Baltimore County Doctor Sues Client Over Online Review

May 7, 2015 

Baltimore County Doctor Sues Client Over Online Review

Lauren Kirkwood,  Daily Record

A Baltimore County doctor is suing a client who posted a negative review online after a visit to his clinic, alleging her statements were defamatory and have resulted in a significant drop in revenue for his business. After visiting Carr Medical Specialities LLC in Lutherville for a massage and facial spa treatment, Tammie J. Monaco sent Dr. Kevin L. Carr, the owner of the practice, an email expressing her dissatisfaction and intent to share her experience online through social media. In a review posted on Yelp, Monaco described the practice as “unprofessional,” the clinic’s bathroom as “filthy” and Carr as a “scam artist.”

Source


May 13, 2015

Baltimore Doctor Sues Former Patient For Bad Review

Medical Malpractice Lawyers

A Baltimore doctor who operates a skin care clinic in Baltimore County, Maryland has filed a defamation lawsuit seeking compensatory damages in excess of $75,000 and punitive damages in the amount of $1 million against a former patient who wrote a negative review of him and his clinic and posted it on Yelp.

At the conclusion of a hearing on May 7, 2015, a Baltimore judge granted the doctor’s request for a temporary restraining order that orders the former patient to remove all online posts regarding the doctor and his clinic, and further preventing the patient from posting online anything regarding the doctor or his clinic.

The patient had gone to the doctor’s skin care clinic on April 1, 2015 for a facial treatment and a massage. According to the doctor’s lawsuit, the patient arrived twenty minutes late for her appointment and complained about having to wait in a treatment room after agreeing to an abbreviated treatment time. The doctor alleges that his employee offered to stay late for the patient’s treatment but the patient left the clinic.

The doctor’s lawsuit reportedly alleges that the patient had sent him an email complaining about her experience at the clinic and advising the doctor of her intention to post about her experience at the clinic on social media.

The patient reportedly posted online comments to the effect that the doctor was a “scam artist,” that his practice was “unprofessional,” and that his clinic’s bathroom was “filthy.” The patient allegedly posted false allegations that the doctor’s clinic was understaffed and that the doctor had failed to “show up for work” on the day of the patient’s appointment, and she allegedly failed to note in her review that she had appeared for her appointment late after rescheduling her appointment at the last minute, and that she had been refunded the $40 that she had paid for her appointment, according to the doctor’s lawsuit.

In seeking the temporary restraining order, the doctor alleged that his clinic suffered a significant reduction in its business after the Yelp review appeared. The doctor’s lawsuit alleges that a significant part of the clinic’s business results from Yelp and that the reduction in the number of visitors to its website and patients to the clinic since the defendant’s negative false Yelp review appeared represents an immediate, substantial and irreparable harm to his business for which he is entitled to the issuance of a temporary restraining order against the defendant.

If you suffered an unexpected injury in Baltimore or elsewhere in the United States that may be due to medical negligence, you should promptly find a medical malpractice attorney in Baltimore, in Maryland, or in your U.S. state who may investigate your medical injury claim for you and represent you in a medical malpractice case, if appropriate.

Source


Case Information:

Court System: Circuit Court for Baltimore County – Civil System

Case Number: 03C15004927

Title: Carr, et al V. Monaco

Case Type: Tort

Plaintiff 1: Kevin L Carr

Plaintiff 2: Carr Medical Specialties LLC

Defendant 1: Tammie J Monaco

Filing Date: 05.06.2015

Case Disposition: Dismissal 11/25/2015

Source Carr, et al. v. Monaco, Circuit Court for Baltimore County, Case No. 03-C-15-004927.


Doctors Who Sued Their Patients

Star Tribune: Judge Throws Out Neurologist’s Defamation Lawsuit Against Patient’s Son

APRIL 29, 2011

Judge Throws Out Neurologist’s Defamation Lawsuit Against Patient’s Son”

STAR TRIBUNE

DULUTH, Minn. – A judge has dismissed a lawsuit filed by a Duluth neurologist who claimed he was defamed by a patient’s son who criticized the doctor’s bedside manner.

Dr. David McKee alleged in his lawsuit that Dennis Laurion of Duluth made false statements about McKee’s treatment of Laurion’s father to the American Academy of Neurology, St. Luke’s Hospital, colleagues and others. The lawsuit said Laurion alleged McKee failed to treat his father with dignity following a stroke and told him he didn’t need therapy.

SEE FULL STORY

Duluth News Tribune: “Judge Tosses Doctor’s Suit Against Patient’s Family”

APRIL 28, 2011

“Judge Tosses Doctor’s Suit Against Patient’s Family”
Mark Stodghill, DULUTH NEWS TRIBUNE

A judge threw out a lawsuit filed by a Duluth physician who said he was defamed by a man who publicly criticized his bedside manner.

Dr. David McKee, a neurologist with Northland Neurology and Myology, alleged that Dennis Laurion of Duluth defamed him and interfered with his business by making false statements to the American Academy of Neurology, the American Neurological Association, two physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s Hospital, among others.

Laurion was critical of the treatment his father, Kenneth, received from McKee after suffering a hemorrhagic stroke and spending four days at St. Luke’s Hospital from April 17-21 last year. Kenneth Laurion recovered from his condition.

Dennis Laurion claimed that any statements he made about the doctor were true and that he was immune from any liability to the plaintiff.

In his 18-page order dismissing the suit, Sixth Judicial District Judge Eric Hylden wrote that looking at Laurion’s “statements as a whole, the court does not find defamatory meaning, but rather a sometimes emotional discussion of the issues.”

Hylden addressed the fact that Laurion posted some of his criticisms of McKee on websites. “In modern society, there needs to be some give and take, some ability for parties to air their differences,” the judge wrote. “Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory.”

Hylden concluded his order by stating that there wasn’t enough objective information provided to justify asking a jury to decide the matter.

Laurion was relieved by the court’s ruling. “My parents, who are now 86, my wife, and I have found this process very stressful for the past year, since my father’s stroke. There was never just one defendant,” he said. “We’re grateful that Judge Hylden found no need for a trial.”

In his suit, McKee alleged that Laurion made false statements including that McKee “seemed upset” that Kenneth Laurion had been transferred from the Intensive Care Unit to a ward room; that McKee told the Laurion family that he had to “spend time finding out if [the patient] had been transferred or died;” that McKee told the Laurions that 44 percent of hemorrhagic stroke victims die within 30 days; that McKee told the patient that he didn’t need therapy; that McKee said it didn’t matter that the patient’s gown was hanging from his neck with his backside exposed; that McKee blamed the patient for the loss of his time; and that McKee didn’t treat his patient with dignity.

David McKee, MD, V Dennis K Laurion 2011

McKee V Laurion: Court’s Order On Defendant’s Motion For Summary Judgment

APRIL 27, 2011

Excerpted from McKee V. Laurion


STATE OF MINNESOTA

DISTRICT COURT

ST. LOUIS COUNTY

SIXTH JUDICIAL DISTRICT


David McKee, M.D., Plaintiff

V.

Dennis K. Laurion

File No. 69-DU-CV-10-1706

Court’s Order On Defendant’s Motion For Summary Judgment


The above-captioned matter came before the undersigned judge of District Court on February 10, 201 1, pursuant to Defendant’s motion f or summary judgment.Plaintiff was represented at the hearing by his attorney, Marshall H. Tanick. Defendant was represented at the hearing by his attorney, John D. Kelly. The Court reviewed all of the submissions made by the parties, including the affidavits, and also requested and received the whole deposition transcript of Defendant [sic] McKee.

Based on all of the foregoing, and deeming itself fully advised on the premises, the Court hereby issues the following:

ORDERS:

  1. Defendant’s motion for summary judgment is granted.
  2. Plaintiff’s claimed is dismissed, with prejudice.
  3. The attached memorandum of law is incorporated herein by reference.

Dated this 27th day of April, 2011

BY THE COURT:

Eric L. Hylden

Judge of District Court

The foregoing constitutes the judgment of the Court in this matter.

Dated this 27th  day of April, 2011.

/S/

Marietta Johnson

Court Administrator

MEMORANDUM OF LAW

This is a defamation lawsuit by a doctor against the son of one of his patients, who had posted unflattering comments about Plaintiff on certain Internet websites and sent letters to various groups about what he saw as Dr. McKee’s insensitive treatment of his father.    Dr. McKee sued approximately one month after the statements w ere made, and Defendant Laurion has now brought a motion, asking the entire case be dismissed, as none of the statements are actionable.

STATEMENT OF FACTS

On April 20, 2010, Defendant Dennis Laurion’s father, Kenneth Laurion, was in St. Luke’s Hospital in Duluth, having suffered a hemorrhagic stroke. On that day, he was moved from the intensive care unit ( ICU) to a standard hospital room. Mr. Kenneth Laurion’s family, including the Defendant, were with him in his room. A referral had been made to Dr. McKee internally within St. Luke’s, as Dr. McKee is a neurologist and would commonly evaluate patients who just had a stroke. Upon receiving the referral, Dr. McKee was at first unaware that Kenneth Laurion had been transferred out of the ICU, but eventually tracked him to the right room.Once Dr. McKee arrived, there is disagreement about what was said or done by Dr. McKee. The Court believes that the differences, however, tend to be issues of tone, feeling and nuance – overall the parties agree on the substance of how things went. Essentially, Dr. McKee did a neurological examination of Kenneth Laurion, but Dennis Laurion felt that the things he said and did before, during and after the examination were insensitive to Kenneth Laurion’s dignity. Defendant Laurion then posted a ‘factual recitation’ on some Internet doctor rating sites, and later sent letters to a number of individuals and organizations, making statements about how his father w as treated by Dr. McKee. The statements (and Dr . McKee’s response to them) as alleged in paragraphs 3 and 5 of Plaintiff’s complaint are as follows:

  1. Mr. Laurion alleged that Dr. McKee “seemed upset” that his father had been transferred from ICU to a general hospital room (Dr. McKee denies this);
  2. And that Dr. McKee said he had to “spend time finding out if you ( Kenneth Laurion) were transferred or died.” (Dr. McKee states that he had attempted to add some levity to the situation by making the ‘transferred or died’ comment.);
  3. Dennis Laurion goes on to quote Dr. McKee for the statistic that “44 percent of hemorrhagic strokes die within 30 days.I guess this is the better option.” (Dr. McKee vehemently denies that he ever gave anything like a percentage, and in fact accuses Defendant of pulling the number off of Wikipedia after the f act. He does, however, admit that he would have said something about there being only one of two ways to leave the ICU – improving to a transfer into a regular hospital bed, or dying.);
  4. Dennis Laurion’s Internet postings stated that when Dr. McKee had been told of some physical therapy Kenneth Laurion had been doing, he w as told, “You don’t need therapy.” (Dr. McKee denies making any such statement.);
  5. At one point in the examination, Dr. McKee was having Kenneth Laurion sit up and move to the edge of the bed to see if he could stand. His hospital gown (as they are wont to do) came open in the back and someone mentioned a concern about that. Dr. McKee allegedly said that “it doesn’t matter.” (In his deposition, Dr. McKee testified about hearing the family member’s comment: “By the way that he said this, l thought that his concern was that the gown might fall off . But I could see the knot was well tied and told him I thought it would be fine. It never crossed my mind that he was concerned about his father’s modesty with the back of the gown open.”);
  6. Next, the complaint alleges that Defendant defamed Dr. McKee by publishing that Dr. McKee strode out of the room at the end of the examination without talking to the family. (Dr. McKee states that after leaving the room, he told the family that they could go back into the room.);
  7. Dennis Laurion’ s Internet postings indicate that after this incident, he bumped into a former coworker who is a nurse. After describing the incident, this friend allegedly guessed that it was Dr. McKee, and that she had said that Dr. McKee “is a real tool!” Mr. Laurion repeated that phrase in his Internet postings. (Dr. McKee doubts the very existence of this ‘friend,’ as Mr. Laurion, at his deposition, was unable to even provide a very good description of her, much less a name or other identifying information. Dr. McKee hired a private investigator, who was unable to come up with anything more detailed.);
  8. In some of the post-incident letters, Mr. Laurion characterizes Dr. McKee as blaming Kenneth Laurion for the loss of his time.
  9. Next, Mr. Laurion’s letter indicates that when Plaintiff left the patient’s room, that he was “scowling.”
  10. Defendant’s letters say that Dr. McKee treated their relative as a “task and charting assignment.”
  11. Finally, Defendant’s letters allege that Plaintiff did not treat Kenneth Laurion with “dignity. “

LEGAL STANDARD

Rule 5 6.03, Minn.R.Civ.P. provides that a motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. Summary judgment is not appropriate when reasonable persons might draw different conclusions from evidence presented.

To preclude entry of summary judgment, genuine issues of   material f acts must be established by substantial evidence. “Substantial evidence” refers to legal sufficiency and not to quantum of evidence.   DLH, Inc. v. Russ, et. al, 566 N.W.2d 60 (Minn. 1997).   The Court must not weigh evidence in deciding whether a genuine issue of material f act exists. However, the Court is not required to ignore its conclusion that a particular piece of evidence may have no probative value.

A material fact is one that will affect the outcome or result of the case.   Zappa   v.   Fahey, 245 N.W.2d 258 ( 1976) . The facts must be viewed in a light most favorable to the non-moving party, and all doubts and factual inferences must be resolved against the moving   party. Hopkins by LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209 ( Minn. App. 1991).

The trial court is not to decide or resolve the fact issues at the summary judgment hearing, but rather determine if there is room for an honest difference of opinion among reasonable people, and deny the motion where such debate is possible.     Trepanier   v.   McKenna, 125 N.W.2d · 603, 606 (Minn. 1963) ; Jonathan v. Kvaal, 403 N.W.2d 256, 259 (Minn. ·App. 1987), review denied (Minn. May 20, 1987) .

Defamation consists of a false statement of fact made to third parties that harm the reputation of the subject of the   statements. Milkovich v. Lorain Journal   Co., 497, U.S. 1, 17-18 ( 1990) and Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn. App. 1995). A trial court is to review the statements, which must be set forth in the complaint ( See, Benson v Northwest Airlines, Inc., 561 N.W.2d 530, 538 (Minn. App. 1997) review (Minn., June 11, 1997.), and see whether any fact disputes would prevent summary judgment, as well as whether either party would be entitled to summary judgment as a matter of law. This Court will look at individual statements, but also looks at the postings and letters as a whole.      See Jadwin, Supra, 390 N.W.2d at 443.

“The district court makes an initial determination of whether the statements are reasonably capable of carrying a defamatory meaning.” Schlieman v Gannett MN Broadc asting, Inc., 637 N.W.2d 297, 307 {Minn. App. 2001 ) , citing Utecht v Shopko Department Store, 324 N.W.2d 652, 653 { Minn. 1982). Of course, “True statements, however disparaging, are not actionable. “Lewis v Equitable Life Assurance Society, 398 N.W.2d 876, 888 {Minn. 1986), citing Stuempges v Parke, Davis & Co., 297 N.W.2d 252, 255   ( Minn. 1980).

“However, statements about matters of public concern that are not capable of being proven true or false, and statements that cannot be interpreted as stating facts are protected from defamation actions by the First Amendment.”   McGrath v TCF Bank Savings, 502 N.W.2d 801, 808 {Minn. App. 1993), citing Milkovich v Lorain Journal, Co., 497 U.S. 1, 19-21, 110 S. Ct. 2695, 2706-07, 111 L.Ed. 2d 1 ( 1990). Minnesota courts apply for a four part test to determine if a statement is actionable: ( 1)the statement’s precision and specificity; ( 2) the statement’s verifiability; ( 3) the social and literary context in which the statement was made; and (4) the statement ‘s public context. ”      (Huyen v Driscoll, 479 N.W.2d 76, 79 (Minn. App. 1991 ) . The Court applies this test, because “Whether a statement can be proven false or interpreted as stating facts is a question of law.”    McGrath, supra, 502 N.W.2d at 808.

Some guidance is provided to the courts in this endeavor by other appellate decisions: “Expressions of opinion, rhetoric, and figurative language are generally not actionable if in context, the audience would understand the statement is not a recitation of fact.”  Jadwin, supra, 390 2d at 441. Put another way, “[l]f it is plain that the speaker is expressing a ‘subjective view, an interpretation, a theory, conjecture or surmise,’ rather than claiming to be in possession of ‘objectively verifiable f acts,’ the statement is not Schlieman, supra, 637 N.W. 2d at 308, citing Haynes v Alfred A. Knopf , Inc., 8 F.3d 1222, 1227 ( 71h Cir. 1998).

Taken as a whole, the statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by a physician.  While Dr. McKee’s complaint alleges that all of the comments made by Mr. Laurion are utterly false, there is a common thread tying together both sides of this story. Some of that common thread comes from Dr. McKee’s own testimony.  In modern society, there needs to be some give and take, some ability for parties to air their differences.  Today, those disagreements may take place on various Internet sources.   Because the medium has changed, however, does not make statements of this sort any more or less defamatory. Looking at the statements as a whole, the Court does not  find defamatory meaning, but rather a sometimes emotional discussion of the issues.

Taking each of the statements individually, the Court also finds no individual statement to be defamatory:

  1. Dr. McKee seemed upset about the transfer from ICU – From the Court’s perspective, this is a completely subjective opinion expressed by Mr. Laurion.      For a number of statements like this, the Court considered the question of what exactly the jury would be asked to decide: Here, the question would have to be whether Dr. McKee seemed upset to Mr. Laurion. In summary, there simply is no ‘fact’ that might be proven false.
  2. Dr. McKee ‘had to find out if you transferred or died’ – Dr. McKee admits in his deposition that he made a statement substantially similar to this one, characterizing is as a ‘jocular’ comment. While Dr. McKee recalls the language that he used slightly differently, the import was the same.   Given that truth is a complete defense to a claim of defamation, the Court finds no basis for a defamation claim on this item.
  3. The 44 percent comment – Dr. McKee finds this statement especially offensive, given that he had never heard of the percentage quoted by Mr. Laurion and because he posits, somewhat convincingly, that Mr. Laurion may have made this up after the fact based on a figure he obtained from Wikipedia.    The problem is that, even if the figure used was made up, and therefore false, the general import of the conversation (that some stroke patients never make it out of the ICU alive) is true, as confirmed by Dr. McKee in his deposition. Where the ‘gist’ or ‘sting’ of the alleged statement is true, the Jadwin Court instructs us it is not def amatory, even if some particular of the statement is false. See Jadwin, 390 N.W. 2d at 441.
  4. “You don’t need therapy” – The Court finds this statement is not capable of carrying a defamatory meaning.Even if we assume that Dr. McKee never said those words, it is difficult to see how such a statement would lower anyone’s opinion about Dr. McKee. Based on the information available, that could well be a perfectly valid medical opinion. There is nothing about it that suggests that Dr. McKee does not meet up to any personal or professional standard.
  5. The gown incident – Dr . McKee also complain about Mr. Laurion’s retelling of the hospital gown incident – specifically, that Dr. McKee had said “that doesn’t matter.”In his deposition, however, Dr. McKee describes essentially the same incident, noting his perception that since the top of the gown was tied securely, it would not f all off entirely, and stating that it never even crossed his mind that the Laurion family might be concerned about the back of the gown falling open. Thus, the ‘gist or sting’ of Defendant’s postings and letters on this subject are true, although they have a different perspective.
  6. He left the room without talking to the family – The next allegedly defamatory statement is that Dr. McKee left the room without talking to the family.      Dr . McKee’s version is that he left the room and told the family “You can go in now.” Again, the parties are talking about the same thing, from different perspectives.It is hardly worth calling a jury together to determine if “not talking to the family” was meant literally as in not a single word, or figuratively in that Dr. McKee did not say anything substantive about his examination of Mr. Laurion. There is simply nothing for a jury to decide here.
  7. “A real tool” – Plaintiff also complains of Mr. Laurion republishing another person’s description of him as ‘a real tool.’ Interestingly, no one could say what the term means, although everyone assumed that it w as not complimentary.      Either w ay, it does not matter because the term falls squarely into the same category as ‘troublemaker’ and ‘brown nose,’ as outlined in McGrath and Lund, supra.As is evidenced by the f act that no one knows its meaning, the term is too vague to be defamatory.
  8. The Plaintiff blames his patient for the loss of his time – This is the first of the statements not published on the Internet, but included in letters Defendant sent out to various individuals and organizations. All of them simply offer Defendant Laurion’s perception.  This is fatal to Dr. McKee’s lawsuit on summary judgment, because it is evident that none of them constitute provable facts. With this allegation, for example, it would be impossible for one side or the other to prove or disprove Mr. Laurion’s perception – that Dr. McKee blamed Kenneth Laurion for the loss of Dr. McKee’s time. Clearly, Dr. McKee could come in and testify that he did not. Similarly, Mr. Laurion could come in and testify that this was his perception of Dr. McKee’s demeanor. In the end, the jury would be left to divine the internal feelings of others, rather than whether a given fact was probably true or false.
  9. “Scowling” – Similarly, Mr. Laurion’s perception that Dr. McKee was scowling as he left the room is not a provable fact. What some people might perceive as a scowl might simply be another person’s standard facial expression.Even if we had a videotape that recorded the expression, the jury would be left with an allegation on one side and a denial on the other as their only basis for making a decision on whether defamation had occurred. This is not enough.
  10. The patient was a task or a charting assignment – Dennis Laurion’s subjective evaluation of how his father was treated falls into the category of opinion. As with the preceding items, this leaves nothing for the jury to decide.
  11. Dr. McKee failed to treat the patient with dignity – This, more than any other allegation, constitutes an unprovable subjective opinion. As with the others, both parties could undoubtedly produce testimony to support their version of things, but it would be impossible for Plaintiff or Defendant to prove an opinion – whether Kenneth Laurion was treated   “with dignity.” We could certainly ask a jury to form their own opinion, but the jury ‘s proper role is to find facts. Based on the information provided to the Court, there would not be enough objective information to justify a jury trial in this matter.

ELH

SOURCE

ALERT PRESENCE: “A Physician Review Gone Wrong”

MARCH 24, 2011

“A Physician Review Gone Wrong”

Brett Pollard, ALERT PRESENCE

For several years now, I have been actively involved in issues related to reputation management for physicians. It’s an issue I’ve discussed at length with clients and offered thoughts on this blog. Through my research, I have come across some pretty interesting examples of the challenges physicians face in a world where there are dozens of online review sites. However, I stumbled across a very interesting situation where a doctor’s decision to sue the son of one of his patients for a negative review resulted in a reputation disaster.

After the lawsuit was detailed twice in a Minnesota newspaper, a local resident took action by posting a critical comment and link (screenshot below) on the social news site, Reddit. With a user-controlled ranking system Reddit features the most popular posts to an audience generating over 1 million page visits per day. As you might expect, negative exposure on a site like this leads to undesirable consequences.

I have no interest in offering insight into the specifics of the legal matter as my knowledge of how this all transpired is limited to the information provided in the newspaper articles. However, the fallout from the lawsuit certainly warrants exploration. There is something to be learned from this for those in a position to advise physicians about appropriate responses to negative reviews. It’s necessary to have an understanding of the potential backlash if your response is not well received by the general public. This situation also illustrates the need to have a strategy to help prevent a scenario that may lead to irreparable harm to the physician’s reputation.

Timeline and Consequences

June 2010 – A doctor from Duluth, Minnesota files a lawsuit against the son of a former patient claiming the son made defamatory statements about his father’s care. The statements were allegedly posted on a physician review site in addition to complaints lodged with the associated hospital and other third parties. The local paper publishes an article reporting the lawsuit where the defendant’s lawyer admits his client posted the negative review but later requested successfully for it to be removed from the site.

February 2011 – The local newspaper publishes a follow up story regarding the lawsuit with an update of the legal proceedings.

March 2011 – A regular user of the social news website, Reddit, posted a link to the story on March 21st, 2011 while suggesting the Reddit community should post poor ratings for this doctor on various physician review sites.

A simple Google search reveals this is exactly what happened. After examining some of the top search results for the doctor’s name, it is clear the Reddit post triggered a large number of negative reviews – many of which are clearly fabricated. The following is just a sample of what I found.

Google Place Page – Since Google pulls in reviews from various sources, my focus was only on those reviews posted through the Google Review service. There were 33 reviews (all of which were negative) and every one was posted on March 22nd or later.

Vitals – There were a total of 39 written reviews. 32 of the reviews were posted on March 21st or later and each one was negative.

Healthgrades – There were 34 patient ratings on Healthgrades (mostly negative). In this case, the dates of each review are not posted so it’s unclear how many of them are a result of the Reddit community response.

I’m not all that surprised by the backlash – especially considering the story gained considerable traction on Reddit. It’s just another good example of the viral power social media possesses.

Filing a lawsuit against a patient for a negative review is a very slippery slope – even if the statements are defamatory. What alternative actions exist for dealing with a harmful or misleading review? This question is generic and does not imply the patient in this case made any defamatory statements. That is for the courts to decide.

Brett Pollard is an online marketing consultant specializing in web 2.0 strategies, local search, SEO, ORM and social media for the healthcare industry and small/medium-sized businesses. With over a decade of Internet marketing experience for private ventures, Brett now shares his expertise with clients throughout North America.

SOURCE

Comments:

Lora Baker:

Wow -just checked his Google reviews. They are so obviously fake that it is hard to believe they are still posted. Unfortunately for this doctor, his choices have resulted in nationwide backlash. If any prospective patient looks him up before calling, they will clearly choose another doctor. I recommend to our clients to work out bad reviews with the reviewer if possible – behind the scenes. If not, most potential clients understand that everyone can end up with a bad review or 2 -most people are more motivated to leave a review if they are upset. Now, Dr. David McKee has so much (fake) bad feedback out there that his reputation is in tatters. Yikes -so glad he is not my client!

Susan January:

The Minnesota State Court of Appeals has issued an opinion. Filed January 23, 2012. Affirmed in part, reversed in part, and remanded. The interfering with business claim was dismissed as being without merit. The patient’s son’s comments are exhaustively reviewed by the court and classified as either opinion (dismissed) or factual assertions. Since the asserted facts of the situation are for a jury to decide, on 6 picky little points the doctor is entitled to a jury trial to determine the facts. The factual assertions that are in dispute verge on opinions or beliefs, because the doctor and the patient’s son dispute what was said and/or what was meant by what was said. They thought he was a jerk, the doctor says he was joking or being friendly or didn’t see them or they don’t understand what he meant. Good example of taking things way too far and doing more damage in the process. Good grief.

Susan February:

My husband is a top performing Cardiac surgeon with great results.But a colleague of his who has been banned from operating due to disruptive behavior is writing bad reviews of him on vitals. How I know this is that every time he gives himself a great review,he gives my husband a bad one. And a doctor who has not done heart surgery for 6 months is getting great reviews and a doctor working every day – 24hrs with all his patients going home in less than 3-4 days is getting bad reviews –on VITALS -something needs to be seriously done.

Samantha Theras:

This can be so frustrating to deal with. Numerous websites online are misleading and fighting bad online reviews with litigation has proven itself time and again to have the worst consequences. The results are never what you expect them to be. I’m sympathetic to some situations in where it is a legitimate review with constructive criticism although, some reviews can be and are bogus.

DULUTH NEWS TRIBUNE: “Duluth Man Fights Defamation Suit By Doctor He Criticized”

FEBRUARY 10, 2011

“Duluth Man Fights Defamation Suit By Doctor He Criticized”

Mark Stodghill, DULUTH NEWS TRIBUNE

A Duluth physician who sued a patient’s son for defamation was in court as the son attempted to have the case thrown out. Dr. David McKee, a neurologist with Northland Neurology and Myology, Duluth, Minnesota, filed the lawsuit against Dennis Laurion of Duluth in St. Louis County District Court in 2010. McKee alleges that Laurion defamed him and interfered with his business by criticizing him by making false statements on websites and to various third parties including other physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee, St. Luke’s hospital and professional organizations.

Laurion’s father, Kenneth, now 85 and a Navy combat medic in the Solomon Islands during World War II, suffered a hemorrhagic stroke and was treated by McKee at St. Luke’s hospital April 19. He recovered from his condition. However, he and his family allege that McKee was rude and insensitive to the patient in his actions and comments.

The defendants claim that when McKee didn’t find Kenneth Laurion in the Intensive Care Unit, he said: “I had to find out whether you had transferred or died.” McKee confirmed in deposition that he made the statement, but claimed it was a jocular comment meant to relieve tension.

Kenneth Laurion, his defendant son, and daughter-in-law were in the courtroom Thursday, as was plaintiff McKee. McKee is asking for more than $50,000 in damages. Laurion claims that any statements he made about the doctor were true and that he is immune from any liability.

Duluth defense attorney John Kelly argued that his client’s statements were substantially true, were statements of opinion and couldn’t be demonstrated to be false. “He is standing up and speaking out for his father. That is his motivation … in the hope that something gets done,” Kelly told the court.

McKee is represented by Minneapolis attorney Marshall Tanick. Tanick told the court that Laurion used the websites as a “weapon of mass destruction” to injure the reputation of McKee, place the doctor in a negative light and impugn his professional practice.

In a written motion, Tanick wrote, “The totality of statements made on these websites would be injurious to the reputation and standing of a doctor in the eyes of others who might see it, including patients or prospective patients, colleagues, peers, referral sources, and others.”

Sixth Judicial District Judge Eric Hylden is presiding over the case. As the parties introduced themselves to the court, Hylden told them it was a “very interesting type of case.”

Thinking out loud, Hylden suggested that Laurion has a constitutionally protected right to an opinion, but “isn’t there some limitation on what a person can say in that public forum?”

Kelly said his client made his statements of opinion in good faith and they were not demonstratively false. “There has to be a protected area in which someone like Dennis Laurion can come forward, stand up and speak for his father and say, ‘Look, in this particular instance, my father didn’t get treated very well and you ought to know that.’ ”

Tanick argued that Laurion’s criticism goes much farther than that. “He chose to tell the world at large in a way that was injurious to Dr. McKee’s reputation,” Tanick said.

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