MCKEE V. Laurion 2012 – Court Of Appeals Decision And Aftermath

Image-Minnesota-Court-Of-Appeals

JANUARY 23, 2012

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010).

 STATE OF MINNESOTA IN COURT OF APPEALS A11-1154

David McKee, M. D., Appellant,

Dennis K. Laurion, Respondent.

Filed January 23, 2012

Affirmed in part, reversed in part, and remanded Bjorkman, Judge

St. Louis County District Court File No. 69DU-CV-10-1706

Marshall H. Tanick, Teresa J. Ayling, Mansfield, Tanick & Cohen, P.A., Minneapolis, Minnesota (for appellant)

John D. Kelly, Nathan N. LaCoursiere, Hanft Fride, P.A., Duluth, Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Schellhas, Judge; and Crippen *, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

U N P U B L I S H E D   O P I N I O N

BJORKMAN, Judge

Appellant challenges summary judgment dismissing his defamation and interference-with-business claims, arguing that the district court erred by (1) determining that the allegedly defamatory statements constituted opinions, true statements, and statements too vague to carry defamatory meaning, and (2) dismissing his interference- with-business claim without addressing it on the merits. We hold that material fact issues preclude summary dismissal of some of appellant’s defamation claims but that appellant’s interference-with-business claim fails as a matter of law. Accordingly, we affirm in part, reverse in part, and remand for trial.

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January 23, 2012

“Doctor’s Defamation Lawsuit Sent To Jury”

KTTC

A Minnesota appeals court said a jury should decide whether a Duluth, Minnesota, man defamed a local doctor by posting derogatory comments about his bedside manner on rate-your-doctor websites.

The appeals court Monday sent the case back to St. Louis County for trial. A district court judge had earlier ruled Dr. David McKee was not defamed by the criticism and threw out his lawsuit against Dennis Laurion. McKee wants $50,000 in damages from Laurion for posting the statements on the Internet. Judge Eric Hylden said Laurion’s comments were opinions and constituted statements that were too vague to be defamatory.

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JANUARY 24, 2012

“Doctor Online Rating Defamation Lawsuit Remanded By Court Of Appeals”

Duluth News Tribune

A jury should decide if six statements a Duluth man posted on rate-your-doctor websites and distributed elsewhere about a Duluth neurologist’s bedside manner were defamatory.

The Minnesota Court of Appeals, in a decision released Monday, sent back to St. Louis County District Court for trial the case of Dr. David McKee v. Dennis Laurion. District Court Judge Eric Hylden had ruled in April that McKee was not defamed by the criticism and threw out the doctor’s lawsuit, leading to the appeal.

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JANUARY 24, 2012

“Doctor’s Defamation Lawsuit Sent To Jury”

KCHK Classic Music Station

Duluth, Minnesota: A Minnesota appeals court says a jury should decide whether a Duluth man defamed a local doctor by posting derogatory comments about his bedside manner on rate-your-doctor websites.

The appeals court sent the case back to St. Louis County for trial. A district court judge had earlier ruled that Dr. David McKee was not defamed by the criticism and threw out his lawsuit against Dennis Laurion. Dr. McKee wants $50,000 in damages from Laurion for posting the statements on the Internet. Judge Eric Hylden said Laurion’s comments were opinions and constituted statements that were too vague to be defamatory.

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JANUARY 25, 2012

“Doctor’s Lawsuit Over Patient’s Online Review Proceeding To Trial”

Kellen Hade, Privacy & Technology Law Blog

McKee V. Laurion, No. A11-1154 (Minnesota Court of Appeals)

After his father received sub-par treatment from Plaintiff Dr. David McKee, defendant Dennis Laurion posted a review of the experience on several websites. The reviewed lamented McKee’s bedside manner, citing many examples of things McKee either did or said, and indicated that a nurse referred to the doctor as “a real tool.” McKee sued Laurion for defamation and tortious interference with contracts. The trial court granted Laurion summary judgment on both claims.

The Minnesota Court of Appeals reversed judgment on the defamation claim in part. It disagreed with the trial court that the review was Laurion’s opinion, thus outside the realm of defamation. Instead of adopting this holistic approach, the Court of Appeals parsed out each claim made in the review to determine whether it was capable of of proof.

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JANUARY 25, 2012

Doctor’s Defamation Lawsuit Heads To Jury 

Crookston Times 

A Minnesota appeals court says a jury should decide whether a Duluth man defamed a local doctor by posting derogatory comments about his bedside manner on rate-your-doctor websites.

The appeals court Monday sent the case back to St. Louis County for trial. A district court judge had earlier ruled Dr. David McKee was not defamed by the criticism and threw out his lawsuit against Dennis Laurion.

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January 26, 2012

“If Patients Bash You on Internet Rating Sites, Consider This”

Anthony Francis, MD, JD, Medscape

A disgruntled patient posts a critical comment about a doctor on the Internet. The doctor is furious and wants to get the comment removed to make sure it doesn’t harm his practice or reputation. What can he do?

Dr. David McKee, a neurologist in Minnesota, learned the hard way about the unintended consequences of filing a defamation lawsuit in response to online postings by a disgruntled patient. After consulting on an 85-year-old stroke patient, the patient’s son posted derogatory comments about Dr. McKee online and filed complaints with various medical associations. The doctor sued the patient’s son.

Dr. McKee’s lawsuit was dismissed. The judge stated that the comments posted online were not defamatory. Rather, they were an emotional discussion of the issues. The fact that they had been placed online did not make them defamatory. There was not enough information to form the basis of a lawsuit.

However, Dr. McKee’s filing of the suit drew public attention to the matter. Afterward, more than 60 derogatory and negative reports were posted against him on medical rating Websites. Most of these came from people who were neither his patients nor had any personal knowledge of him. Knowledge of the lawsuit appeared to spur anger and revenge from some who didn’t even know the doctor.

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 JANUARY 27, 2012

“Yet Another Classic Text Book Flogging-A-Dead-Horse-Lawsuit?”

Clare L. Pieuk, Cyber Smoke Blogspot  

[[ Duluth News Tribune, January 24, 2012:

[[ A jury should decide if six statements a Duluth man posted on rate-your-doctor websites and distributed elsewhere about a Duluth neurologist’s bedside manner were defamatory.

[[ The Minnesota Court of Appeals, in a decision released Monday, sent back to St. Louis County District Court for trial the case of Dr. David McKee v. Dennis Laurion. District Court Judge Eric Hylden had ruled in April that McKee was not defamed by the criticism and threw out the doctor’s lawsuit, leading to the appeal. ]]

Dear Anonymous, thank you for keeping us updated in this most unusual case. You be the judge and jury, readers. Do you find the 6-statements capable of causing significant loss of reputation and financial hardship? We don’t!

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JANUARY 27, 2012

State Of Minnesota In Supreme Court

Dennis K. Laurion, Petitioner V. David McKee, MD, Respondent

PETITION FOR REVIEW OF DECISION OF COURT OF APPEALS

APPELLATE COURT CASE NUMBER A11-1154

Date of Filing of Court of Appeals Decision: January 23, 2012

1

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FEBRUARY 1, 2012

“McKee V. Laurion Defamation Lawsuit: Round Three”

Kelly / Warner Law Blog

 Looks like Dennis Laurion is heading back to court. The Minnesota resident, who has been entangled in an online defamation lawsuit for nearly two years, was reportedly “dismayed” to learn on Monday that the Minnesota Court of Appeals reversed the decision of District Court Judge Erick Hylden.

In April of 2011, Hylden ruled that 11 statements purportedly made by Laurion did not constitute online defamation. But this week, the appeals court essentially said, “Nope, this case should be heard by a jury.”

Dr. David McKee – of Northland Neurology and Myology – first filed suit in June of 2010, accusing Laurion of online defamation after McKee provided medical attention to Laurion’s father in the hospital after a stroke. Dennis was not pleased with McKee’s demeanor or professionalism and took to a couple of doctor-review-sites to air his grievances.

Laurion contends every statement he made online was truthful and denies posting his diatribes “all over the Net.” Instead, he insists that he only made a couple of online statements, which he eventually deleted, and filed a couple of complaints. That’s it.

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FEBRUARY 1, 2012

“What Happens If You Get Trashed On The Internet”

GO MD Web Blog

Say a patient posts unflattering comments about his or her doctor on the Internet. You can file a lawsuit claiming defamation or interference with a business contract. Your lawyer can get creative. But the tactic is likely to backfire.  Not just will the legal fees be costly, but you are likely to wind up with still more negative publicity.

Anthony Francis, MD, JD, writing in Medscape, describes the case of Dr. David McKee, a neurologist in Minnesota who sued the son of an 85-year old patient for defamation in response to online postings by a disgruntled patient.

Result 1: The judge dismissed the lawsuit, ruling that the comments posted online were not defamatory.

Result 2: Dr. McKee’s lawsuit triggered over 60 negative posts on medical rating web sites, apparently mostly from strangers angered by the lawsuit.

Lesson Learned: Responding to negative postings with legal action will cost you money and is likely to have the unintended consequence of amplifying the damage to your reputation.

So how can you protect your good name?

How do you think that this post effects the experience of potential patients who Google “Dr. McKee neurologist”

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 FEBRUARY 3, 2012

“Fascinating Story Of Patient Sued By Doctor For Bad Online Reviews”

Carey Goldberg, Medical Care

 Don’t miss it here, on the “Reporting on Health” Website. It’s written by the ever-incisive William Heisel. Sounds like a case for the Berkman Center. It begins:

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

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FEBRUARY 3, 2012

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

William Heisel, Reporting On Health

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

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

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

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FEBRUARY 14, 2012

Respondent’s Opposition To Petition For Review

Review of the Appellate Court decision is unwarranted.

The Court below correctly determined that at least a half dozen statements in Laurion’s postings and letters meet the four standards for defamation.


Cover

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MARCH 3, 2012

“When Doctors Sue Patients – Defamation Is Devastating – But A Lawsuit Could Make It Worse”

Jeffrey Segal, MD, JD, Medical Justice

 Dog bites man never makes the newspaper. Man bites dog is news. Doctors suing patients (and their families) is news.

Several cases are percolating through the legal system. In each, a doctor sued a patient (or patient’s relative) for online mischief. Doctors are starting to prevail in the legal system. Whether this is a useful strategy for all doctors will be discussed further down. First the details.

In McKee v. Laurion, Dr. David McKee, a neurologist, sued his patient’s son for online defamation. In April, 2010, McKee was reviewed on a doctor rating site.

“My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. David C. 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 for evaluation. 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 me. When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!””

The patient’s son sent letters to the hospital and assorted medical associations making the same claims. McKee sued the son in Minnesota court. The case was thrown out on summary judgment. Truth and opinion are two defenses to allegations of defamation. The judge concluded the review contained statements of opinion, true statements, and vague statements. Accordingly, the judge ruled against the doctor. McKee appealed his case.

January 23, 2012, the Minnesota Court of Appeals overruled the lower court, sending the case back to be heard by a jury. The court ruled that many of the statements were factual assertions – not opinions. And many of the statements were capable of harming the doctor’s reputation. For example, the following statements suggested the doctor was rude, insensitive, and morbid: the doctor had to “spend time finding out if [the patient was] transferred or died”; “44% of hemorrhagic strokes die within 30 days. …this is the better option”; and “[It] doesn’t matter” that the patient’s gown did not cover his backside. So, the case lives on.

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MARCH 24, 2012

“Doctor’s Suit Tests Limits Of Online Criticism”

Maura Lerner, Star Tribune

Two years ago, Dennis Laurion logged on to a rate-your-doctor website to vent about a Duluth neurologist, Dr. David McKee.

McKee had examined Laurion’s father, Kenneth, when he was hospitalized after a stroke. The family, Laurion wrote, wasn’t happy with his bedside manner. “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'” he wrote.

McKee wasn’t amused. He sued Laurion for defamation, and now the case is pending before the Minnesota Supreme Court.

So far, Minnesota courts have had mixed reactions. A district court in Duluth dismissed McKee’s lawsuit last year, but the state Appeals Court reinstated it in January. Laurion has appealed to the Minnesota Supreme Court.

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 MARCH 25, 2012

“McKee v. Laurion: The Defamation Saga

Medical Defamation Law Firm

 When a doctor hires a private detective to find out which of the 4,400 nurses in St. Louis County, MN called him a “tool,” you know said doctor is serious about defending his or her reputation. That is just what Dr. David McKee of Northland Neurology and Myology is doing in preparation for the next leg of his doctor defamation lawsuit against the son of a former patient, Dennis Laurion.

How This Doctor Defamation Lawsuit Began

When neurologist Dr. David McKee treated World War II veteran Kenneth Laurion his reportedly insensitive remarks and bedside manner wrangled the vet’s son, Dennis Laurion. The younger Laurion took his wrath to the web and posted unfavorable reviews about Dr. McKee on several doctor review websites. Dennis Laurion contended that Dr. McKee failed to treat the elder Laurion with concern and respect. According to Laurion, Dr. McKee “seemed upset” that Kenneth McKee was moved to a ward after a stint in the intensive care unit and said to his patient, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” Laurion also reported that the doctor dismissed the stroke patient’s need for therapy before pulling Kenneth Laurion up to his feet and forcing him to walk without any regard for whether the patient’s hospital gown was tied at the back. Dennis Laurion even went so far as to write that when he “mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’”

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 MARCH 27, 2012

“The Medical Online Defamation Lawsuit”

7Reputation Management Services

Dennis Laurion logged on to a rate-your-doctor website to vent about a Duluth neurologist, Dr. David McKee.

McKee had examined Laurion’s father, Kenneth, when he was hospitalized after a stroke. The family, Laurion wrote, wasn’t happy with his bedside manner. “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’” he wrote.

McKee wasn’t amused. He sued Laurion for defamation, and now the case is pending before the Minnesota Supreme Court.

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MARCH 28, 2012

“Defamation Case Raises Questions About Online Criticism of Physicians”

iHealthBeat, A Service Of The California HealthCare Foundation

Reporting Technology’s Impact On Health Care

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.

Marshall Tanick — McKee’s attorney — said Laurion distorted the facts in online and offline complaints, accusing McKee of things “that never happened.” McKee is seeking 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 were “constitutionally protected” and reflected Laurion’s perception that the McKee’s conduct was “tactless and inconsiderate.”

The case now is pending before the Minnesota Supreme Court.

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March 30, 2012

“Defamation Suit Over Online Review of Physician Heads to MN Supreme Court”

Mollie Gamble, Becker’s Hospital Review

 A Minnesota neurologist is suing a patient’s relative for defamation after he published a negative review online, and the case is now pending before the Minnesota Supreme Court, according to a Star Tribune report.

David McKee, MD, of Duluth, treated Dennis Laurion’s father roughly two years ago. Unimpressed with the physician’s bedside manner, Mr. Laurion wrote a disapproving review on a rate-your-physician website.

Dr. McKee sued Mr. Laurion for defamation, making him one of a small number of physicians who have gone to court over online criticism.

Minnesota courts have shown mixed reactions so far, as a district court dismissed Dr. McKee’s suit last year but the state Appeals Court reinstated it in January. Mr. Laurion has now appealed to the state Supreme Court.

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MARCH ARCHIVE, 2012

“When Patients Criticize You On Internet Rating Sites”

Millennium Medical Billing Blog

A disgruntled patient posts a critical comment about a doctor on the Internet. The doctor is furious and wants to get the comment removed to make sure it doesn’t harm his practice or reputation. What can he do? He could have his lawyer send a letter threatening a lawsuit to get the offending remark taken down. But that rarely works. Or he may attempt to flood the site with positive comments. But what happens when these tactics don’t work?

Most lawsuits filed against bloggers and hosting sites (ie, physician rating sites) by doctors for defamation (or other actions, such as claiming interference with a business contract) have failed. And filing these suits can lead to unexpected negative consequences. Really persistent bloggers may continue to post. Drawing attention to the negative comments can even attract others who don’t know the doctor to post negatively as well.

Dr. David McKee, a neurologist in Minnesota, learned the hard way about the unintended consequences of filing a defamation lawsuit in response to online postings by a disgruntled patient.

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APRIL 2, 2012

“Minnesota Supreme Court To Take Online Doctor Defamation Case”

Roy Edroso, Decision Daily Health Home

We still recommend against it, but this doctor’s bad-review beef has gained traction.

Becker’s Hospital Review reports that Dr. David McKee’s defamation suit, based on bad reviews posted, and some letters written, allegedly by the son of one of his patients accusing him of insensitivity, is moving up to the Minnesota state Supreme Court.

A lower court dismissed the case, but in January an appeals court reinstated it – in part, the decision shows, because “six of the challenged statements are factual assertions” rather than opinion; for example: “appellant said, ‘[It] doesn’t matter’ that the patient’s gown did not cover his backside;  and appellant left the patient’s room without talking to the patient’s family.” (Also, “A nurse told respondent that appellant was ‘a real tool.'”)

If he can prove that these assertions are false and “tend to harm [his] reputation” – and the appeals court says McKee brought evidence that some of them were indeed false and agreed that they tend to harm his reputation – then Dr. McKee can win.  One has to ask, though, win what? A reputation as a tough guy who’ll sue the hell out of you if you say bad things about him?

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APRIL 24, 2012

No. All-1154

STATE OF MINNESOTA IN SUPREME COURT

David McKee, M.D.,Respondent,  vs.  Dennis K. Laurion,  Appellant.

 BRIEF OF APPELLANT DENNIS K. LAURION

John D. Kelly,   Attorney Reg. No. 54732

David L. Tilden,  Attorney Reg. No. 0388539

HANFT FRIDE

1000 U.S. Bank Place,   130 West Superior Street

Duluth, MN 55802

218/722-4766

Attorneys For Appellant

Marshall H. Tanick, Attorney Reg. No. 108303

Teresa J. Ayling, Attorney Reg. No. 157478

1700 U.S. Bank Plaza South, 220 South Sixth Street

Minneapolis, MN 55402-4511

612/339-4295

Attorneys For Respondent

STATEMENT OF THE ISSUES

WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT SIX OF ELEVEN STATEMENTS PUBLISHED BY THE APPELLANT PRESENTED FACTUAL ISSUES OF TRUTH OR FALSITY FOR A JURY TO DETERMINE AND CONSTITUTED POTENTIAL HARM TO RESPONDENT’S REPUTATION IN THE COMMUNITY?

Answer: Yes. The Court of Appeals erred in determining that there were issues of fact as to whether six of eleven statements made by appellant were defamatory. The District Court properly determined that, whether viewing all of appellant’s statements individually or as a whole, all eleven statements were not defamatory as a matter of law.

STATEMENT OF THE CASE

Appellant’s father, Kenneth Laurion, is an elderly retiree who served honorably as a Navy medic in the pacific during World War II. By the age of 19, he had achieved the rank of Second Class Petty Officer. After his service, he earned a Ph.B. and a Master’s Degree in geriatric counseling. He worked as a high school teacher and, later, as a systems analyst at the dawn of the computer age. He served as a Boy Scout leader and an elder in his church.

On April 17, 2010, Kenneth Laurion suffered a hemorrhagic stroke. He was rushed to St. Luke’s Hospital where he was admitted to the Intensive Care Unit. Two days later, he was moved to a private room. He was joined there by his wife Lois, his son Dennis, and his daughter-in-law, Bonnie Laurion. Lois was terrified that her husbandwas going to die. The atmosphere in that room was charged with anxiety, fear and uncertainty. At a certain point, the respondent, Dr. McKee, entered the room, and encountered the Laurions. By his account, Dr. McKee introduced himself to the family by making a “jocular comment” to the effect that “I had looked for (Kenneth Laurion) up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you are someplace like this or you leave because you’ve died.” David McKee Deposition Transcript (“McKee Depo.”) at 40. Under the circumstances, the Laurion family perceived this attempted jocularity as untimely, inappropriate, arid insensitive. During the balance of his time with them, Dr. McKee reinforced the family’s impression that he was insensitive to their needs of the moment, those of Kenneth Laurion, but those of the others as well.

Later that week, appellant published his views on Dr. McKee’s conduct through a letter to a representative of St. Luke’s Hospital (and to other health care related agencies) and by posting comments on two “rate your doctor” websites.

The Complaint in this action asserts that eleven statements culled from appellant’s written criticisms of the respondent’s interaction with Kenneth Laurion and his family on April 19, 2010 were defamatory.

Appellant moved for summary judgment, asserting that all eleven of the statements represented constitutionally protected opinion, were substantially true as demonstrated by the respondent’s own deposition testimony and writings, or were too imprecise to be defamatory. The District Court, Judge Eric Hylden, ruled that the statements, taken as a whole, represented appellant’s protected opinion and, individually, were either opinion, substantially true, or too imprecise to be actionable. The Court of Appeals affirmed in part, reversed in part, and remanded, concluding that six of the statements (a) represented “factual assertions” capable of verification by a jury as true or false and (b) were capable of harming the doctor’s reputation. The six statements at issue are:

  • (Respondent) stated to (Kenneth Laurion) that he had to ‘spend time finding out if you were transferred or died.”
  • Respondent stated that “44% of hemorrhagic strokes die within 30 days. I guess this is the better option.”
  • Respondent “told (Kenneth Laurion) that ‘it doesn’t matter’ that the (hospital) gown was hanging from the neck, without any back.”
  • Respondent “told (Kenneth Laurion) that ‘you don’t need therapy.'”
  • (Respondent) strode out of the room without talking to (Kenneth Laurion’s) wife or (Appellant).”
  • (Appellant) subsequently stated that ‘Dr. McKee is a real tool!”‘

STATEMENT OF THE FACTS

Kenneth Laurion, appellant Dennis Laurion’s father, suffered a stroke on April 17, 2010. (Dennis Laurion Deposition Transcript (“Laurion Depo.”) at 34:12; Appellant’s Appendix (“AA”) at 55.) He was transferred to St. Luke’s Hospital by ambulance and admitted to the Intensive Care Unit. (Laurion Depo. at 35-36; AA 55.) On April 19, 2010, he was moved to a private room. (Laurion Depo. at 37:21-22; AA 55.) Kenneth Laurion’s family – his wife Lois, son Dennis, and daughter-in-law Bonnie – joined him soon after he was transferred out of the ICU. (AA 27, 55.) Lois was terrified that her husband was going to die. The atmosphere in that room was charged with anxiety, fear and uncertainty.

At a certain point, the respondent, Dr. McKee, entered the room, and encountered the Laurions. By his account, Dr. McKee introduced himself to the family by making a “jocular comment” to the effect that “I had looked for (Kenneth Laurion) up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you are someplace like this or you leave because you’ve died.” David McKee Deposition Transcript (“McKee Depo.”) at 40. Under the circumstances, the Laurion family perceived this attempted jocularity as untimely, inappropriate, arid insensitive. During the balance of his time with them, Dr. McKee reinforced the family’s impression that he was insensitive to their needs of the moment, those of Kenneth Laurion, but those of the others as well.

On April 22, 2010, appellant wrote an email titled “patient care complaint” to St. Luke’s Hospital, which was copied to other health-care related entities, regarding respondent’s treatment of his father. (AA 26 – 29.) Appellant and his family were taken aback, not by respondent’s medical treatment of Kenneth Laurion, but by what they saw as the brusque and insensitive manner in which respondent conducted himself toward Kenneth Laurion during the visit. (Id.; see also Laurion Depo at 52 – 53; 56.) Appellant described the events at issue as follows:

  • Respondent asked Kenneth Laurion if he was Mr. Laurion. When Kenneth Laurion said yes, respondent said, “When you weren’t in the ICU, I had to find out whether you had transferred or died.”
  • Respondent “sounded like he blamed my father for this loss of time. When my wife and mother and I gaped at the doctor, he told my father, ‘Some stroke patients die before getting out of ICU; I guess this is the better ‘ I was appalled! . . . . My mother didn’t need to be reminded that my father could have died.”
  • Respondent said “I have to do a neurology ” When Kenneth Laurion stated that therapists had been seeing him, and that he was used to their exams, respondent said, “Therapy? You don’t need that!”
  • Respondent asked Kenneth Laurion if he could sit up and began lifting him up by his When Kenneth Laurion was seated on the edge of the bed, respondent asked him to get out of bed and walk around. Kenneth Laurion’ s gown hung from his neck, but his backside was exposed. Kenneth Laurion said, “I think I can walk; but this gown doesn’t cover my backside;’ Respondent said, ”That doesn’t matter,” and pulled Kenneth Laurion’s arms toward him. Bonnie Laurion asked respondent to wait a moment while Dennis, Bonnie, and Lois Laurion left the room to stand immediately outside the door.
  • When respondent left the room, he glanced at the waiting family members and said, “You can go back ” Respondent did not give the family a status update or ask any questions of the family. Respondent walked over to a nurse near a tub of patient char1s and stood near her, scowling.

Appellant subsequently mentioned his father’s experience to a nurse friend. She concluded that appellant was speaking of respondent and, when questioned, stated “He’s a tool!”

(AA 28.) After providing this description, appellant set out his purpose for the communication, stating “I think that all of your organizations should reinforce the need to see the patient as a person.” (Id.) Appellant felt that “Dr. McKee saw my father as a task and a charting assignment. He should have listened to him, he should have asked his wife some questions.” (Id.) Appellant proudly described his father’s accomplishments throughout a life of service to country, community, and family. (Id.) Appellant stated that “(a)t a time when my mother was terrified that her husband was about to die, I truly wish that Dr. McKee had taken the time to afford my father the dignity that he deserves.”

On or about April 22 and 23, appellant posted a shortened description of the encounter on two “doctor rating” websites, Insider Pages and Vitals. (Laurion Depo. at 118:5-6; AA 32 – 34.) These postings contained the same statements set forth in the April 22 and 24 complaints, with only slight differences. ( Compare AA 28 with AA 34: (“Enclosure 1”).) Rather than stating that respondent had said ‘Some stroke patients die before getting out of ICU; I guess this is the better option,” Appellant recalled respondent saying, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” (Id.)

The record before the District Court and Court of Appeals reflected that respondent did make statements and conduct himself substantially in accordance with appellant’s recollection, although respondent disagreed with appellant’s interpretation of his words and demeanor. ( Compare AA 28 with McKee Depo. at 26 – 34 and Exhibits. 16 and 17.)

Respondent said he initially attempted to locate his patient, Kenneth Laurion, in the Intensive Care Unit and Kenneth Laurion was not there, so he went off to find him. (McKee Depo. at 16:9 – 17:5.) Respondent acknowledged that, in his experience, stroke patients and their families typically are anxious or upset, sometimes “extremely anxious.” (Id. at 10:18 – 11:7.) Respondent further acknowledged that stroke patients and their families will look to him for clues as to what can be expected moving forward. (Id. at 11:8 – 13.)

Footnote 1: Appellant initially thought he posted to four websites. (AA 32 – 33.) When he went to remove his postings after receiving respondent’s threat letter, he found that he had posted to only two of the sites. (Laurion Depo. at 117 – 118.) Those sites removed appellant’s postings. (Id. at 180 – 81 and Exh. 12.) Whether appellant posted on two or four websites is of no consequence to this appeal, as appellant asked the District Court to assume his statements were published to third parties in analyzing whether the statements were defamatory.

When respondent entered the Kenneth Laurion’ s hospital room on the evening of April 19, 2010, he recalled that he: ([made a jocular comment meant to kind of relieve tension that I had looked for him up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.]] (Id. at 40:14 – 23.) Similarly, in his May 6, 2010 letter to Dr. Peterson, respondent stated that: [[(w)hen I entered the room, I certainly wasn’t angry or annoyed but did make the comment that I had looked for him in the intensive care unit and was glad to see that he had been transferred from there to a regular hospital bed, as the two possibilities when one leaves the ICU are that you (have) improved . . . or . . . ha(ve) died. This was no(t) glib or morose . . . ]] (Id. at Exh. 16, p. 1.) The Laurions were not amused by this “jocular comment,” and respondent’s statements only served to heighten a very tense and anxious time for the family. (AA 52 – 53; 56.)

Respondent confirmed there was an exchange between the parties involving the fastening of Kenneth Laurion’s hospital gown during the examination. In his May 6, 2010 letter to St. Luke’s, respondent stated that ([when (Kenneth Laurion) was half-standing, half-sitting . . . (Respondent) . . . made the observation that the patient’s hospital gown was only tied at the neck. By the way that he said this, I thought that his concern was that the gown might fall off, but I could see the knot was well tied and told him that I thought it would be fine. It never crossed my mind that he was concerned about his father’s modesty with the back of the gown open . . . (McKee Depo. at Exh. 16, p. 1.) In his deposition, Dr. McKee stated that [[the gown ‘appeared good to me . . . like the gown wasn’t in any risk of falling off. And so I said, ‘It looks like it’s okay.”‘]] (Id. at 44:14 – 16.)

Respondent also confirmed in his letter to St. Luke’s that a conversation related to the therapy Kenneth Laurion had already received took place during the visit. (Id. at Exh. 16, p. 1 (“I asked the patient if he had been out of bed that day and after hearing that the therapists had worked with him but had not gotten him out of bed, I asked if he felt up to that and if he wanted to try to stand and walk a little bit.”)

The following compares appellant’s description of respondent’s statements and conduct with respondent’s own description.

Dennis Laurion:

  • “When you weren’t in the ICU, I had to find out whether you had transferred or died.” (AA 28.)

David McKee:

  • I made a jocular comment . . . to the effect of I had looked for (Kenneth Laurion) up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” (McKee Depo. at 40.)

Dennis Laurion:

  • Patient care complaint: When my wife and mother and I gaped at (Respondent), he told my father ” Some patients die before getting out of ICU; I guess this is the better option.” (AA 28.)
  • Online posting: When we gaped at (Appellant), he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” (Laurion Depo at Exh. 1.)

David McKee:

  • Letter to St. Luke’s: “(T)he two possibilities when one leaves the ICU are that you have improved or ha(ve) died.” (McKee Depo. at Exh. 16.)
  • Deposition Testimony: “(Y)ou only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” (McKee Depo. at 40.)
  • Deposition Testimony: “I would have said it’s probably somewhere between a third and half, probably closer to a third.” (McKee Depo. at 102.)

Dennis Laurion:

  • My father’s gown hung from his neck, but his back was exposed. He said, “(T)his gown doesn’t cover my backside.” Appellant said, “That doesn’t matter.” (AA 28.)

David McKee:

  • Deposition Testimony: The gown “appeared good to me . . . like the gown wasn’t in any risk of falling off. And so I said, ‘It looks like it’s okay.”‘
  • Letter to St. Luke’s: “(Respondent) . . . made the observation that the patient’s hospital gown was only tied at the neck. By the way that he said this, I thought that his concern was that the gown might fall off but I could see the knot was well tied and told him that I thought it would be fine. It never crossed my mind that he was concerned about his father’s modesty with the back of the gown open.” (McKeeDepo. at Exh. 16.)

Dennis Laurion:

  • When my father answered that a physical therapist and a speech therapist had seen him, and that he was used to being asked his date of birth, asked where he was, and asked to pull or push against the examiner’s hands, Appellant said, “Therapy? You don’t need that!” (AA 28.)

David McKee:

  • “I asked the patient if he had been out of bed that day and after hearing that the therapists had worked with him but had not gotten him out of bed, I asked if he felt up to that and if he wanted to try to stand and walk a little bit.” (McKee Depo. at Exh. 16.)

Dennis Laurion:

  • Patient care complaint: When Plaintiff left five minutes later, he glanced at us and said, “You can go back in.” He didn’t give us status or ask for family observations about my dad’s mental or physical state. He walked to a nurse seated next to a tub of patient charts and stood near her, scowling. (AA 28.)
  • Online posting: Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or me. (Laurion Depo. at Exh. 1.)

David McKee:

  • Deposition Testimony: After conducting the exam: “I left the patient’s room and went to the nurse’s station,” which closed Dr. McKee’s encounter with Kenneth Laurion, and was the last time Dr. McKee had any contact with the Laurions. (McKee Depo. 56:20 – 22; 58:20 – 60:3.)

On May 3, 2010, respondent received a phone call from Gary Peterson, M.D., Medical Director at St. Luke’s Hospital, concerning appellant’s complaint. (McKee Depo. at Exh. 16.) Respondent answered by letter to Dr. Peterson on May 6, 2010. (Id.) In the letter, respondent acknowledged making statements substantially in accordance with appellant’s recollection, although he disagreed with appellant’s interpretation of his statements and demeanor. (See id.)

By letter to Dennis Laurion dated the next day, May 7, 2010, respondent, through counsel, claimed that appellant had defamed him. (Laurion Depo. at Exh. 6.) He stated he was prepared to pursue “appropriate legal action to protect and preserve his reputation.” (Id.) Respondent stated that, before doing so, he “want(ed) to give you an opportunity to correct th[e) matter” by (a) removing all web postings, and (b) discontinuing further communications. (Id.) The letter concluded with the following threat: “Please be mindful that [respondent) has the means and motivation to pursue all available recourse against you.” (Id.) At no point before sending this letter had respondent made any personal attempt to contact either Kenneth Laurion or appellant regarding appellant’s complaints, much less extend an apology for any offense given. (McKee Depo. at 80:22; 81:21.)

Appellant answered respondent’s threat letter via email on May 7, 2010. Appellant told respondent that he had no intention of posting anything more, and that he would consider the matter finished. (Laurion Depo. at Exh. 7.) Further, appellant requested removal of his online postings. (Laurion Depo. at p. 180 and Exh. 12.)

On May 14, 2010, appellant formalized his previously emailed complaint to the Board of Medical Practice using the Board’s preferred form. (Laurion Depo. at Exh. 14.) By Complaint dated four days later (May 18, 2010), respondent commenced this litigation against appellant. (AA 21.)

Full Defendant Brief in PDF Format




APRIL 27, 2012

Cybersmoke Blog Mentions McKee V. Laurion

Clare L. Pieuk, Cybersmoke Blog

“When a doctor hires a private detective to find out which one of the 4,400 nurses in St. Louis County, MN may have called him a ‘tool’ you know the man is serious about defending his reputation. That is just what Dr. David McKee of Northland Neurology and Myology is doing in preparation for the next leg of his defamation lawsuit against the son of a former patient, Dennis Laurion.”

While this defamation suit was deservedly thrown out by a lower court, the decision was reversed on appeal. If you look at the seven or eight statements that are allegedly defamatory one is left scratching their head. Who among us haven’t been called a “tool” and much, much worse!

SEE MORE




MAY 24, 2012

A11-1154

State of Minnesota

In Supreme Court

DAVID MCKEE, M.D., Respondent

V.

DENNIS LAURION, Appellant

RESPONDENT’S BRIEF, ADDENDUM AND APPENDIX

MANSFIELD, TANICK, AND COHEN P. A.

Marshall H. Tanick (#108303)

Teresa J. Ayling (#157478)

1700 U.S. Bank Plaza South

220 South Sixth Street

Minneapolis, Minnesota, 55402-4511

Tel: (612) 339-4295

Fax: (612) 339-3161

Attorneys for Respondent

David McKee, M.D.

HANFT FRIDE,

A Professional Association

John D. Kelly (#54732)

Nathan N. LaCoursiere (#0388349)

1000 U.S. Bank Place

130 West Superior Street

Duluth, MN 55802

Tel: (218) 722-4766

Fax: (218) 529-2401

Attorneys for Appellant

Dennis K. Laurion

STATEMENT OF ISSUES

  1. Did the Court of Appeals correctly reverse Summary Judgment on grounds that six specific statements are actionable as libel?

How Issue Was Raised Below: The issue was raised in the Trial Court in opposing Summary Judgment and on appeal before the Court of Appeals.

Ruling Below: The Trial Court granted the Appellant’s Motion for Summary Judgment dismissing the action, which the Court of Appeals reversed.

How Issue Was Preserved for Appeal: The issue was briefed and argued in the Trial Court in the Memorandum in Opposition to Motion for Summary Judgment, and in briefs and oral argument before the Court of Appeals.

  1. Does a qualified privilege from defamation exist under the Health Care Bill of Rights for the statements?

How Issue Was Raised Below: The issue was raised in the Trial Court, but not in the Court of Appeals.

Ruling Below: The issue was not ruled upon by the Trial Court and was not raised in the Court of Appeals.

How Issue Was Preserved for Appeal: It was not. The issue was not raised in Appellant’s Petition for Review.

STATEMENT OF THE CASE

This case was brought by a Duluth doctor against the son of a patient he briefly treated after a stroke in April, 2010. Dr. David McKee, a neurologist, was accused by Dennis Laurion in multiple public internet postings and in numerous emails and letters to his professional peers and organizations, of aberrant behavior and improper treatment that endangered the patient. Dr. McKee sued Laurion for Defamation and Interference with Business in St. Louis County District Court.

The Trial Court granted Summary Judgment on grounds that some of the statements made by Laurion were opinions, that the gist or sting of some of the statements was true, that some were too vague to have a defamatory meaning, and others left “nothing for the jury to decide.” Resp. App. 13-18. The Trial Court also dismissed the Interference claim.

Dr. McKee appealed to the Court of Appeals, which reviewed and remanded, holding that six particular statements were actionable as defamation. Resp. Add. 13. It reasoned that a trier-of-fact could find them to be libelous and award damages to Dr. McKee. It also upheld dismissal of the Interference claim. Resp. Add. 14.

Laurion’s Petition for Review as to the defamation claim was granted by this Court, to determine whether any of the six specific statements could be defamatory. No other issues have been raised by the parties.

STATEMENT OF THE FACTS

The Parties

Dr. McKee is a highly-regarded neurologist who has been practicing medicine for 18 years in Duluth and the surrounding community. He is a member of a medical clinic and has hospital privileges at St. Luke’s Hospital, among other places. AA-446; Resp. App. 49-50 (1) .

Defendant Laurion’s father was briefly attended to by Dr. McKee when he was a patient at St. Luke’s Hospital, while recovering from a hemorrhagic stroke in April, 2010.

The April 19th Incident

The elder Laurion suffered a stroke and was hospitalized in St. Luke’s Intensive Care Unit (ICU) over the weekend of April 17-18, 2010. After two days in ICU, he was moved to another unit around dinner time on Monday, April 19th.  Defendant Laurion, along with his wife and mother, came to visit his father, about the time of the father’s transfer. Dr. McKee, who had been asked by the patient’s primary physician to assess him, came into the room a short while later. AA-447, 448.

Dr. McKee conducted a routine neurological examination, consistent with normal medical practices, which took about 20 minutes. AA-448, 449, 454-458. After the examination, he discussed with the patient his assessment of his medical condition and ongoing medical care, and asked if the patient had any questions. AA-458.

What happened during the exam is hotly disputed and forms the basis for this lawsuit. The parties present two starkly different factual accounts. Dr. McKee maintains that nothing exceptional occurred. Laurion portrays a markedly different encounter, describing what he terms a “factual recitation” of events in which Dr. McKee treated his father and the family improperly. AA-022, 308, 314, 316-17, 353, 355.

Footnote 1: “AA-” refers to Laurion’s Appendix. “Resp. Add. “is the Addendum to Dr. McKee’s brief. “Resp. App.”refers to the Appendix hereto. “Tr.” refers to the Transcript of the hearing on the Motion for Summary Judgment.

The patient was released from the hospital the next day, April 21, 2010. The following day, April 22, 2010, Laurion maintains that he was at a post office in Duluth when he ran into a woman he described as a “friend” who worked as a nurse at another Duluth hospital where Laurion himself had once worked for about seven years. According to Laurion, he recounted his father’s treatment to the “friend,” who “guessed” that the physician was Dr. McKee, whom she described to Laurion as a “real tool,” a derogatory phrase that Laurion later published on the internet and in correspondence to others. Laurion later acknowledged that he should not have used that remark in his subsequent Internet postings and other communications. AA-317-18, 350.

There are three versions of what occurred with Laurion’s supposed nurse “friend.” Laurion testified that the nurse “friend” guessed that he was referring to Dr. McKee but that he did not confirm it. AA-318. But in an internet posting, Laurion says that he affirmatively “mentioned Dr. McKee’s name” to the nurse. AA-358, 359, 360, 441. Laurion’ s wife, to whom he described the incident, says that Laurion admitted confirming to the “friend” that the attending physician was Dr. McKee. Resp. App. 47. At any rate, Laurion used the derogatory statement of the purported nurse “friend” in his website postings and in his multiple letters.

This “friend” has never been named or identified by Laurion. There is strong reason to believe she is fictitious. Despite investigative efforts on behalf of Dr. McKee, she could not be found. Resp. App. 3~5. Even the Trial Court, in dismissing the case, questioned whether the nurse “friend” really exists or was fabricated by Laurion. In his Memorandum, the Judge noted that Laurion has been “unable to even provide a very good description of her [the nurse], much less a name or other identifying information.” Resp. App. 6.

The Defamatory Diatribes

Laurion, a former Boy Scout, did not do a good deed when he engaged in defamation against Dr. McKee. Two days after the ex-boy scout’s supposed encounter with the phantom “nurse,” he posted vitriolic accounts about Dr. McKee, which Laurion described as “factual recitations,” on multiple internet web sites, including: http://www.vitals.com; http://www.drscore.com; http://www.insiderpages.com; and http://www.healthgrades.com. AA-32-33, AA-326-328. Each of these websites contains evaluative information about physicians (and others) and is available to the general public via the internet. AA-327, 358-360. Laurion followed up these postings with letters to a dozen (or more) entities, including peer organizations in the medical profession,containing a substantially similar “factual recitation.” AA-3 3 9, 400-4 23.2 These entities include: American Academy Of Neurology; American Neurology Association; Attending Physician Craig Gilbertson, M.D.; Lake Superior Medical Society; Minnesota Medical Association; Minnesota Quality Improvement Organization; Office Of Quality Monitoring Of The Joint Commission Of The American Hospital Organization; The Patient’s Action Network Of The American Medical Association; St. Louis County Public Health And Human Services Advisory Council; St. Luke’s Hospital Patient Advocates; Minnesota Department Of Health; Office Of The Medicare Ombudsman; And The American Board Of Psychiatry & Neurology, Inc. AA-396, 400-423.

Laurion acknowledges making at least two general postings, perhaps more, on April22, 2010.3 These undisputed postings were made on the Insiderpages.com website, which contains profiles about individuals, and Vitals.com, which has biographical information about individuals in the medical profession, such as Dr. McKee. AA-327. The internet postings were nearly identical. They stated: “My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. David C. 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 for evaluation. 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 me. When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!””

Footnote 2: Laurion and his wife also sent separate complaints to the Minnesota Board of Medical Practice, but none of the claims in this case extends to communications to that body or any other government licensing entity. The claims refer only to website postings and communications made to nongovernmental entities and physician peers. Laurion asserts he did not write, but only proofread his wife’s complaint. AA-355. His wife says he wrote it. Resp. App. 46. While not germane to the defamation claim, this intra-spousaldiscrepancy further reflects Laurion’s lack of veracity.

Footnote 3: Laurion maintains that he managed to post his “factual recitation” on only two websites, insiderpages.com and vitals.com, and was unable to access the other two. AA-325. But prior to this lawsuit, in a letter to McKee’s attorney, he said he posted on four web sites. AA-32-33. He now retracts that assertion that he posted only on two sites. Appellant’s Brief, p. 6, n. 1. AA-358-59. (AA-360 is very similar.)

Similar statements, with some embellishments and more inconsistencies, were embodied in the longer diatribes he sent to the dozen or more professional organizations and peer agencies. AA-400-423.  Laurion described his diatribes in the internet postings and the letters including the precise quotations ascribed to Dr. McKee as “an accurate account of what happened” during Dr. McKee’s examination of his father. AA-326. His avowed purpose of the postings and correspondence was to degrade Dr. McKee in the eyes of others, including fellow physicians and patients. He made his internet postings and wrote his letters after he was upset at seeing Dr. McKee’s good reputation on other websites, and his goal was to debase those views. He hubristically proclaimed that he hoped “someone would say [to Dr. McKee], ‘You should be very careful how you address your patients so that we don’t get these complaint letters.”‘ AA-337.

The following features are undisputed in this case:

(1) Laurion’ s statements constitute a ”factual recitation … concerning Dr. McKee’s conduct” as alleged by Laurion. Laurion characterized his remarks this way in his Answer and twice in his deposition: AA-317; 355. He also deseribes his statements as “an accurate account of what happened.” AA-326.

(2) Laurion’s remarks are very specific, including explicit verbatim quotations ascribed to Dr. McKee and, in the concluding line, the phantom nurse “friend.”

(3) Nearly all of the assertions are disputed by Dr. McKee, who claims that the portrayal is false and the incidents did not occur as asserted in Laurion’s “factual recitation.”

(4) Several of the remarks in the internet postings and letters are palpably false and fabricated; ascribing to Dr. McKee a statement about the statistical rate of mortality of those in the patient’s condition; asserting that the physician stalked out of the treatment room without talking to the family; and quoting the “phantom,” apparently non-existent, “nurse” making a pejorative remark about Dr. McKee.

(5) All of the statements were published to third parties, indeed to the world at large. Laurion acknowledges that the statements were “actually posted” on the two internet sites and were published to third parties, and that the website publications were available to anyone in the world with a computer. AA-327.

( 6) People actually viewed the website postings, reacted to it, and informed others about it. AA-449-50.

(7) Laurion’s deprecatory and pejorative statements were for the express purpose of portraying the episode involving Dr. McKee in a negative light to the world at large. AA-326-27, 337, 350.

 McKee’s Mitigation

Dr. McKee became aware of the internet postings when a patient saw one and called it to his attention. He then checked them out himself. AA-449-50. He also learned of Laurion’s libelous letters to various professional organizations and peer groups. AA-449-50.  The doctor tried to mitigate the harm by sending a cease-and-desist letter to Laurion. AA-393-94. Laurion responded by identifying four websites on which he placed the postings (not the two he later claimed in the lawsuit), as well as dozens of entities to whom he sent the deprecatory letters. AA-395-96. Laurion stated he would try to remove the website postings, that he was “no longer inclined to discuss Dr. McKee’s behavior with anybody,” and would “consider this matter finished.” AA-395-397.

Despite his professed desire to put the matter behind him, Laurion proceeded full throttle forward. While he claims to have removed the items from the internet, a number still lurk there despite efforts by Dr. McKee to have them removed. AA-459. A couple of days after he claimed the matter was “finished,” Laurion contacted two Duluth television stations and the Duluth News Tribune newspaper, to try to pitch the story about the dispute about McKee’s treatment of his father. The Duluth newspaper subsequently did write a story about this lawsuit, which was then circulated on the internet. AA-355.

The Libel Lawsuit

Aware that Laurion was intent on further disseminating the defamation, Dr. McKee brought this lawsuit. The claim of defamation per se is based on the Internet website postings and the communications to various private medical organizations.

 The Trial Court Dismissed

After the parties exchanged written discovery and depositions were taken of Laurion, his wife, and Dr. McKee, Laurion brought a Motion for Dismissal on the Pleadings under Minn. R. Civ. P. 12 and for Summary Judgment under Minn. R. Civ. P. 56, which the Trial Court considered as a Motion for Summary Judgment under Rule 56 because he relied on matters outside the pleadings in the Motion. See Minn. R. Civ. P.

The Trial Court granted Laurion’s Motion, and judgment was entered dismissing the case. Although Laurion harshly accused Dr. McKee of improper and unsafe practices, the Trial Court, in its Memorandum, benignly characterized Laurion’s internet postings and letters as Laurion’s expression of “Dr. McKee’s insensitive treatment of his father.” Resp. App. 2. It proceeds erroneously to observe that “overall the parties agree on the substance of how things went” during the examination, Resp. App. 3, even though they disagree on almost everything that Laurion alleges occurred.

Noting that the internet postings and letters must be viewed “as a whole,” Resp. App. 9, the Trial Court below examined each individual comment separately. Resp. App. 13- 18. It found that the “gist or sting of some of the statements were true, that others were opinion, that one was too vague to be defamatory, and that “[t]here is simply nothing for a jury to decide here.” Resp. App. 14-18. In so doing, it did not address at all one of the most heinous statements: that Dr. McKee endangered the physical safety of the patient.Despite Laurion’s acknowledgment that his internet postings and letters were “factual recitation(s),” the Trial Court viewed them as subjective emotional expressions. It concluded that”[t]aken 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 a physician.” Resp. App. 12. Rather than accept Dr. McKee’s assertions of falsity, as required on a motion for summary judgment, the Trial Court saw “a common thread tying together both sides of this story.” Resp. App. 12. The Trial Court also dismissed the Interference with Business claim, without any findings or discussion, and that issue has not been appealed here.

The Appellate Court Reversed

The Appellate Court, in reversing, viewed the matter much differently than did the Trial Judge. It held that a half-dozen of the statements made by Laurion on his web site postings and parallel correspondence, all of which the doctor denies, constituted actionable defamation: (1) that the doctor said he had to “spend time finding out if you were transferred or died”; (2) that the Doctor stated that “44% of hemorrhagic strokes die within 30 days. I guess this is the better option”; (3) that the Doctor told the patient “You don’t need therapy; (4) that the doctor said that “it doesn’t matter that the patient’s hospital gown did not cover his backside”; (5) that the Doctor left the patient’s room without talking to the family; and (6) that a nurse referred to the Doctor “a real tool.” Resp. Add. 13.

All of the statements were deemed by the Court of Appeals to be factual statements that could be found to be false and defamatory by the trier-of-fact. Therefore, the case was remanded for trial. This Court then accepted review of the Court of Appeals’ decision.

Full Brief in PDF Format



No.  All-1154

STATE OF MINNESOTA IN SUPREME COURT

David McKee, M.D., Respondent,

vs.

Dennis  K.  Laurion,   Appellant.

REPLY BRIEF OF APPELLANT DENNIS K. LAURION

John D. Kelly Attorney Reg. No. 54732 and David L. Tilden Attorney Reg. No. 0388539
HANFT PRIDE,
A Professional Association 1000 U.S. Bank Place
130 West Superior Street Duluth, MN  55802-2094
218/722-4766
Attorneys for  Appellant

Marshall H. Tanick Attorney Reg. No. l 08303 and Teresa J. Ayling Attorney Reg. No. 157478
220 South Sixth Street
Minneapolis, MN  55402-4511 612/339-4295
Attorneys for  Respondent

ARGUMENT

I.    THE SIX STATEMENTS AT ISSUE ARE SUBSTANTIALLY TRUE, TOO IMPRECISE TO BE DEFAMATORY OR ARE NOT CAPABLE OF HARMING RESPONDENT’S PROFESSIONAL REPUTATION.

Rather than addressing the substantive arguments raised by appellant in his brief, respondent spends the majority of his brief attempting to portray Mr. Laurion as a vindictive and spiteful man with the avowed goal of destroying Dr. Mckee’s professional reputation and injuring his standing in the medical community.  Respondent asserts that each of six statements made by appellant constitutes an accusation of “aberrant” behavior which implies that respondent endangered and purportedly degraded his own patients. While it is entirely possible that such eccentric characterizations of the events at issue represent respondent’s own subjective view of Mr. Laurion’s actions, the simple facts of the case do not support his assertions.  Appellant’s statements, taken at face value, simply reflect the reactions of a concerned son who was offended at what he perceived as respondent’s insensitive conduct and statements while he was seeing his father. In his brief, respondent takes the position that each of the six statements left standing after the Court of Appeal’s decision were a.) false and b.) defamatory as a matter of law.  Taken individually, however, appellant’s statements were either substantially true, too imprecise to be defamatory, or did not have the capacity to harm respondent’s reputation and thus, were not defamatory. As discussed in appellant’s initial brief, the statements published by appellant are substantially true by respondent’s own admission.  Respondent’s blanket denial of the truth of the statements made by appellant rings hollow in the light of respondent’s deposition testimony.  Although the parties disagree about minor differences, such as the inclusion of percentages or the use of a word here or a word there, the deposition testimony of both appellant and respondent shows that statements virtually identical to those published by appellant were made by respondent while he was evaluating appellant’s father.  For example, appellant published the statement “When you weren’t in the ICU, I had to find out whether you had transferred or died.” AA 28.  In his deposition, respondent concedes that he stated: I made a jocular comment . . . to the effect of I had looked for [Kenneth Laurion] up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died. (McKee Depo. at 40.)

The chart contained in appellant’s initial brief illustrates that the statements published by appellant and the statements respondent admits to making are functionally identical.  Statements which are substantially true, by carrying the same gist, are not defamatory.  Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986). The record shows that the statements made by appellant are substantially similar to the statements made by respondent and are not defamatory. Likewise, respondent fails to rebut the argument that several of the statements are too imprecise to be defamatory.  Statements such as “you don’t need therapy” or he “strode out of the room without talking” are so vague and lacking in context or meaning that they cannot be deemed defamatory under Minnesota law.

Respondent also argues that each of the six statements tends to harm his professional reputation.  Respondent argues that  appellant’s statements paint a picture of an “aberrant” physician endangering the lives of his patients as a result of his purposeful patient mismanagement.  On their face, appellant’s statements paint no such picture.  At worst, appellant’s statements constitute a critique of what he perceived as Dr. McKee’s poor bedside manner.  None of the statements accused Dr. McKee of being a poor physician or providing appellant’s father with improper medical treatment.  Such vague statements made in the course of treating appellant’s father are not concrete enough to harm respondent’s reputation in the community and are not defamatory.

Finally, respondent once again raises the specters of the alleged “phantom nurse” and the much debated term “real tool.” Respondent alleges that the existence of the nurse, and whether she uttered the phrase “real tool”, constitute fact questions which should  go to the jury. Whether the statement is attributable to appellant himself, a nurse or someone else is ultimately irrelevant. The distinction of who made the statement has  no legal significance and does not create a factual question for the jury. The focus must be on the word itself, not if or by whom the word was uttered. As discussed in great detail in appellant’s previous submission, words much more offensive than ” real tool” such as “a-hole”, “c—sucker”, “fluffy” or “bitch” are not defamatory as a matter of law in Minnesota as their meaning is too imprecise. Likewise, the word “real tool,” by whomever uttered, is not defamatory as a matter of law.

II.    TAKEN AS A WHOLE, THE SIX STATEMENTS ARE PROTECTED   OPINION.

The District Court was correct when it held that appellant’s statements, taken as a whole, are protected opinion and therefore not defamatory.  Conversely, respondent argues that appellant’s statements cannot be construed as opinion as they constitute verifiable fact.

The Supreme Court has found statements not actionable in defamation if they fall into the categories of hyperbole or personal expression.  Milkovich v. Lorain Journal Co., 110 S. Ct. 2695 (U.S. 1990).  When viewed as a whole, appellant’s comments reflect his subjective impression of respondent’s demeanor and conduct toward his father. Appellant’s statements represent a personal view of respondent’s bedside manner and should be interpreted as the personal expression of appellant rather than a factual statement about respondent. Context is also critical.  The vast majority of the dispute between the parties  centers upon statements published by appellant on several doctor rating websites.  As was noted in the well-reasoned decision in Field v. Grant, 30 Misc. 3d 1217A (N.Y. Sup. Ct. 2010): [The]very nature of online forums, such as review websites, inherently frames comments in the context of expression of individual opinion and not as fact. . . That is, online review websites contain a spectrum of good, bad and mixed opinions on various services or products.

Many reviews contained on doctor rating websites are not laudatory.  The sentiments expressed in those reviews, however, are personal opinion based upon the reviewer’s subjective impression of his or her time with the physician.  Generally, mixed in with these critical reviews are contrary opinions praising the physician as a capable and compassionate medical care provider.  Review websites are online marketplaces of opinion, where viewpoints can be traded freely.  Because of the broad spectrum of sentiments, however, these sites must be taken with a grain of salt. Under the framework proposed by respondent, if a patient left a review stating that the “doctor did not listen to a word I said,” the review could be deemed defamatory if the doctor could show that she actually did listen to at least “a” word said by this patient. Holding that appellant’s statements are not protected could subject individuals who were merely exercising their right of personal expression online to defamation lawsuits.  The District Court was right – there has to be some breathing space for what most people see as the personal expression of subjective views.  As such, the District Court was correct in holding that, when viewed as a whole, appellant’s statements are protected opinion.

III.    THE ISSUE OF PRIVILEGE AND THE HEALTHCARE BILL OF RIGHTS IS PROPERLY BEFORE THE COURT.

Respondent asserts that appellant’s arguments regarding the Health Care Bill of Rights fall outside of the scope of appellate review.  Respondent further argues that even if the Health Care Bill of Rights provided appellant with a privilege, appellant’s allegedly “wanton” conduct defeated any immunity he may have had.  Both of these arguments are without merit.

The issue of whether appellant’s statements were privileged under Minnesota’s Patient Health Care Bill of Rights is properly before this Court.  Minn. R. Civ. App. P. 110.01 provides that the “papers filed in the trial court, the exhibits, and the transcript of  the proceedings, if any, shall constitute the record on appeal in all cases.” The comments following the Rule note that the “original trial court record is the official and only record on appeal.” Id. at 1967 Adv. Comm. Note.  Appellant’s Memorandum in Support of Motion for Summary Judgment dealt extensively with the issue of privilege as well as the Health Care Bill of Rights.  AA 12-15. Appellant again raised the issue of the Health Care Bill of Rights, without objection from respondent, in his submission to the Court of Appeals.  Appellant’s memorandum is part of the trial court record and is within the scope of allowable appellate review. In order for a privilege to be defeated, it must be shown that a party “made a statement from ill will and improper motives, or causelessly and wantonly for the purpose of injuring the plaintiff.” Stuempges v. Parke, Davis & Co., 297 N.W.2d 252 (Minn. 1980). Although respondent attempts to frame appellant as vindictive, there is no evidence to support this assertion.  As discussed, supra, both parties agree on the general content of the statements made by respondent and later published by appellant.  Although there is some bickering over wording and the inclusion of a percentage, these disputes do not alter the central fact that the statements are substantially similar. There is no evidence, aside from respondent’s unsupported conjecture, that appellant published the statements with “ill will.” Rather, the content of the letter to the hospital, the online reviews and appellant’s deposition testimony make it clear that appellant’s statements were published because he was upset at what he perceived as respondent’s insensitive treatment of his father.  He wanted respondent, and other physicians, to remember that their patients are people with feelings and to treat them accordingly.  There is no evidence that appellant published the statements with malicious intent toward respondent.  Absent such evidence, appellant is entitled to a privilege for the statements he published.

CONCLUSION

For the foregoing reasons, appellant Dennis Laurion respectfully requests that this Court reverse the Court of Appeal’s decision regarding the six statements in issue and
remand the case to the District Court for reinstatement of its judgment in favor of the appellant.

Dated this 1stday of June, 2012.

HANFT FRIDE,
A Professional Association
John D. Kelly
Attorney Registration No. 54732
David L. Tilden
Attorney Registration No. 388539
Attorneys for Appellant Dennis K. Laurion
1000 U.S. Bank Place
130 West Superior Street Duluth, Minnesota 55802-2094
(218) 722-4766

Full Brief in PDF Image Format




August 27, 2012

“Two Interesting Internet Defamation Cases Filed By Doctors”

Maura Larkins, San Diego Education Report Blog

#1 – Patient Susan Walker was able to get Dr. Aaron Filler’s defamation lawsuit thrown out of court.

#2–Dennis Laurion is still fighting this defamation case by Dr. David C. McKee: “When a doctor hires a private detective to find out which one of the 4,400 nurses in St. Louis County, MN may have called him a “tool” you know the man is serious about defending his reputation. That is just what Dr. David McKee of Northland Neurology and Myology is doing in preparation for the next leg of his defamation lawsuit against the son of a former patient, Dennis Laurion…”

SEE MORE




 SEPTEMBER 4, 2012

“Court Considers Online Doctor Reviews Case”

 St. Paul, Minnesota ( FOX 47 )

The Minnesota Supreme Court heard oral arguments Tuesday in a case involving online doctor reviews.

Dr. David McKee of Duluth sued the son of one of his patients who posted negative reviews.

A complaint said Dennis Laurion posted the reviews on three rate-your-doctor websites after Dr. McKee treated his father.

The Minnesota Supreme Court is considering whether the reviews can be proven true or false, and whether the statements on the websites are considered opinions.

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SEPTEMBER 4, 2012

“Can You Tag Your Doctor A ‘Tool’ Online?”

Maura Lerner , Minneapolis Star Tribune

 A state Supreme Court case is testing the boundaries of website reviews. Is it defamatory to call a doctor a “real tool?” Or to claim that a nurse described a doctor that way?

The Minnesota Supreme Court wrestled with those questions, as the justices heard arguments in a case about what is or isn’t fair game on the Internet.

Two years ago, a Duluth neurologist, Dr. David McKee, sued the son of an elderly patient for defamation over some negative comments that were posted on rate-your-doctor websites.

The state’s top court was asked to decide whether the lawsuit should finally go to trial, after the case was thrown out by a lower court and reinstated on appeal. The lawsuit is one of a growing number of legal battles testing the limits of free speech on the Internet.

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SEPTEMBER 4, 2012

“On The Huge Threats And Challenges Of Defamation Cases”

Saul Leventhal, Minnesota Litigator

In the digital age, (mis)information travels far, fast, and essentially at no up-front cost — as never before. The potential for far-reaching reputation harm, irretrievable and at light-speed is a new social phenomenon. This should be news to no one. There is now a thriving market for “reputation management” (formerly known as public relations, damage control, crisis management?).

But think twice before you counsel your client to sue for defamation…

There are many perils in defamation cases. Perhaps the worst is that current U.S. law and, in particular, the rules for stating claims in complaints arguably require defamed plaintiffs to echo, re-broadcast, and republish the defamatory statements complained of in a public court file.

How many people would have read or heard of the unflattering descriptions of Dr. McKee if he himself had had not made a case of them?

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 SEPTEMBER 5, 2012

 “State Supreme Court Hears Neurologist’s Defamation Lawsuit Against Patient’s Son”

 Mark Stodghill, Duluth News Tribune

The Minnesota Supreme Court heard the case of a Duluth neurologist who sued a patient’s son after being criticized on rate-your-doctor websites for his bedside manner. Dr. David McKee, a neurologist with Northland Neurology and Myology, in 2010 filed the defamation lawsuit against Dennis Laurion of Duluth. McKee alleged that Laurion defamed him and interfered with his business by posting false statements on the internet and to various third parties, including the American Academy of Neurology, the American Neurological Association, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s hospital, among others.

Defendant Laurion claimed that any statements he made about the doctor were true and that he is immune from any liability to the plaintiff. McKee is asking for more than $50,000 in damages.

State District Judge Eric Hylden ruled that McKee was not defamed by the criticism and dismissed the doctor’s lawsuit. McKee appealed to the Minnesota Court of Appeals, and that court sent the case back to the district court for a jury to decide if six statements Laurion posted about McKee on rate-your-doctor websites and distributed elsewhere were defamatory.

Laurion appealed the Court of Appeals decision to the state Supreme Court and the case was heard in St. Paul on Tuesday. Duluth attorney John Kelly presented Laurion’s position to the high court. “I argued that the posting to a website is part of the context that colors or shapes what Mr. Laurion was trying to do, and the essential nature of one of these websites is to provide subjective feedback and people get lots of subjective feedback from different perspectives and from different experiences,” Kelly said. “I believe that people going to these websites don’t expect any one recitation or report to be definitive.

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SEPTEMBER 5, 2012

“Is Online Assertion that Doctor Is ‘A Real Tool’ Protected Opinion? Minnesota Top Court Mulls the Issue”

Debra Cassens Weiss, American Bar Association Journal

An assertion that a Duluth neurologist is “a real tool” is at the center of a defamation battle pending before the Minnesota Supreme Court.

Dennis Laurion criticized Dr. David McKee’s bedside manner on several doctor-rating websites, the Minneapolis Star Tribune reports. McKee had treated Laurion’s elderly father after a stroke, and Laurion perceived the doctor as insensitive. “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’ ” Laurion wrote.

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SEPTEMBER 5, 2012

“Minnesota Supreme Court Hears Duluth Neurologist’s Defamation Lawsuit”

Mobility Tech Zone Website

The Duluth News Tribune and McClatchy Tribune Information Services report that the Minnesota Supreme Court heard the case of a Duluth neurologist Tuesday who sued a patient’s son after being criticized on rate-your-doctor websites for his bedside manner.

Dr. David McKee, a neurologist with Northland Neurology and Myology, Duluth, Minnesota, filed the defamation lawsuit against Dennis Laurion of Duluth. McKee alleged that Laurion defamed him and interfered with his business by posting false statements on the Internet and to various third parties, including the American Academy of Neurology, the American Neurological Association, the St. Louis County Public Health and Human Services Advisory Committee, and St. Luke’s Hospital, among others.

Defendant Laurion claimed that any statements he made about the doctor were true and that he is immune from any liability to the plaintiff. McKee is asking for more than $50,000 in damages.

State District Judge Eric Hylden last year ruled that McKee was not defamed by the criticism and dismissed the doctor’s lawsuit. McKee appealed to the Minnesota Court of Appeals, and in January that court sent the case back to the district court for a jury to decide if six statements Laurion posted about McKee on rate-your-doctor websites and distributed elsewhere were defamatory.

Laurion appealed the Court of Appeals decision to the Minnesota Supreme Court, and the case was heard in St. Paul on Tuesday.

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 SEPTEMBER 5, 2012

“Minnesota High Court Distinguishes Medical Device From Medical ‘Tool'”

Sheldon Toplitt, The Unruly Of Law (TUOL) Blog Spot

The Minnesota Supreme Court heard oral arguments in David McKee, M.D. v. Dennis Laurion (Case No. A11-1154), a libel case that turns on the question of whether the plaintiff was defamed by a comment by the defendant on a rate-your-physician Web site.

McKee, a neurologist at Northland Neurology and Myology in Duluth, Minnesota, treated the defendant’s father, Kenneth Laurion in April 2010, when the 65-year-old (sic) was hospitalized after suffering a stroke, according to an article in The Minneapolis Star-Tribune. The defendant, displeased with the neurologist’s bedside manner, posted the following allegedly defamatory comment on a Web site: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”

A trial court dismissed McKee’s defamation claim, but the Minnesota Appeals Court reinstated the case last January. The defendant is asserting Internet free speech rights and arguing that calling someone a “tool” is a statement of opinion not susceptible to a defamatory meaning, a position that the Star-Tribune article suggested found favor with some of the Minnesota Supreme Court justices (and the humble staff of “TUOL”). Plaintiff’s counsel, however, argued the defendant fabricated the purported conversation with a nurse and damaged the doctor’s reputation by portraying him as uncaring and insensitive.

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September 5, 2012

“David McKee, Are you a Tool?”

Marc John Randazza, The Legal Satyricon

 I don’t know, but I think you might be learning a thing or two about the Streisand Effect.

Apparently, Dennis Laurion did not like Dr. McKee’s bedside manner, reviewing him thusly: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’”

David McKee’s defamation case was dismissed as being pure opinion, but reinstated on appeal. It is now before the Minnesota Supreme Court. Regardless of the outcome, gajillions more have seen the negative review. Lawyers should counsel their clients on the potential of the Streisand Effect when handling cases such as this.

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SEPTEMBER 2012

“Liabilities Arising Out Of Online Reviews Of Health Care Professionals”

David C. Harlow, Principal, The Harlow Group, Health Care Law And Consulting

Dr. David McKee sued Dennis Laurion after Laurion posted allegedly defamatory comments on doctor rating sites based on the doctor’s interactions with his father, a patient of McKee’s. The lower court threw out the case. This week, on appeal, the Minnesota Court of Appeals found that part of the case should go to trial. The doctor’s interference with business claim was thrown out entirely. A newspaper story says the appellate court determined McKee’s defamation suit should proceed regarding six claims Laurion publicly made about McKee:

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

SEE MORE




OCTOBER 24, 2012

 “Critical Online Reviews Can Carry Legal Risks”

Steve Karnowski, Associated Press

MINNEAPOLIS (AP) — A Minnesota doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.” So Dr. David McKee had an unusually aggressive response; he sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.

“His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick.

McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names.

“Patients now have power to affect their businesses in ways they never had,” said Eric Goldman, a professor at the Santa Clara University School of Law who studies the issue. Health care providers are “evolving how to deal with patient feedback, but they’re still in the process of learning how to do that.”

Most online reviews never provoke any response. And successful challenges to negative reviews are rare. Americans are legally entitled to express opinions, as long as they don’t knowingly make false statements.

But if the two sides contest basic facts, disputes can swiftly escalate.

SEE MORE




OCTOBER 25, 2012

 “Online Reviews – When Do They Go From Helpful To Defamatory?”

Ashby Jones, Wall Street Journal Law Blog

Thanks in part to websites like Angie’s List and Yelp, the internet is chock full of “user reviews” for all types of goods and services, from restaurants to dentists to pet groomers. But when, if ever, can negative reviews get a commenter in trouble? That is, at what point does negative feedback cross the line and become something legally actionable, like defamation?

It’s an issue that’s currently playing out in front of the Minnesota Supreme Court. An Associated Press Story lays out the facts. A Minnesota doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.”

So Dr. David McKee had an unusually aggressive response: He sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.

Generally speaking, the law in the area is fairly straightforward, according to the Associated Press.  Individuals are legally entitled to express opinions, as long as they don’t knowingly make false statements. That said, if the parties disagree over what’s true and what’s false, the cases can become more difficult. And that brings us back to the Minnesota case.

At issue are six of Dennis Laurion’s statements, including the account of the nurse’s name calling. McKee and his attorney say the unnamed nurse doesn’t exist and that Laurion invented her to hide behind. Laurion maintains she is real, but he can’t recall her name. In arguments before the court in September, Laurion attorney John Kelly said his client’s statements were legally protected opinion that conveyed dismay over how McKee treated Laurion’s father, who had suffered a stroke.

According to the Associated Press, when health care providers do sue, they rarely succeed, according to Eric Goldman, a law professor at Santa Clara University.

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OCTOBER 25, 2012

“HOLD THAT RATING”

Peter Rudegeair, Thomson Reuters Legal News

A neurologist in Minnesota has sued the son of a patient who posted critical online comments about the doctor’s performance, a case that has now gone all the way to the state’s Supreme Court, the Associated Press reports.

In the lawsuit, David McKee has questioned the veracity of six critical statements Dennis Laurion made about his bedside manner on a rate-your-doctor website, including a comment from a nurse who purportedly called McKee “a real tool.” Laurion asserted that the nurse existed but couldn’t remember her name, while McKee alleges she was contrived by Laurion. He told the Minneapolis Star Tribune in March that he had to spend more than $7,000 to remove more than 100 vitriolic comments from the Internet, many of which could be traced to a single IP address. A district court in Duluth tossed his suit last year, but an appeals court reinstated it in January.

The Associated Press notes that lawsuits over professional reviews are rare, given that most are positive and that a plaintiff must prove that reviewers posted knowingly false statements.

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October 25, 2012

“Minnesota Doctor Files Defamation Lawsuit After Finding Negative Reviews Online”

Arizona Business Law Blog

When a patient’s son posted negative, judgmental comments about a doctor online, the Minnesota physician filed a defamation lawsuit against the young man, Dennis Laurion, according to the Leader Telegram.

Dr. David McKee, a neurologist, has been able to advance the case all the way to the Minnesota Supreme Court, where officials are considering whether the lawsuit should go to trial.

While freedom of speech extends to patients’ views online, there are certain legal rights that doctors have when it comes to defamation. Today, the consumer’s experience can play a much larger role than ever before due to the expansion of the internet. “Patients now have power to affect their businesses in ways they never had,” Eric Goldman, a professor at the Santa Clara University School of Law, told the news source. “[Medical providers are] evolving how to deal with patient feedback, but they’re still in the process of learning how to do that.”

SEE MORE




October 25, 2012

“Can You Be Sued For Critical Comments Online?”

Arlington Heights Daily Herald, Illinois

A Minnesota doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.” So Dr. David McKee had an unusually aggressive response. He sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.

McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names.

SEE MORE




OCTOBER 26, 2012

“Supreme Court Considering Case Of Duluth Doctor Who Sued After Reviewer Called Him ‘A Real Tool'”

Aaron Rupar, City Pages Blogs

Two years ago, Dennis Laurion, upset about the way his stroke-afflicted father was treated by Duluth neurologist Dr. David McKee, took to a rate-your-doctor website to express his displeasure.

“When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'” Laurion wrote. Dr. McKee later sued for $50,000 in damages, alleging that Laurion’s review defamed him. In April 2011, a district judge threw out McKee’s suit, but in January, an appeals court overruled the district court and green-lighted the defamation case. Now, the status of Dr. McKee’s lawsuit is being considered by the Minnesota Supreme Court, which is expected to issue its ruling sometime during the next few months.

In his online postings, Dennis Laurion wrote that McKee “seemed upset” because he thought his father, then 84, was still in intensive care. “Never having met my father or his family, Dr. McKee said, ‘When you weren’t in the ICU, I had to spend time finding out if you transferred or died,'” according to Laurion’s account. “When we gaped at him, he said, ‘Well, 44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option.'”

McKee claims he spent more than $7,000 to “scrub” more than 100 negative comments about his work, many of them originating from a single IP address in Duluth, the Review reports. McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their names.

Most online reviews never provoke any response. And successful challenges to negative reviews are rare. Americans are legally entitled to express opinions, as long as they don’t knowingly make false statements. But if the two sides contest basic facts, disputes can swiftly escalate. For what it’s worth, Dr. McKee has received mixed reviews on ratemds.com, though some of the negative reviewers cite his court case as a reason they dislike his work.

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OCTOBER 26, 2012

“Online Reviews: When Legal Action Happens”

Brooke Strickland, Credential Protection Blog

The rise of online reviews has happened quickly. Give people a forum to speak their mind, and most people will do it. But review sites are a tricky business. Some people use it as a platform to talk negatively, even to the point of lying. In fact, one such issue is currently in front of the Minnesota Supreme Court.

An Associated Press story relates that a Minnesota doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.”

So Dr. David McKee had an unusually aggressive response: He sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.

SEE MORE




OCTOBER 26, 2012

“Critical Online Reviews Can Carry Legal Risks”

Sandusky Register

Tendentious Lawyer

Above, Marshall Tanick, attorney for Dr. David McKee, posed for photos in his Minneapolis office. McKee sued a patient’s son for defamation after critical remarks about him were posted on some rate-your-doctor websites. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial. “His reputation is at stake. He does not want to be a target for false and malicious remarks,” said Tanick.

So Dr. David McKee had an unusually aggressive response: He sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.

SEE MORE




OCTOBER 28, 2012

“Bad Online Review Of Doctor Leads To Defamation Lawsuit Before Minnesota Supreme Court”

Arizona Business Litigation Blog: Commentary On Business Litigation In Arizona And Beyond

Recently, a Minnesota neurologist took an unusually aggressive step to deal with a negative online review. Dr. David McKee took offense to an online review where a patient’s son, Dennis Laurion, made several critical remarks about the doctor – including calling reporting that a nurse allegedly called the doctor “a real tool.” In response, McKee sued the son for defamation. The Associated Press reports that the lawsuit has now made its way to the Minnesota Supreme Court, which will consider whether the lawsuit should advance to trial.

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OCTOBER 29, 2012

“What You Need ( To Know )About Defamation Suits”

Leonardo Angiulo, Legal Expert, Go Local Worcester

Lawsuits for defamation of character have a certain place in our hearts. We think to ourselves that people that spread rumors will get their due for being scandalous when we hook them to a big verdict. Of course, on the other side of the equation are people that believe in their right to publish thoughts and opinions. Like many things in the law, the answer to the question of “who is right” is “it depends.”

A case, McKee v. Laurion, recently went to the Minnesota Supreme Court on this very topic. According to the trial court documents, some family members of a medical patient were dissatisfied with a certain doctor’s bedside manner. After their experience they reported their characterizations of the doctor’s behavior as well as the opinion of a third party who described the doctor as “a real tool!” Please note, the exclamation point comes from the court filings and it’s not mine. It is, however, hilarious because we just don’t get a lot of slang in cases that get national press coverage.

Long story short, the trial court ruled that none of the statements alleged in the complaint were defamatory and so ordered summary judgment against the doctor. Naturally, the plaintiff appealed, and the Minnesota Appeals Court reversed and remanded the case for trial. On September 4, 2012 the Minnesota Supreme Court heard oral argument on the matter, and the parties are currently waiting for the results.

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FALL 2012

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

Cassie Batchelder, Silha Research Assistant

Silha Center For The Study Of Media Ethics And Law

University Of Minnesota School Of Journalism And Mass Communication

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

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

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

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

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

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 FALL 2012

“Courts Confront Online Reviews”

Jack Komperda, Reporters Committee for Freedom of the Press, Page 29

Dennis Laurion did not like the way a Minnesota doctor treated his father after the elderly man suffered a stroke, and he wanted to make sure others knew about his family’s experience. So Laurion went on several rate-your-doctor websites and posted negative reviews of Duluth neurologist Dr. David McKee. He didn’t stop there — he also sent letters to the hospital and several medical associations echoing his complaints about McKee’s care.

In most situations, the story would have ended there. McKee, however, aggressively fought back to protect his reputation by suing Laurion for defamation. The posted online statements are now under review by the Minnesota Supreme Court in a case that could test the limits of how far Internet-based reviewers can go to criticize their subjects.

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NOVEMBER 5, 2012

“When Online Reviews Become Defamation Suits”

Professor Randall C. Picker, The Legal Infrastructure Of Business

In April 2010, Dennis Laurion accompanied his parents to a neurologist appointment with Dr. David McKee after Mr. Laurion’s father had been hospitalized for a stroke. After a 10-15 minute visit with Dr. McKee, Mr. Laurion returned home, upset with the visit and posted the following review online:

My father spent 2 days in ICU after a hemorrhagic stroke.   He saw a speech therapist and physical therapist for evaluation.   About 10 minutes after my father transferred from ICU to a ward room, Dr. David C. 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 for evaluation.   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 me.   When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!”

Historically, someone who wanted voice a poor review needed to balance that with the cost of spending significant time and effort to voice that opinion. Now, due to the internet, the platforms and accessibility have made it easier, some may even argue too easy, to distribute a negative opinion. Therefore, the stakes are higher as online review sites grow in popularity and continue to influence consumer behavior. Citizens have, and will continue to have, the right to voice their opinion, so long as all of the facts used in their opinion, are not knowingly false. The issues arise when the parties argue over the facts.

The facts in these types of cases typically fall into the “my word against theirs” category. Below I discuss some of the arguments in the case to highlight how granular the distinction can be between what is a fact versus opinion.

  • “I had to spend time finding out if you transferred or died” – Dr. McKee maintains that he made a lighthearted comment to the effect of I had looked for him up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit;  you either have improved to the point where you’re someplace like this or you leave because you’ve died. While the comments are substantially similar, Dr. McKee maintains that the “sting” is very different. In Mr. Laurion’s version, Dr. McKee seems to blame the patient and joke about their death, but in his statement, expresses happiness for the patients improved condition. Therefore, if a jury believes Dr. McKee’s recollection, then the statements by Mr. Laurion are not substantially accurate.
  • Laurion asserts that in response to the patient’s gown not covering his backside, Dr. McKee said, “That doesn’t matter” – Dr. McKee maintains that he said something to the effect of “I thought it would be fine” or “It looks like it’s okay” to indicate that the gown was sufficiently tied. While these statements are similar, to a listener they can come across very different with the first implying that a patient’s concern doesn’t matter, while the second can be interpreted as reassuring a patient. Again, the distinction between these comments has large implications on whether Mr. Laurion’s statements are substantially accurate or not.
  • “A friend who is a nurse, she said, “Dr. McKee is a real tool!” – The court is not evaluating whether what the nurse said is fact or not, the court is evaluating whether there is in fact a nurse that made the statement or not. Mr. Laurion was unable to identify the nurse and there was not a nurse that matched the physical description provided by Mr. Laurion.

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November 10, 2012

“ONLINE PHYSICIAN-REVIEW SITES POSE LEGAL CHALLENGES”

Andis Robeznieks, Modern Healthcare

 People who sue people may receive more undesired attention than anyone else in the world. That is the general idea behind the “Streisand Effect,” a phenomenon that occurs when an attempt to stifle publicity creates more publicity for something that might never have received much attention in the first place. According to legend, the term was coined when singer Barbra Streisand tried to have a photo of her home—one among thousands of pictures that were part of an online display showing coastline erosion in California—deleted from that site. The ensuing publicity essentially guaranteed the image will never disappear from the Internet.

It could be unlikely that combative efforts to counter negative profiles on physician review websites will lead to a similar occurrence known as a the “Dr. McKee Effect,” but no one can predict how these things turn out.

Dr. David McKee, a neurologist from Duluth, Minnesota, is suing a patient’s family member for defamation after the man posted negative reviews of him online. The case was argued in September before the Minnesota Supreme Court and, while its legal precedent-setting impact might not extend beyond the state’s boundaries, attorneys for both sides say it could serve as a guide in future legal proceedings – wherever the jurisdiction may be.

The parties are awaiting a decision from Minnesota’s high court since the trial is over, but the discussion it spawned appears to be just getting started.

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NOVEMBER 14, 2012

“When Social Media Becomes A Social Piranha”

Renee Dustman, AAPC Physician Services

Based on past experience, many will tell you it’s best not to do anything, or suffer the “me thinks he doth protest too much” syndrome, more recently coined the “Streisand Effect” after singer Barbra Streisand tried to have a photo of her home—one among thousands of pictures that were part of an online display showing coastline erosion in California—deleted from that site. The result was much unwanted publicity, far more than what Streisand would’ve received had she kept silent.

That incident was merely a violation of privacy issue. Defamation of character can be far more serious, especially for a physician.

The jury is still out on whether it will pay off for Dr. David McKee, a neurologist from Duluth, Minnesota, to sue a patient’s family member for defamation after the man posted negative reviews of him online.

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DECEMBER 7, 2012

“If You’ve Ever Complained Online About A Business, You May Want To Think Twice About It”

Librarian’s Muse

If you’ve ever complained online about a business, you may want to think twice about it. A contractor is suing a Virginia woman for criticizing his work on two major websites, and those bad reviews could cost her big money. Outside Fairfax County court Dec. 5, a lawyer for Jane Perez flipped through pictures allegedly showing botched home repairs. The photos include door hinges, trash allegedly left behind, and what are said to be strands of hair in a refinished floor. James Bacon, attorney for Perez, said, “I think we presented evidence sufficient to establish that the work was not completed, that he charged for work that had not been done, and that the workmanship was very poor.” Perez hired Christopher Dietz — a former high school classmate — in June 2011 to do cosmetic work on her townhouse.

Unhappy with the results, she gave him an “F” rating on Angie’s List.com, a consumer review website. On Yelp, she accused Dietz of damaging her home, billing her for work he didn’t do, and suggested he stole jewelry. She ended her scathing review with this advice, “Bottom line do not put yourself through this nightmare of a contractor.”

Dietz issued his own response, and then fired back with a $700,000 lawsuit for defamation. Dietz said, “There was no question in my mind that I did 150 percent professional job in her house.” He says Perez’s claims are all lies — lies that cost him $300,000 in lost business. Dietz said, “I believe that people should have the right to state how they feel, but when you state stuff as fact and it’s not fact or it’s not able to be supported there has to be some type of — for the lack of better words — punishment.”

In a similar case, a Minnesota doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.”   Dr. David McKee sued the son for defamation. The Duluth neurologist’s case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial. “His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick. McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names.

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DECEMBER 14, 2012

“Physicians: The One Thing You Should Not Do if a Patient Posts Negative Online Reviews”

Dan Hinmon, Principal, Social Media Strategy Blog

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, Minnesota, 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.”

Is there anyone on earth thinking right now, “Hey, I think I’ll call that guy Dr. McKee for an appointment today. He’s really standing up for unfair attacks on physicians.”

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