The Deposition of David C. McKee, M.D., was taken before Carol Danielson, RPR, Notary Public, commencing at approximately 11:43 a.m., January 7, 2011. It was introduced as Exhibit AA-156.
Court: Online Patient Reviews Are Protected Speech
By Alicia Caramenico
January 31, 2013
Amid doctors’ wariness about online review sites, the Minnesota Supreme Court yesterday ruled that an online patient review was not defamatory.
The decision ends a four-year legal battle that stemmed from a defamation lawsuit by neurologist David McKee. Following the hospitalization of Dennis Laurion’s father at St. Luke’s Hospital in Duluth, Laurion wrote reviews on several sites, with one claiming a nurse called the doctor “a real tool.”
The high court dismissed the defamation lawsuit and reversed an Appeals Court ruling that the statements harmed McKee’s reputation and could be proven as false. Moreover, according to the state Supreme Court, it doesn’t matter if the unnamed nurse really exists.
“Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact, and it cannot be proven true or false,” the opinion states.
The situation also highlights that defamation lawsuits are not without cost–to the providers and the patients involved.
McKee has spent at least $50,000 in legal fees, as well as $11,000 to clear his reputation after the incident prompted hundreds of negative online reviews. For Laurion, litigation costs have totaled more than two years’ income.
“The financial costs are significant, but money is money, and five years from now, I won’t notice the money I spent on this,” McKee said. “It’s been the harm to my reputation through the repeated publicity and the stress.”
Providers can take several steps to control their online reputation, such as training staff to impress and keeping listings up to date and accurate. To avoid defamation lawsuits, experts recommend providers first try to resolve the patient’s complaint, if a name is provided, and encourage them to remove or amend their review.
Minnesota High Court Rules Online Patient Reviews Are Protected Speech
Newsbriefs – PIAA
February 1, 2013
Amid doctors’ wariness about online review sites, the Minnesota Supreme Court has ruled that an online patient review was not defamatory. The decision ends a four-year legal battle that stemmed from a defamation lawsuit by neurologist David McKee. Following the hospitalization of Dennis Laurion’s father at St. Luke’s Hospital in Duluth, Minnesota, Laurion wrote reviews on several sites, with one claiming a nurse called the doctor “a real tool.” The high court dismissed the defamation lawsuit and reversed an Appeals Court ruling that the statements harmed McKee’s reputation and could be proven as false. Moreover, according to the state Supreme Court, it doesn’t matter if the unnamed nurse really exists. “Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact, and it cannot be proven true or false,” the opinion states. The situation also highlights that defamation lawsuits are not without cost—to the providers and the patients involved. McKee has spent at least $50,000 in legal fees, as well as $11,000 to clear his reputation after the incident prompted hundreds of negative online reviews.
PIAA is the insurance trade association representing domestic and international medical professional liability (MPL) insurance companies, risk retention groups, captives, trusts, and other entities.
STATE OF MINNESOTA IN COURT OF APPEALS
A14-0680 (Minn. Ct. App. Nov. 24, 2014)
Harpel v. Thurn
Reversed and remanded
McLeod County District Court
File No. 43-CV-13-1456
Considered and decided by Stauber, Presiding Judge; Schellhas, Judge; and Crippen, Judge.
Appellant challenges the dismissal of his defamation complaint under Minn. R. Civ. P. 12.02(e) for failure to state a claim upon which relief can be granted. Because the complaint does not demonstrate that appellant is an all-purpose public figure, and because appellant sufficiently pleaded actual malice in the complaint, we reverse and remand.
This appeal arises from the dismissal of appellant Eric Harpel’s defamation lawsuit against respondents Marie Thurn and Scott Nokes. Harpel is the chairman of the McLeod County Republican Party. Thurn previously served as the vice-chair of the McLeod County Republican Party, and Nokes is an attorney who represented Thurn.
Harpel alleged in his complaint that Thurn and Nokes falsely accused him of threatening Thurn and her husband, causing them concern for their personal safety. Harpel alleged that City Pages published the “false and defamatory statements” about him and that Thurn and Nokes “failed to exercise reasonable care” in making the statements, made the statements with “full knowledge” of their falsity and with “reckless disregard of the truth or falsity of the statements,” and published the statements “with a deliberate disregard for the rights of [Harpel].”
Thurn and Nokes moved to dismiss the complaint under Minn. R. Civ. P. 12.02(e) for failure to state a claim upon which relief can be granted. They maintained that Harpel is an all-purpose public figure and therefore must prove actual malice by Thurn and Nokes to prevail in the lawsuit. Thurn and Nokes argued that the complaint fails to plead facts to support a finding of actual malice. Following a hearing, the district court determined that Harpel is an all-purpose public figure because he “voluntarily assumed the role of local prominence in shaping and conducting the political affairs of society” and “is a local celebrity and prominent social figure who has general fame and notoriety in the community.” The court further held that the complaint does not plead facts necessary to establish actual malice because the complaint’s paragraphs addressing the element of malice include only legal conclusions and no “[c]oncrete facts establishing [Thurn’s and Noke’s] first-hand knowledge of falsity . . . or a reckless disregard for the truth.” The court granted the motion and dismissed the complaint with prejudice.
To establish defamation, a plaintiff must prove that a defamatory statement was communicated to someone other than the plaintiff, that the statement is false, that the statement tends to harm the plaintiff’s reputation and to lower the plaintiff in the estimation of the community, and that the recipient of the statement reasonably understood the statement to refer to a specific individual. McKee v. Laurion, 825 N.W.2d 725, 729-30 (Minn. 2013). When the plaintiff is a public figure, he or she must also prove that the statement was made with actual malice.
. . .
Cengage Advantage Books:
Fundamentals of Business Law Today: Summarized Cases
By Roger Leroy Miller
Case 4.1 McKee V. Laurion, Supreme Court of Minnesota, 825 N. W. 2nd 725, 2013
FACTS: Kenneth Laurion was admitted to St. Luke’s Hospital in Duluth, Minnesota, after suffering a hemorrhagic stroke. Two days later, he was transferred from the intensive care unit (ICU) of St. Luke’s to a private room. The attending physician arranged for Dr. David McKee, a neurologist, to examine him. Kenneth’s son, Dennis, and other Laurion family members were present during the examination. After Kenneth was discharged from the hospital, Dennis posted the following statements on websites for rating physicians.
[ Dr. McKee ] seemed upset that my father had been moved [ into a private room. ] Never having met my father or his family, Doctor 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.” . . . 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.”
After learning of the online posts, Dr. McKee filed a suit in a Minnesota state court against Dennis, asserting defamation. The court issued a summary judgment in Dennis’ favor. A state intermediate appellate court reversed this judgment.
ISSUE: Were the statements that Dennis posted online about Dr. McKee defamatory?
DECISION: No. The Minnesota Supreme Court concluded that the lower court properly granted summary judgment in favor of Dennis and reversed the decision of the state intermediate appellate court.
REASON: The state’s highest court pointed out that truth is a complete defense to a defamation action and that true statements, however disparaging, are not actionable. “If the statement is true in substance, minor inaccuracies of expression or detail are immaterial. Minor inaccuracies do not amount to falsities so long as the substance, the gist, the sting of the libelous charge is justified.” Dr. McKee acknowledged in his deposition that when he examined Dennis’ father, Kenneth, he did communicate to those present that some intensive-care-unit patients die, although he denied referencing a specific percentage.
The court believed that even without an exact percentage in his statement, Dr. McKee’s statement satisfied the test “for substantial truth because it would have the same effect on the reader regardless of whether a specific percentage is referenced [ or whether the percentage is accurate ].” Thus Dennis’ online statements were not actionable as defamation because there was no genuine question as to the falsity of the statements – they were substantially true.
Major Principles of Media Law, 2016
By Wayne Overbeck, Genelle Belmas, Jason Shepard
Pages 175 and 176
Libel On Online Review Sites:
As consumer review services like Angie’s List, Yelp, RateMyProfessors, and various doctor review sites become more popular, those who get poor reviews have taken their claims to court. In perhaps the highest profile of these cases, McKee v Laurion (825 N. W. 2nd 725, 2013), the Minnesota Supreme Court said that negative comments posted by a man about the care given to his ailing father by a hospital neurologist were opinion and not actionable. [ Dennis ] Laurion posted comments about Dr. David McKee’s interactions with his father and the 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’.”) on various “rate your doctor” sites, and McKee sued. The State Supreme Court evaluated each of six statements and found none of them individually or as a whole were defamatory.
SEPTEMBER 24, 2014
IN THE SUPREME COURT OF THE STATE OF OREGON
CAROL C. NEUMANN and DANCING DEER MOUNTAIN, LLC, an Oregon Domestic Limited Liability Company, Plaintiffs-Appellants, Cross-Respondents, Respondents on Review
CHRISTOPHER LILES, Defendant-Respondent, Cross-Appellant, Petitioner on Review
Lane County Circuit Court
Court of Appeals A149982
Supreme Court S062575
BRIEF OF AMICUS CURIAE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS IN SUPPORT OF PETITION FOR REVIEW. AMICUS CURIAE INTENDS TO FILE A BRIEF ON THE MERITS OF THE CASE ON REVIEW
Court of Appeals opinion dated: March 12, 2014
I. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION ACTIONS
The Reporters Committee for Freedom of the Press (“Reporters Committee”) urges this Court to take review of the Court of Appeals’ decision (the “Decision”) in order to resolve a conflict between state and federal courts in Oregon on an issue of fundamental importance to free speech: the proper analysis of opinion in a defamation action. The Decision’s narrow application of that doctrine is at odds with recent federal case law originating from Oregon, creating uncertainty that makes it not only difficult for journalists to report news to the public without increased fear of civil liability, but also harms the public’s ability to engage in public discourse online. The confusion the Decision creates concerning what may be stated in an online review, and what will expose a commenter to liability, could effectively limit free speech and thus have serious consequences for public debate.
The news media has a substantial interest in advocating for robust protections for statements of opinion, and in ensuring that the hyperbole commonly employed in the context of online speech is fully considered when analyzing whether challenged speech constitutes protected opinion. The right to express one’s opinion is a cornerstone of the promotion of public discourse and the free flow of ideas. The internet provides a wealth of opportunities for consumers to offer reviews of products and services, and for other consumers to make more informed decisions based on others’ opinions. Because the internet is a forum that thrives on immediate give-and-take, discourse naturally tends to be more hyperbolic, and it is vital for courts to take that context into account when determining whether online speech is actionable. It is crucial that Oregon courts not adopt an analysis that will limit the free flow of ideas and opinions in online forums.
II. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION
The Decision’s analysis places state and federal courts in Oregon at odds over the proper interpretation of the opinion doctrine under the First Amendment. This case thus presents an important opportunity for this Court to address the non-uniform application of the opinion doctrine in Oregon courtrooms.
The Court of Appeals rejected defendant Christopher Liles’s argument that numerous statements that he made in his review of Dancing Deer Mountain on the website Google.com were not actionable as opinion and/or hyperbolic statements, and therefore not defamatory. In particular, the Decision concludes that, in the context of an online review of a consumer’s business experience, the words “rude” and “crooked” to describe the plaintiff were defamatory.
See Neumann v. Liles, 261 Or App 567, 578-79 (2014). That analysis is difficult to reconcile with the Ninth Circuit’s recent opinion in Obsidian Finance Group, LLC v. Cox, 740 F3d 1284 (9th Cir 2014), which held (in an appeal from the District of Oregon) that the defendant’s use of such terms as “immoral,” “thugs,” and “evil doers” to describe the plaintiff on her website was not defamatory. Obsidian Finance, 740 F3d at 1294. The Ninth Circuit based its decision on the context of the statements, including the general tenor of the posts and the fact that they were made on an online blog in which the defendant used “extreme language,” indicating to the court that much of what the defendant wrote was hyperbole. See id. In short, the Ninth Circuit’s analysis factored in the realities of the online medium of communication in evaluating the context of the statements.
The Decision here, in contrast, rejects the argument that defendant’s challenged statements were hyperbole. Neumann v. Liles, 261 Or App at 579. The Decision reached that conclusion despite the fact that defendant titled his online review “Disaster!!!!! Find a different wedding venue” and included the statement “The worst wedding experience of my life!” Both statements signify that the defendant was using hyperbole of the type common in online forums. Yet the Decision concludes that the “bulk of the post is not rhetorical and factual,” apparently including the challenged statements “rude” and “crooked.” Neumann v. Liles, 261 Or App at 578-79. As discussed below, that analysis is flawed in that it fails to properly consider the context of the statements.
But in any event, just as significant for purposes of this Court’s review is the Decision’s suggestion that such an analysis may be of only limited relevance to Oregon courts, because it is based on “extra-jurisdictional authority” from the Ninth Circuit’s “First Amendment jurisprudence.” See 261 Or App at 579 (“To the extent that extra-jurisdictional authority informs our analysis, we disagree that defendant’s statements, as a whole, are hyperbolic”).1 The protection afforded to speech should not depend on whether a defendant is in a state or federal court in Oregon. The Decision’s analysis, however, suggests that reality.
It is not simply an issue of an inconsistency with Ninth Circuit authority. If this Court grants review, the Reporters Committee intends to file a brief addressing why binding United States Supreme Court precedent supports a more robust evaluation of context in determining whether a challenged statement is actionable, focusing on two broad principles reaffirmed by the United States Supreme Court in Milkovich v. Lorain Journal Co., 497 US 1 (1990): First, “a statement on matters of public concern must be provable as false before there can be liability.” Id. at 19-20 (citations omitted). And second, a statement is not defamatory if it “cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual,” a requirement that the Court described as “provid[ing] assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Id. at 20 (citations omitted). The Reporters Committee intends to argue how these principles, and the case law on which they are based, support a fuller analysis – and a different result – than that in the Decision.
It was error for the Court of Appeals not to fully consider the context of the purportedly defamatory statements. The Reporters Committee urges this Court to grant review in this case to establish the framework for Oregon courts to consider that context in the future. That framework should provide that any evaluation of opinion or hyperbole in an online setting must include consideration of both the importance of contributing to a robust public discourse on issues of public concern as well as the more informal and hyperbolic context of online reviews.
Failure of the courts to take such context into account could result not only in the imposition of excessive liability on members of the public who choose to share their opinions online, but the chilling of this type of speech.
Online sites such as Yelp, TripAdvisor, and Google Plus provide public forums for consumers to post their opinions of service providers for other members of the public to read and use to make their own consumer choices. Such sites are invaluable resources for today’s average consumer, who can now look to innumerable reviews available online to decide where to eat, which doctor to visit, or how to choose a provider of virtually any service imaginable. Sharing information and views on these services is unquestionably a matter of public interest and concern. It is critical that consumers be able to post reviews without fear that their negative opinions and frequent hyperbole will result in a lawsuit, and a potentially staggering amount of financial penalties.
This emphasis on the statement’s context is particularly applicable in cases involving online consumer reviews. Such reviews must be evaluated in a way that recognizes their informality of expression and tendency toward hyperbole. Like online message boards, review websites encourage a “looser, more relaxed communication style,” allowing users to “engage freely in informal debate and criticism.” Krinsky v. Doe, 159 Cal App 4th 1154, 1162-63 (Cal Ct App 2008). In this setting, “[h]yperbole and exaggeration are common, and ‘venting’ is at least as common as careful and considered argumentation.” Larissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke LJ 855, 863 (2000). Online forums for consumer reviews—which are in many ways designed for “venting”—encourage posters to use a different tone, and that is the context in which writers and readers understand the reviews.
The question of how to evaluate online review opinions in defamation actions is one that many courts around the country are facing. As these suits For example, the United States Court of Appeals for the Sixth Circuit recently held that a TripAdvisor ranking of the “Dirtiest Hotels” on their website was protected, non-actionable opinion because the tone of the list made clear that actual facts were not being stated. See Seaton v. TripAdvisor LLC, 728 F3d 592 (6th Cir 2013); see also, e.g., McKee v. Laurion, 825 NW2d 725 (Minn 2013) (dismissing doctor’s defamation claims against patient’s son who wrote negative reviews on rate-your-doctor websites about the care his father received) The Reporters Committee urges this Court to take review and establish that framework for Oregon courts.
For the foregoing reasons, the Reporters Committee urges this Court to accept review of the Decision. If such review is granted, the Reporters Committee expects to file a brief on the merits.
DATED this 24th day of September, 2014.
Physicians Can Help Shape Their Presence On Influential Online Rating Sites
TexasMedicine, Tex Med. 2017;113(3):33-40.
By Joey Berlin, Associate Editor (email@example.com)
Chances are, by now, most physicians know online review sites allow patients to post a review of their doctor visit the same way they might review their car mechanic or a local restaurant. Maybe you think review repositories like Yelp or medicine-specific review sites like Healthgrades are mainly places for crabby customers or patients to complain. With that perception in mind, perhaps you think the minuses of setting up a profile on a review site outweigh the pluses, and you don’t even want to get involved in the online review racket. Or maybe you’re undecided about whether to do so. That’s too bad because, in effect, the internet already has decided for you.
You already have an online presence, and you can decide to shape it, says Nashua, N.H., internal medicine physician Kevin Pho, MD, an author and blogger who focuses on social media in health care. And, in fact, research has shown patients don’t just use online reviews to air grievances. “What these sites will do is create profile pages of every single doctor, whether these doctors want one or not,” said Dr. Pho, the founder of the health blog KevinMD.com.
A February 2014 Journal of the American Medical Association (JAMA) article reported 35 percent of prospective patients who sought online reviews chose a physician based on good reviews from a ratings site, and about the same percentage took negative reviews as a cue to look elsewhere for their care.
If physicians aren’t aware that those profiles of them are already out there, Dr. Pho adds, “that’s going to be the first impression of them online. When patients google their doctors’ names, there’s a possibility that these rating sites may come up first, and that will form these patients’ first impressions of the doctor. That’s why it’s imperative that they be proactive.”
Being reactive is important, too. But when physicians and practices react to something they see online ― say, a viciously critical review ― they also must be careful to react in the right way.
Owning Your Presence and Learning the Sites
Dr. Pho and medical content strategist Susan Gay coauthored the 2013 book Establishing, Managing, and Protecting Your Online Reputation: A Social Media Guide for Physicians and Medical Practices. The book notes most review sites pull information on medical practices from commercially available databases, so those practices already will be listed on the sites without any effort from the physician to establish a presence on them.
The review sites generally operate in a similar fashion, Dr. Pho notes. Most of them allow physicians and practices to “claim” their profiles, which allows them to personalize those profiles with photos, a description of the practice, credentials, and other information. Doing so is an important piece of taking command of an online presence, Dr. Pho says.
Although the review sites operate similarly ― usually allowing a user to leave a practice a star rating, as well as a comment ― learning some of the nuances of each can prove valuable. The directory and review site Vitals, for example, allows a profile owner to hide two negative reviews, a useful tool to negate a patient whose criticism crosses the line. The site Healthgrades has a similar option available to hide reviews, says Texas Medical Association practice consultant Brad Davis. “Some of them have a do-it-yourself vault where you can put X number of items in there, whereas some of them have an appeals process [for reviews], so you want to know how those sites work so you can deal with each accordingly,” he said.
If you’d rather a prospective patient’s first impression of your practice not come from review sites, you can take steps to minimize that from occurring. While search engine optimization (SEO) professionals hinge their reputations on favorably portraying a client or employer on Google, physicians and practices can potentially do some leveraging of Google on their own without any SEO expertise. The easiest way, Dr. Pho says, is to generate online content about yourself and your practice. He says a great way for physicians to get started is simply to establish a profile on either the general professional social networking site LinkedIn or the health care professional network Doximity. Great SEO-shaping potential also comes from generating content on Twitter, Facebook, or a blog, he says. “It depends on how big you want your digital footprint to be; obviously, the bigger, the better, so the more social media platforms that a doctor engages in, the bigger their online presence will be,” Dr. Pho said. “And not only will that expand their digital footprint, it’s going to push down the visibility of third-party rating sites.”
Reacting the Right Way
Dr. Pho offers five tips to handle online reviews:
- Listen to or read the review,
- Take the conversation offline,
- Read the fine print on a review site,
- Ask more patients to rate you online, and
- Don’t sue over a negative review.
Seeing what patients say can provide valuable insight into not just what they think of you but also what they think of the entire experience.
“If you look at negative reviews, it’s not necessarily the doctor himself or herself,” Dr. Pho said. “It could be the support staff. It could be the nurse. It could be the medical assistant. It could be the fact that there’s not enough parking. It could be the fact that the magazines in the waiting room aren’t up to date. And it’s important for physicians to be aware of problems in a practice that they may not have been aware of previously.”
Writing a quick online response to a positive review is good practice, the Online Reputation book says, but to stay HIPAA-compliant, ask patients for their permission to respond before posting.
The book says physicians can respond generally to negative reviews in a public forum without violating patient privacy laws if they’re responding to complaints about aspects of the visit, such as wait times or inadequate parking. Physicians can explain those aspects without confirming or denying that the reviewer was a patient. Also, if a physician reaches out to the patient and gets written consent, the practice can post a public response or apology, showing readers of the site that he or she is listening to patients.
Dr. Pho’s third tip, reading the fine print, essentially means knowing what the review site’s policies are so you’ll know what your options are if a disgruntled patient does something out of bounds, such as posting multiple negative reviews. As Get Social notes, some sites will allow the subject of a profile to flag reviews as inappropriate and will consider removing such reviews. “You want to report any comments that you think are suspicious because whenever patients post multiple times, that goes against the terms of service agreements for these sites,” and that can lead to the site removing the review, Dr. Pho said.
Dr. Pho says multiple studies have shown the majority of online reviews are actually positive. That’s why physicians should encourage all their patients to write one, instead of dreading it, he says. Get Social notes a 2012 report in the Journal of Medical Internet Research that found nearly half of all physicians get perfect online ratings, and Yelp reported in late 2013 that two-thirds of all reviews on its site were four- and five-star ratings.
“If you ask all your patients to rate you online, chances are those reviews in aggregate will be positive and can make negative reviews more like outliers,” Dr. Pho said.
The fifth tip stresses that a physician pursuing a lawsuit over negative ratings is a high-risk, costly, and ill-advised move. Establishing, Managing, and Protecting Your Online Reputation highlights the case of Minnesota neurologist David McKee, MD, who sued over negative online comments the son of a stroke patient posted in 2009. Dr. McKee sued for defamation, claiming the poster also made false statements to the American Academy of Neurology and the American Neurological Association. A four-year legal battle concluded with the Minnesota Supreme Court dismissing the case in January 2013.
The book said Dr. McKee’s case created a media firestorm and became an example of the Streisand effect, a term for an attempt to suppress a piece of online information that actually results in the information garnering more publicity. The term derives from a Barbra Streisand lawsuit against an organization that published an aerial photo of the singer’s house.
“Whenever McKee’s name is put into a search engine, the publicity generated by his lawsuit will be featured prominently in the search results,” Dr. Pho and Ms. Gay wrote. “By suing the patient, not only is the outcome of the suit in doubt, but he actually made the situation much worse. No matter what kind of merit you think a case might have, doctors who sue patients for online ratings are going to lose in the more influential court of public opinion. Better that doctors take some slanderous lumps online, and instead, encourage more of their patients to rate them.”
STATE OF MINNESOTA IN COURT OF APPEALS A12 – 2183
Shelly Dixon, Respondent, vs. Progressive Preferred Insurance Company, Appellant.
Filed June 17, 2013
Affirmed in part, reversed in part, and remanded.
Peterson, Judge Hennepin County District Court File No. 27 – CV – 12 – 9854
Jed Benjamin Iverson, St. Paul, Minnesota (for respondent)
Nicholas Leander Klehr, Hopkins, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Klaphake, Judge.
In this appeal from a summary judgment enforcing a settlement agreement for respondent’s no – fault claim, appellant insurer argues that the district court erred in determining that respondent’s acceptance of appellant’s settlement offer created a binding contract that could not be rescinded based on mutual or unilateral mistake. We affirm in part, reverse in part, and remand.
After she was injured in an automobile accident, respondent Shelly Dixon submitted a claim for no – fault medical – expense benefits to her insurer, appellant Progressive Preferred Insurance Company. Respondent’s policy with appellant provided a maximum of $40,000 in no – fault benefits, $20,000 for medical – expense benefits and $20,000 for wage – loss benefits.
After paying part of respondent’s medical – expense claim, appellant required an independent medical examination (IME), and, following the IME, appellant stopped paying benefits to respondent. Respondent petitioned for mandatory no – fault arbitration of her claim for unpaid medical – expense benefits.
The arbitrator awarded respondent her entire claim of $12,977.11. After appellant paid the arbitration award, the medical – expense benefits paid totaled $15,384.38, which left $4,615.62 remaining of the $20,000 policy limit.
In a March 31, 2011 letter to respondent’s attorney, a no – fault specialist employed by appellant stated: I have recently completed a thorough review o f this file which included the accident facts, your client’s alleged injuries, treatment and medical history. Based on the current treatment status, I feel that this is an appropriate time to attempt to bring this file to conclusion. As a result of my evaluation of this file I am willing to offer $10000.00 in exchange for a full and final release of the No – Fault claim.
By letter dated April 6, 2011, respondent’s attorney accepted the settlement offer on respondent’s behalf.
The next day, the no – fault specialist responded by letter stating that the “$10000” was a typographical error, she could not offer that amount because it exceeded the remaining benefits available to respondent, and she had intended to make a settlement offer of $1,000.
Respondent maintained that her April 6, 2011 acceptance created a binding contract not subject to rescission and brought this breach – of – contract lawsuit against appellant, seeking to enforce the $10,000 settlement agreement. The parties filed cross – motions for summary judgment.
The district court concluded that , as a matter of law, respondent’s acceptance of appellant’s offer to settle respondent’s no – fault claim for $10,000 created a binding contract that could not be rescinded based on mutual or unilateral mistake. The district court denied appellant’s motion for summary judgment and granted respondent’s motion for summary judgment. This appeal followed.
D E C I S I O N
Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from a summary judgment, this court reviews de novo whether any genuine issues of material fact exist and whether the district court erred in applying the law. The evidence is viewed “in the light most favorable to the party against whom summary judgment was granted.” McKee v. Laurion , 825 N.W.2d 725, 729 (Minn. 2013).
. . .
May 16, 2011
Minnesota Doctor Loses Effort To Sue Patient’s Son For Defamation
cvictorg in Meso RX Forums May 16, 2011
Dr. David McKee, a neurologist with Northland Neurology and Myology, has failed in his bid to sue the son of a former patient for complaining about his bedside manners, including statements to professional associations and posting comments on the Internet. Sixth Judicial District Judge Eric Hylden wisely dismissed the action.
Dennis Laurion of Duluth complained to the American Academy of Neurology, the American Neurological Association, two physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee, and St. Luke’s hospital, among others.
Dennis was shocked by what he viewed as McKee poor treatment of his father, Kenneth Laurion. Dennis listed an array of statements that he said were made by McKee including:
1. Angry comments by McKee over the fact that Laurion had been transferred from the Intensive Care Unit to a ward room;
2. Verbal complaint by McKee that he had to “spend time finding out if [the patient] had been transferred or died;”
3. Observations that 44 percent of hemorrhagic stroke victims die within 30 days;
4. Dismissive statements that Laurion didn’t need therapy;
5. Dismissive statements that he did not care about the fact that the patient’s gown was hanging from his neck with his backside exposed;
6. Blaming the patient for the loss of his time; and
7. Generally treating Laurion with a lack of respect or dignity.