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Doctors Behaving Badly: Vengeful doctor and his sheriff buddy face Texas-style justice

Doctors Behaving Badly: Vengeful doctor and his sheriff buddy face Texas-style justice

Picture of William Heisel

Sometimes justice does win.

Antidote wrote last year about how Dr. Rolando Arafiles in Kermit, Texas, had used his clout to persuade Winkler County Sheriff to go after two nurses who had accused him of stealing hospital supplies and using his medical office to run an herbal remedy business.

The Winkler County Attorney indicted the nurses – Anne Mitchell and Vicki Galle – for allegedly breaking , the misuse of official information. He said they had used patient information to file their anonymous complaint with the Texas Medical Board. Winkler County Memorial Hospital fired Mitchell and Galle as a result. The action was a slap in the face to any nurse who dared to defy a doctor.

Now, the medical board has pulled together a case that shows everyone why Galle and Mitchell were concerned.

The allegations, which can be easily found and downloaded for free from the , cover nine patients who were harmed by Arafiles in some way.

They include this stunning allegation:  When a patient showed up at the Kermit hospital with a case of methicillin-resistant Staphylococcus aureus, otherwise known as the Superbug, instead of rushing the patient to the ER, he poured an olive oil solution on her. As the medical board dryly notes, "the olive oil solution is not approved by the Food and Drug Administration."

On another occasion, a young child arrived with pain near the kidney. All signs pointed to appendicitis, but Arafiles ignored those signs. He ordered a CT scan, instead, and an enema. Then he sent the kid home without treating the appendicitis, putting him at risk of dying from an infection.

Another patient arrived with a headache. Without actually testing the patient for a thyroid condition, Arafiles prescribed a thyroid medication. It took another physician intervening to diagnose that the patient was suffering from a thyroid condition created by the medication Arafiles prescribed.

There are five other patients listed in the medical board records, which are easy to find, detailed and a true joy to read. The Texas board also gets major points for keeping Arafiles' previous disciplinary record from 1997 active and downloadable on its site.

But the patients are just the tip of the iceberg. The medical board also charged Arafiles with "witness intimidation" and described in detail in board records how Arafiles and the sheriff abused their power to go after these nurses and, worse yet, attempted to go after the patients as well.

In April 2009, the board told Arafiles it was investigating complaints about 10 patients. He then "ed the Winkler County Sheriff, a personal friend and patient and requested his assistance to identify the complainant(s), and to file a harassment complaint against the complainant(s)." He gave the sheriff a list of the patient's names, and the sheriff then ed each of the patients to find out whether they had complained about Arafiles. When none of them copped to complaining, the sheriff filed an open records request with the board asking for information about who tattled on Arafiles, claiming, the board says, "that he was conducting an investigation" involving Arafiles.

Now, here is where reasonable people might disagree. Should the board have handed over these records without fully understanding what the sheriff was doing? The board says that it gave the sheriff the actual complaint against Arafiles with the caveat that "the complaints and the identity of the complainants were to be treated as confidential and protected by law and only to be used in connection with a criminal investigation of [Arafiles]."

The sheriff tossed that caveat out the window of his squad car and hunted the nurses down. Soon they were indicted on third-degree felonies and scared beyond belief.

Isn't it nice to be friends with the local sheriff? Unfortunately for Arafiles, it appears the tables have turned. Now he and the sheriff are the ones accused of taking sensitive, official information and using it as a weapon.

Final question: While the medical board's case against Arafiles has yet to be resolved, what do we know about Galle and Mitchell? In short, they won big. The charges against Galle were dismissed, but Mitchell had to stand trial. She was then by a jury – in less than an hour.

In April 2010, the Department of State Health Services in Texas fined the hospital $15,850 for the firings and for failing to properly supervise Arafiles. The nurses sued the hospital and others and ended up settling in June 2010 for $750,000.

View this doctor on the .

Comments

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Is the account of the patient experiences still available somewhere? I tried the link you provided to the TMB but it didn't seem to work.

 

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Well, I think I found my own answer and thought it might be helpful to you. Casewatch.org has a copy of the complaint against the doctor. Here's their page: 

 

Picture of William Heisel

The link should still work. I just checked it. It takes you to the search page where you have to type in the doctor's name. Perhaps you need to click on the "I Accept the Usage Terms" button. Here that page is:

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Thank you. It worked this time.

My goodness this is all so weird, and scary.  I don't know which part is worse, but the patient (F) coming in with a sinus infection only to have the doctor change the person's thyroid medication and perform a pelvic exam is right up there.  This guy is into pelvic (genitourinary) exams - ick!  Hence, he seems not only an incompetent doctor but a bit of a pervert too.

You write well.

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Doctor rating site online defamation case scheduled for appellate court hearing

Source:

(case # 111154)

The Minnesota Court Of Appeals has scheduled the online defamation case of David McKee MD v Dennis Laurion for a hearing by a panel of three judges. The oral hearing will be November 10, 2011, at 10:00 AM in the Sixth District Court House of Duluth.

Sources:

Dr. David McKee, a neurologist with Northland Neurology and Myology, said he is still 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.

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

McKee said a sudden concentration of unfavorable critiques about him cropped up online 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.com.

Kenneth Laurion spent four days at St. Luke’s hospital in April 2010. John Kelly, Dennis Laurion’s lawyer, told the 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.”

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.

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.

According to the Minnesota Board of Medical Practice website, McKee has had no disciplinary actions brought against him.

“I’m very disappointed by this court’s decision because as far as I can see the only avenue that I can see that I had to respond to this overwhelming attack was through the courts, and for the time being it appears that avenue has been closed without me ever getting a chance to present my evidence,” McKee said.

“Dennis Laurion is a liar and a bully and a coward,” McKee said. “He knowingly made false and malicious statements about me to a total of 19 different professional and medical organizations, regulatory agencies and websites.”

Laurion’s attorney John Kelly was critical of McKee’s reaction to the decision. “I think it’s regrettable that somebody would choose language of that kind in commenting on a court decision,” Kelly said. “Secondly, this case has always been about Mr. Laurion’s reaction to what he perceived to be poor conduct on the doctor’s part in relation to his interaction with his father. And he stood up and said something about that and the judge has agreed that what he said was within the bounds that are permissible under our law.”

Summary Judgment:

References:

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Star Tribune, September 4, 2012, Maura Lerner

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

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

A good portion of the oral arguments were devoted to the meaning of the words that Dennis Laurion, 65, used to describe his family's encounter with McKee in April, 2010, when Laurion's father, Kenneth, then 84, was hospitalized with a stroke.

John Kelly, Laurion's attorney, noted that Internet sites are a "free for all" for people to share opinions and that his client's comments were perfectly appropriate. "We have a word, the word 'tool,'" Kelly told the justices. "When you look at the word, you have to ask: Is it defamatory?" He argued that the phrase, while "it clearly is not a compliment," is no worse than "calling someone an idiot or a fool."

During questioning, some of the justices seemed to agree. "Saying someone's a 'real tool' sounds more like an opinion than a statement of fact," Justice Christopher Dietzen said. Chief Justice Lorie Skjerven Gildea had a similar reaction. "The point of the post is, 'This doctor did not treat my father well,'" she said. "I can't grasp why that wouldn't be protected opinion."

Full Article:

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A man's online post calling a doctor "a real tool" is protected speech, the Minnesota Supreme Court ruled Wednesday. The state's highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient's son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor "a real tool," slang for stupid or foolish.

On Wednesday, the court tossed a lawsuit filed by neurologist David McKee, who claimed he was defamed by several statements made by defendant Dennis Laurion on websites used to rate doctors, report the Duluth News Tribune, the Minneapolis Star Tribune and the Associated Press.

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.

Laurion expressed his dismay in several online posts with what he considered the doctor's insensitive manner.

Laurion had posted his comments on a website where patients review their doctors. The case has been watched with interest because of the potential conflict between free speech versus protection of professional reputations on the Internet.

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!'"

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.

In 2011, State District Judge Eric Hylden ruled that McKee was not defamed by the criticism and dismissed the doctor’s lawsuit.
McKee appealed to the Minnesota Court of Appeals; and in January 2012, that court sent the case back to the district court for a jury to decide whether six statements Laurion posted about McKee on rate-your-doctor websites and distributed elsewhere were defamatory.

Laurion appealed the Court of Appeals decision to the Supreme Court and the case was heard in St. Paul in September.

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.

The ruling also said it doesn't matter whether the unnamed nurse actually exists. McKee's attorney argued that Laurion might have fabricated the nurse, something Laurion's attorney denied. And it said the doctor's objections to Laurion's other comments also failed the required legal tests.

"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.

"I'm sure he and his family are very happy with this result," Laurion's attorney, John Kelly, said. "It's been a long and difficult process for them."

Laurion said the entire experience was stressful on his family.
“The initial excitement has not worn off,” he told the News Tribune. “I’m very gratified it’s all over.”

Laurion, whose father survived the stroke and is now 87, said he feels vindicated -- not in the sense that he's proven the things he said, but that he had the right to express his opinion of a single encounter on a website designed to rate doctors.

He regrets the cost of the litigation -- in his case, the equivalent of two years' income, he said, some of which he had to borrow from relatives who dipped into their retirement funds.

"I regret that it became as painful as it was," Laurion said. "I don't think I regret having posted the comment. I thought at the time that it was my right to do so."

McKee's lawyer, Marshall Tanick, said he and McKee plan no further appeals and that they were disappointed with the ruling.

McKee, a neurologist with Northland Neurology and Myology, said Wednesday 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.

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.

Tanick said the ruling could present a slippery slope. "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.

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."

Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said on Wednesday the justices made the right decision. That being said, “You can’t blame a guy like Dr. McKee for being upset,” Anfinson said. “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.”

Before the Internet, people who complained about others typically did so to a small group of family, friends and acquaintances. “No one in the wider world ever heard them,” Anfinson said. That is no longer the case.

“If you’re a practicing physician or other professional in a highly competitive environment, and this stuff is out there for any potential patient or client to see, it isn’t as simple as a superficial reading of the Supreme Court opinion would suggest,” he said. “I kind of feel for the guy, but the law as it is currently constituted really doesn’t provide him much of a remedy. That is the moral of the story.”

The case highlighted the tension that sometimes develops on ratings sites, such as Yelp and Angie's List, when the free speech rights of patients clash with the rights of doctors, lawyers and other professionals to protect their good names.

Experts say lawsuits over negative professional reviews are relatively uncommon and rarely succeed, partly because the law favors freedom of speech.

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."

While the decision is not binding in other states, Kelly and Tanick agreed that it might influence how other courts would rule on similar questions. Kelly said lawyers often look at rulings from other jurisdictions when they put cases together, sometimes for leads or guidance.

"Certainly this is a cutting edge issue and I'm sure lawyers and courts in other jurisdictions will pay attention to this decision and give it the weight it deserves," Tanick 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.”

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. See my compilation. As you can see from a quick perusal, 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.

Compilation. See:

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From Reddit Reader:
McKee said. “He knowingly made false and malicious statements about me to a total of 19 different professional and medical organizations, regulatory agencies and websites.”

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.

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Although the Minnesota Supreme Court dismissed David McKee MD v 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 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 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.

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