McKee V. Laurion: Defendant Laurion’s Reply To Plaintiff McKee’s Threat Letter

McKee V. Laurion: Defendant Laurion’s Reply To Plaintiff McKee’s Threat Letter

[ This text is copied from Exhibits AA-395, AA-396, AA-397, AA-398, and AA-399 of the Minnesota Defamation Lawsuit of David McKee, MD, V. Dennis K. Laurion, Minnesota Sixth Judicial District Case 69DU-CV-10-1706, Filed June 9, 2010. ]

MAY 7, 2010

To: Marshall H. Tanick
1700 U. S. Bank Plaza South
220 South 6th Street
Minneapolis MN 55402-4511

Dear Mr. Tanick,

I am in receipt of your intimidating letter of May 7, 2010, regarding David McKee, MD.

Although I intend to seek counsel, I wish to detail my previous actions relative to Dr. McKee, my past and present intentions about Doctor McKee, and my possible future action relative to Dr. McKee.

After the encounter that I describe in enclosure 1 and enclosure 2, I felt the need for Doctor McKee to know that he treated my father rudely. I felt then and feel now that Dr. McKee owes my father an apology. I knew then and know now that Dr. McKee doesn’t want my opinion or agree with it. I felt that St. Luke’s Hospital and agencies that set standards for Dr. McKee should review my opinion and see if they agree.

My past actions:

I visited the following websites that seek patient ratings of doctors:
Insider Pages, Health Grades, Vitals.

I posted the contents of enclosure 1. I confined my comments to a recitation of my personal experiences. I did not state any generalities or any opinions about Dr. McKee’s medical skills.

I next sent enclosure 2 to: American Academy of Neurology; American Neurological Association;  Attending Physician Craig L. Gilbertson, MD; Lake Superior Medical Society; Minnesota Board of Medical Practice; Minnesota Department of Health Office of Health Facility Complaints; Minnesota Medical Association; Minnesota Quality Improvement Organization, Office of Quality Monitoring, The Joint Commission (JCAHO); Patients Action Network, American Medical Association; St. Louis County Public Health and Human Services Advisory Committee Senior Ombudsman; St. Luke’s Hospital Patient Advocate.

Since I don’t know who influences Dr. McKee’s behavior, I sent enclosure 2 to any agency that might be able to counsel him about his bedside manner.

My present intentions:

Today, I received an email from the Ruth Martinez, Supervisor, Complaint Review Unit, MN Board of Medical Practice. It says “If you would like to file a complaint against one or more professionals regulated by the Board of Medical Practice, you may download the complaint forms from the Home Page of the Board’s website Please sign and return the completed forms to our office by US Postal Service.  You may wish to attach a copy of your e-mail summary to the complaint form, rather than rewriting your complaint.  If you have any difficulty downloading the forms from the website, let me know and I will be happy to mail you the necessary forms.”

Before I received your letter, my inclination has been to let this drop. I got it off my chest. I think Dr. McKee’s behavior was rude. I felt somebody whose opinion matters to him should tell him “We got this complaint; we thought you should see it.” That was all I sought. I don’t think Dr. McKee’s curtness to my father merits loss or suspension of his license or privileges, and  I know I don’t have the horsepower to accomplish that anyway. Until today, my actions were finished – no more letters, no more forum postings, no legal action.

My future intentions:

I shall, of necessity, visit the lawyer who has previously counseled me about estate planning and business contracts. I’ll ask him if my expressed complaints about Dr. McKee’s behavior do, in fact, constitute defamation.  I anticipate he may have to refer me to another attorney.

I returned to the websites on which I posted enclosure 1. None provides a mechanism for my deleting my comments. If Dr. McKee has you contact me again, I’ll take that as his desire that I balance my remarks by amending them to include his response to me, so the public can see his rebuttal. I’ll also send a copy of your letter to each of my previous addressees, so they can see your assertion that Dr. McKee denies making the statement that I attribute to him. Otherwise, I have no intention of posting anything more about Dr. McKee or corresponding with anybody about Dr. McKee.

Only if I feel the necessity, I’ll write to Ms. Martinez. I’ll affirm to her that my original statements are true. I’ll ask for the complaint form – not only because of Dr. McKee’s behavior toward my father, but because he threatened legal action against me for using valid communications channels to seek a valid and measured response.

I affirm to you in this letter and in any other necessary venue that Doctor McKee said and did the things I’ve asserted. My mother, father, and wife will attest to that. Having had a stroke, my father has forgotten Dr. McKee’s name, but he does remember that his unpleasant conversation was with the neurologist who visited him. I’ve never met Dr. McKee before and wasn’t predisposed to picking a fight with one of my father’s treating sources. I felt Dr. McKee owed my father an apology. I’m pragmatic enough to know that won’t happen. Left to my own devices, I’m no longer inclined to discuss Dr. McKee’s behavior with anybody.

I’ll consider this matter finished. Will Dr. McKee?

/s/

DENNIS K. LAURION

Enclosure 1

Enclosure 2

Grand Forks Herald: “Duluth Doctor Appealing Judge’s Decision To Toss Out Defamation Suit”

“Duluth Doctor Appealing Judge’s Decision To Toss Out Defamation Suit” 

Grand Forks Herald 

June 25, 2011

A Duluth, Minnesota, physician whose defamation suit against a former patient’s son was thrown out of district court said he has no choice but to file an appeal. Dr. David McKee, a neurologist with Northland Neurology and Myology, said he still is being targeted in online attacks related to the lawsuit he filed in June 2010 against Dennis Laurion.

McKee, who treated Laurion’s father after he suffered a hemorrhagic stroke, alleges that Laurion made false statements about him to neurological associations, other physicians, St. Luke’s hospital and the St. Louis County Public Health and Human Services Advisory Committee, among others. He is seeking more than $50,000 in damages.

McKee said a sudden concentration of unfavorable critiques about him cropped up online shortly before Sixth District Judge Eric Hylden dismissed the suit. “It appears that Mr. Laurion made over 100 adverse postings on the Internet once he became aware that he was going to receive a favorable decision on the motion for summary judgment,” McKee said. “Appealing seems to me the only way to curb the activities of this malicious person.”

Laurion said he has not posted anything on the Internet about McKee since the lawsuit was filed last June. He said his lawyer advised him not to. But, because the case was thrown out, technically he could if he wanted to, he said. Laurion said he was aware there was an influx of Internet chatter about McKee after a link to a story about McKee appeared on the high-traffic website Reddit. ( *** )

Marshall Tanick, the Minneapolis lawyer who is representing McKee, said the appellate court will have a hearing before a three-judge panel in the fall or later this year. “(McKee) believes the trial judge erred in dismissing the lawsuit,” Tanick said. “He is asking the appellate court to reverse the decision and reinstate the case so that he has his day in court before a jury.”

Kenneth Laurion spent four days at St. Luke’s hospital in April 2010. John Kelly, Dennis Laurion’s lawyer, told the Duluth News Tribune last summer they didn’t feel McKee acted appropriately toward their father, and they reported it to the hospital and Board of Medical Practice.

Hylden wrote in his 18-page order dismissing the suit that the court did not find Laurion’s statements about McKee defamatory, “but rather a sometimes emotional discussion of the issues.”

SOURCE

( *** ) [A] user on Reddit posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.”

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

 

KZGO FM Radio: “Court Rejects Case Of Doc Who Sued Over ‘Real Tool’ Remark”

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

Ben Holsen   

KZGO FM Radio 

January 30, 2013

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

In the court ruling, the justices noted that there was no proof that six comments made by the son were false or harmful to the neurologist’s reputation.

The unanimous opinion reversed an earlier Appeals Court decision and effectively rejects the lawsuit of Dr. David McKee, who had been in a two-year legal battle with Dennis Laurion. McKee had alleged defamation and claimed the comments interfered with his business.

Observers said the case presented an interesting battle between free speech rights and the rights of workers to protect their professional reputations.

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

The court ruled that comment was protected by the First Amendment: “Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false.”

Laurion told the Duluth News Tribune, “The initial excitement has not worn off. I’m very gratified it’s all over.”

SOURCE

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

David McKee MD v. Dennis Laurion References And Precedents

Healthcare Magazine: “Bedside Manner, Office Staff Can Stem or Stir Patient Lawsuits”

“Bedside Manner, Office Staff Can Stem or Stir Patient Lawsuits” 

Kimberly K Bocelli 

Healthcare Magazine, The Business Of Healthcare In North Texas 

January 2, 2013

Bedside Manner: The Dr. Marcus Welby Factor

I have defended numerous medical malpractice lawsuits that stemmed from a single, bad conversation or interaction between a patient and his or her physician.

Even physicians and other health care providers have bad days or personal issues that seem to roll over into their work life. The problem is that patients expect the archetypal Marcus Welby physician who can turn a 20-minute visit into solutions for all of their medical and personal problems using some aspirin and a good counseling session.

With more patients and less time these days, that scenario is becoming a fond, fictional memory. Even so, health care providers need to treat every patient encounter like it’s the only one that counts. Even on their worst personal days, health care providers need to stop, count to 10, take a deep breath, and – when they walk through the exam room door – put on their best Marcus Welby face. Even personal irritability can be perceived as impatience with a patient, or even worse, insensitivity to your patient’s needs.

When discussing sensitive issues or delivering bad news, you need to consider how you would have that same conversation with your mother, son or best friend. That’s not to suggest that you need to change your personality, or not be human. What’s key is for health care providers to remember that good customer service goes a long way. Even seemingly no-nonsense physicians can establish a quality rapport with their patients, as long as the patient believes the physician is taking her concerns seriously and is attentive to her needs. Though you are an educated, trained professional, you are still providing a service, and in our fast-paced service-filled lives, patients want “service with a smile.” Remember: When patients perceive that their physician is unsympathetic, inattentive or uncaring, then legal troubles can start to brew. 

Office Staff: You Are Who You Hire

Patients spend the majority of their medical visits interacting with non-physician staff. That means physicians should be keenly aware of the roles their staff members play in patient care, and the impressions non-physician staff make on patients.

Some physicians still fall prey to the temptation of over-delegating tasks to their staff, forgetting that the Texas Medical Practice Act limits exactly how much work a physician can legally delegate. Physicians also can easily overlook patient perceptions of the office experience, including the environment, front office personnel, staff nurses and medical assistants, waiting times, cultural sensitivity and office policies. Each of these elements impacts a patient’s health care experience and how they perceive their physician. Unfortunately, many Internet physician reviews read something like this: “Love my doctor, but the staff is rude.”

Under the legal principles of agency and respondeat superior, physicians are liable for the conduct of their employees. That includes liability for any injury to a patient due to the negligence of a physician’s employees or agents. So, even if you provide outstanding care to, you may still be subject to liability based on missteps committed by staff members.

Further, a physician may also be liable for the conduct of non-employees if the physician supervises or has the right to supervise the non-employee. This is true for both the clinical and non-clinical aspects of practice. For example, physicians are responsible for ensuring that their staffs comply with billing regulations and the Health Insurance Portability and Accountability Act (HIPAA), as well as acting as competent clinical providers. Not every negative staff encounter will turn into a legal issue, but it may result in the loss of a patient, which impacts your bottom line.

This all goes back to a physician’s bedside manner: Not only must the patient like you, but also your staff. If a patient perceives a receptionist, a medical assistant or a billing manager as rude, inconsiderate or apathetic to her concerns, then that perception directly reflects upon you – which can result in the loss of a patient, a bad internet review or. worse, legal action.

Remember, you became a health care professional because you love treating patients. Keep that in mind during every patient encounter and make sure your staff does the same.

REMARKS:

Vickie Pearson: You are so right, Kimberly! Our family doctor used to draw blood right there in her office; if you had an 8:30 appt, you were stuck and out of there by 8:45. Now, they have changed and we have to go to another office 2 floors up and have our blood drawn. So Bob picked up the paperwork from our Doctor at 8:25 and took it upstairs and signed in there at 8:30. At 9:00 he went up to the window and asked the young lady there when he would be called because he needed to get in to work. She had been texting and looked up like he was bothering her, motioned behind her to the nurse(?) who was eating a donut, and that person said , “Probably about 10”. Bob got furious and we left and now he’s mad at our family doctor because she has implemented this new process that appears to be run by incompetents or at the very least, totally unprofessionals. He’s even talking about getting a new doctor! It makes a huge difference with whom you have to interact!

McKee V Laurion: Article by: ABBY SIMONS , Star Tribune, Updated January 30, 2013 – 9:59 PM

Finding no harm done, justices toss out lawsuit by Duluth physician. Dennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father’s neurologist. He expected at most what he calls a “non-apology apology.”

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

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

The unanimous ruling reverses an earlier Appeals Court decision and brings to an end the closely watched case that brought to the forefront a First Amendment debate over the limits of free speech online.

It’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts. “The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”

He said he offered to settle the case at no cost after the Supreme Court hearing. Laurion contends they couldn’t agree on the terms of the settlement, and said he not only deleted his initial postings after he was initially served, but had nothing to do with subsequent online statements about McKee.

The lawsuit followed the hospitalization of Laurion’s father, Kenneth, for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude. After his father was discharged, he wrote the reviews and sent the letters.

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

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

McKee sued after he learned of the postings from another patient. A St. Louis County judge dismissed the lawsuit, saying Laurion’s statements were either protected opinion, substantially true or too vague to convey a defamatory meaning.

The Appeals Court reversed that ruling regarding six of Laurion’s statements, reasoning that they were factual assertions and not opinions, that they harmed McKee’s reputation and that they could be proven as false.The Supreme Court disagreed. Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted.

Page added that the “tool” statements also didn’t pass the test of defaming McKee’s character. He dismissed an argument by McKee’s attorney, Marshall Tanick, that the “tool” comment was fabricated by Laurion and that the nurse never existed. Whether it was fabricated or not was irrelevant, the court ruled. “Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false,” Page wrote.

Marshall Tanick said the ruling could present a slippery slope. “This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse,” he said.

Jane Kirtley disagreed. The professor of media ethics and law at the University of Minnesota School of Journalism said the ruling stems from “an elementary principle of libel law. I understand the rhetoric, but this is not a blank check for people to make false factual statements,” she said. “Rather, it’s an endorsement that statements of opinion are protected under the First Amendment.”

Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. “It’s almost as if things were said around the water cooler or perhaps posted in a letter to the editor,” he said. “I think the principles they worked with are applicable to statements made irrespective of the medium.” 

Content Scraper: Doctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.

The Minneapolis Star Tribune said it’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts.

“The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”

McKee’s lawyer, Marshall Tanick, told the Associated Press that he and McKee plan no further appeals and that they were disappointed with the ruling. “We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse,” Tanick said.

Marshall Tanick told the Star Tribune that the ruling could present a slippery slope. “This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse,” he said.

In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from “an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it’s “an endorsement that statements of opinion are protected under the First Amendment.”

According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.” Anfinson was also interviewed by Minnesota Lawyer. He said, “Anyone who knew about the case, who observed the oral arguments, and who knows something about libel law is about as unsurprised with this result as they can be. It’s about as perfunctory and routine as the Supreme Court ever gets. It was a completely straightforward application of long-settled libel-law rules.” Anfinson said the case is more significant for social commentary purposes than for its legal analysis, noting that perhaps the justices only accepted the case to fix an error of the Court of Appeals.

Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. “It’s almost as if things were said around the water cooler or perhaps posted in a letter to the editor,” he said. “I think the principles they worked with are applicable to statements made irrespective of the medium.”

Commenting about this case on his own blog, February 8, 2013, Aaron Kelly, internet law & defamation law attorney, said “Thanks to the First Amendment, free speech is the law of that land, and that means being able to communicate our views publicly – no matter how offensive.”

The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”

Mark A Fischer of Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, said on February 11, 2013, “For those who are under criticism, one of the practical consequences of bringing a defamation action is that more publicity for the accused statements is almost an inevitable result, whether the statements are ultimately found libelous or not. In other words, in weighing the pros and cons of initiating a lawsuit, all potential defamation and privacy claim plaintiffs should consider the rule of Hippocrates applicable to physicians, ‘First do no harm.’”

In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for online reviews. . . doctors usually lose or voluntarily drop these lawsuits. Indeed, with surprising frequency, doctors end the lawsuit by writing a check to the defendant for the defendant’s attorneys’ fees where the state has a robust anti-SLAPP law. Doctors and other healthcare professionals thinking of suing over online reviews, take note: you’re likely to lose in court, so legal proceedings should be an absolute last-resort option–and even then, they might not be worth pursuing.”

Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.” 

Laurion: Although the Minnesota Supreme Court dismissed David McKee MD vs Dennis Laurion, the entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it.

Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents. While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.

I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

I feel that defamation lawsuits are much too easy for wealthy plaintiffs. If I were to attempt suing a doctor for malpractice, my case would not proceed until I’d obtained an affidavit from another doctor, declaring that the defendant’s actions did not conform to established procedures. In a defamation suit, there’s generally no exit short of a judge’s dismissal order – which can be appealed by the plaintiff. Being called “defendant” is terribly personal, but the civil suit path is totally impersonal. During the three years that I went through depositions, interrogatories, a dismissal hearing, an appellate hearing, and a state Supreme Court hearing; I never once spoke to  a  judge. 

Chicago Brick: The Top Lawsuits Of 2013 by Steve Kaplan, December 20, 2013

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

Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it? It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”

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

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

The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds. 

Dennis: In spite of Supreme Court disagreement and subsequent peer disagreement, Marshall Tanick is STILL saying “The thing that’s often misunderstood is that THIS WAS NOT JUST ABOUT FREE SPEECH, BUT ABOUT MAKING ACTUAL FALSE STATEMENTS. The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

From the American Health Lawyers Association: IN THIS CASE, THE COURT FOUND THE SIX ALLEGEDLY DEFAMATORY STATEMENTS WERE NOT ACTIONABLE BECAUSE THE “SUBSTANCE, THE GIST, THE STING” OF PLAINTIFF’S VERSION FOR EACH OF THE STATEMENTS AS PROVIDED IN DEPOSITION AND DEFENDANT’S VERSION ESSENTIALLY CARRIED THE SAME MEANING, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

From the Business Insurance Blog: THE MINNESOTA HIGH COURT SAID, FOR INSTANCE, THAT DR. MCKEE’S VERSION OF HIS COMMENT ABOUT THE INTENSIVE CARE UNIT WAS SUBSTANTIALLY SIMILAR TO MR. LAURION’S. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there 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.” THE COURT SAID THE DIFFERENCES BETWEEN THE TWO VERSIONS OF THE STATEMENTS ABOUT DEATH OR TRANSFER BY BOTH PLAINTIFF AND DEFENDANT WERE SO MINOR THAT THERE WAS NO FALSITY IN THE WEBSITE POSTINGS. In other words, the court indicated that the allegation about the statement was true. 

Steve: People want to be treated as a human not a robot. A physician may be allowed to lie whenever to deliver bad news to patients or postpone it until finding a good time. It could minimize their problem and they will be easy to accept every news delivered.

SOURCE

DOCTOR LAWSUITS

Sandusky Register: Critical Online Reviews Can Carry Legal Risks

“Critical Online Reviews Can Carry Legal Risks” 

Sandusky Register

October 26, 2012

Dr. David 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 his lawyer, Marshall Tanick.critical

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.

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’s 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. The posts described a single visit that lasted 10 to 15 minutes.

The review said McKee seemed upset that after Laurion’s father had been moved from intensive care to a regular hospital room, the doctor “had to spend time finding out if you transferred or died.”

Laurion also complained that McKee treated them brusquely and was insensitive to the family’s concerns about the patient being seen in public in a gown that gaped open in the back.

In an interview, Kelly said nothing Laurion posted was defamatory — a false statement that harms a person’s reputation.

The court is expected to rule on the case sometime in the next few months.

Lawsuits over professional reviews are uncommon in part because most patients write positive reviews, Goldman said. And many states have passed laws that block the kind of lawsuits that are filed mainly to scare someone into shutting up on matters of public concern. Known as “strategic lawsuits against public participation,” those complaints are often forbidden by broad laws that protect criticism even if it’s wrong, Goldman said.

When health care providers do sue, they rarely succeed. Of 28 such lawsuits that Goldman tracked, 16 had been dismissed and six settled. The others were pending.

One notable exception was a Maine case in which a chiropractor sued a former patient for postings on Facebook and websites that accused him of sexually assaulting her. The courts concluded she probably fabricated her story. In June, a judge ruled that the chiropractor could legally attach $100,000 worth of the patient’s property to his claim as security pending further proceedings in the case, which remains open.

Yelp says reviewers are well within their rights to express opinions and relate their experiences. Spokeswoman Kristen Whisenand says the company discourages professionals from using what she called the “nuclear option” of suing over a negative review. She said they rarely succeed and wind up drawing more attention to the review they dislike.

Angie Hicks, co-founder of Angie’s List, said people shouldn’t be afraid to post honest opinions about health care or other services. “Everyone has the right to free speech,” Hicks said. “The key here is giving your honest opinion. Honesty is your best defense. Truth is your best defense.”

Jeff Hermes, director of the Citizens Media Law Project at Harvard University’s Berkman Center for Internet and Society, said people who want to post critical reviews should think about whether they can back up their statements. And they can strengthen their position by stating the facts on which their opinions are based.

Goldman advises reviewers to remember that they are still taking a risk anytime they criticize someone in a public forum. “The reality is that we bet our house every time that we post content online,” Goldman said. “It’s a lousy answer from a societal standpoint because we need people to share their experiences so vendors will be punished or rewarded as appropriate.”

SOURCE

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

David McKee MD v. Dennis Laurion References And Precedents

Texas Medicine: Physicians Can Help Shape Their Presence On Influential Online Rating Sites

Physicians Can Help Shape Their Presence On Influential Online Rating Sites 

Joey Berlin, Associate Editor, Texas Medicine 

March 2017 

Volume 113, Number 3, Pages 33-40 

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 Health Grades 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 and a scheduled speaker at TexMed 2017 May 5–9 in Houston.

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.

Kyle Bickling, practice manager for Eye Institute of Austin, says the ophthalmology practice tries to give review site searchers a snapshot of the services it offers. Eye Institute’s page on Zocdoc, for example, has a practice summary, list of specialties, its in-network insurance plans, and pictures and credentials for physicians. “We want to make sure that patients know and can easily find out what sort of a practice we are, where we are, what sort of broad-picture services we offer,” Mr. Bickling said.

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 Health Grades 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.

Other popular medicine-specific rating sites include http://www.ratemds.com, http://www.healthcarereviews.com, and http://www.drscore.com.

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. (See “Reaching Patients Across the Web,” December 2015 Texas Medicine, pages 33–38.) 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, http://www.linkedin.com, 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.”

TMA recommends physicians set up Google Alerts to be notified when their name or their practice’s name is mentioned online. For more tips on managing your online presence, check out Get Social: Put Your Practice on the Social Media Map, a TMA book offering a road map for physicians looking to begin or to improve their social media experience.

TMA Practice Consulting can also help your practice make its mark online with its new Online Visibility Assessment. (See “Online Visibility.”) In July, TMA will host a modern marketing seminar that shows physicians how to properly leverage their online presence, refresh their current marketing strategy, and more. (See “TMA Modern Marketing Seminar.”) And for website and internet marketing assistance, Officite, a TMA-endorsed vendor, can help. (See “Marketing Help From Officite.”)

Reacting The Right Way

Dr. Pho offers five tips to handle online reviews:

  1. Listen to or read the review,
  2. Take the conversation offline,
  3. Read the fine print on a review site,
  4. Ask more patients to rate you online, and
  5. 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.”

Eye Institute of Austin always tries to reach out to any patient who posts a negative review, Mr. Bickling says. “The more positive reviews we have, the shout-outs from patients about specific individuals or specific functions of our practice, it’s always great affirmation and a way for us to see that, hey, we’re doing the right things. And typically, if it’s a negative review, it may just be something where we missed the mark service-wise. It could be something as simple as we had a really long wait time one day.”

Taking the conversation offline has another implicit meaning: Don’t respond online to the treatment-related specifics of a negative review. If the physician can identify the patient who posted a scathing review, he or she can reach out privately to the patient to address and, if necessary, rectify the problem the patient had. That’s preferable to getting into a damaging, public back-and-forth that could also introduce potential patient confidentiality violations.

A ProPublica/Washington Post story last May detailed instances in which health care practices fought back against online reviews and appeared to violate HIPAA in doing so. Marisa Speed, the mother of a 3-year-old, posted a review of Phoenix’s North Valley Plastic Surgery several years ago after her son received stitches for a gash on his chin. Ms. Speed wrote that the physician “seemed flustered with my crying child” halfway through the procedure, then “ended up throwing the instruments on the floor. I understand that dealing with kids requires extra effort, but if you don’t like to do it, don’t even welcome them.”

An employee for North Valley responded online: “This patient presented in an agitated and uncontrollable state. Despite our best efforts, this patient was screaming, crying, inconsolable, and a danger to both himself and to our staff. As any parent that has raised a young boy knows, they have the strength to cause harm.”

That response prompted Ms. Speed to complain to the U.S. Office for Civil Rights (OCR). The office declined to undertake a formal investigation but sent North Valley’s privacy officer a letter asking the practice to examine the situation and ensure compliance. OCR told the practice it “may wish to remove any specific information about current or former patients from your web-blog.” OCR told Ms. Speed if North Valley “fails or refuses to take steps to address this concern,” it may need to contact her as part of a formal investigation.

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.

However, Mr. Davis cautions you to “pick your battles” when it comes to appealing a review. “If it’s not a good review, but it’s a legitimate concern and something that happened, I would say you have to let it go at some point,” he said. “If you start to appeal too many of them, I think you’re going to red-flag yourself. Yelp might start thinking that you’re just appealing every bad review, that there’s no validity now to what you’re saying.”

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.”

What about preparing for litigation from the other side? If an online review hints that the patient is considering legal action, the Texas Medical Liability Trust recommends physicians contact their attorney and their medical liability insurance company immediately..

Encouraging Reviews

Get Social advises physicians to simply Google their own names and find out which rating sites show up at the top of the first page of that search. The physician can then consider passing out a handout or poster asking satisfied patients to post a review on one of those top sites. “All of that will leave you with a healthy balance of positive to negative online ratings,” Get Social states. “Prospective patients surfing for information about you will encounter a much more complete picture of you and your practice.”

There are still plenty of patients out there who don’t trust online reviews. The February 2014 JAMA study found that of patients who hadn’t sought physician rating sites, 43 percent said it was because of a lack of trust in the information they provide. But 59 percent of respondents said physician rating sites were “somewhat important or very important,” so being mindful of what the reviews say makes sense.

Mr. Bickling says the best way to generate good online reviews is to focus on the entire patient experience and make sure everyone in the office is working toward that goal. “You could have amazing doctors across the board who provided a phenomenal visit for every single patient every single time, 100 percent of the time,” he said. “And if that patient has a negative experience with your check-in desk or your checkout folks or your billing department or your optical department, whoever it may be, any sort of negative experience anywhere can ruin an entire visit for that patient. That’s why it’s so important to have the entire practice on board with that.”

Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.

SOURCE

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

David McKee MD v. Dennis Laurion References And Precedents

BuzzFeed News: This Dentist Might Sue You For Posting A Negative Review

Yelp’s Warning: This Dentist Might Sue You For Posting A Negative Review 

Leticia Miranda 

BuzzFeed News 

July 25, 2016

After suffering through tooth pain for some time, Mary Rohs decided to see a dentist. Rohs, a New York resident, scheduled an appointment at Advanced NYC Endodontics with Dr. Nima Dayani on July 16, 2015, to treat the pain.

More than a year later, the fallout from that routine appointment — a negative Yelp review by Rohs, and a lawsuit by Dayani claiming the review was defamatory — continues. And today, Yelp itself got involved, placing a new “consumer alert” on Dr. Dayani’s Yelp page, warning that his business may be “issuing questionable legal threats against reviewers.”

“Consumers have the right to share their opinions about their experiences with businesses,” Yelp said in a blog post announcing the new alerts. “But there will always be a small handful of businesses who mistakenly think it’s a good idea to threaten consumers who exercise their free speech rights.”

Court records say Rohs showed up to Dayani’s office around 11 a.m., filled out intake forms, and was shown into an exam room about 20 minutes later, where she had additional X-rays taken of her mouth.

According to Dayani’s timeline of her visit, Rohs spent about two hours at the office. He argues that he was treating other patients while Rohs sat in the exam room, but he made sure to discuss her dental history in length and take additional X-rays to check out her complaints about cold sensitivity. “By the end of her visit, she had two concurrent definitive diagnoses,” said Dayani in an affidavit. “They were discussed with her and a plan of treatment was formulated.”

But in a Yelp review dated July 27, 2015, Rohs described a frustrating experience. She complained about the “absurdly long wait” at the end of which she said Dayani couldn’t come to some clear diagnosis. “Of the total TWO HOURS FIFTEEN MINUTES I was there, I think I was speaking to Dr. Dayani for about 30 minutes of that whole time,” she wrote. “The rest was spent in his chair, without being offered a water or a magazine.” To make matters worse, she adds, “he couldn’t help determine what was bothering me. I left with a mouth full of pain and a recommendation to see my dentist for a possible cavity.”

Dayani, who says he gets plenty of positive and negative feedback on Yelp and is comfortable with both, says the claims by Rohs weren’t simply a negative review. He alleges her comments amount to defamation, and he sued Rohs two days after the review was posted. It’s an accusation the dentist has levied against at least four previous patients who have written negative reviews about his practice, according to a BuzzFeed News review of court records.

Dayani said false negative reviews like Rohs’ have harmed his practice over time. He said he laid off one part-time staff member because of a drop in business. “[Rohs] accused me of malpractice by saying I didn’t diagnose her,” he said. “When you are publicly accusing someone of malpractice, you are damaging their reputation.”

Rohs declined to comment to BuzzFeed News because the lawsuit is ongoing.

It’s likely that Rohs, like millions of Yelp users, had no idea that a negative review could land her in court. But as online reviews become more critical to companies looking for new business, people have become increasingly vulnerable to such lawsuits, which can chill free speech, consumer advocates told BuzzFeed News.

“When you as a consumer share your honest opinion in some type of public way on Yelp or otherwise, it can mean negative reviews,” Yelp’s vice president of public policy, Luther Lowe, told BuzzFeed News. “Businesses, rather than responding diplomatically or using feedback to improve operations, go out and hire a lawyer wagering that the consumer who wrote this review is more likely to pull the review off than hire a defense attorney and defend themselves. By merely threatening, it doesn’t take going to court to bully the person in order for that business to censor the user.”

The consumer alert Yelp put on Dayani’s page Monday is the third time the company has placed such a warning, Yelp spokesperson Hannah Cheesman told BuzzFeed News.

The company placed its first legal alert on a Texas pet sitting business called Prestigious Pets in May. The pet sitting company sued a customer for violating the company’s nondisparagement, or “gag,” clause when she posted a negative review about the company’s care for her fish.

Superior Moving & Storage in Florida was hit with a legal alert on its page in June after it sued one of its previous customers for defamation. Both cases are ongoing.

Lowe said that businesses sometimes include so-called gag clauses into their terms of service contracts. When the contract is signed, the consumer gives up their ability to publicly criticize the company. Other companies include contract clauses that prohibit consumers from saying anything publicly at all about the company, while others, like Dr. Dayani, may allege defamation and libel in court based on the negative review.

Yelp’s rollout of the consumer alerts comes as Congress considers two bills designed to protect consumers from being sued for posting negative reviews online. California and Maryland are currently the only two states that prohibit the inclusion of gag clauses in contracts.

The “Right to Yelp Bill,” also called the Consumer Review Fairness Act, would ban gag clauses from business contracts, while the SPEAK FREE Act would allow consumers slapped with a lawsuit over an online review to dismiss the claims early on in court. But as the two bills, which have received bipartisan support, make their way through Congress, individual consumers are left to fend for themselves, with few legal precedents for such cases.

“We don’t have a lot of cases to point to so we don’t know how judges view them,” said Paul Levy, an attorney with Public Citizen and defense counsel in the Prestigious Pets case, told BuzzFeed News. “The question becomes did the person who signed the contract understand what they were giving away and did they understand they were giving away free speech? The second point is that it’s so unfair that it’s not able to be enforced.”

In two such cases, the suing companies never appeared in court to back up their claims. A Utah couple sued KlearGear in 2012, claiming they did not owe a debt for violating its terms of service by writing a negative review, but the company never appeared in court and couple received a default judgment including over $300,000 in damages. In 2014, a Wisconsin woman a lawsuit against Accessory Outlet after they demanded she pay $250 for violating its terms of sale. The company never appeared in court to defend its claims.

In one case, a dentist, who faced a class-action lawsuit by former patients who signed a gag clause to receive care, moved abroad before she could defend her breach of contract claims in court in 2012.

“The harms generally aren’t harms that are enforced in court,” Scott Michelman, a senior staff attorney with the American Civil Liberties Union who has previously defended consumers in four gag-clause cases, told BuzzFeed News. “Instead they are the harms of the consumers that are bullied by corporations in taking down critical reviews and also the harms of consumers who are chilled by these clauses from expressing their opinions.”

Yelp has found itself at the center of a similar lawsuit in California where a personal injury law firm sued a former client after she posted three reviews criticizing the company. Hassell Law Group accused Ava Bird of defamation after she refused to remove “factual inaccuracies and defamatory remarks” from Yelp reviews she posted in January, February, and April 2013. A lower court sided with the law firm in 2014 and required Bird to take down the comments. When she refused, the court held Yelp responsible for removing the comments. In June, an appeals court agreed that Yelp must remove the comments, but the company has yet to comply, arguing it is a third party in the case.

Dayani has sued at least four previous patients over online reviews, according to a BuzzFeed review of New York County Civil court records through 2012. He sued a patient in 2012 for defamation and $75,000 in damages for writing a negative review on Yelp. The man removed the review after he was slapped with the lawsuit. Neither the patient nor Dayani appeared in court and the case was dismissed.

In June 2013, Dayani sued another patient claiming $50,000 in damages after he posted a review on Yelp complaining that the dentist had overcharged him for a root canal. The patient and Dayani settled the claim in August 2013.

Dayani sued a Yelp reviewer in November 2012 who he said used a fake name to post a negative review about her experience where she called him “rude, callous, abhorrent.” Dayani claimed the review amounted to $25,000 in damages. The defendant, “Jane Doe,” never responded to his complaint.

In June 2015, Dayani sued a woman who wrote a Google review claiming that he suggested she should undergo two root canals during a visit. She said she sought out a second opinion from another dentist who gave her a cavity filling and replaced a crown, which treated her tooth pain. “I am so happy that I didn’t get treated in this place,” she wrote. “If I did, I would have paid more than three thousand dollars for the treatment that I didn’t need at all.” Dayani is seeking a total of $100,000 from the woman for damages, according to court records.

Dayani does have a number of good reviews online from people who have described him as “thorough and knowledgeable.” “After doing a lot of research I chose Dr. Dayani,” said one Yelp reviewer called Eva H. “I couldn’t be happier. He is gentle, thorough, and highly professional. His staff is excellent. He is the best and I felt as relaxed as I will ever be at a dental appointment.”

Dayani insists that he only goes after online reviewers who post false information. He offered BuzzFeed News the opportunity to visit his office and review records related to the cases where he has sued patients to prove their allegations are false. BuzzFeed News declined.

He said he has adjusted his practice and opened a larger office after reading a number of negative reviews, including an emergency patient who complained in a one-star Google review about a long wait time at his office. However, the review does not appear to be online anymore.

When asked if he believes the lawsuits escalate a situation that could be resolved through other means than litigation, he insisted that he believes in free speech but draws the line at falsehoods. “When somebody writes lies about you with intent to deliver a damage to you and livelihood, that is defamatory,” he said. “I’m not Halliburton. A lie can do tremendous damage and can come at the expense of doctors and staff.” “If there are people out there doing it out of spite and not willing to correct a known lie, let an impartial judge decide,” he added. “I’m encouraging anyone to write a comment they think is correct and justifiable.”

Dayani and Rohs are scheduled to appear in court on Nov. 30.

SOURCE

Dr. Nima Dayani

Dentist Defamation Lawsuits

Doctor Defamation Lawsuits

Boston Globe: Doctors Firing Back At Patients’ Online Critiques

Doctors Firing Back At Patients’ Online Critiques 

Liz Kowalczyk 

Boston Globe

March 31, 2013

 During Lyn Votour’s struggle against bone cancer and a cascade of complications, her husband slept with her in the intensive care unit for nine weeks. Back home in Central Massachusetts, he changed her bandages, replaced her feeding tube, and shielded her from debt collectors.

And as she lay dying on the hospital bed in their living room, he snuggled beside her, holding her hand.  They had been married 26 years, and his wife’s death at age 46 overpowered Gary Votour with doubt and rage. He was furious at himself for allowing her to have surgery, during which she had a stroke, at friends who didn’t visit, and at his wife’s neurosurgeon.

Believing that airing his concerns would help him heal, Votour requested a meeting with the surgeon at Brigham and Women’s Hospital. When the surgeon turned him down, Votour’s psychiatrist urged him to write her an “open letter’’ online, detailing his concerns about his wife’s medical care.

He got a response, just not the one he had hoped for. Last month, the surgeon, Dr. Sagun Tuli, sued Votour and the owner of the website for defamation in Middlesex Superior Court, demanding $100,000 for the damage she said the blog post had done to her career. Her lawyer, David Rich of Boston, said Votour’s blog popped up on the first page of Google search results for Tuli, who now works at Metro West Medical Center in Framingham. Votour has since removed the blog post. “It’s difficult to believe we have a legal system that allows people to be sued for expressing their grief,’’ Votour said in an interview.

Tuli’s lawsuit is part of a gathering wave of claims brought by doctors against former patients, and sometimes their relatives, over negative ratings and reviews they have posted on the Internet, lawyers say.

Not only have personal blogs proliferated, but consumer sites such as Yelp and Angie’s List allow patients to rate and comment on their physicians. These sites are viewed by thousands of people who increasingly rely on them to choose doctors.

David Ardia, Co-Director of the Center for Media Law and Policy at the University of North Carolina, said the Internet “has realigned the power structure that existed between doctors and patients,’’ giving patients far more influence than they have ever had. “The Web is just chock-full of people commenting on their experiences. Doctors have reacted with a great deal of hostility toward this.’’

A quick perusal of Yelp reveals the kind of comments that are riling doctors. “Fast, Central, Misguided,” said one comment about a Copley Square practice. “Decent for your quick fix med tricks but leaves a bit to be desired in taking the time to truly understand the ailment.” Wrote another commenter about a Fenway office: “I feel much more like a number than a human being there.”

The Digital Media Project at Harvard University tracks lawsuits filed against patients and others for online comments. Its website includes seven such cases filed over the past five years or so, though it’s not a comprehensive list. In some, patients took down their negative comments. In others, judges dismissed the suit, ruling that patients’ comments were protected under the First Amendment guarantee of free speech.

In one 2011 case, Dr. Aaron Filler, a neurosurgeon, sued a former patient in a Los Angeles court for posting negative comments about him on rating sites such as RateMDs.com, including that he posed an unusually high risk of death to patients. A judge dismissed Filler’s suit, deciding that the patient was exercising free speech on a public issue, and ordered the doctor to pay $50,000 in legal fees.

Doctors feel they are at a disadvantage in responding to negative reviews because medical privacy laws forbid them from discussing a patient’s care in public — a limitation that hotels, restaurants, and other often-rated businesses and professionals don’t face. They also worry that their explanations could be used against them in a malpractice suit — although a new Massachusetts law protects doctors’ apologies.

Dr. Richard Aghababian, president of the Massachusetts Medical Society, believes rating websites present a skewed picture of doctors because patients are more likely to post about negative experiences — even though they may be rare. “For surgeons, their reputation is very important,” he said. “We don’t want to discourage them from taking on really tough cases because they don’t want to ruin their ratings.’’

Companies have cropped up to help doctors fight back. Physicians  Reputation Defender specializes in disputing negative online ratings. Medical Justice gathers reviews from a doctor’s patients and posts them on the Internet.

Ultimately, some doctors file lawsuits to try to protect their names, despite what Ardia calls “the reputational cost’’ of going to court, a step that often brings even more attention to the negative review.

While the rating sites are generally immune from libel claims, said Sandra Baron, executive director of the Media Law Resource Center in New York, individuals who post comments are not. In general for a doctor to win such a suit, she said, the statements made by the patient have to be shown to be false and to have hurt the doctor’s reputation.

Most lawsuits filed by doctors against patients or their families arise from a soured relationship, and that certainly seems true for the Votours and Tuli.

Lyn Votour was diagnosed with a rare bone cancer after an accident in 2005. In March 2005, Lyn Votour was driving to her job counseling troubled youth when her car skidded on black ice and crashed. An ambulance rushed her to a local hospital, and tests on her neck eventually discovered a rare bone cancer unrelated to the accident. An oncologist at Brigham referred her to Tuli to have some of her vertebrae removed, a complicated and rare operation. During a second surgery, Votour suffered a stroke that paralyzed the left side of her body.

The Votours and Tuli seemed to work well together at first. Tuli, for example, supported allowing Gary Votour to sleep in the ICU for an extended period, an unusual practice. But after Lyn Votour was discharged to Spaulding Rehabilitation Hospital, the couple’s relationship with Tuli deteriorated, according to Gary Votour. His wife was eventually discharged to the couple’s home in Barre in July 2006 with a feeding tube and a breathing tube.

More than two years later, depressed and in pain, she asked her husband to remove her feeding tube, he said. Soon she stopped talking, he wrote on the blog, except for “one brief lucid moment when she thanked me for letting her go and made me promise to move on with my life and try to find happiness again.’’ She died days later, in October 2008.  “I was not doing well with grief,’’ he said in an interview. “I wanted to go back and talk to Dr. Tuli about some questions that were bothering me. I really wanted to ask her why don’t doctors follow up after discharge. I wanted to understand why doctors just wash their hands after discharge.’’

Votour contacted a patient advocate at the Brigham, who said she would arrange a meeting. But the advocate called back and said Tuli had declined to meet, Votour said. Rich, her attorney, said a Brigham lawyer told Tuli not to meet with Votour.

A hospital spokeswoman, Erin McDonough, said in a written statement that a log kept by the patient advocate “documents that Dr. Tuli indicated that she was not comfortable meeting with Mr. Votour. . . . The hospital’s records clearly indicate it was her decision.’’ The hospital lawyer said she never spoke to Tuli about Votour’s request, McDonough said.

Frustrated, Votour put up his blog in March 2010 and e-mailed a link to Tuli and other Brigham staff who had cared for his wife.In his post, Votour criticized Tuli for not visiting his wife at Spaulding, according to a copy of the blog included in the lawsuit. He wrote that the surgeon called their home once after her discharge but did not offer to help coordinate her care, and that Spaulding doctors and others urged him to file a lawsuit against Tuli. At another point, he said he lost his wife “not to cancer but to indifference and egotism.’’

In the lawsuit, Tuli said these statements are false and defamatory. In written comments, Rich said that patient privacy laws prevent Tuli from discussing the reasons for the stroke, but according to the blog, she told the Votours it was caused by a preexisting tear in the heart.

Rich wrote that Votour completely misunderstood how discharge planning works at large hospitals. Tuli, Rich said, did not have privileges to treat his wife at another hospital and they lived too far away for her to provide follow-up care.

Rich said Tuli was surprised by the blog, because Votour had previously written e-mails complimenting her care of his wife. After Lyn Votour’s stroke, Tuli “spent 12 hours with Votour and was completely responsive and sympathetic,’’ Rich said.

Tuli, who won a $1.6 million jury award against the Brigham and the chief of neurosurgery in 2009 for gender discrimination, left the hospital in 2011.

Rich called the lawsuit a last resort — lawyers for Tuli initially asked Gary Votour to take down his blog in 2010. Votour took down the blog in February. He said his client hopes to “work out some amicable solution.’’ But she wants Votour to sign an agreement not to write about her again — something he has refused to do.

People have expressed concern to Tuli about what they read on Votour’s blog, Rich said, and some have certainly been dissuaded from seeking her out as a surgeon. “If you are thinking of hiring someone or working with someone, the first thing you do is Google her name,’’ he said.

In the end, Ardia said, doctors will not find satisfaction through the courts, but by using the Internet to their advantage — encouraging happy patients to write online reviews and trying to address the concerns of those who are not. “The ultimate solution is engagement and realizing that not every patient is going to be happy.’’

Votour, who still owes $25,000 to credit card companies for expenses related to his wife’s care, has moved to Columbia, S.C., where he earned a master’s degree in hospital administration. He now works as a patient advocacy consultant. He named his company Fierce Advocacy.

SOURCE

Tuli V. Votour

Doctor Defamation Lawsuits

 

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

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

Sean D. Lee 

Health Matrix, The Journal Of Law – Medicine

Volume 23, Issue 2 

Case Western Reserve University School Of Law 

2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SOURCE

* Reit V. Yelp

** Wong v. Tai Jing

*** McKee v. Laurion

Outpatient Surgery Magazine: Surgeon Sues Patient for Damning Online Review

 

Surgeon Sues Patient for Damning Online Review

Daniel Cook

Outpatient Surgery Magazine

May 29, 2012

A Florida plastic surgeon thinks anonymous comments made by a former patient on a physician rating website crossed the line between opinion and malicious intent, and he’s fighting back with a defamation lawsuit.

Armando Soto, MD, reacted strongly to postings made on RateMDs.com about a botched breast augmentation procedure he allegedly performed in 2011, according to a published report. He wants the comments removed and is seeking $49,000 in damages.

His defamation lawsuit was originally filed in Virginia because that’s where he and his attorney, Domingo Rivera, thought the complaints originated. However, he plans to drop that suit and file in Florida since subsequently discovering a school teacher in his home state might have posted the negative comments. He believes the teacher posed as several unhappy patients, adding numerous damning remarks on the site.

Mr. Rivera says his client’s lawsuit addresses the difference between opinion and defamatory speech. For example, a post stating that Dr. Soto did “a poor job” is opinion, he says, while comments about breast unevenness or extra scarring are defamatory if they are not true. He believes unhappy patients should return to their physicians to have post-op issues fixed, and accuses the patient in this case of conducting a vendetta against Dr. Soto’s reputation, which the lawsuit is angling to repair and protect.

David Muraskin, a Public Citizen attorney representing the patient, said in the news report that the lawsuit could squelch freedom of speech. He could not be reached for additional comment.

SOURCE

Armando Soto MD

Other Doctors Who Sued For Defamation