six are still pending.

In one such suit, an Arizona cosmetic surgeon, Dr. Albert Carlotti III, won a $12 million verdict against a former patient in February 2012, according to a Feb. 20, 2012 post by the American Medical Association on its website. The patient wrote reviews on numerous websites and created her own website stating Carlotti disfigured her face, was not board-certified, and was being investigated by the state medical board, although no records of such investigations exist; the patient is appealing the judgment.

Online reviews of other businesses and services have resulted in lawsuits alleging defamation around the country, as well. For example, an owner of a Sarasota, Fla. computer graphics company sued a reviewer after the reviewer wrote a negative, one-star review on Yelp.com, a website that allows anyone to post reviews of a wide range of businesses. The review called the owner “a scam liar and complete weirdo,” according to a Dec. 18, 2011 report in the Sarasota Herald Tribune. A dentist in Foster City, California, filed a similar suit in Santa Clara County Superior Court in 2008 after a patient’s parents posted a negative review on Yelp.com, according to a Jan. 13, 2009 story in the San Francisco Chronicle.

Because online reviewers are subject to defamation lawsuits, Rob Heverly, assistant professor of law at Albany Law School of Union University, wrote a guide for online reviewers on Madisonian.net, a blog focused on law, technology, and culture, which features written contributions from many law professors, on April 13, 2010. “The lesson here is straight forward: if you are making statements online about another person, a business or a service, do not embellish beyond what you can show factually,” Heverly wrote. “Statements of opinion were, in the past, considered absolutely protected, but the U.S. Supreme Court has clarified that opinion-statements backed by implied facts will be actionable where the facts implied are false.” The Minnesota Supreme Court is expected to release its decision in early summer.

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

 

 

 

 

 

Minnesota Court Of Appeals Overturns $60,000 Jury Verdict For Tortious Interference With Contract Against A Local Blogger

FALL 2012

“Minnesota Court Of Appeals Overturns $60,000 Jury Verdict For Tortious Interference With Contract Against A Local Blogger”

Cassie Batchelder, Silha Research Assistant

Silha Center For The Study Of Media Ethics And Law

University Of Minnesota School Of Journalism And Mass Communication

 An August 20, 2012 decision from the Minnesota Court of Appeals in Moore v. Hoff, A11-1923, 2012 WL 3553180 (Minn. Ct. App. Aug. 20, 2012), overturned a jury verdict against John Hoff, a north Minneapolis resident who writes a blog about local issues entitled “The Adventures of Johnny Northside.”  A jury previously found Hoff liable for tortious interference with a contract after truthful statements on Hoff’s blog resulted in the plaintiff, Jerry Moore, being fired from his job.

Moore formerly directed a community council in north Minneapolis and was fired from that position. The University of Minnesota’s Urban Research and Outreach-Engagement Center then hired Moore in 2009 to study mortgage foreclosures. After Hoff learned the university hired Moore, he penned a blog post alleging that Moore was involved in a fraudulent mortgage resulting in a 16-year prison sentence for Larry Maxwell, a real estate agent. Moore was not criminally charged in that case. The post in question read, “[Moore]—who has been a plaintiff in a lawsuit against JACC [Jordan Area Community Council], and was fired from his executive director position for misconduct, (fistfight, cough cough) is nothing if not a controversial figure in the Jordan neighborhood . . . Repeated and specific evidence in Hennepin County District Court shows [Moore] was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave. N.” The University of Minnesota fired Moore after receiving an email from another blogger, Don Allen, and after Hoff’s blog post was published. Allen’s email was also posted in the comments section of Hoff’s blog. Moore sued Allen, in addition to Hoff, as a result of his firing, but Allen settled before the case went trial and testified against Hoff.

In Hennepin County District Court, Moore’s claim for defamation was dismissed. However, in March 2010 a jury found Hoff liable for tortious interference with a contract, which occurs when one party intentionally damages another party’s contractual relationships. But the jury found that Hoff’s statements about Moore were not false. The jury awarded Hoff $35,000 for lost wages and $25,000 for emotional distress. After the trial, Hoff and his attorney, Paul Godfread, moved for a new trial. District Court Judge Denise Reilly denied the motion and Hoff filed an appeal with the Minnesota Court of Appeals. (For more on the background of the case, see “Defamation Lawsuits Pose Threat to Journalists as Online Communication Complicates First Amendment Analysis” in the Spring 2012 edition of the Silha Bulletin and “Outrageous Speech, ‘Trash Torts’ and the First Amendment” in the Winter/Spring 2011 edition of the Silha Bulletin.)

Godfread and media attorney Mark Anfinson argued on Hoff’s behalf before the Minnesota Court of Appeals. John Borger and Leita Walker, partner and associate, respectively, at Faegre Baker Daniels, submitted an amicus brief on behalf of the Silha Center, the Minnesota chapter of the Society of Professional Journalists, and the Reporters Committee for Freedom of the Press.

Writing for the appellate panel, Judge Jill Flaskamp Halbrooks said, “Because the jury’s verdict is contrary to established law and appellant’s alleged tortious acts are too intertwined with constitutionally protected conduct to avoid infringing on appellant’s First Amendment rights, we reverse and remand.” The court reasoned that the non-defamatory statement made by Hoff could not serve as the basis for a claim of tortious interference, explaining that, to prove tortious interference with a contractual relationship, the plaintiff must establish: (1) that a contracts existed; (2) the defendant’s knowledge of the contract; (3) intentional accomplishment of the contract’s breach; (4) without justification; and (5) damages to the plaintiff. “Hoff’s blog post is the kind of speech that the First Amendment is designed to protect,” Flaskamp Halbrooks wrote. “He was publishing information about a public figure that he believed was true (and that the jury determined was not false) and that involved an issue of public concern . . . Attaching liability to this speech would infringe on Hoff’s First Amendment rights.”

“It’s important to have a strong re-affirmation of the principle that truthful speech does not support a lawsuit for tortious interference,” Borger said in an interview with online news source Twin Cities Daily Planet for a June 5, 2012 story. “We think it is important to recognize and reaffirm when speech is involved and the First Amendment is involved, that the reviewing court needs to apply an independent standard of review looking at all the evidence.”

Itai Maytal, an associate attorney with Miller Korzenik Sommers and a former First Amendment Fellow with The New York Times Company, said the case offered a “welcome vindication of the general principle that truth is an absolute defense to a claim for defamation and to claims for tortious interference with a contract or prospective business advantages arising out of an allegedly defamatory statement,” in an Aug. 30, 2012 commentary for Citizen Media Law Project. “But, it is troubling in as much as the defendant had to incur the time and expense of a jury trial and an uncertain appeal in order to receive the relief he was entitled. In that respect, it offers the cautionary tale to bloggers that reporting the truth, while important and socially valuable, may not come without a price,” Maytal wrote.

The time period for Moore to appeal the appellate court’s decision to the Minnesota Supreme Court has passed without a filing from Moore, so the ruling will stand.

Online reviews of other businesses and services have resulted in lawsuits alleging defamation around the country, as well. For example, an owner of a Sarasota, Fla. computer graphics company sued a reviewer after the reviewer wrote a negative, one-star review on Yelp.com, a website that allows anyone to post reviews of a wide range of businesses. The review called the owner “a scam liar and complete weirdo,” according to a Dec. 18, 2011 report in the Sarasota Herald Tribune. A dentist in Foster City, Calif. filed a similar suit in Santa Clara County Superior Court in 2008 after a patient’s parents posted a negative review on Yelp.com, according to a Jan. 13, 2009 story in the San Francisco Chronicle.

Because online reviewers are subject to defamation lawsuits, Rob Heverly, assistant professor of law at Albany Law School of Union University, wrote a guide for online reviewers on Madisonian.net, a blog focused on law, technology, and culture, which features written contributions from many law professors, on April 13, 2010. “The lesson here is straight forward: if you are making statements online about another person, a business or a service, do not embellish beyond what you can show factually,” Heverly wrote. “Statements of opinion were, in the past, considered absolutely protected, but the U.S. Supreme Court has clarified that opinion-statements backed by implied facts will be actionable where the facts implied are false.”

SOURCE

Amicus Brief On Behalf Of John Hoff

Court of Appeals Decision About Moore V. Hoff

 

SILHA: Minnesota Courts Address Defamation Claims Stemming from Blog Posts and Online Review

FALL 2012

“Minnesota Courts Address Defamation Claims Stemming from Blog Posts and Online Review”

Cassie Batchelder, Silha Research Assistant

Silha Center For The Study Of Media Ethics And Law

University Of Minnesota School Of Journalism And Mass Communication

Image-University-Of-Minnesota

Novel questions about the First Amendment and the law of defamation related to speech individuals post online have come before Minnesota courts in recent months. The Minnesota Court of Appeals reversed a $60,000 jury verdict for tortious interference against John “Johnny Northside” Hoff after a statement he posted on his blog resulted in the subject’s firing. In addition, the Minnesota Supreme Court heard arguments in a case in which a doctor’s alleges patient’s son posted a defamatory review of the doctor online.

Minnesota Court Of Appeals Overturns $60,000 Jury Verdict For Tortious Interference With Contract Against A Local Blogger

An Aug. 20, 2012 decision from the Minnesota Court of Appeals in Moore v. Hoff, A11-1923, 2012 WL 3553180 (Minn. Ct. App. Aug. 20, 2012), overturned a jury verdict against John Hoff, a north Minneapolis resident who writes a blog about local issues entitled “The Adventures of Johnny Northside.”  A jury previously found Hoff liable for tortious interference with a contract after truthful statements on Hoff’s blog resulted in the plaintiff, Jerry Moore, being fired from his job.

Moore formerly directed a community council in north Minneapolis and was fired from that position. The University of Minnesota’s Urban Research and Outreach-Engagement Center then hired Moore in 2009 to study mortgage foreclosures. After Hoff learned the university hired Moore, he penned a blog post alleging that Moore was involved in a fraudulent mortgage resulting in a 16-year prison sentence for Larry Maxwell, a real estate agent. Moore was not criminally charged in that case. The post in question read, “[Moore]—who has been a plaintiff in a lawsuit against JACC [Jordan Area Community Council], and was fired from his executive director position for misconduct, (fistfight, cough cough) is nothing if not a controversial figure in the Jordan neighborhood . . . Repeated and specific evidence in Hennepin County District Court shows [Moore] was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave. N.” The University of Minnesota fired Moore after receiving an email from another blogger, Don Allen, and after Hoff’s blog post was published. Allen’s email was also posted in the comments section of Hoff’s blog. Moore sued Allen, in addition to Hoff, as a result of his firing, but Allen settled before the case went trial and testified against Hoff.

In Hennepin County District Court, Moore’s claim for defamation was dismissed. However, in March 2010 a jury found Hoff liable for tortious interference with a contract, which occurs when one party intentionally damages another party’s contractual relationships. But the jury found that Hoff’s statements about Moore were not false. The jury awarded Hoff $35,000 for lost wages and $25,000 for emotional distress. After the trial, Hoff and his attorney, Paul Godfread, moved for a new trial. District Court Judge Denise Reilly denied the motion and Hoff filed an appeal with the Minnesota Court of Appeals. (For more on the background of the case, see “Defamation Lawsuits Pose Threat to Journalists as Online Communication Complicates First Amendment Analysis” in the Spring 2012 edition of the Silha Bulletin and “Outrageous Speech, ‘Trash Torts’ and the First Amendment” in the Winter/Spring 2011 edition of the Silha Bulletin.)

Godfread and media attorney Mark Anfinson argued on Hoff’s behalf before the Minnesota Court of Appeals. John Borger and Leita Walker, partner and associate, respectively, at Faegre Baker Daniels, submitted an amicus brief on behalf of the Silha Center, the Minnesota chapter of the Society of Professional Journalists, and the Reporters Committee for Freedom of the Press.

Writing for the appellate panel, Judge Jill Flaskamp Halbrooks said, “Because the jury’s verdict is contrary to established law and appellant’s alleged tortious acts are too intertwined with constitutionally protected conduct to avoid infringing on appellant’s First Amendment rights, we reverse and remand.” The court reasoned that the non-defamatory statement made by Hoff could not serve as the basis for a claim of tortious interference, explaining that, to prove tortious interference with a contractual relationship, the plaintiff must establish: (1) that a contracts existed; (2) the defendant’s knowledge of the contract; (3) intentional accomplishment of the contract’s breach; (4) without justification; and (5) damages to the plaintiff. “Hoff’s blog post is the kind of speech that the First Amendment is designed to protect,” Flaskamp Halbrooks wrote. “He was publishing information about a public figure that he believed was true (and that the jury determined was not false) and that involved an issue of public concern . . . Attaching liability to this speech would infringe on Hoff’s First Amendment rights.”

“It’s important to have a strong re-affirmation of the principle that truthful speech does not support a lawsuit for tortious interference,” Borger said in an interview with online news source Twin Cities Daily Planet for a June 5, 2012 story. “We think it is important to recognize and reaffirm when speech is involved and the First Amendment is involved, that the reviewing court needs to apply an independent standard of review looking at all the evidence.”

Itai Maytal, an associate attorney with Miller Korzenik Sommers and a former First Amendment Fellow with The New York Times Company, said the case offered a “welcome vindication of the general principle that truth is an absolute defense to a claim for defamation and to claims for tortious interference with a contract or prospective business advantages arising out of an allegedly defamatory statement,” in an Aug. 30, 2012 commentary for Citizen Media Law Project. “But, it is troubling in as much as the defendant had to incur the time and expense of a jury trial and an uncertain appeal in order to receive the relief he was entitled. In that respect, it offers the cautionary tale to bloggers that reporting the truth, while important and socially valuable, may not come without a price,” Maytal wrote.

The time period for Moore to appeal the appellate court’s decision to the Minnesota Supreme Court has passed without a filing from Moore, so the ruling will stand.

Duluth Doctor’s Claim For Defamation Based On An Online Review Reaches The Minnesota Supreme Court

Displeased by the treatment his father received in the hospital, Dennis Laurion took his complaint online. Laurion wrote a review of Dr. David McKee, a neurologist who treated his father at St. Luke’s Hospital in Duluth, Minnesota. following a stroke, on a rate-your-doctor website.

Laurion wrote in the online review that his family was displeased with McKee’s “bedside manner.” The review read, “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’” according to a March 24, 2012 story in the Minneapolis Star Tribune. Laurion’s complaint focused on Dr. McKee’s “body language and comments” when he treated Laurion’s father on April 20, 2010.

McKee reportedly read the comments online after another patient alerted him to their existence. McKee responded by filing a lawsuit for defamation and sought more than $50,000 in damages in district court in Duluth. He claimed he has spent $7,000 attempting to eliminate the comments from the Internet. “It’s like removing graffiti from a wall,” McKee’s lawyer, Marshall Tanick, a partner with Mansfield, Tanick & Cohen, P.A. told the Star Tribune. He argues Laurion has continued to distort the facts of the situation, both online and in complaints he has filed with various medical groups since the original online complaint. “He put words in the doctor’s mouth,” and made McKee “sound uncaring, unsympathetic or just stupid.”

In St. Louis County District Court in Duluth, District Judge Eric Hylden agreed with Laurion, writing, “The statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by a physician.” Hylden dismissed McKee’s lawsuit in April 2011. The Minnesota Court of Appeals, however, disagreed. The court reversed and remanded the dismissal in January 2012, finding that some of Laurion’s comments could subject him to liability for defamation.

Laurion appealed the decision to reverse and remand the case to the Minnesota Supreme Court, which heard arguments on September 4, 2012. The issue in McKee’s appeal is whether statements Laurion published describing McKee’s treatment of his father are not pure opinion but, rather, factual assertions capable of being proven true or false. This is the standard the United States Supreme Court set forth in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), for what establishes opinion protected by the First Amendment.

“I argued that the posting to a website is part of the context that colors or shapes what Mr. Laurion was trying to do, and the essential nature of one of these websites is to provide subjective feedback and people get lots of subjective feedback from different perspectives and from different experiences,” John Kelly, an attorney with Hanft Fride, P.A., who represented Laurion before the Minnesota Supreme Court, told the Duluth News Tribune for a September 5, 2012 story.

“We argued to the court that Mr. Laurion published both on the Internet and to approximately 20 others, including medical organizations, false statements about Dr. McKee that disparaged his professional abilities and hurt his reputation,” Tanick, who also represented McKee before the Minnesota Supreme Court, told the Duluth News Tribune. “We asked the court to affirm the decision of the Court of Appeals so that Dr. McKee has the opportunity to present this to a jury and get his day in court.”

Lawsuits like McKee’s are rare, Eric Goldman, professor at Santa Clara University School of Law told the Star Tribune. However, Goldman said “they’ve been popping up around the country as patient review sites such as Vitals and Rate Your Doctor have flourished.” Lawsuits claiming defamation are “kind of the nuclear option,” Goldman said. “It’s the thing that you go to when everything else has failed.” Goldman tracks lawsuits healthcare providers file against online reviewers, and told the Reporters Committee for Freedom of the Press (RCFP) for the Fall 2012 issue of The News Media and The Law that, of the 28 lawsuits he has tracked, courts dismissed 16 of them, six settled, and the other six are still pending.

In one such suit, an Arizona cosmetic surgeon, Dr. Albert Carlotti III, won a $12 million verdict against a former patient in February 2012, according to a Feb. 20, 2012 post by the American Medical Association on its website. The patient wrote reviews on numerous websites and created her own website stating Carlotti disfigured her face, was not board-certified, and was being investigated by the state medical board, although no records of such investigations exist; the patient is appealing the judgment.

Online reviews of other businesses and services have resulted in lawsuits alleging defamation around the country, as well. For example, an owner of a Sarasota, Fla. computer graphics company sued a reviewer after the reviewer wrote a negative, one-star review on Yelp.com, a website that allows anyone to post reviews of a wide range of businesses. The review called the owner “a scam liar and complete weirdo,” according to a Dec. 18, 2011 report in the Sarasota Herald Tribune. A dentist in Foster City, California, filed a similar suit in Santa Clara County Superior Court in 2008 after a patient’s parents posted a negative review on Yelp.com, according to a Jan. 13, 2009 story in the San Francisco Chronicle.

Because online reviewers are subject to defamation lawsuits, Rob Heverly, assistant professor of law at Albany Law School of Union University, wrote a guide for online reviewers on Madisonian.net, a blog focused on law, technology, and culture, which features written contributions from many law professors, on April 13, 2010. “The lesson here is straight forward: if you are making statements online about another person, a business or a service, do not embellish beyond what you can show factually,” Heverly wrote. “Statements of opinion were, in the past, considered absolutely protected, but the U.S. Supreme Court has clarified that opinion-statements backed by implied facts will be actionable where the facts implied are false.” The Minnesota Supreme Court is expected to release its decision in early summer.

SOURCE

Amicus Brief On Behalf Of John Hoff

Court of Appeals Decision About Moore V. Hoff

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

 

 

 

 

 

Two California Dentists Sue Posters Of Harsh Reviews

January 5, 2010

The Complex Legal And Marketing Challenges Dentists Face As They Navigate The New Frontiers Of Social Media

Dr Bicuspid

San Francisco dentist Gelareh Rahbar, D.D.S., is suing two patients for their harsh comments about her on the consumer review Web site Yelp.com.

One reviewer, Jennifer Batoon, accuses Dr. Rahbar of placing an oversize crown where only an inlay was needed. “She didn’t get the job done right,” wrote Batoon. “I’m forced to carry around these sad reminders of her shoddy work my whole life.”

A second reviewer, Stevonne R. (whose last name was identified by Dr. Rahbar’s attorney as Ratliff), writes that the “painful, costly deep tissue cleaning they talked me into was unnecessary and she was simply trying to get into my pockets.” “I’ve suffered tremendously emotionally because of this.”

The cases illustrate the complex legal and marketing challenges dentists face as they navigate the new frontiers of social media. Comments that might once have been aired briefly across backyard fences or around office water coolers are now publicly and indefinitely on display.

Dr. Rahbar denies the allegations and contends that both reviewers are lying about her in retaliation because she sent their overdue accounts to collection agencies. Most of the other 41 patients who have reviewed Dr. Rahbar on Yelp give her good marks; her cumulative rating is four stars out of a possible five. But she says these criticisms were devastating.  “I’ve suffered tremendously emotionally because of this,” she told DrBicuspid.com. “I have nothing against online review sites, but I don’t agree with defamatory speech.” She said Yelp advertising representatives had approached her with an offer to prominently display a favorable review in exchange for a monthly fee, an offer that felt to her “like extortion.”

Dr. Rahbar faces tough legal hurdles in her quest for vindication. Yelp is protected by the U.S. Communications Decency Act of 1996, which holds operators of Web sites harmless for statements posted on their sites by third parties. Yvonne Wong, D.D.S., a Foster City dentist, dropped her suit against Yelp last year after becoming aware of this law. Dr. Rahbar has not sued Yelp.com itself.

And in pursuing their reviewers, both dentists must overcome a second barrier. California and some other states have prohibited lawsuits aimed simply at harassing or intimidating people who want to exercise legitimate free speech. California’s laws governing strategic lawsuits against public participation (SLAPP) give judges the right to dismiss lawsuits that don’t seem likely to prevail on their merits.

A public interest law firm, the California Anti-SLAPP Project, is providing a pro-bono defense of both Batoon and Dr. Wong’s reviewers, Tai Jing and Jia Ma, arguing that their Yelp reviews are protected by the SLAPP law.

In the first round, the California Superior Court in Santa Clara ruled that Dr. Wong’s case should not be dismissed on SLAPP grounds, but Tai Jing and Jia Ma have appealed.

Even if Dr. Wong and Dr. Rahbar ultimately prevail on the SLAPP question, their battles could begin anew with the effort to prove that the reviewers’ comments meet the legal definition of defamation; they must show that the statements were false and that they were injured by them.

The California Superior Court in San Francisco has tentatively upheld Batoon’s SLAPP defense, but Dr. Rahbar’s attorney, Eric Nordskog of San Francisco, is asking for reconsideration on procedural grounds.

Nordskog said Ratliff has not responded to the complaint, so he expects a judgment against her. On Yelp, Stevonne R. claims to have paid her bill in full and accuses Dr. Rahbar of sending her account to a collections agency in retaliation for her negative review.

DrBicuspid.com could not reach either Batoon or Ratliff for comment. In a statement filed with the court by Batoon on her own behalf, she argued that her online review was truthful. “Defendant will need to obtain additional dentistry work in order to correct work done by Plaintiff on a simple filling,” she wrote.

Regardless of the legal outcome, the cases highlight the frustration dentists and business owners sometimes feel when faced with online reviews. Like Dr. Rahbar, many have complained that Yelp seems to be asking them for money to influence the way reviews are displayed.

“Anyone can log on anonymously and say stuff that’s totally not true,” said Dr. Rahbar. Yelp has become so popular in its headquarter city, San Francisco, and other big cities that dentists can’t ignore it, she said. Dr. Rahbar herself paid Yelp $200 a month in 2004 and 2005 for online advertising. She canceled because she was unhappy with reviews she considered defamatory, and after that, her Yelp reviews got even worse, she said. In addition, positive reviews of her disappeared from the site and negative ones became more prominent, she said.

Late last year, she yielded to the solicitation from the site’s ad sales team and is now paying $500 a month. The principle advantage she gains is the right to choose a review that is displayed at the top of the results when someone searches under her name on Yelp, said Dr. Rahbar. She explains that this is important because the first few lines of this review typically appear in Google searches under her name.

Contacted by DrBicuspid.com, Yelp spokesperson Stephanie Ichinose acknowledged that advertisers can select a review that appears at the top of their search page. But she noted that the review is identified as “One of the Business’ Favorite Reviews” and that the statement “This business is a Yelp sponsor” appears on the review. Other than selecting this one review, businesses can’t influence the order of reviews or which ones disappear from the site, no matter how much they pay, she said.

So what does influence the display of reviews? The order is affected by how recently the review is posted and by the votes of users (users can indicate whether a review is “useful,” “funny,” or “cool”). But the order of reviews is also affected by “a variety of other factors,” said Ichinose. “We don’t disclose the specifics because then it starts to open up the gates to how to game the system.”

Business owners sometimes solicit favorable reviews or even hire people to write them, according to Yelp CEO Jeremy Stoppelman. In fact, in her review of Dr. Rahbar, Batoon accuses her of posting “dummy” positive reviews of her own practice.

For the same reasons, Yelp also won’t disclose the factors that determine what reviews it deletes from the page associated with a business. It is possible for users and business owners to report reviews that don’t meet the site’s guidelines, such as reviews by people with conflicts of interest or personal attacks. But other factors also play a role. “The algorithm is looking for patterns of abuse,” said Ichinose. “I can’t say very much more.”

She said the site does not attempt to verify the accuracy of the millions of reviews posted. She also noted that “we’re not a site that’s about anonymous reviews” because you can look at the profiles of reviewers to see how often they have posted and what other reviews they’ve written, getting a sense of their tastes and personality. “The more you use it, the more you appreciate the community.”

So what should dentists and other business owners do if they feel they’ve been libeled? They can contact the reviewers privately though Yelp. Yelp advises a conciliatory “let-me-see-how-I-can-fix-it” letter that might coax the reviewer to update to a more positive review.

Dentists can also opt to respond publicly (as Dr. Rahbar has to some of her critics) in an attempt to set the record straight, or to file a lawsuit, which even Nordskog warns is an expensive option, unlikely to produce a financial payoff. (He suggests that small claims court might be more cost-effective, especially in localities where mediation services are offered.) Or they can pay to get their favorite review at the top of the order.

SOURCE

ON POINT NEWS: “Judge Tosses Suit Over Bad Review Of Doctor’s Work”

 MAY 19, 2001

“Judge Tosses Suit Over Bad Review Of Doctor’s Work”

ON POINT NEWS

A Minnesota judge has boosted free-speech protections for online commentary by finding a neurologist cannot sue a patient’s son over criticisms of his bedside manner that allegedly damaged his professional reputation.

Dennis Laurion posted comments on doctor rating websites in which he vented about how Dr. David McKee of Duluth, Minn., treated his father while performing a neurological examination on him. Kenneth Laurion, 84, was recovering from a stroke at a hospital.

At one point in the examination, Dennis Laurion wrote, McKee said “it doesn’t matter” when someone mentioned that the patient’s gown had come open, exposing his backside.

Courts in California have allowed similar defamation cases to proceed, ruling that free-speech protections only apply to online criticism of medical professionals that “goes beyond a particular interaction between the parties and implicates matters of public concern that can affect many people.” Wong v. Jing, 189 Cal.App.4th 1354 (2010).

But St. Louis County District Court Judge Eric L. Hylden took a refreshingly direct approach in summarily dismissing McKee’s defamation lawsuit. “Taken as a whole, the statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by his physician,” he said in a recent decision. He also suggested that Internet postings are as deserving of protection as other forms of speech: In modern society, there needs to be some give and take, some ability for parties to air their differences. Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this kind any more or less defamatory.

After hearing of the decision, McKee exercised his First Amendment rights by describing Laurion as “a liar and a bully and a coward.” He said he would confer with his attorney before deciding whether to appeal.

Another thin-skinned doctor, Chicago plastic surgeon Jay Pensler, has filed no fewer than three defamation suits against patients who criticized him on Yelp and Citysearch. One of the defendants complained that he gave her “Frankenstein breasts.”

The Laurions had their fateful encounter with Dr. McKee at St. Luke’s Hospital in Duluth after Kenneth was moved from intensive care to a standard room. In his online postings, the younger Laurion said McKee was insensitive toward his father, telling him he’d had to “spend time finding out if you were transferred or died.”

He also quoted McKee as saying, “Forty-four percent of hemorrhagic strokes die within 30 days. I guess this is the better option.”

McKee, who sued for more than $50,000 in damages in June 2010, alleged that all of Dennis Laurion’s statements were completely false. But “[l]ooking at the statements as a whole,” Hylden found no “defamatory meaning, but rather a sometimes emotional discussion of the issues.”

In the Wong case, a patient told Yelp readers that they should avoid pediatric dentist Dr. Yvonne Wong “like a disease.” A Chicago judge, meanwhile, refused to dismiss Dr. Pensler’s lawsuit against Elaina Bender, who said he was “a very bad plastic surgeon” who botched her breast surgery.

Admittedly, the criticisms of Wong and Pensler were more harshly-worded than those of Dr. McKee. But courts should follow Hylden’s sensible lead and protect the online expression of opinion about medical professionals.

As Bender said in her motion to dismiss, just as a court “may not bar those who yell in the street that ‘Dr. Pensler is a horrible doctor,’ online reviewers cannot be chained … [P]ublic forum websites such as Yelp.com and Citysearch.com are forums where expression should be encouraged by the courts as a matter of public policy.”

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