MCKEE V. Laurion 2013 – Minnesota Supreme Court Decision And Aftermath

Image-Minnesota-Supreme-Court

JANUARY 2, 2013

“Doctor Sues Patient For A Negative Online Review—Really?!”

By Dan Hinmon, Health Care Communication

 There are many good things a physician can do if a patient posts negative comments about him or her on a physician review site.  But first of all, let’s make absolutely clear what a physician should not do in response to negative comments: Do not sue the patient.

The lawsuit filed by Dr. David McKee, a neurologist from Duluth, Minn., is a case in point. Dr. McKee sued a patient’s son for defamation after he posted negative online reviews. Apparently, the son was spreading the heinous charge that Dr. McKee is “a real tool.”

The case has been pursued all the way to the Minnesota Supreme Court, with witnesses called to reinforce the fact that the son of his patient really did refer to Dr. McKee as “a real tool.”

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JANUARY 16, 2013

“Doctors Skeptical Of Online Ratings, ACPE Survey Finds”

Andis Robeznieks, Modern Physician

According to a survey of physician executives, doctors are still highly skeptical of online ratings from patients and don’t think many patients consult them—but most acknowledge that they have checked out their own profiles.

The American College of Physician Executives sent the survey (PDF) to more than 5,600 of its almost 11,000 members, with about 730 responding in October and November last year.

Only 21% believed that more than half of U.S. patients consulted an online-rating site, with 55% believing only one-quarter of patients or fewer had done so. That said, 69% of survey respondents acknowledged seeing what had been said about them online.

Physicians have been warned not to respond too combatively to negative online reviews and cite the case of Dr. David McKee, a neurologist from Duluth, Minnesota, who filed a defamation lawsuit against Dennis Laurion, the son of one of McKee’s patients, who posted negative online reviews about him. Oral arguments were heard before the Minnesota State Supreme Court in September and a decision is still pending, but it’s believed the lawsuit has given Laurion’s negative reviews more attention than they ever would have received otherwise.

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Decided JANUARY 30, 2013

Supreme Court of Minnesota.

David McKEE, M.D., Respondent, v. Dennis K. LAURION, Appellant.

No. A11–1154.

Marshall H. Tanick, Teresa J. Ayling, Hellmuth & Johnson, PLLC, Edina, Minnesota, for respondent. John D. Kelly, David L. Tilden, Hanft Fride, P.A., Duluth, Minnesota, for appellant.

OPINION

This case presents the narrow question of whether the court of appeals erred in concluding that six allegedly defamatory statements made by appellant Dennis Laurion regarding an encounter with respondent David McKee, M.D., survive summary judgment. We hold that none of the six statements is actionable either (1) because there is no genuine issue of material fact as to the falsity of the statements or (2) because the statements are not capable of conveying a defamatory meaning that would harm respondent’s reputation and lower him in the estimation of the community. Therefore, we reverse.

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.

Because the six statements at issue, viewed individually or in the context of the entire posting, are not actionable, we conclude that the district court properly granted summary judgment in favor of Laurion.

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 JANUARY 30, 2013

“Minnesota High Court Says Online Post Legally Protected”

Steve Karnowski, Associated Press

MINNEAPOLIS (AP) — A man’s online post calling a doctor “a real tool” is protected speech, the Minnesota Supreme Court ruled Wednesday. The state’s highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient’s son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor “a real tool,” slang for stupid or foolish.

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

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

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

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JANUARY 30, 2013

“Minnesota High Court Says Online Post Legally Protected”

Bemidji Pioneer

MINNEAPOLIS – The Minnesota Supreme Court says a man’s online post calling a doctor “a real tool” is protected speech.

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

The justices say the comments posted by Dennis Laurion don’t add up to defamation. They say referring to someone as “a real tool” is a protected statement of opinion that can’t be the basis of a defamation claim. They also say it doesn’t matter whether the unnamed nurse actually exists.

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JANUARY 30, 2013

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

Steve Kuchera, 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. 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.”

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JANUARY 30, 2013, 11:14 AM

“Supreme Court Tosses Duluth Doctor’s Lawsuit Against Patient’s Son”

ABBY SIMONS, Star Tribune

 A Duluth neurologist has no legal claim against the son of a patient who posted negative comments on a rate-your-doctor website because there’s no proof that they’re false or that they’re capable of harming his reputation, the Minnesota Supreme Court ruled Wednesday.

The unanimous ruling reverses an earlier Appeals Court decision and throws out Dr. David McKee’s two-year-old lawsuit against Dennis Laurion, who, angry with McKee’s bedside manner after his father suffered a hemorrhagic stroke, posted several comments on a website, including an alleged assertion from Laurion’s nurse friend that “Dr. McKee is a real tool!”

McKee sued, alleging that 11 statements from Laurion’s online postings and letters to medical institutions were defamatory. A St. Louis County judge threw out McKee’s claims, saying they were either protected opinion, substantially true or too vague to convey a defamatory meaning.

The Appeals Court reversed the ruling regarding six statements, reasoning that they were factual assertions and not opinions, that they harmed McKee’s reputation and that they could be proven as false.

In the opinion, Justice Alan Page reasoned that even if the statements were viewed in a light most favorable to McKee, he acknowledged in earlier depositions that the gist of some of the statements were true, even if they were misinterpreted.

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JANUARY 30, 2013

“Online Critique Of Doctor Not Defamatory: Minn. High Court”

Keith Goldberg, Law360

Minnesota’s top court nixed a neurologist’s defamation suit against a patient’s son who criticized him online, concluding it couldn’t be proven that six statements at issue — including one calling the doctor “a real tool” — were either false or defamatory.

The Minnesota Supreme Court, in reversing an appeals court ruling, said three allegedly defamatory statements posted online by Dennis K. Laurion criticizing Dr. David McKee for what he perceived as rude and insensitive behavior when treating his father isn’t actionable because there is no genuine issue of material fact as to whether the statements are true or false.

The other three allegedly defamatory statements aren’t actionable because they don’t convey a defamatory meaning as a matter of law, the court ruled. The high court also said a review of Laurion’s entire online posting doesn’t change its position.

“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,” Justice Alan C. Page wrote for the court. “Therefore, we reject any argument that the totality of Laurion’s statements makes his online posting actionable.”

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JANUARY 30, 2013

“Court Rejects Case Of Doctor Who Sued Over ‘Real Tool’ Remark”

Ben Grove, Bring Me The News

The Minnesota Supreme Court threw out the case of a Duluth doctor who sued after a patient’s son called him “a real tool on a rate-your-doctor website.

Dennis Laurion had been upset with Dr. David McKee’s bedside manner as he was treating his father after a hemorrhagic stroke in April 2010. Among the comments that Laurion posted to an online doctor review site was the assertion by a nurse friend of his that “Dr. McKee is a real tool!”

The court ruled that comment was protected by the First Amendment: “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.”

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 JANUARY 30, 2013

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

Bob Collins, Minnesota Public Radio News Cut

 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.

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JANUARY 30, 2013

“Patient Who Commented On Internet Wins In Minnesota Supreme Court Against Doctor Who Sued Him For Defamation”

Maura Larkins, Thank Heaven For Insurance Copmanies

2d01f-dennis2blaurion Dennis Laurion wins.

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Dr. David McKee loses.

The Minnesota Supreme Court agrees with Mr. Dennis Laurion that patients have a right to report on the Internet their observations regarding the behavior of doctors. Patients also have the right to report their opinions to medical groups. I don’t know what country Dr. David McKee thought he was living in. I believe Dr. McKee proved that he has a bad attitude by hounding Mr. Laurion.

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 JANUARY 30, 2013

“Minnesota Supreme Court Rules Against Doctor In Defamation Suit”

Andis Robeznieks, Healthcare Business News

If a patient’s son refers to his father’s neurologist “as a real tool” in an online post—even if he attributes the statement to an unidentified nurse—the physician in question does not have grounds for legal action.

Dennis Laurion was sued for defamation and interference with business by Dr. David McKee, a Duluth, Minnesota,  neurologist, after Laurion posted online comments about McKee’s perceived insensitive behavior to his father following a hemorrhagic stroke in April 2010. (The comments were not directed at the medical treatment his father received.)

The case took a twisted path to the state’s highest court. A district court dismissed the complaint, but an appellate court ruled in the doctor’s favor, stating that six of the 11 statements could be construed as fact and therefore could be actionable. The appellate court also ruled that it was up to a jury to decide whether the statements were true or false and defamatory.

Laurion successfully blocked this action, and the appellate court’s ruling went to the state Supreme Court, where arguments were heard this past September.

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JANUARY 30, 2013

Minnesota High Court Says Online Post Legally Protected

Democratic Underground

The Minnesota Supreme Court says a man’s online post calling a doctor “a real tool” is protected speech.

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

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JANUARY 30, 2013

“Supreme Court: Calling Someone A Real Tool Isn’t Defamatory, Because It’s Opinion, Not Fact”

Aaron Rupar, Twin Cities Blog

An opinion released by the Minnesota Supreme Court today is an especially fun read as far as court rulings go. At issue is whether calling a professional “a real tool” in online reviews of their work is defamatory.

As we told you in October, Duluth neurologist Dr. David McKee sued Dennis Laurion, the son of a former patient, for $50,000, alleging that statements Laurion published online defamed him. Among the statements was this gem: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”

But in today’s opinion, the Supreme Court unanimously ruled that Laurion’s online comments don’t constitute defamation.

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JANUARY 30, 2013

“Minnesota High Court Says Online Post Legally Protected”

CBS Latest News

MINNEAPOLIS (AP): The Minnesota Supreme Court says a man’s online post calling a doctor “a real tool” is protected speech.  The high court on Wednesday dismissed a case by Duluth neurologist David McKee, who took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites. Those included a claim that a nurse called the doctor “a real tool.”

The justices say the comments posted by Dennis Laurion don’t add up to defamation. They say referring to someone as “a real tool” is a protected statement of opinion that can’t be the basis of a defamation claim. They also say it doesn’t matter whether the unnamed nurse actually exists.

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

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JANUARY 30, 2013

McKee v. Laurion (Summary)

Horty Springer

 DEFAMATION:  McKee v. Laurion, No. A11-1154

The Supreme Court of Minnesota reversed the decision of a lower court and granted summary judgment to the son of a patient in a defamation lawsuit brought by a treating physician.  The physician sued his patient’s son after the son posted various statements on “rate-your-doctor” websites and in letters to various medical institutions.  The posts and letters included what the son believed were inappropriate statements made by the physician during his examination of the father.

The physician argued the statements were defamatory and interfered with his business.  The trial court dismissed the physician’s lawsuit.  This decision was overturned on appeal.   The Supreme Court reversed, once again dismissing the lawsuit.

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January 30, 2013

Minnesota High Court Say Online Post Legally Protected 

KTAR Newsroom

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

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

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

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JANUARY 31, 2013

“Minnesota’s High Court Finds Online Comments Were Non-Defamatory”

David M. Governo and Monica R. Fanesi of Governo Law Firm LLC

FDCC: Defense Lawyers. Defense Leaders

The Supreme Court of Minnesota held that six statements made on various “rate-your-doctor” websites did not support a doctor’s defamation claim.

After Kenneth Laurion was discharged from the hospital, his son posted several comments disapproving of Dr. McKee’s bedside manner on several “rate-your-doctor” websites. He also sent letters to a variety of medically-affiliated institutions complaining about Dr. McKee’s conduct. The letters included substantially the same statements communicated in the online postings.

After learning about the online postings from another patient, Dr. McKee filed suit, asserting claims for defamation per se and interference with business. The trial court granted summary judgment as to Dr. McKee’s defamation claim, concluding that the statements lacked defamatory meaning and were either protected opinion, substantially true, or too vague to convey a defamatory meaning. The appellate court, however, reversed the district court’s decision.

On further appeal, the Supreme Court found that the statements, when compared to representations made by Dr. McKee in his deposition, were “true in substance” and therefore, not actionable. The court also found that the statements failed to convey a defamatory meaning because they failed to harm Dr. McKee’s reputation in the eyes of the community. Specifically, the court noted that the statements did not call into Dr. McKee’s competency as a physician.

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JANUARY 30, 2013

“Court Rejects Case Of Doc Who Sued Over ‘Real Tool’ Remark” 

Ben Holsen   

KZGO FM Radio 

The Minnesota Supreme Court on Wednesday threw out the case of a Duluth doctor who sued after a patient’s son called him “a real tool” on a rate-your-doctor website.

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JANUARY 31, 2013

“Know what time it is at the Supreme Court? It’s tool time!”

James Lileks , Star Tribune

  So I’m standing on Marshall Avenue in St. Paul during morning rush hour, the car in a snowbank, tire blown. The AAA guy can’t get the wheel off, so he goes to the truck and brings back a block of wood. Wham! Off goes the wheel. He holds up the wood. “Swedish impact wrench,” he says.

I am appalled. He’s equated Sweden, and hence people of Swedish descent, with crude technology. It’s particularly hurtful because a Swedish relative of my wife patented the modern crescent wrench, a technological contribution of which he was obviously unaware.

But let’s say I was a jerk, and went online to complain about the tool. Would that be defamatory? If only there were a Minnesota Supreme Court ruling on the matter. The Supreme Court has declined to condemn tool talk. To be specific, “a real tool.” The comment was made on a rate-a-doctor website, and the doctor took the poster to court. The Supremes dismissed the case.

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JANUARY 31, 2013

“Latest Minnesota Case On Freedom Of Speech On The Web.”

Zaetsch Blogspot

Abby Simons, reports for the Minneapolis Star Tribune of the recent unanimous opinion by the Minnesota Supreme Court, authored by Justice Page, which reversed a Court of Appeals decision about online publishing and defamation. This is the opening part of the complete item Simons authored:

Dennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father’s neurologist. He expected at most what he calls a “non-apology apology.”

“I really thought I’d receive something within a few days along the lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that would be the end of it,” the 66-year-old Duluth retiree said. “I certainly did not expect to be sued.”

He was. Dr. David McKee’s defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor’s reputation.

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JANUARY 31, 2013

Doctor’s Suit Against Online Critic Thrown Out By Minnesota Supreme Court

 Jack Leyhane, For What It’s Worth

 I wrote about the case of McKee v. Laurion here before, back in 2011, and, yesterday, the Minnesota Supreme Court entered an opinion in that case that, presumably, will bring that matter to a close.

The case arose when Dennis Laurion’s father, Kenneth Laurion, was hospitalized in Duluth after suffering a hemorrhagic stroke. Dr. David McKee, a neurologist, was called in for a consult. Kenneth apparently recovered; the extent of Dr. McKee’s contributions, if any, to this happy outcome appear to be beyond the scope of this case.

This case, rather, is about how Dennis responded to Dr. McKee’s initial consultation. Dennis thought the doctor’s manner brusque and rude and he said so on a number of what the Minnesota Supreme Court calls “‘rate-your-doctor’ websites.”

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 JANUARY 31, 2013

 Disgruntled Patients & Families Can Vent… Legally!

Marshall S. Lichty, Recovery Blog

Enter Dennis Laurion, a fella whose father was hospitalized for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. When Laurion met David McKee, M.D., he was decidedly unimpressed. Apparently Dr. McKee’s bedside manner left something to be desired in Laurion’s eyes, and after his father was eventually discharged from the hospital, Laurion took to the interwebs to vent a bit. Among other things, he wrote that, “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’”

Turns out that calling someone “a real tool” is an opinion that cannot be reasonably interpreted as stating a fact and cannot be proven true or false. The Court concluded the phrase amounted to nothing more than “mere vituperation and abuse” or “rhetorical hyperbole,” and was not an appropriate basis for a defamation action as a result.

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JANUARY 31, 2013

“Minnesota Supreme Court Says Claims That A Doctor Is A ‘Real Tool’ Cannot Be Proven True Or False”

Alicia Caramenico, Fierce Healthcare

The Minnesota Supreme Court yesterday ruled that an online patient review was not defamatory, the Associated Press reported.

The decision ends a four-year legal battle that stemmed from a defamation lawsuit by neurologist David McKee. Following the hospitalization of Dennis Laurion’s father at St. Luke’s Hospital in Duluth, Laurion wrote reviews on several sites, with one claiming a nurse called the doctor “a real tool,” according to the Minneapolis Star Tribune .

The high court dismissed the defamation lawsuit and reversed an Appeals Court ruling that the statements harmed McKee’s reputation and could be proven as false. Moreover, according to the state Supreme Court, it doesn’t matter if the unnamed nurse really exists, the Associated Press noted. “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 opinion states.

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JANUARY 31, 2013

“Minnesota Supreme Court Dismisses Case About Online Doctor Criticism”

Image-iHealthbeat

The Minnesota Supreme Court ruled in a defamation lawsuit that critical remarks posted on a physician rating website fell under free speech protections, Modern Physician reports.

Background On The Case

 About two years ago, Duluth, Minnesota, neurologist David McKee filed a defamation suit against Dennis Laurion, who posted online comments criticizing McKee’s bedside manner after the physician treated Laurion’s father (iHealthBeat,  3/28/12). The comments included a claim that a nurse called the doctor “a real tool” (Karnowski, AP/Minneapolis Star Tribune,  1/30).

Marshall Tanick — McKee’s attorney — said Laurion distorted the facts in online and offline complaints, accusing McKee of things “that never happened.” McKee sought more than $50,000 in damages in the case.

Laurion said he deleted the online comments after McKee filed the lawsuit.

According to Laurion’s attorney John Kelly, Laurion’s comments are “constitutionally protected” and reflected Laurion’s perception that the McKee’s conduct was “tactless and inconsiderate” (iHealthBeat,  3/28/12).

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JANUARY 31, 2013

“Minnesota Supreme Court Rules In Defamation Suit”

Calculated Risk Advisors

 A ruling by the Minnesota Supreme Court has dismissed a defamation lawsuit by a by Dr. David McKee, a Minnesota neurologist, against the son of a former patient. The budding author had posted a scathing online review of the physician including the comment that an unnamed nurse called Dr. McKee “a real tool”.  The final ruling was based on evidence that the postings were based on opinions and not statements of facts.  This matter gained a lot of media attention as websites followed and reported on the case.

The online review came after Dr. David McKee treated an elderly Veteran.  The Veteran’s son was disappointed in McKee’s lack of bedside manner.  The review pointed out that McKee lacked concern and care for his father both in actions and words.  The defendant posted these comments on a website designed for reviewing physicians and said he was simply exercising his right to free speech.  The court agreed that these comments were not defamation, but simply protected speech.

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JANUARY 31, 2013

“Minnesota High Court Finds Online Posts Weren’t Defamatory”

Personal Injury News

After a four-year legal battle, the Minnesota Supreme Court has ruled that retired (sic) physician Dr. David McKee has  had no legal claim against internet poster Dennis Laurion because there was no proof that Laurion’s comments were false or were capable of harming the doctor’s reputation.

The ruling was made in a defamation lawsuit McKee filed after Laurion made negative comments about McKee’s medical care on a physician rating website. Laurion’s father experienced a hemorrhagic stroke and was cared for by McKee at St. Luke’s Hospital in Duluth. Laurion, his mother and his wife were all in the room when McKee examined the father and made the statements that Laurion interpreted as rude.

McKee filed a defamation lawsuit that was dismissed by a St. Louis County judge who found that Laurion’s statements were either protected opinion, substantially true, or too vague to convey a defamatory meaning. The Appeals Court reversed that ruling regarding six of Laurion’s statements, reasoning that they were factual assertions and not opinions, that they harmed McKee’s reputation and that they could be proven as false. But the Supreme Court disagreed. Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted.

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 January 31, 2013

“Minnesota Supreme Court Rules In Defamation Suit”

Insure Physicians Blog

A ruling by the Minnesota Supreme Court has dismissed a defamation lawsuit by a by Dr. David McKee, a Minnesota neurologist, against the son of a former patient. The budding author had posted a scathing online review of the physician including the comment that an unnamed nurse called Dr. McKee “a real tool”.  The final ruling was based on evidence that the postings were based on opinions and not statements of facts.  This matter gained a lot of media attention as websites followed and reported on the case.

The online review came after Dr. David McKee treated an elderly World War II veteran.  The veteran’s son was disappointed in McKee’s lack of bedside manner.  The review pointed out that McKee lacked concern and care for his father both in actions and words.  The defendant posted these comments on a website designed for reviewing physicians and said he was simply exercising his right to free speech.  The court agreed that these comments were not defamation, but simply protected speech.

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JANUARY 31, 2013

Court: Online Patient Reviews Are Protected Speech

By Alicia Caramenico

Fierce Healthcare

Amid doctors’ wariness about online review sites, the Minnesota Supreme Court yesterday ruled that an online patient review was not defamatory.

The decision ends a four-year legal battle that stemmed from a defamation lawsuit by neurologist David McKee. Following the hospitalization of Dennis Laurion’s father at St. Luke’s Hospital in Duluth, Laurion wrote reviews on several sites, with one claiming a nurse called the doctor “a real tool.”

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FEBRUARY 1, 2013

“Minnesota High Court Dumps Doctor’s ‘Tool’ Libel Claim”

Sheldon Toplitt, The Unruly Of Law

In his 13-page decision this week in David McKee, M.D. v. Dennis K. Laurion (Docket No. A11-1154), Minnesota Supreme Court Justice Alan Page reversed a court of appeals ruling and sided with the trial court that originally dismissed a neurologist’s defamation claim against the son of a stroke patient he treated who had posted negative remarks about the plaintiff on a rate-your-physician Web site.

The Minnesota High Court heard oral arguments four months ago in the case brought by Dr. McKee of Northland Neurology & Myology in Duluth against the son of a 85-year-old stroke patient he treated concerning a half-dozen allegedly actionable statements reflecting the son’s dissatisfaction with the medical care provided and his belief that Dr. McKee was rude and insensitive.

The lightning rod among the allegedly offensive statements was a post by the defendant that said: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”  “Referring to someone as ‘a real tool’ falls into the category of pure opinion,” Justice Page wrote, “because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false.” Characterizing the remark as “rhetorical hyperbole” and “mere vituperation or abuse,” Justice Page said it could not support a defamation action as a matter of law

The devoted “TUOL” staff supports the Minnesota Supreme Court’s decision and the principle that pure opinion is not susceptible to a defamatory meaning, but questions whether bringing a lawsuit such as the one at issue in the first place is sufficient proof of “tooldom” in and of itself.

Sheldon Toplitt is an attorney and a writer/editor who teaches media law and journalism at Boston University and Emerson College.

FULL ARTICLE




FEBRUARY 1, 2013

Minnesota High Court Rules Online Patient Reviews Are Protected Speech

Newsbriefs – PIAA

Amid doctors’ wariness about online review sites, the Minnesota Supreme Court has ruled that an online patient review was not defamatory. The decision ends a four-year legal battle that stemmed from a defamation lawsuit by neurologist David McKee.

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FEBRUARY 1, 2013

“Court Rules Neurologist Is A Tool”

Linda, Personal Injury Radar

Back in April 2010, Dennis Laurion insulted neurologist David McKee on several rate-your-doctors websites. After being hospitalized at St. Luke’s Hospital for a hemorrhagic stroke, Kenneth, Laurion’s father, was examined by McKee, where the doctor allegedly said, “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option,” and “It doesn’t matter that the patient’s gown did not cover his backside.” In another reference, Laurion claimed that a nurse referred to Dr. McKee as “a real tool!”

McKee promptly sued for defamation, and as of today the case finally ended, ruling in favor of Laurion. McKee had acknowledged that the gist of some of the statements was true, even if the statements were misinterpreted during the Supreme Court Trial, prompting the decision.

For the neurologist, what stings the most isn’t the $50,000 in legal fees or the other $11,000 to clear his name online after the story went viral (prompting more postings), but rather “the harm to my reputation through the repeated publicity and the stress.”

Linda

FULL ARTICLE




FEBRUARY 1, 2013

“Substantially True Statements, Opinions about Person’s Work not Defamatory, Minnesota Supreme Court Rules”

Jackson Lewis Workplace Resource Center

Providing needed guidance on workplace defamation, the Minnesota Supreme Court has clarified that both “minor inaccuracies of expression” and statements of opinion that cannot be proven true or false are not defamatory as a matter of Minnesota common law. McKee v. Laurion, No. A11-1154 (Jan. 30, 2013). Until now, Minnesota defamation law has been unclear in distinguishing between assertions of fact and opinion, as well as statements that are arguably, technically false but substantially true. Employers often are targets of defamation lawsuits and should be careful when documenting employee performance or reasons for termination in a way that could be considered defamatory.

McKee involved defamation claims by a physician, David McKee, M.D., against Dennis K. Laurion, the son of one of Dr. McKee’s patients. After becoming dissatisfied with Dr. McKee’s bedside manner, Laurion posted the following statements on a number of “rate-your-doctor” websites and sent letters to various medically-affiliated institutions:

  • Dr. McKee said that he had to “spend time finding out if you [Laurion’s father] were transferred or died.”
  • Dr. McKee said, “44% of hemorrhagic strokes die within 30 days. I guess this is the better option.”
  • Dr. McKee said, “You [Laurion’s father] don’t need therapy.”
  • Dr. McKee said that “it doesn’t matter” that the patient’s gown did not cover his backside.
  • Dr. McKee left the room without talking to the patient’s family.
  • A nurse told Laurion that Dr. McKee was a “real tool.”

Dr. McKee claimed the statements were defamation “per se” because they related to his profession. Per se defamation does not require proof that offending statements caused harm to the plaintiff.

Based on the evidence, the Supreme Court determined that several of the statements were “substantially true” and that the common law “overlooks minor inaccuracies and concentrates on substantial truth.” It held that “[m]inor inaccuracies do not amount to falsity so long as the substance, the gist, the sting of the libelous charge is justified.” As for the statement that Dr. McKee was a “real tool,” the Court held, “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 Court overturned the decision of the Minnesota Court of Appeals, which had allowed the defamation claims regarding the six allegedly defamatory statements to survive summary judgment.

FULL ARTICLE




FEBRUARY 1, 2013

“Defamation – Material Falsity And Defamatory Meaning”

Bassford Remele Case Law Update

 During the week of February 1, 2013, the Minnesota appellate courts released an opinion on the following topic that may be of interest to our clients: Summary judgment is warranted in a defamation action if there are no genuine issues of material fact as to a statement’s falsity or if the statement does not convey a defamatory meaning as a matter of law.

Defendant’s father was examined by plaintiff neurologist.  Defendant was present for portions of the examination and felt that plaintiff acted in a rude and insensitive manner. In response, defendant posted statements about plaintiff on various “rate your doctor” websites. Plaintiff filed suit alleging defamation and interference with business based on eleven of defendant’s statements.

The district court granted summary judgment in favor of defendant on all counts, holding the statements lacked defamatory meaning, were protected opinion, or were substantially true. The court of appeals reversed with respect to six of the allegedly defamatory statements, reasoning that those statements were factual assertions, that there were genuine issues as to falsity, and that the statements tended to harm plaintiff’s reputation.

The Minnesota Supreme Court reversed, concluding that the district court had properly granted summary judgment on all claims. The Court first held there were no genuine issues of material fact as to the falsity of three of those statements because the “gist” or “sting” of the statements was substantially similar to statements plaintiff admitted making.  The Court then held that the remaining three statements, as a matter of law, did not convey a defamatory meaning.

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FEBRUARY 1, 2013

“Iowa And Minnesota Supreme Courts Decide Closely Watched Libel Cases”

John P. Borger, Michael A. Giudicessi, Leita Walker

FAEGRE BAKER DANIELS UPDATES & EVENTS

The supreme courts of both Iowa and Minnesota recently issued two decisions favoring freedom of expression, with the Iowa Supreme Court holding that a nontraditional self-publishing company was a “media defendant” entitled to various First Amendment protections, Bierman v. Weier, No. 10-1503, 2013 WL 203611 (Iowa Jan. 18, 2013), and the Minnesota Supreme Court holding that it’s not actionable to call a neurologist with an allegedly poor bedside manner a “real tool,” McKee v. Laurion, No. A11-1154, 2013 WL 331558 (Minn. Jan. 30, 2013).

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FEBRUARY 1, 2013

Our View: Online Opinion Case Lasted Too Long

Bob Jentges, Mankato Free Press

 Thumbs up, to the Minnesota Supreme Court for ruling that making disparaging remarks about a doctor online does not open someone to being sued for defamation. Dr. David McKee filed a lawsuit against Dennis Laurion after Laurion posted remarks on a rate-your-doctor website. Laurion thought his father wasn’t treated as well as he should be by the doctor and said so. Among other things, the doctor was referred to as “a tool,” as in a foolish man.

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 different from knowingly telling a lie about someone in order to harm their reputation or business.

The high court, in throwing out the doctor’s defamation suit, pointed out that you can’t prove if someone is or is not “a tool.”

It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.

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FEBRUARY 2, 2013

“Minnesota Supreme Court Sides With Patient On Social Media Defamation Suit”

Nick Dawson, Guest Poster

e-Patient Dave Image-e-Patients

There’s a moment where something changes direction, irreversibly, because of irresistible forces – like when you toss your keys in the air. There is a split second when they stop traveling up, and start falling back towards you. We’re seeing examples of that moment every day in healthcare. One example is that the traditional doctor patient relationship, like your keys in the air, is changing direction. This week, a very poignant example came from Minnesota.

Dr. David McKee’s defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against a patient’s family member, because there was no proof that his comments were false or were capable of harming the doctor’s reputation.

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FEBRUARY 2, 2013

“Dennis Laurion Answers Questions After His Recent Win In Minnesota Supreme Court Against Dr. Mckee’s Lawsuit About Online Comments”

Maura Larkins, San Diego Education Report Blog

Below are questions asked of Dennis Laurion by interviewers during the lawsuit McKee vs Laurion. Sued for his comments in online rating sites and letters to medical groups, Laurion deferred answering those questions in the past but has now offered his answers in this venue.

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FEBRUARY 3, 2013

“Bedside Manners: Was the Doctor Defamed?”

Mark A. Fischer, Duane Morris New Media and Entertainment Law

 In 2010 Kenneth Laurion was admitted to [ St. Luke’s ] Hospital in Duluth, Minnesota, after suffering a hemorrhagic stroke.  David McKee, M.D., a neurologist examined the patient at the hospital. From the perspective of Mr. Laurion’s family, the examination did not go well.

According to the accounts of the patient’s son (who was present during the examination), Dr. McKee was rude and insensitive. Among other things, Dr. McKee was accused of saying that he had to “spend time finding out if you [Kenneth] were transferred out or died”; that “44% of hemorrhagic strokes die within 30 days. I guess this is the better option”; that “You [Kenneth] don’t need therapy”; and that “[I]t doesn’t matter” that the patient’s gown did not cover his backside; further, it was alleged that Dr. McKee left the room without talking to the patient’s family; and finally that a nurse told Dennis Laurion that McKee was “a real tool.”

Mr. Laurion’s son posted those statements on various “rate-your-doctor” websites. The doctor sued the patient’s son for defamation. The Minnesota District Court that initially heard the case found for the son; the intermediate Appeal Court ruled in favor of the plaintiff doctor, finding that the case could go forward; and the Minnesota Supreme Court granted the son’s motion for summary judgment, seeking that the case be brought to an end.

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FEBRUARY 4, 2013

“Court Kicks Defamation Lawsuit To The Curb”

Jane Pribek, Minnesota Lawyer

When Dennis Laurion wasn’t happy with Dr. David McKee’s care of his father, he posted several scathing online reviews of the Duluth neurologist, calling him “a real tool.”

Laurion’s statements weren’t defamation, according to a January 30 Minnesota Supreme Court ruling in McKee v. Laurion, because they didn’t present genuine issues of material fact as to the statements’ falsity, nor did they convey a defamatory meaning that would harm the doctor’s reputation and lower him in the estimation of the community.

Not only did the ruling shut down the lawsuit, it also makes it much harder for future plaintiffs to state a defamation claim, said McKee’s lawyer, Marshall Tanick.

The dispute stemmed from an April 2010 examination by McKee of stroke patient Kenneth Laurion.

Upon learning of Dennis’ online reviews, McKee filed a defamation lawsuit. St. Louis County District Court Judge Eric Hylden granted summary judgment against McKee.

The Court of Appeals reversed, but the high court unanimously reversed the intermediate court.

The Decision




February 4, 2013

“Doctor Loses Defamation Case Over Online Remarks”

Eric Goldman, Technology & Marketing Law Blog

 McKee v. Laurion, A11-1154 (Minn. Jan. 30, 2013)

Dr. McKee treated Kenneth Laurion. Unhappy with those interactions, Kenneth’s son Dennis critiqued Dr. McKee on various doctor review websites. Dr. McKee sued Dennis for defamation (and related claims) based on 11 different statements.

The district court granted summary judgment to Dennis on all counts, but the appellate court revived the lawsuit on 6 statements.

The Minnesota Supreme Court reversed the appellate court on those 6 statements, concluding that Dennis isn’t liable for any of the statements. On three of the 6 contested statements, the court says that the differences between Dennis’ statements and the truth are so minor that the differences can be ignored. The court says the remaining three statements couldn’t convey a defamatory meaning. For example, Dennis said a nurse told him “Dr. McKee is a real tool!” Calling someone a “real tool” isn’t actionable; at minimum, there’s no agreed-upon definition of what makes someone a tool (although to me, tendentious lawsuits could be the kind of thing that supports the characterization). Attributing the “tool” statement to a third party didn’t change the analysis.

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FEBRUARY 4, 2013

“Is Calling Someone A Tool Defamatory?”

Ani Barsamian, JD

Image-Law-Info-Blog

Neurologist David McKee filed a defamation lawsuit against Dennis Laurion claiming that Laurion defamed him on a “doctor rating” website by referring to him as a “real tool.”  According to ABA Journal, Laurion wrote the following statement on the website:  “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’”

Minnesota Supreme Court Throws Out McKee’s Lawsuit:

According to the Minnesota Supreme Court, “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.”  Therefore, they concluded that the statement was an expression of opinion that was not defamatory.

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FEBRUARY 5, 2013

“Minnesota Supreme Court Finds Negative Online Comments Were Opinions, Not Defamatory Facts”

Lilly Chapa, Reporters Commitee For Free Press, dedicated to providing free legal assistance to journalists since 1970

The Minnesota Supreme Court has ruled that negative online reviews about a local neurologist were not defamatory and are protected under the First Amendment.

In a reversal of a lower court’s decision, the state Supreme Court determined that Dennis Laurion’s online statements about his father’s neurologist, Duluth doctor David McKee, were not defamatory because they are considered opinion and are not capable of harming the doctor’s reputation.

“The First Amendment protects statements of pure opinion from defamation claims,” according to Justice Alan Page’s decision

Laurion’s father was treated by McKee after he suffered from a stroke in 2010. Laurion wrote negative comments on several healthcare provider review websites about how McKee interacted with the family and that a nurse called the doctor “a real tool.”

McKee sued Laurion later that year, accusing him of defamation and interference with business for the online posts. Laurion promptly deleted the posts. But McKee continued with the complaint. A district court dismissed McKee’s lawsuit, but the appeals court remanded the defamation portion of the case to the district court. Laurion appealed the decision to the state Supreme Court.

“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,” Page wrote.

John D. Kelly, Laurion’s lawyer, said the court addressed Laurion’s statements thoroughly and in a very straightforward way. “They studied the statements using the well-established principles of defamation law in Minnesota,” Kelly said. Kelly said he hopes Laurion’s case will teach future plaintiffs to be careful before suing someone for their online comments.

Each state decides what the plaintiff in a civil libel suit must prove and what defenses are available to the defendant. The court must weigh protection of a person’s reputation against the First Amendment values of freedom of speech and expression.

Minnesota courts consider whether a statement is defamatory depending on whether it was stated publicly, if it was false, if it refers to a specific individual and if that individual’s reputation is harmed, according to the court’s opinion.

Laurion said in an interview that he never thought his reviews would lead to a three-year lawsuit.

“I just wanted [McKee] to acknowledge my comments,” Laurion said. “I never thought I’d get this kind of backlash.

FULL ARTICLE




FEBRUARY 5, 2013

“Whether Someone Is ‘A Real Tool’ Is A Matter Of Opinion”

The Modern Workplace: Exploring Current Issues In Employment & Labor Law

 Just my opinon

You may have read recent media reports about a dispute between a doctor and his patient’s son in which the doctor sued the patient’s son for, among other things, referring to the doctor as “a real tool.” Frustrated by the care that his father received from the doctor at St. Luke’s Hospital in Duluth, Dennis Laurion posted online that “[w]hen I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool.’” Upset by this and other negative comments posted by Laurion, Dr. McKee sued him for defamation. The case was eventually appealed to the Minnesota Supreme Court, where the high court unanimously held that “[r]eferring 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.” Under Minnesota law, a statement of opinion cannot be the basis of a claim of defamation, so Dr. McKee’s lawsuit against Laurion failed.

This result is definitely a victory for free speech rights under the First Amendment, and will undoubtedly be cited by those defending against future defamation claims. Nevertheless, I will continue to caution employer clients to be careful when making any negative statements about a current or former employee.

It’s important to remember, first of all, that Laurion’s case arose outside the employer-employee relationship. We don’t know if, or how, the court might have viewed the facts differently if the defendant had been an employer and the plaintiff had been an employee.

My advice to employers is to stick to the facts. Leave your opinion out of it. The facts can generally be proven true and are often less inflammatory than a generalization or characterization, which is a good thing when you’re trying to avoid getting sued. For example, if you’re disciplining an employee for tardiness and attendance issues, don’t refer to the individual as “lazy” or “a malingerer” – not even in a private email to a fellow manager or HR. Remember, those private emails are discoverable in a lawsuit. It is much better to reference the actual absences or tardiness and state the need to change the behavior. Anytime to you try to slap a label on the performance or behavioral issue, I believe you increase the odds that you might find yourself or your company defending a defamation suit. Although Laurion was ultimately victorious in this case and was vindicated in his right to refer to Dr. McKee as a “real tool,” that victory did not come without paying the price of two years of costly litigation.

FULL ARTICLE




FEBRUARY 5, 2013

“What Does It Take To Make A Blog Review Defamation?”

L Garfield, Pace Law School Social Media Blawg

Calling someone a “real tool” is not enough to defame their reputation.  The Minnesota Supreme Court recently ruled in the case, McKee v. Laurion, that a web review, written by Dennis Laurion, son of a one of Dr. David McKee’s patients, which stated, among other things, “Dr McKee is a real tool,” was an opinion rather than fact, and therefore not actionable.

Ironically, Dr. McKee, like so many  doctors, presumably brought the action to defend his reputation, which was originally tarnished by those reading, and believing, the website on which the rating appeared.  Ironically, because of the McKee’s suit, Laurion’s words have gone viral.  What a bummer for Dr. McKee, not only did he lose his suit, but he potentially lost a wider patient base too!

FULL ARTICLE




FEBRUARY 5, 2013

“Defamation Claims By Medical Providers”

Breanne Sheetz, Healthcare Employment Counsel

The Minnesota Supreme Court recently held that statements posted by a patient’s son online describing rude and insensitive behavior by a neurologist, and a comment allegedly made by a nurse, were not defamatory. Hospitals and other healthcare employers, however, should remain cautious about the potential for defamation lawsuits when making personnel decisions.

In McKee v. Laurion, a neurologist sued his patient’s son for defamation because of statements the son posted on various “rate your doctor” websites and letters of complaint he sent to medical institutions. Among the allegedly defamatory statements was a comment by an unnamed nurse who allegedly stated that the physician “is a real tool.”

This statement, the court held, was “pure opinion,” protected under the First Amendment because “it cannot be reasonably interpreted as stating a fact and it cannot be proven true or false.” The court rejected the physician’s argument that the possible fabrication of the existence of the nurse and the statement attributed to her created a genuine issue of fact as to the falsity of the statement, which is one of the elements of a defamation claim. Regardless of whether a nurse made the statement, the court concluded, it could not give rise to a valid defamation claim because the statement itself was an opinion and therefore “incapable” of being defamatory.

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FEBRUARY 5, 2013

“Minnesota Supreme Court Rules Online Posts Didn’t Defame Doctor”

Marc Ohmann, MD WebPro

 Last week the Minnesota Supreme Court ruled on a defamation case from 2010 filed by Dr. David McKee, a neurologist in Duluth MN.  McKee claimed online patient reviews posted by Dennis Laurion, whose father was a patient of McKee.  Laurion’s online comments included:

“McKee said  44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option,” and that “It doesn’t matter that the patient’s gown did not cover his backside.”

“When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’”

Laurion’s father, Kenneth, was hospitalized for a hemorrhagic stroke at St. Luke’s Hospital in Duluth.  Laurion’s father was discharged and Laurion proceeded to post the online reviews.

Justice Alan Page noted that since McKee acknowledged the gist of some of the statements were true even though they were misinterpreted.  Page wrote: “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.”

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FEBRUARY 6, 2013

“Ruling: You Can Call Your Doctor ‘A Real Tool’ In Online Review”

Carey Goldberg, Common Health Reform And Reality

 The Minnesota Supreme Court has ruled in favor of a man whose online review of a Duluth neurologist included a nurse’s description of the doctor as “a real tool.”

The Associated Press report on the landmark case explains that “a tool” is “slang for stupid or foolish,” but my own translation into the vernacular, by which I mean Yiddish, would be “schmuck,” and the Online Slang Dictionary notes that “tool can also be found in the thesaurus categories ‘Words meaning penis’ and ‘Words meaning uncool person, jerk, asshole (general insults – list of).’”

So to move on from the lexical to the legal implications, this ruling — which the Associated Press notes is not binding in other states but may influence future decisions — seems to strike a blow in favor of patients’ rights to disparage their doctors in online review sites. The Associated Press reports:  The opinion, written by Justice Alan Page, said the comments posted by Dennis Laurion don’t add up to defamation because they’re opinions that are entitled to free speech protections.

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 FEBRUARY 6, 2013

“Arrogant Doctors, Online Reviews, and the Hot Water Test”

Trisha Torrey, About.com Guide

In 2011, I told you about the case of McKee V. Laurion – that is – son-of-a-patient-who-died Dennis Laurion, who was sued for defamation of character by his father’s neurologist Dr. David McKee.

The facts aren’t in dispute.  Mr. Laurion was upset at the way the neurologist “communicated” with the family.  So he did something about it in the most public way he knew how.  He wrote reviews of Dr. McKee on 19 different websites (sic), reporting, according to a Duluth (MN) news article in April 2011, that . . . Dr. McKee “seemed upset” that Kenneth Laurion (the father) had been transferred from the Intensive Care Unit to a ward room; that McKee told the Laurion family that he had to “spend time finding out if [the patient] had been transferred or died;” that McKee told the Laurions that 44 percent of hemorrhagic stroke victims die within 30 days; that McKee told the patient that he didn’t need therapy; that McKee said it didn’t matter that the patient’s gown was hanging from his neck with his backside exposed; that McKee blamed the patient for the loss of his time; and that McKee didn’t treat his patient with dignity.

Bottom line – Dennis Laurion felt the doctor had been arrogant, condescending, and not respectful of his patient or his patient’s family.  And when he said so publicly, the doctor sued him.

In the four years since Mr. Laurion Sr. died, the lawsuit has gone up the court ladder with varying outcomes. But last week, the Minnesota Supreme Court handed down the final verdict.  Mr. Laurion was within his rights to publicly recount his experience with Dr. McKee.  Mr. Laurion won the lawsuit.

SEE MORE WITH COMMENTS




FEBRUARY 7, 2013

“Sorry, Doc: This Online Review Saying You’re a ‘Real Tool’ Isn’t Defamatory”

Finally, a four-year legal battle over an online review has come to an end. The doctor review posted in early 2010 by Dennis Laurion – the one saying neurologist David McKee “is a real tool” – is not defamatory.

This is the unanimous decision reached recently by the Minnesota Supreme Court, which ruled that “referring to someone as a ‘real tool’ falls into the category of pure opinion because the term…cannot be reasonably interpreted as stating a fact, and it cannot be proven true or false.”

Here’s how the story began. Following the hospitalization of his father in 2010, Laurion posted a scathing review of McKee on at least a couple of popular doctor review aggregators. The review – which described McKee’s allegedly rude manner – then went viral, reaching other social media and online review sites and negatively affecting the doctor’s reputation.

So McKee sued. He filed a defamation lawsuit, the cost of which has piled up to reach over $50,000 in legal fees, plus another $11,000 on efforts to clear his name.

Jane Kirtley, a media ethics and law professor at the University of Minnesota School of Journalism, agreed with the Minnesota Supreme Court’s ruling. “This is not a blank check for people to make false factual statements,” she said. “Rather, it’s an endorsement that statements of opinion are protected under the First Amendment.”

The legal battle brings to light the power of online review sites like Yelp, Google Local, Wellness, Dr. Oogle, Vitals, and HealthTap (among many others) to affect the reputation of medical and health professionals. It also emphasizes the importance of monitoring and responding to these reviews.

Is someone writing bad reviews of your business or practice? Avoid the stress, trouble, and cost that McKee experienced. Here are some great tips for you:

Don’t sue, just respond. There have been many cases now in which the boundaries separating the First Amendment (protecting freedom of speech) from online reputation have been tested. But don’t make negative reviews bigger than they really are. (Besides, do you really want to spend thousands of dollars on legal fees?) The best, most effective way of dealing with these reviews is to respond to them – promptly, professionally, and politely.

Know where they’re talking – then plant your flag. There are dozens of review sites where your patients, customers, and clients may be talking about you. Identify these sites and, if you haven’t done so, claim your business listings.  By planting your flag, you gain more control over what’s being said about you, and you’ll be able to manage your online reputation much more effectively.

Monitor online reviews closely and regularly. Regardless of whether you’re a doctor, car wash shop owner, restaurateur, or hotelier, people will be talking about you and your business. They will have an opinion. They’ll likely write out and share this opinion. That’s why it’s so critical for you to have the tools and resources to monitor online reviews. Otherwise, you’ll never find out what’s being said about you – until the fire has spread too wide and has become too big for you to put out (just like what happened with McKee).

Train your staff to be brilliant. There’s no better way of stopping negative reviews than to give your patients and clients a great customer experience. This experience starts with your employees and staff members. If your people represent you well with impressive service, you’ll more consistently garner five-star ratings and glowing reviews.

FULL ARTICLE




February 7, 2013

Court Rules Bad Consumer Reviews Not Defamatory

Reason – Free Minds and Free Markets

Dennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father’s neurologist. He expected at most what he calls a “non-apology apology.”

“I really thought I’d receive something within a few days along the lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that would be the end of it,” the 66-year-old Duluth retiree said. “I certainly did not expect to be sued.”

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FEBRUARY 8, 2013

“Doctor Suing For Defamation Of Character Shut Down By High Court”

Aaron Kelly, Internet Law And Defamation Law Attorney

 The online defamation saga of Dennis Laurion is done. After years of litigation, Minnesota’s Supreme Court ruled that it is legal to cyber-share one’s negative opinions about a doctor. A case that tested Internet free speech limits, McKee v. Laurion is a textbook online defamation of character case study.

McKee v. Laurion: Online Defamation of Character Lawsuit

 The McKee v. Laurion cyber libel war began in 2010. Laurion’s father was a patient at St. Luke’s Hospital in Duluth, MN. McKee was the attending physician. Suffice it to say, the two men did not get along.

Laurion contended that McKee was rude to his father and made inappropriate quips about dying. The patient’s son also said one of the nurses called McKee a real tool.

Dennis Laurion the first round of the online defamation legal war, but an appeals court then ruled in favor of Dr. McKee. The State Supreme Court, however, put the matter to rest by reversing the Appeals Court decision and siding with the defendant.

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FEBRUARY 8, 2013

“Minnesota Supreme Court Finds Online Comments About Physician Not Defamatory”

American Health Lawyers Association

McKee v. Laurion, A11-1154 (Minn. Jan. 30, 2013)

The supreme court for the state of Minnesota held that a physician’s defamation claims against a defendant who complained on various websites about the physician’s conduct were not actionable, as there were no genuine issues of material fact as to the falsity of defendant’s statements, or the statements did not convey a defamatory meaning as a matter of law.

Defendant’s father was hospitalized after suffering a hemorrhagic stroke. The treating physician, plaintiff, allegedly made rude and insensitive remarks to defendant and family members when they were visiting the patient. Defendant went on various “rate-your-doctor” websites to describe the allegedly rude and insensitive communications and also wrote letters to various medically affiliated institutions to complain about plaintiff’s conduct.

The physician sued defendant, asserting claims for defamation per se and interference with business. The district court granted defendant’s motion of summary judgment and dismissed plaintiff’s claims with prejudice. The court of appeals affirmed the district court’s dismissal of the interference with business claim but reversed with respect to six of the eleven allegedly defamatory statements made online. The high court reversed the appeals court ruling, affirming the district court’s granting of summary judgment for defendant.

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 FEBRUARY 11, 2013

Minnesota Supreme Court Says Online Criticisms Not Defamatory Statements

Nathan Bass, Legal Newsline Legal Journal

St. Paul, Minnesota – The Minnesota Supreme Court has found that six statements posted online criticizing a doctor for “what the appellant perceived as rude and insensitive behavior” are not actionable as defamatory statements.

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FEBRUARY 11, 2013

 [ On February 7, 2013, Patient Advocate Trisha Torry (3) wrote about David McKee MD V. Dennis K. Laurion in About.com Guide. Defendant Dennis Laurion replied to her posting on February 7, 2013. On February 11, 2013, Ms. Torrey wrote another web posting. Plaintiff David McKee wrote to Patient Advocate Trisha Torrey to express his feelings. Defendant Dennis Laurion’s rebuttal and Torrey’s responses caused a three way argument on Tricia Torrey’s website. Nobody confined their responses to the same webpage, and some people were quoted in the Duluth (Minnesota) News Tribune, but the conversation is compiled in order below. ]

And David McKee Fires Back… Proving the Point?”

Trisha Torrey, About.com Guide

Last week, I followed up on the final Minnesota Supreme Court verdict in the lawsuit where Dr. David McKee, a neurologist, sued his patient’s son, Kenneth Laurion, who was so unhappy with Dr. McKee’s treatment of his father, that he posted negative reviews all over the internet, citing Dr. McKee’s arrogance.

And Dr. McKee is NOT happy with the verdict, or my assessment of it. In fact, he is so unhappy that he posted comments to the original post from 2011 where I told you about the lawsuit when the first court reached a verdict.  Because that post is so old, and therefore few would ever see the comments, I wanted to bring to your attention just what he said.

SEE MORE




Tuesday, FEBRUARY 12, 2013

Image-Duluth-News-Tribune

“Other View: Court Correct To Dismiss Doctor’s Defamation Suit”

Guest Opinion By Editorial Board, Mankato Free Press

Dr. David McKee filed a lawsuit against Dennis Laurion after Laurion posted remarks on a rate-your-doctor website. Laurion thought his father wasn’t treated as well as he should be by the doctor and said so. Among other things, the doctor was referred to as “a tool,” as in a foolish man.

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 different from knowingly telling a lie about someone in order to harm their reputation or business.

The high court, in throwing out the doctor’s defamation suit, pointed out that you can’t prove if someone is or is not “a tool.”

It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.

SEE MORE




FEBRUARY 14, 2013

“Some People Never Learn: The Physician Who Sued A Patient’s Son For Online Comments”

 Dan Hinmon, Principal, Hive Strategies Social Media Blog

 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 blogpost.

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.

SEE MORE




February 15, 2013

“Calling Doc ‘A Real Tool’ Isn’t Defamatory, Minnesota Supreme Court Rules”

Daly Law Firm News

The Minnesota Supreme Court recently threw out a case in which neurologist David McKee sued a man, Dennis Laurion, for defamation after Laurion shared a story on several online websites that rate doctors, in which a nurse friend claimed that “Dr. McKee is a real tool!” The court ruled that the statements were not actionable because they fall into the category of pure opinion under the First Amendment, meaning that the term “real tool” can’t be proven to be true or false and are therefore judged incapable of truly harming his reputation. Laurion’s lawyer clarified that the online medium the statements were shared in did not affect the court’s opinion.

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February 16, 2013

Real Tool’ And Other Comments About Doctor Are Not Defamatory”

Brian D. Brown, Brian D B Blog

Online statements to various rate-your-doctor websites as well as letters sent to medically-affiliated institutions concerning a doctor’s bedside manner or lack thereof, were recently found not defamatory by the Minnesota Supreme Court in Mckee vs. Laurion.   As a result, the Minnesota Supreme Court had no problem reversing a January 23, 2012 Court of Appeals decision to deny the defendant’s motion for summary in  McKee v. Laurion, No. A11-1154, 2012 WL 177371 (Minn. App. Jan. 23, 2012). In the Supreme Court’s view, none of the defendant’s comments  had any “defamatory meaning” and were substantially accurate depictions of the doctor’s statements to his patient or were the type of vague communication incapable of being proven true or false under the circumstances.   Thus, it’s okay, at least in Minnesota, to describe your doctor or medical professional to others as a “real tool” or to comment truthfully on his or her rude, insensitive behavior during the course of an examination.

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FEBRUARY 18, 2013

“Doctor Spends Thousands Fighting Negative Reviews In Court – And Loses”

Scott Gibson, Health Care Tech Review

Even though doctors don’t give much thought to online reviews from patients, they may come across some comments that are so out of line they may choose to take action. However, their rights under the law may be limited, as this court case shows.

There are many websites that allow patients to rate doctors and healthcare organizations. Most doctors say their ratings have little or no effect on their practice, according to survey conducted by the American College of Physician Executives. But occasionally, they may come across a comment that’s particularly negative, unfair or untruthful, as Dr. David McKee of Minnesota did recently before deciding to sue the person who wrote the comments for defamation.

McKee sued, arguing that the claims were either untrue and; when they were true, his comments were made in a jocular manner and misinterpreted by the family. He claimed the comments could harm his reputation and his business. However, the Supreme Court of Minnesota threw out the case, deciding that the comments were close enough to being too true to offer protection from liability for defamation.

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February 18, 2013

“Protect Your Practice Carefully Against Negative Online Reviews”

Fox Rothschild LLP Website

A recent court decision to throw out a doctor’s well-publicized defamation case raises the question: What’s the best way to deal with negative online comments about your practice?

Neurologist Dr. David McKee pursued the defamation suit against the author of some negative online reviews for more than two years before the Minnesota Supreme Court reversed a lower court opinion and threw his suit out. According to court papers the defendant objected to McKee’s behavior while treating his father and criticized him on various websites.

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FEBRUARY 20, 2013

“Web Ratings Aren’t Key In Choosing Doctor: Study”

Andis Robeznieks, Modern Healthcare

Geography and physician referral still top the Internet when it comes to patients’ healthcare choices, but insurance coverage is by far the biggest driver when it comes to parents choosing a doctor for their children, according to a new national survey.

“Accepts my health insurance” was rated as “very important” by 92% of the respondents in a survey commissioned by the University of Michigan C.S. Mott Children’s Hospital in Ann Arbor. Coming in a distant second was a convenient office location, which was rated as a very important decision-making factor by 65% of the respondents; followed by doctor’s years of experience, 52%; recommendations from family and friends, 50%; referral by another doctor, 40%; and doctor’s online ratings, 25%.

Age and gender play a role in relying on the Internet, as mothers (30%) were more likely to use Internet ratings in their decision-making than fathers (19%). Among parents younger than 30 years old, 44% thought online ratings were important, but only 21% of parents 30 years old or older thought so.

Dr. David Hanauer, a pediatrician and University of Michigan clinical assistant professor of pediatrics, said in a video that these findings show how “over time, the use of these websites will keep increasing.” But Hanauer noted that only 5% of respondents reported ever posting a review, so he cautioned that online ratings might not give an accurate picture of a physician’s performance.

Among those who had posted reviews, 54% reported giving positive reviews, while 19% said they posted negative reviews.

Of those who reported finding online reviews useful, 30% said they chose a doctor based on positive reviews, while 30% said they avoided a physician based on their negative reviews.

Among those who never sought online reviews about doctors, 43% said they didn’t trust the information. Also, 26% of respondents said they were concerned about a doctor taking action against them if they left a negative review.

In the survey report, the unregulated nature of Internet reviews was referenced, but it was also mentioned that word-of-mouth referrals from family and friends are not regulated either. “But those sources of information may be perceived as more directly accountable by parents seeking the information, and therefore more trustworthy,” the report stated.

The Web-enabled survey of 2,137 adults was administered for C.S. Mott Children’s last September by New York-based GfK Custom Research.

A recent survey of the American College of Physician Executives found that most ACPE members didn’t think many patients consulted online doctor ratings, but 69% of respondents said they went online to see what was posted about them.

A study published last year in the Journal of Medical Internet Research analyzed 386,000 ratings posted between 2005 and 2010 on the RateMDs.com website. On a one-to-five scale, the average score was 3.9, leading the study’s authors to declare that “Online ratings appear to be driven by patients who are delighted with their physicians.”

And while the Mott Children’s survey found concern about physicians retaliating over negative online comments, one recent court decision did not go well for the physician who filed a defamation case.

Dr. David McKee, a Minnesota neurologist, sued a patient’s son who—in an online post—accused McKee of insensitive behavior toward his father. (The online comments were not directed at the care the patient received.) The case went to the Minnesota Supreme Court which, in a Jan. 30 ruling, said the statements McKee sued over did not merit legal action.

FULL ARTICLE




FEBRUARY 20, 2013

“The Minnesota Supreme Court Rules For The Defendant In A Suit Alleging Online Defamation”

 Julie Hilden, Verdict, Legal Analysis and Commentary from Justia

 On January 30, in McKee v. Laurion, the Minnesota Supreme Court ruled that none of the six online statements that had been claimed by Dr. David McKee to be defamatory as to him, when they appeared in an online review written by Dennis Laurion, actually was, indeed, defamatory. The court therefore dismissed the case, leaving the online reviews to stand.

The six statements at issue concerned the medical treatment that Dennis Laurion’s father, Kenneth Laurion, after having had a stroke and being hospitalized, had received from Dr. McKee.  Unhappy with statements that Dr. McKee had made, and perceiving Dr. McKee’s attitude to be rude and insensitive, Dennis Laurion then left negative comments about Dr. McKee on rate-your-doctor websites.

In return, Dr. McKee sued Dennis Laurion for defamation.  As noted above, however, none of the six statements at issue was deemed defamatory by Minnesota’s high court, and thus, Dr. McKee lost his case.

In this column, I’ll cover the McKee V. Laurion case, and comment on some ways in which those who write online reviews can attempt to steer clear of triggering a libel case with their online remarks.

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February 23, 2013

The Futility of Suing a Patient for Defamation

Jeffrey Segal, MD, Medical Justice Blog

Proving defamation is hard. To prevail, you must demonstrate someone (a) made a false statement; (b) to another; and (c) that false statement damaged your reputation.

Truth is a defense to a charge of defamation. And statements of opinion don’t count.

Once you sue a patient for defamation, you guarantee his or her commentary, which might have been buried on page 4 of a Google search, will move to page 1.  Further, it will take a long time to resolve the conflict. Finally, it will cost a lot of money with an uncertain outcome. In fact, the outcome will likely be against you. In general, we think it’s a bad idea for a doctor to sue a patient for defamation.

The more typical outcome was just published by the Minnesota Supreme Court in Laurion v. McKee.  Dr. McKee is a neurologist who took care of a patient who suffered a hemorrhagic stroke. The patient’s son posted comments on a doctor review site which portrayed McKee as rude and insensitive. I’ve definitely seen worse.

McKee sued the patient’s son for defamation. He lost in lower court. An appellate court overturned. And now the Minnesota Supreme Court ruled in favor the patient’s son. The Court concluded:

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FEBRUARY 28, 2013

“Protect Your Practice Carefully Against Negative Online Reviews”

William H. Maruca, Fox Rothchild Law Blog

A recent court decision to throw out a doctor’s well-publicized defamation case raises the question: What’s the best way to deal with negative online comments about your practice?

Neurologist Dr. David McKee pursued the defamation suit against the author of some negative online reviews for more than two years before the Minnesota Supreme Court reversed a lower court opinion and threw his suit out. According to court papers the defendant objected to McKee’s behavior while treating his father and criticized him on various websites.

Studies of online review sites in general show these reviews to be influential on consumer behavior.

Attorneys recommend to take several steps short of legal action in order to protect yourself against negative reviews such as the those experienced by Dr. McKee. Some attorneys suggest reaching out to the critic; however, attorney William Maruca advises that trying to answer a critic with your side of the story can be dangerous – particularly if you do it in the forum where the criticism appears.

“The danger is escalating a bad situation into one that could attract more attention,” says Maruca. “One unhappy review in a long list of favorable reviews is more likely to be overlooked or discounted than if there is a lengthy flame war on your review page.”

In addition attorneys suggest using low-impact legal tactics such as a cease-and-desist order from an attorney. It also may be valuable to try using positive news to combat the bad. If you promulgate your positives with an eye toward search engine optimization you may find that the good outweighs the bad.

FULL ARTICLE

FOX ROTHSCHILD

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.



 MARCH 7, 2013

 “Dr. David Mckee Seems Unaware That He Has Abused The Legal System To Torment Dennis Laurion For Exercising His Right To Free Speech”

Maura Larkins, San Diego Education Report Blog

Even after losing his defamation suit, Dr. David McKee seems unaware that he has abused the legal system to torment Dennis Laurion for exercising his right to free speech.

Even after losing his defamation lawsuit in the Minnesota Supreme Court ( 1), Dr. David McKee seems completely unaware that he has tormented a patient’s family for discussing his bedside manner on the Internet. (2)

Many people would consider Dr. McKee to be cowardly and relentless to have dragged a man through the courts simply for taking advantage of his First Amendment rights. The financial resources of the doctor and the man he sued were vastly disparate.

On February 7, 2013, Patient Advocate Trisha Torry (3) wrote about David McKee MD V. Dennis K. Laurion in About.com Guide. Defendant Dennis Laurion replied to her posting on February 7, 2013. On February 11, 2013, Ms. Torrey wrote another web posting. Plaintiff David McKee wrote to Patient Advocate Trisha Torrey to express his feelings. Defendant Dennis Laurion’s rebuttal and Torrey’s responses caused a three way argument on Tricia Torrey’s website. Nobody confined their responses to the same webpage, and some people were quoted in the Duluth (Minnesota) News Tribune, but the conversation is compiled in order below.

[Dennis Laurion, FEB 7, 2013, About.com] Trisha, thanks for your coverage of David McKee vs. Dennis Laurion.

You said, “The reason Mr. Laurion didn’t lose the suit was because he related facts and observations – not opinions and generalities. That’s the real hot water test. The difference between recounting opinions vs facts can be the difference between winning and losing a defamation lawsuit.” I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice – at least in Minnesota. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. Had the Minnesota Supreme Court concluded that I offered facts, I’d be awaiting jury trial. It was, I believe, the conclusion that I’d offered opinions that caused dismissal.

You also said “He wrote reviews of Dr. McKee on 19 different websites, reporting, according to a Duluth (MN) news article in April 2011 ” 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 or 118 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again. Several newspapers accounts have repeated assertions about how many letters I wrote and how many reviews I wrote. You’ll find accusations that I wrote 108 or 118 subsequent postings. You’ll find remarks that most were traced to a single IP address in Duluth. It wasn’t mine, and my internet provider tells me that nobody has ever asked about my IP address.

You also said “No matter what you think of the outcome of this lawsuit, know that it cost Dr. McKee more than $60,000 out of his pocket, including his attempt to try to repair his reputation.” The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

[Trisha Torrey FEB 7, 2013, About.com] Dennis, thank you for contributing to this report. I have corrected the statement about your father’s life and apologize for getting that wrong. Re: your report on how many comments were made, who made them, etc — you have enlightened us all…. And it proves exactly what I was saying – we cannot assume that anything we write online, especially through anger or frustration, can’t be tested at unlimited cost. The power still remains with the monied and we can’t forget that.

[ Tricia Torrey, FEB 11, 2013, About.com ] Last week, I followed up on the final Minnesota Supreme Court verdict in the lawsuit where Dr. David McKee, a neurologist, sued his patient’s son, Kenneth Laurion, who was so unhappy with Dr. McKee’s treatment of his father, that he posted negative reviews all over the internet, citing Dr. McKee’s arrogance. And Dr. McKee is NOT happy with the verdict, or my assessment of it. In fact, he is so unhappy that he posted comments to the original post from 2011 ( 3 ), where I told you about the lawsuit when the first court reached a verdict. Because that post is so old, and therefore few would ever see the comments, I wanted to bring to your attention just what he said.

[Dr. David McKee, FEB 10, 2013, About.com] Okay let me set you straight on a few things. First, Mr Laurion and I do not agree at all as to what was said and what happened. More importantly, Mr. Laurion (the son, not the patient) contradicted his account of what happened numerous times. No Trisha, I am not a real SOB as you have concluded based on accepting the statements which I sued Laurion over as truthful. If they were truthful I would not have brought the suit forward. Dennis Laurion is a sick malicious bully. He wrote several versions of what transpired in his father’s hospital room, each more slanderous and exaggerated than the last. As an example, in the earliest versions of Laurion’s description, he mentioned, accurately, that I helped his father to a standing position. A later version stated that I pulled his father out of bed; still later that I jerked his father against a closed bedrail and against his will.

Laurion also complained that I humiliated his father by not tying the back of his father’s hospital gown. In fact, Dennis Laurion was sitting in a chair on the same side of his father’s bed as the patient. He would have needed only to lean forward a little to reach the ties of the gown. I was on the opposite side of the bed and could not have reached the back of the gown if I had wanted to.

[Maura Larkins, MAR 7, 2013, San Diego Education Report (2)] All three versions could be true. Since the father was unhappy to be standing in his skimpy gown, and he knew what kind of gown it was before he got up, it seems quite likely that he was not willing to get up. But really, why make such a big deal out of this sort of thing? Sometimes a doctor does have to demand that a patient stand up so that he knows how well the patient can stand. And it’s quite likely that a doctor would not want to use his well-educated hands to tie a dressing gown on a patient–I’m not saying I approve this attitude, just that I think it’s a common one.

[Dennis Laurion, FEB 11, 2013, About.com] While my father was lying down, and when he was seated, I was unaware that the back string was untied. It was my father who mentioned his parting gown. We then insisted on leaving the room to wait in the hall. In my postings to the public, I stopped short of details that would have embarrassed my father but shared those details with a state agency. McKee is apparently including my comments to a state agency, while insisting he didn’t sue me for those contacts.

[Dr. David McKee, FEB 10, 2013, About.com] After I left the patient’s room I was sitting at a nurses station only 30 feet from where Dennis Laurion was sitting and in plain sight. He could have discussed any concern with me then without the slightest difficulty. Instead he chose to begin his smear campaign against me. He fired off 19 letters of complaint within the next few days.

[Dennis Laurion, FEB 11, 2013, About.com] Dr. McKee is apparently including letters that I wrote as a response to his suit.

[Dr. David McKee, FEB 10, 2013, About.com] He tried for several weeks to get the local media outlets interested; none would have anything to do with him until he met up with Mark Stodghill of the Duluth News Tribune. The two of them met several times over a 2 week period to come up with a great doctor bashing piece of propaganda. Stodghill placed a call to my office at 4:55 p.m. on a Friday. I was not on call and had left for the day. This was the only attempt he made to contact me. The newspaper article came out only 10 hours later. Still the one half hearted attempt to reach me allowed the reporter to accurately state that “calls to Dr. McKee were not returned”, implying that I had something to hide. The article was so biased that of approximately 80 conversations with patients who brought up the matter, only 2 understood that I was suing Laurion; the rest misunderstood and believed I was being sued by Laurion.

[Dennis Laurion, FEB 11, 2013, About.com] When McKee sent a threat letter, I asked three local media outlets if such a suit would be a “man bites dog” story. I never mentioned Dr. McKee’s name and would not have, had there been no suit. In spite of follow-up inquiries by the press, I demurred giving his name until a public record existed. On the day of filing, Mr. Stodghill found the public record without my prompting and ran the story. Mr Stodghill contacted me once by email and once by phone. We did not meet over any time period, and I did not recognize Mr. Stodghill, when he was covering my first court appearance.

[Fred Friedman, Chief Public Defender, Northeastern Minnesota, AUG 2, 2013, Duluth News Tribune (4)] Mark Stodghill and I go back a long way. Long before Mark covered courts and crime for the News Tribune, we shared stories and interests in baseball, basketball, nonfiction books and the complications of father-son relationships, both in terms of our fathers and our sons. We have friends in common for the past 40 years.

I saw Mark gain interest in running and lose interest in professional sports. I followed Mark’s career going from a writer to a columnist to a writer. I miss Mark’s columns, both the ones that were popular and the ones when he got ripped (a Stodghill slang word, incidentally).

As a writer covering the courts beat, he had a tough job. Court cases are all about advocacy, and everyone including me thinks they have the corner on fairness and justice. Avoiding saying something foolish is always the No. 1 goal. Mark was good at understanding our job but never forgetting his.

The best writers, including Mark, tell a good story in a fair way and always invite comment from the participants before publication. I know he endeavored to be fair and thorough. I do not believe some copy editors and headline writers Mark worked with always shared that commitment. I always have wondered how many reporters, including Mark, resented headline writers who missed the point and copy editors who sliced up a story beyond recognition, either looking for sensationalism or looking to save an inch.

Finally, Mark Stodghill enjoyed a youth that most men could only imagine. He was a schoolboy pitching star; bat boy for the Minnesota Twins, including during the 1965 World Series and All Star Game; and was up-close and personal with Twins greats Harmon Killebrew (Mark’s favorite, after his father), Tony Oliva and Rod Carew and with baseball greats Willie Mays, Sandy Koufax and more. He also was a ball boy for the Minnesota Vikings, a Vietnam-era U.S. Air Force veteran and a college basketball star who sometimes got to write on anything he wanted, earning the respect of his peers and friends.

[Mark S. Rubin, St. Louis County Attorney, AUG 2, 2013, Duluth News Tribune (5)] I learned recently Iceland is rewriting its constitution. The primary agreed-upon theme is, of course, liberty. The second primary principle is responsibility. Interesting, don’t you think? I will bet that to our Founding Fathers, “responsibility” was considered a given in our Constitution, and it wasn’t necessary to make specific mention of it.

A free press is a critical component for preserving and growing our still-evolving democracy. Today News Tribune journalist Mark Stodghill retires. He has practiced his craft with the utmost of integrity and responsibility. Just ask anyone who has worked in the courts and criminal justice system over the last 35 years; they will tell you Mark was respectfully relentless in his efforts to get his stories right.

We are a better-informed community, our liberty is stronger, and our citizens are more enlightened and thus empowered because of Mark’s recognition and understanding of his responsibility to his craft. His goal was to report the truth — the facts — about some of the most tragic and difficult stories imaginable. Time and time again he succeeded.

Mark Stodghill is a Vietnam veteran deserving of our gratitude, a marathon athlete who leaves us in awe, and a husband and father who loves and cares deeply. And yes, he is a journalist who saw, accepted and carried out his responsibility to his fellow citizens in our sometimes-fragile democracy. He is and will continue to be the standard for the next generation to follow.

[Gordon Ramsay, Duluth Police Chief, AUG 2, 2013, Duluth News Tribune (6)] Mark Stodghill, a talented, old-school journalist with a conscience, will walk out the doors of the News Tribune today for the last time and into retirement.

He’s a fascinating guy who has done a lot in his life and who has covered a lot of different beats since the 1970s. For the past 15 years or so he covered police and courts. When horrible crime and its impacts on families and communities happened, Mark usually was there.

For the first time in many years, Mark Stodghill’s familiar name will not appear in a byline. He will no longer have to try to interview grieving family or be accused of demonizing a family member who committed a crime.

I know Mark worked diligently to always be fair to victims and suspects alike. When a family member or friend was upset with a story he wrote, Mark took it to heart. He cared about getting his stories right and worked diligently to ensure they were accurate.

He would sometimes tell me about incidents where upset family members had contacted him and accused him of shedding bad light on their loved one. He was bothered by this element of his job; I would attribute that to his strong character.

No one could ever accuse Mark of being a sensationalist writer. Rather, he’s a talented, old-school journalist with a conscience who won’t be easily replaced.

[Dr. David Mckee, FEB 10, 2013, About.com] I have been the victim of a cowardly relentless series of attacks by a truly sick human being. The fact that you appear to always assume that if a complaint is made against a physician, the physician must be in the wrong, makes you little better than Mark Stodghill who was willing to use the lowest possible journalistic standards seemingly designed to get the story wrong so as to allow for the most inflammatory headline possible.

[Dennis Laurion, FEB 11, 2013, About.com] McKee has learned to exercise his own free-speech rights. In earlier responses to publicity, I’ve been called an oddball sort of fellow, passive-aggressive, liar, bully, coward, and malicious person. I think somebody should have told McKee about the Streisand Effect.

[Trisha Torrey, FEB 11, 2013, About.com] This is strictly “he said, he said” – and it cannot be recreated or witnessed. That means we are left with the perceptions of the two people involved and, truthfully, neither one of you gets big points for handling this well.

However, YOU are the professional. As such, part of your responsibility is to communicate clearly and with enough compassion and empathy that your patients and their loved ones don’t misunderstand what you have said, decided, ordered or done.

Look – I can understand that you were upset at what he said about what he perceived as your arrogance. But as is true in any form of communication – perception is the receiver’s reality. Had you not come across as brusque, callous, disrespectful, arrogant, or any other adjective for disconnected one can use, Mr. Laurion would not have pursued a public punishment for you.

And when he did, I dare say, fixing it would have required only an apology from you, whether or not you agreed with his perception. Two words, “I’m sorry,” would have made a world of difference.

Would that have been so difficult? Evidently, yes. The fact that you are now calling him names as if you were both in middle school speaks volumes. Even if Mr. Laurion is a bully, that must have been triggered by something. So instead of taking care of it the way a professional should, you instead chose to escalate the problem. Unprofessional and undignified.

Sadly (from your perspective), instead you have become the poster boy for doctors who don’t communicate well, providing a lesson for all doctors who arrogantly treat their patients and families like second-class citizens. You may have outstanding neurology skills (I have no idea if you do or don’t), but if you can’t communicate respectfully, clearly and with empathy, then your skills as a physician are lacking, and your patients and their families are not being well-served.

[Dr. David McKee, FEB 12, 2013, About.com] Trisha, just read the first sentence of your post. You concluded by the fact that Laurion made disparaging (and inaccurate) comments and complaints that “…Dr McKee must have been a real SOB, abrupt and rude at the very least” You had no grounds for such an emphatic conclusion. The conclusion is reasonable only if you somehow know the statements made by Laurion are accurate. The fact that I brought a lawsuit against him for inaccurately portraying my interaction with his father should cast enough doubt to preclude your statement presented as fact. You also concluded that because I responded to your defamatory statement I proved your original premise….HUH???

So the doctor is wrong because Laurion says he behaved poorly and the doctor is wrong again because he responds to your unfounded and malignant comments. Nice.
As for Laurion’s recent responses they are inaccurate and very disingenuous and he knows it.

He did file 19 letters of complaint based on an innocuous interaction with his father; including 2 complaints to the MN Board of Medical Practice. The second was filed as if written by his wife; though in deposition his wife acknowledged Laurion wrote both letters (the second was an exaggeration of the first; neither resulted in any action by the board). There is substantial evidence that on learning that his original motion to dismiss was going to be acted on favorably he and others encouraged by Laurion, made roughly 120 negative entries on various doctor rating sites. This occurred in a 2 day period and before the court’s decision was made public. There is no chance that this was action taken by actual patients or that it occurred spontaneously. Yes I think the term bully is, if anything an understatement.

As for Laurion’s suggestion that he is somehow a victim of a game of financial attrition. He was given multiple opportunities to settle without financial demands. When he was deposed he acknowledged that he went back on the offensive despite the very early option of settling at essentially no cost. The 120 March 2011 postings will likely form the basis of a second suit. Laurion has repeatedly refused to guarantee that he will not engage in further slander so I really have no option here. One of the great injustices is that people like you assume the physician must be at fault and are willing to attack without bothering to investigate. Your illogical deductions are not investigation. In the end, the negative commentary sticks to the physician as a permanent aspect of his reputation whereas people like you profit whether your statements are accurate or not. For Laurion to cast himself as the victim of my responses is cynical beyond measure.

Since you choose to reach your conclusions by inference you might chew on this. I have been in practice for 22 years. I have evaluated over 20,000 patients during that time. I estimate that, on average I have met one family member for each patient. Conservatively that makes 40,000 patients and family members. Dennis Laurion’s 19 letters of complaint amount to 75% of the complaints I have received in total vs. hundreds of letters thanks, gratitude etc. But it is primarily Laurion’s mischief that shows up when patients, friends, family research my name.

Trisha, I think it is your arrogance that is the real problem here. You are so self certain that you can determine right and wrong by inference that investigation is not needed. I am not going to make any further posts on this site but you need to clean up your act.

[Dennis Laurion, FEB 21, 2013, About.com] Dr. McKee has said “Mr Laurion and I do not agree at all as to what was said and what happened.” I agree.

( 1 ) McKee v. Laurion resolved

(2) Even after losing defamation suit, Dr. David McKee seems unaware that he has abused the legal system

(3) Trisha Torrey

(4) Fred Friedman

(5) Mark S. Rubin:

(6) Gordon Ramsay



 MARCH 19, 2013

“When Online Reviews Lead To Lawsuits”
Ken Paulson, Associated Press

Hotels, doctor and other ratings are controversial, but courts view most as free speech.

Story Highlights
•    Judges weigh free speech vs. reckless comments with devastating professional consequences.
•    Comments that are strictly opinion or hyperbole are often protected.
•    While unsupported statements of fact can lead to liability.

When a Minnesota man felt his family was treated shabbily by a neurologist, he made sure the world knew about it.

Dennis Laurion posted caustic reviews of Minnesota neurologist David McKee, saying he was insensitive to his father’s needs and claiming that a nurse called the doctor “a real tool.” This angered McKee, who offered his own prescription: a libel suit.

The Minnesota Supreme Court found that the critical comments were protected under the First Amendment as free speech because they were just an opinion — “mere vituperation” — and dismissed the case. It was the latest in a series of fascinating cases in which judges struggle with balancing freedom of speech with the devastating professional consequences of reckless or unsubstantiated reviews.

A woman in Washington, D.C., is being sued after giving a contractor an F rating on Angie’s List and hinting that he might have stolen some jewelry. A judge ruled in January that the strongly negative review could remain online, but that the libel case could proceed.

Another Washington woman is being sued by a dermatologist after she claimed on Yelp that he scarred her face. The doctor contends the scar was pre-existing.

In 2012, a U.S. District Court threw out a lawsuit filed by a Pigeon Forge, Tenn., hotel after Trip Advisor called it “the dirtiest hotel in America” based on user reviews. Remarkably, the court concluded that the “dirty” designation wasn’t defamatory.

Last year, the Beaverton (Ore.) Grace Bible Church showed the limits of its grace, suing a former member who criticized the church online as being “creepy” and guilty of “spiritual abuse.” A judge dismissed the suit, saying these opinions were protected as free speech.

In 2011, two Scottsdale, Ariz., surgeons were awarded $12 million by a jury after a patient created a website to accuse the doctors of poor care.

Libel cases on rise

Libel cases over online comments are on the rise, perhaps inevitably in an era of impulsive tweets and anonymous comments. Nevertheless, what could be a more fundamental exercise of free speech than telling others about your negative experiences with doctors, lawyers, contractors and hotels?

Unfortunately, not all complainers can be counted on to give an accurate and fair account, and a business can be damaged irreparably by false allegations. Courts have largely found that comments that are strictly opinion or hyperbole are protected by the First Amendment, while unsupported statements of fact can lead to liability.

That probably means you can post a comment calling your lawyer a “clown” or “buffoon.” On the other hand, suggestions that your counsel is unlicensed, negligent or careless are assertions of fact and not mere insults and could land you in a courtroom. The difference: Lawyers can document they are not negligent, but none of us can really prove we’re not a clown.

Protected speech

Ironically, the federal law that protects review sites such as Yelp, Angie’s List and RateMD.com can also lead to reckless claims online. Section 230 of the Communications Decency Act protects websites from libel claims as long as they simply permit the posting of content and don’t actively control posts. If a website edits posts, weeding out vitriolic or unfounded attacks, its potential liability can be more, not less.

There’s no question that the websites rating professionals and public accommodations are a real plus for consumers. A few minutes online can help ensure that you make the right choices in terms of your health care, legal advice as well as vacation accommodations.

Even so, the hands-off administration of these sites can undercut their overall credibility. Imagine the benefits of a site that posted both constructive and critical comments and yet set standards that would weed out the intemperate in favor of the informative. Now that would be a real tool.

Ken Paulson is president and CEO of the First Amendment Center in Nashville, a former editor of USA TODAY and a member of USA TODAY’s Board of Contributors. In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors.

FULL ARTICLE



 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




MARCH 21, 2013

“When Web Reviews Lead To Lawsuits”

Ken Paulson, Delaware Online

Dennis Laurion posted caustic reviews of Minnesota neurologist David McKee, saying he was insensitive to his father’s needs and claiming that a nurse called the doctor “a real tool.” This angered McKee, who offered his own prescription: a libel suit.

The Minnesota Supreme Court found that the critical comments were protected under the First Amendment as free speech because they were just an opinion and mere vituperation and dismissed the case.

SEE MORE




MARCH 26, 2013

Reprinted February 2, 2016

Guest Opinion: “When Online Reviews Lead To Lawsuits

Ken Paulson, Guest Opinion

Roanoke County News

Dennis Laurion posted caustic reviews of Minnesota neurologist David McKee, saying he was insensitive to his father’s needs and claiming that a nurse called the doctor “a real tool.” This angered McKee, who offered his own prescription: a libel suit.

The Minnesota Supreme Court found that the critical comments were protected under the First Amendment as free speech because they were just an opinion — “mere vituperation” — and dismissed the case.

SEE MORE




April 2, 2013

More Doctors Sue Over Bad Online Reviews 

Sam Narisi 

HEALTHCARE Business & Technology E-Newsletter 

 

Dr. David McKee of Minnesota recently lost a court battle in which he sued a patient’s son who had written negative comments about McKee on several doctor rating websites. The negative reviews were related to comments McKee had made to the patient and his family. Though McKee claimed the online reviews hurt his reputation and his business, the court threw out the case on the grounds that the comments were true and therefore not defamatory.

SEE MORE




APRIL 2, 2013

“More Doctors Sue Over Bad Online Reviews”

Scott Gibson, HEALTH CARE TECH REVIEW (News and Updates for Healthcare IT Professionals)

 Dr. David McKee of Duluth, Minnesota recently lost a court battle in which he sued a patient’s son who had written negative comments about Dr. McKee on several doctor rating websites. The negative reviews were related to comments Dr. McKee had made to the patient and his family. Though Dr. McKee claimed the online reviews hurt his reputation and his business, the court threw out the case on the grounds that the comments were true and therefore not defamatory.

Full Article

Minnesota Supreme Court Decision




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.

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.

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MAY 8, 2013

Online Doctor Reviews Reveal What Matters Most to Patients

Chris Campbell, Review Trackers Blog

In 2010, a man in Minnesota did not like the bedside manner of [ Dr. David McKee ] the neurologist treating his father. The man posted online reviews on a couple of popular doctor review aggregators – reviews that referred to the neurologist as a “real tool.”

The whole thing sparked a controversial legal battle [ David McKee MD V. Dennis Laurion ], in which the Minnesota Supreme Court ended up deciding that the reviews were not defamatory. It’s a pretty long story – spanning four years! – but apparently this case is very crucial in understanding what patients really want in the age of Yelp and Dr. Oogle.

According to a new study by medical marketing firm Vanguard Communications, patients want – above all – excellent customer service and bedside manner. In fact, these seem to matter to patients more than level of medical skill: in the multi-city study, the patients who post negative online doctor reviews complain about poor service and bedside manner four times as much as they did about misdiagnoses and inadequate medical skills.

SEE MORE




MAY 11. 2013

“With Online Reviews, It Pays To Know What You’re Doing”

Jane Pribek, IDAHO BUSINESS REVIEW

What would you do if someone called you “a real tool” on Avvo?

Don’t follow in the footsteps of Dr. David McKee, who responded to his negative review by filing a defamation lawsuit, which the Minnesota Supreme Court recently ruled was not actionable. In addition to losing the case, McKee’s action generated negative publicity about the poor review. If only he had known about online reputation management.

“The spread of social media has touched everyone and every business owner,” said Joe Preston, of Attorney Reputation Management, a Washington-based marketing and public relations firm. “We’ve had clients who’ve been affected by jealous competitors, disgruntled former employees and sometimes, frankly, clients who are unreasonable.”

There are steps attorneys can and should take to protect their reputations, said Preston and intellectual property attorney Scott Scioli, who are co-authoring a book on the topic, scheduled for publication in June.  They recommend you start by claiming your profiles on the various directories and reviewing websites, primarily for search engine optimization purposes. Then, you’ll need to monitor the reviews or comments on those websites, frequently, along with periodically Googling your name and your firm’s name to see what results come up. Some advise using Google Alerts and similar services to stay on top of new mentions. But you can’t rely on alerts alone, Preston said, because Google has curtailed how often the alerts are sent.

You can be proactive by encouraging happy clients to write positive, truthful reviews. Many websites use algorithms to determine the credibility of posted reviews, and reviews sent from mobile devices often are seen as more likely to be authentic, Preston said.

When someone posts an unflattering review, don’t expect the website to take action. Still, you should bring blatantly false reviews to their attention, such as when you never represented the reviewer. But website owners’ tend to trust their own software’s indicia of authenticity over your word, Preston warned. Once they deem a review authentic, it’s very hard to convince the company to remove it.

More often, it’s better to respond to negative reviews, tactfully and ethically. Be cautious not to reveal any confidential information about the representation.  Reach out to the reviewer, Preston said. Be positive, and ask him or her to call so you can resolve the matter.

As for taking legal action, Scioli advised against it, noting that when you file a defamation lawsuit, it makes the news and keeps the negative information as a top result on Google. Moreover, there can be significant proof issues: Sometimes people use proxies or hire people outside the U.S. to write negative reviews. Then there’s the issue of whether you even can collect the judgment.

“The perception of being the kind of person who sues someone for criticizing you is very negative, and can lead to additional negative feedback about you and your firm,” Scioli said. “You have to be careful about asserting your rights, even when you’re in the right, because sometimes it’s not a question of who’s right, but rather what’s the better strategy.”

Full Article

Minnesota Supreme Court Decision



JUNE 12, 2013

“Better think twice before leaving your advice”

Businesses take steps to fight negative online reviews of their products and services, causing some to rethink their online activity.

Parker Dozier, Senior Staff Writer, CAMPBELL LAW OBSERVER

New technologies continue to produce novel legal questions, and one of the most recent revolves around the posting of negative product and service reviews online.  Websites such as Yelp, Angie’s List, and RateMDs are seen by users as a convenient place to provide positive reviews of meals, home repairmen, and professionals, but these sites have also become a place for users to give negative reviews of their experiences.

Businesses and service providers have not reacted kindly to these virtual criticisms. Some have even resorted to legal action – and won damages – in an effort to remove the negative reviews from the internet.  A 2011 Harvard Business School study found that an increase in ratings of one star (up to a possible five) on the website Yelp raises a restaurant’s revenue by five to nine percent, providing good reason for businesses to be concerned when negative reviews are posted about them online.  But are lawsuits and legal threats the best approach for businesses in trying to eliminate, or at least mitigate, negative reviews? 

Different jurisdictions handle these lawsuits differently, but most have been largely unsuccessful.

The spread of social media has led to expansive growth in online reviews of people’s experiences with everything from restaurants and handymen to doctors and lawyers. Though one negative review by itself probably will not harm a business, a trend of negative reviews can.  Over the last five years, businesses and individuals have filed lawsuits in an effort to bring down negative posts and even, in some cases, have sought damages.  Due to the novelty of the law in this area, however, and the economics of bringing a lawsuit for a single negative review, there has yet to be an outbreak of similar lawsuits.

Different jurisdictions handle these lawsuits differently, but, thankfully for online reviewers everywhere, most have been largely unsuccessful.  Reviewers have the right to free speech afforded by the First Amendment, and airing their legitimate grievances over their experiences falls within their right to express their opinion.  Most of the courts faced with these lawsuits have come to this same conclusion and thrown out the cases.

The Minnesota Supreme Court recently dealt with a case involving the online statements of a man whose father had been treated by a doctor.  In David McKee MD v. Dennis Laurion, a man posted on various websites that when he mentioned the doctor’s name to a nurse, she called him a “real tool.”  The doctor brought a defamation lawsuit against the man, but the Minnesota Supreme Court reversed the court of appeals’ reversal of the district court’s summary judgment ruling in favor of the online poster.  The Court found (pdf) that calling someone a “real tool,” among other things, was pure opinion; it cannot be reasonably believed to state a fact or be found to be true or false.  Because the allegedly defamatory statement was pure opinion, it was protected by the First Amendment and was not actionable.

This case provides a forecast of future cases involving negative online statements: one of the main issues will be whether the statements can be proven by the plaintiff to be defamatory.  The statement must be shown to have negatively affected the plaintiff’s reputation or standing in the community.  Negative statements, which are either true or pure opinion, are, however, a defense to defamation claims.

This is illustrated by Dietz Development, LLC v. Perez, a Virginia case involving a woman who was unhappy with the work of a home contractor she had hired.  The contractor sued her in October of 2012 for $750,000 in damages for her online statements and pursued a preliminary injunction to have the review removed.  The trial court agreed with the plaintiff and entered a preliminary injunction against the defendant, forcing her to take down certain portions of her review.  Following the injunction order, the story gained traction in the media, and several organizations aided the defendant in applying to the Virginia Supreme Court for a petition of review.  The Supreme Court sided with the defendant and ordered the trial court to vacate its prior order (pdf).  The Court found that the contractor would still be able to pursue his defamation claim and seek damages, but an injunction was not proper because damages were still available to him. 

Those businesses that believe a lawsuit is the best response to negative online reviews should consider several factors.

Those business owners and individuals who believe that a lawsuit is the best response to negative reviews online about them or their businesses should consider several factors.  First, lawsuits are expensive.  Is getting a review taken down or potentially winning damages worth the amount of money you will spend in court costs and lawyers’ fees?  Second, businesses who sue over negative online comments could be subject to increased ridicule and even more negative online comments.  For example, after the suit was filed in Dietz Development, LLC, many users voiced their disbelief via review websites over the company suing a dissatisfied customer for $750,000.  These low ratings and negative comments stemming from consumers’ reactions to their legal actions, rather than poor products or services, could significantly impact the revenues of these businesses-turned-plaintiffs.

Some professionals, particularly in the medical field, attempted to use agreements or contracts that were to be signed by the patient before the doctor provided services in order to protect their reputations.  Around 2010, these agreements were rapidly spreading in the medical field and were generally referred to as mutual privacy agreements.  Interestingly, many of these contracts were based on a contract created by a North Carolina company, Medical Justice.  The agreements stated that in exchange for the doctor not selling the patient’s name to marketers, the patient would not post anything online about the doctor or the patient’s experiences.  HIPAA, however, already prevents doctors from selling patient information without their prior approval.

Late in 2011, the Center for Democracy and Technology filed a Federal Trade Commission complaint against Medical Justice for their creation of this contract.  They alleged the contract was not only unethical but also an illegal prior restraint on the patients’ right to speak and unenforceable under contract law.  In response to this complaint, Medical Justice, based out of Greensboro, stated that they advised everyone to stop using the contract.  Since then, Medical Justice has changed their approach, now encouraging patient reviews and providing services to doctors to more effectively manage their online reputation without resorting to forcing patients’ silence.

Being more receptive to negative comments is the better policy for businesses and individuals moving forward. 

Medical Justice’s change of heart and strategy regarding online reviews hopefully foreshadows the way all businesses and individuals will move forward in this area. Lawsuits trying to remove single posts probably cause more problems than they solve, as do attempts at quieting individuals before they post online.  Being more receptive to negative comments is the better policy for businesses and individuals moving forward. Not only does it eliminate the bad publicity created by lawsuits and prior restraints, reaching out to aggrieved consumers can also improve both businesses’ and consumers’ experiences.  Businesses can find out what they may not be doing well, while also trying to rectify bad experiences that the reviewer had, creating positive publicity instead of negative.

Finally, it is important to remember that when posting online, you should stick to the facts and your opinion.  Your reviews can help not only other potential consumers but also the businesses and individuals you have reviewed in improving their products and services.  Exaggeration and outright lying, however, can be defamatory and are actionable in the court of law.  This is an extremely new area of the law but one that likely will continue to grow as more people post reviews online and even more rely on them in making daily decisions.

Full Article

Minnesota Supreme Court Decision

Parker Dozier was a second-year law student and serving as a Staff Writer for the Campbell Law Observer when this article was published. He graduated from the University of North Carolina at Chapel Hill in 2011, where he majored in History and Geography. Parker has been an extern at the Transportation Section of the North Carolina Department of Justice. Parker may be contacted at wpdozier0720@email.campbell.edu.



JUNE 14, 2013

“Should Healthcare Professionals Sue to Protect Their Online Reputations?”

Teresa Thompson, “netWORKed: Lawyers Discussing Social Media”

In a past post, “Internet Defamation Claims on the Rise as Online Reviews Impact the Bottom Line”, we discussed web-based rating services and the rise of internet defamation claims. Internet reviews are rampant in the healthcare industry, and medical professionals are often the subject of online reviews as patients share positive and negative feedback about care and treatment. Some individuals are permitted to respond to online criticism, however, medical professionals may be constrained by ethical obligations and federal privacy laws to not reveal patient information. So what can or should a doctor do – sue for defamation, ignore social media altogether, or actively manage their online reputation? I guess that depending upon the circumstance – it may be one or all three practices. We will be discussing these options in the next few posts.

As to whether to take legal action, the Minnesota Supreme Court has weighed in on one such Internet defamation case by a physician against a patient’s son. In David McKee, M.D., vs. Dennis Laurion, the Supreme Court concluded that none of the statements posted online by the patient’s son, Dennis Laurion, regarding Dr. David McKee’s care amounted to defamation. The court dismissed the defamation lawsuit – that is Dr. McKee gained nothing from bringing the legal action. So what were the allegedly defamatory statements?

Following Dr. David McKee’s examination of his father, Dennis Laurion posted the following statements on various “rate-your-doctor” websites:

  1. Dr. McKee said he had to “spend time finding out if you [Kenneth Laurion] were transferred or died.”
  2. Dr.McKee said, “44% of hemorrhagic strokes die within 30 days. I guess this is the better option.”
  3. Dr. McKee said, “Therapist? You [Kenneth Laurion] don’t need therapy.”
  4. Dr. McKee said, “[I]t doesn’t matter” that the patient’s gown did not cover his backside.
  5. Dr. McKee strode out of the room without talking to the patient’s family.
  6. A nurse, not affiliated with the examination of Kenneth Laurion, told Dennis Laurion that Dr. McKee was a “real tool.”

In Statements 1, 2 and 4, the Supreme Court held the statements were essentially true – that is, they were so close to what Dr. McKee admitted he said, that any “minor inaccuracies” could not satisfy the falsity element of defamation. Truth is a defense to defamation.

In Statements 3 and 5, the Court found that nothing published by Dennis Laurion actually lowered Dr. David McKee’s reputation in the community. The statements were, therefore, harmless and not capable of conveying any defamatory meaning.

Finally, with respect to Statement 6, whether Dr. McKee is a “real tool”, the Supreme Court concluded this statement, whether by Dennis Laurion or someone else, amounted to an opinion – a statement that cannot be reasonably interpreted as stating a fact, or a statement that cannot be proved true or false (also a defense to a defamation claim). The Minnesota Supreme Court referred to the “real tool” statement as mere name calling with no real intent to defame anyone.

Bottom line – whether a defamation claim is successful or not, there is no question that online reviews can impact how the public views the care provided by medical professionals. We will evaluate other options for healthcare professionals when responding to negative reviews in the next post.

If an individual medical professional or a medical clinic is unsure whether an online review amounts to defamation, seeking legal guidance can help.

Full Article




JUNE 17, 2013

Minnesota Court Of Appeals Cites McKee V. Laurion In Remanding Shelly Dixon V. Progressive Insurance Company

SEE MORE




JULY 22, 2013

Minnesota Court Of Appeals Cites David McKee MD Vs. Dennis K. Laurion In Opinion A12-1926, Wolmering Vs. JPMorgan Chase Bank

SEE MORE




JULY 26, 2013

“A Medical Dilemma – What to do About Online Reviews of Health Care Professionals?”

Teresa Thompson, “netWORKed”: Lawyers Discussing Social Media, The Internet, And Technology In The Workplace”

In a recent post, “Should Healthcare Professionals Sue to Protect Their Online Reputations?”, we discussed several cases where physicians have sued over posts made in an online forum.  Legal challenges to negative reviews have had mixed results.  Remember David McKee, M.D. – one of the doctors we discussed in our last post, who sued a patient’s son over his online posts.  The negative online reviews were posted in the spring of 2010, but the Minnesota Supreme Court did not rule until January 2013 that the statements were not defamatory, and thus, his claims had been properly dismissed.

So – what other options are there?  Some suggest that health care professionals should embrace online reviews.  The Center for Quality of Care Research in 2010 conducted a survey of 33 physician-rating websites which rated 81 physicians.  Of the 190 reviews surveyed, 88% were positive, 6% negative and 6% were neutral.  Similarly, Tom Seery of Realself.com, an online review and comment board for cosmetic treatments, found that 90% of the patient reviews on Realself.com were positive, with a small mix of negative reviews and a smaller number of mixed reviews.  Dr. Steve Feldman, a practicing dermatologist, professor of dermatology, pathology and public health sciences at Wake Forest University, and founder of a doctor rating site, Drscore.com, could not agree more.  Dr. Feldman told Physicianspractice.com, “Do Online Ratings Matter?”, “[t]hese Web sites are actually one of the best things ever to happen to American Medicine.”  Dr. Feldman believes medical rating sites give satisfied patients an avenue to describe in positive terms the care and treatment they received.  Indeed, the median score of a doctor with 20 or more reviews on Drscore.com is 9.3 out of 10.  “Patients love their doctors,” says Dr. Feldman.  “It’s amazing how good doctors are in the United States and no one knows it.”

I would agree with Dr. Feldman that social media provides patients the ability to praise their doctors, and that the praise might help boost their physician’s practice.  But what about the nearly 10 % of negative reviews – can and should a doctor respond in an online forum?  Physicians should first look at the content of many of those negative reviews.  According to doctoredreveiws.com, “How to Respond, the most common patient complaints relate to the physician’s business practices, such as parking, wait times and staff attitude.  This is information that many practices would welcome and take steps to correct!  This kind of review may also provide the practice the opportunity to respond and let the reading public know that the practice will listen to patient complaints and take affirmative action to improve the quality of the patient’s experience.

That said, it is usually the online posts about direct patient care that causes concern among health care providers.  Yet, in those instances where the negative criticism relates directly to patient care, and thus, implicates a patient’s privacy, the health care professional must step back to determine whether an online response is necessary and appropriate, or perhaps whether reaching out to the patient is the best bet.  While the online site may require the reviewer to waive privacy constraints prior to posting the review, this might not insulate the physician.  We recommend contacting legal counsel to insure that such a responsive post would not violate either state or federal patient privacy laws.  If a negative review persists, the clinic or doctor might try contacting the patient directly  –  asking about how the concern can be remedied and ultimately whether the patient will take the negative review down.  A final option might be to contact the review site.  The review site might refuse to take the post down, but if the information is clearly false, inflammatory or appears to be for the purpose of harassment, the review site might respond to a plea to remove the post (although they don’t have to do so).

So can a health care professional take charge of his/her online presence?  Dr. Kevin Pho, a New Hampshire internist and writer of a physician-focused blog on health and social media called KevinMD.com, believes legal action is the wrong approach in curbing negative online reviews.  “In general, I can’t think of a time where a lawsuit would be tremendously effective.  The negative publicity and the fallout from the lawsuit is far worse than the initial issue,” Dr. Pho reported to American Medical News, “Doctors’ legal remedies can defeat online attacks”: “It’s a better idea to take charge of your online presence.”

For instance, Dr. Pho believes physicians should join social networking sites, such as Facebook, LinkedIn, and also participate in community health boards, blogs and chat rooms.  According to Dr. Pho, a physician’s online efforts will show-up first during a Google search of his/her name, thereby pushing any negative reviews down the list.  This is certainly how many industries increase social media presence, so it seems reasonable for health care professionals to do so as well.  Although I would add a caution that health care professionals should exercise extreme care when interacting with patients in an online setting (think patient privacy).

So what is the right answer?  In the end the best bet may be to do nothing – at least as it relates to online criticism.  As I advise clients in other industries – get a thick skin and don’t respond to criticism unless really necessary.  If a response is appropriate, consider reaching out to the patient directly.  Perhaps this is a little old-fashioned, but direct communication can resolve disputes better than online barbs.  Finally, if you are a health care professional, take an active role in your online reputation to increase the number of positive “hits” the public might find about you or your practice.

Full Article




August 4, 2013

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

Stewart Gandolf

Healthcare Success: Scientific Marketing That Delivers Patients

If a professional reputation is to be protected at all costs, should a healthcare provider file a lawsuit against a patient for a negative online review?

From time to time we see news items about doctors or dentists who threaten legal action against patients. But suing a patient for a negative comment (or comments) is likely to be a bad idea. In fact, it just might be the worst thing to do.

We can sympathize with a practitioner’s frustration and outright anger. Negative comments and online reviews can be untrue, unkind and one sided. What’s more, we’ve never met a doctor, dentist, physician, surgeon or other healthcare provider who isn’t fiercely protective of his or her personal and professional reputation. Their reputation—real or perceived, in person or online—is the sum of everything they do. And from a physician marketing perspective, their personal and practice reputation is at the heart of their brand and branding message. It’s no wonder that healthcare providers—doctors in particular—are highly sensitive and sometimes nearly fanatical about any and all reflections on their reputation.

While a lawsuit may “feel” justified, there are good reasons to reconsider the temptation for a dentist or physician to “strike back” in court.

SEE MORE




September 20, 2013

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

Stewart Gandolph

Healthcare Success: Scientific Marketing That Delivers Patients

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

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

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

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October 16, 2013

“Protecting Against Negative Online Reviews”

Just ClicIt LLC, Medical Practice Reputation Marketing

 A recent court decision to [ dismiss ] a physician’s well publicized defamation case produces a concern: What is the best choice in dealing with negative online comments about your practice?  Legal action against consumers who criticize your practice online can be costly, prolonged and unsuccessful, as in the case of neurologist, Dr. David McKee of Duluth, Minnesota.

McKee pursued this previously mentioned defamation suit against a person who wrote some negative online reviews for more than three years before the Minnesota Supreme Court reversed a lower court opinion and [ dismissed ] his case on Jan. 30, 2013.

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DECEMBER 20, 2013

The Top Minnesota Lawsuits of 2013: “Never Shout ‘He’s a Tool!’ On a Crowded Website?”

Steve Kaplan, TWIN CITIES BUSINESS

Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.

Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?

It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”

Mckee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. we need some boundaries.”

But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”

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2013 

“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 

. . .

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.

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