Jay M. PENSLER, MD

MAY 19, 2011

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

ON POINT NEWS

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

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

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

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

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

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

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

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

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December 12, 2011

“Physicians face barriers when fighting derogatory comments posted on the Internet, but some legal strategies can curb the problem”

Alicia Gallegos, AMedNews

Reviews by patients have become common as blogs and review websites proliferate on the Internet. But doctors are seeking legal remedies to battle alleged online libel and defamation.

On Nov. 10, the Minnesota Court of Appeals heard arguments in the case of a neurologist suing a former patient’s family for alleged defamation. David McKee, MD, alleges that a family member made derogatory and untrue posts about his treatment of the man’s father. A ruling is expected by January 2012.

From 2009 to 2011, Chicago plastic surgeon Jay Pensler, MD, sued three patients and an attorney for alleged defamation stemming from comments left on review websites and for statements made to a TV station. One of the cases was settled, and three are ongoing, said an attorney involved in the litigation.

Before suing, experts say doctors should consider all legal strategies that may help remove comments from a website. Knowing the right legal step to take — and when to take it — could be the difference between a quick remedy and a years-long ordeal.

“Lawsuits are time-consuming and they’re expensive, and they may not result in the outcome the physician wants,” said neurologist Daniel Larriviere, MD, a former medical liability attorney and current chair of the American Academy of Neurology’s Ethics, Law and Humanities Committee. But because of federal laws, “a physician can’t go onto the website where a comment is posted and defend themselves. For better or for worse, sometimes the only way for the physician to present his or her side of the story is to do so in court.”

In Dr. McKee’s case, a trial court ruled that the comments posted by Dennis Laurion, the son of one of Dr. McKee’s former patients, were not defamation but rather an “emotional discussion of the issues.” Dr. McKee appealed. He accused Laurion of writing untrue posts about his interaction with Laurion’s family, including a charge that the doctor did not treat his father with dignity after a stroke.

Laurion’s assertions go beyond opinion, said Marshall H. Tanick, Dr. McKee’s attorney. “He felt he was viciously defamed by the son of a patient. He sued to vindicate his reputation,” Tanick said. “We maintain these statements cross the line. [They are] demonstrably false.”

Laurion’s attorney, John D. Kelly, said some of Laurion’s statements were true and the rest were vague or obvious opinions. For example, Laurion wrote that Dr. McKee was “scowling” during his interaction with Laurion’s family, Kelly said. Statements about a person’s expression or demeanor are open to interpretation and cannot be considered defamatory, he said. If doctors aren’t sure if an online comment is defamatory, seeking legal guidance can help, Schaefer said.

Doctors can contact the patient directly to ask that the post be removed or request that an attorney send a letter warning the poster of potential legal action, said Mitchell Marinello, an Illinois attorney who practices defamation law. If requests to take down posts fail, seeking a court order is another option. If doctors can show that false posts are causing irreparable harm to their reputation or practice, a judge can demand the comments be removed.

That’s what Indiana plastic surgeon Barry Eppley, MD, sought in 2009 after finding Internet postings by Lucille Iacovelli, a patient who was unhappy about a facelift done by Dr. Eppley, court documents show. She also created Web pages about her experience. Dr. Eppley sued Iacovelli for defamation and other things. A federal judge granted a preliminary injunction against Iacovelli, preventing her or anyone “acting as her agent” from posting online comments about Dr. Eppley, according to court documents. She was ordered to remove prior postings about the doctor from her websites. A Web operator who did not remove postings about the doctor was ordered to pay Dr. Eppley $1,772. The operator is appealing. Dr. Eppley got $40,000 in damages and attorney fees.

“The record before the court demonstrates that Ms. Iacovelli has made numerous false and offensive statements about Dr. Eppley on public websites,” said Judge Sarah Evans Barker, U.S. District Court, Southern District of Indiana, in her ruling on the injunction. “As Indiana courts have held, when the speech enjoined is of lesser constitutional value because it is false and defamatory, and the injunction operates to address specifically that speech, the injunction passes constitutional muster under the First Amendment.”

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