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Slap: Patient Punished For Rate-Your-Doctor Posts

Slap: Patient Punished For Rate-Your-Doctor Posts

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dennis laurion, doctor ratings, william heisel, dr. david mckee, reporting on health

I'm not so worried about the ability of to keep letting people download free movies from the Web. I'm more worried about .

You haven't heard of Dennis Laurion?

To me, he's a bigger victim of overreach in the new world of online idea exchange.

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

But McKee thought that Laurion was hurting his business, and so he sued to shut Laurion up.

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

As Mark Stodghill :

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 of 2010. The appellate court determined McKee's defamation suit should proceed regarding six claims Laurion publicly made about McKee:

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

McKee sounded a triumphant note in the Tribune, but Laurion was understandably bummed by the ruling. He wrote to the Tribune:

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, writing 19 letters, and posting 108 adverse Internet postings in person or through proxies. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again, although, to the best of my knowledge, the published statements were made with sincerity.

Frequent Antidote readers might recognize a pattern here. We wrote last year about doctors and clinics have been trying to force patients to sign away their rights to review medical services on websites. And we wrote about one dentist who had threatened to sue a patient who had written a Yelp review about him.

Might McKee have a point? He very well might. Patients and their families are often emotional and under extreme stress during an illness or surgery. Sensitivities can run high, and something could be misinterpreted. But what disturbs me is the trend toward creating an environment where patients are too scared to report their legitimate criticisms.

Online review sites should not be a forum for falsehoods, but defamation suits against patients who post legitimate critiques of medical services are a threat to free speech and a threat to safe medicine.

Comments

Picture of Trangdai Glassey-Tranguyen

"defamation suits against patients who post legitimate critiques of medical services are a threat to free speech and a threat to safe medicine." -- I totally agree, since not every patient has the means/time/interest to post online comments, so of the few we hear from, they should feel safe and have a right to do so.

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The problem is that there are some cases where comments posted are not true or not accurate. I know of one case where a patient posted something bad about a doctor and then it turned out she had mixed up this doctor with someone else !

In another case, there an untrue comment posted by a patient's family member that claimed the doctor did not recognize the cancer the patient had. However the truth was that the doctor had in fact told the patient and the family the patient probably had cancer and needed a biopsy to absolutely diagnosis this. So the anonymous poster erroneously posted a public comment that was not true !! When you accuse someone of not recognizing or diagnosing something, this goes way beyond opinion.

I think that posters should be required to sign in ad be accountable for what they write. This would make them think twice about whether or not they are accurate and responsible with their allegations. Sometimes they are wrong and they don't have the facts.

Picture of Trangdai Glassey-Tranguyen

"defamation suits against patients who post legitimate critiques of medical services are a threat to free speech and a threat to safe medicine." -- A thread indeed. Not every patient has the time/means/interest to post comments online. So of the few that we hear from, they should feel safe to post and have a right to do so.

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Oral hearings for David McKee MD vs Dennis Laurion to be held 9/4/12
At Minnesota Supreme Court, Second Floor, State Capitol, St. Paul MN

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Supreme Court to decide whether Duluth doctor gets jury trial
By: Mark Stodghill, Duluth News Tribune

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

Dr. David McKee, a neurologist with Northland Neurology and Myology, in 2010 filed the defamation lawsuit against Dennis Laurion of Duluth. McKee alleged that Laurion defamed him and interfered with his business by posting false statements on the internet and to various third parties, including the American Academy of Neurology, the American Neurological Association, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s hospital, among others.

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

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

Laurion appealed the Court of Appeals decision to the state Supreme Court and the case was heard in St. Paul on Tuesday. Duluth attorney John Kelly presented Laurion’s position to the high court. “I argued that the posting to a website is part of the context that colors or shapes what Mr. Laurion was trying to do, and the essential nature of one of these websites is to provide subjective feedback and people get lots of subjective feedback from different perspectives and from different experiences,” Kelly said.

“I believe that people going to these websites don’t expect any one recitation or report to be definitive. They’re looking for a range. So seen in that light, what Mr. Laurion was doing was offering his view of an encounter and his overall impression was that the doctor hadn’t responded as well, or wasn’t as respectful, toward his father as he would have hoped.”

Read more:

Video:

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Toledo Blade 8/24/2001 reprints article from Minneapolis – St. Paul Star:
Firm sues over messages on the Internet.
Message board participants have the right to voice their opinions. . .
If a (plaintiff) sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win, said Marshall Tanick . . . The strategy is to force the other person to incur huge legal expenses that will deter them and others. . . very few cases go all the way to trial. A (plaintiff’s) strategy typically includes filing in a state that might be inconvenient and costly for defendants. Lawyers will seek ways to avoid First Amendment issues because they are hard to prove.

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The same lawyer who stated the goal of a defamation suit in 2001 has also explained hoiw to safely criticize a doctor.

In David McKee MD vs Dennis Laurion, Minnesota Supreme Court Case A11-1154, the plaintiff’s attorney, Marshall Tanick, told the Minnesota Supreme Court the correct way to critique a doctor at a rating site.

Taken from comments to Minnesota Supreme Court:

He may have been upset at how Dr. McKee treated his father. Apparently he was, and he’s entitled to say that. He can say that “I’m upset. Doctor McKee did not treat my father well. He was insensitive.” He can make statements like that: “He didn’t spend enough time in my opinion.” He can make factual (sic) statements, he can make them on the Internet, he can make them in letters, he can write a letter to the editor, he can stand in front of St. Luke’s Hospital with a placard saying those things if they are opinions . . .

Case Summary:

Video Link:

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ABBY SIMONS , Star Tribune, January 30, 2013

[ 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.' 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."

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!'"

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.

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." ]


Full article


Comments


Plaintiff remarks about the lawsuit


Defendant remarks about the lawsuit

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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 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.

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.”

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The 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."

Five years from now I shall still notice the money I spent on this.

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.

This 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. From 2010 through 2013, it has been the 800 pound gorilla in the room. My parents would have been 88-year-old witnesses. My mother and wife prefered no discussion, because they didn’t want to think about it. Conversation with my father only reminded him of his anger over this situation. My siblings and children didn’t often bring it up, because they didn’t know how to say anything helpful. I have been demoralized by 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.

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. Newspaper stories have caused people to call or write me to relate their own medical experiences. I’ve referred them to my lawyers. I’ve also received encouragement from other persons who have been sued over accusations of libel or slander.

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. At depositions, the plaintiff and I sat opposite each other, while I answered his lawyer's questions, and he answered my lawyer 's questions. We were not to speak to each other.

Minnesota and two other states allow "hip pocket" lawsuits. The plaintiff can start a suit by sending the summons and complaint to the defendant without filing the documents in court. The plaintiff enjoys complete anonymity from public awareness. The defendant has 20 days to respond, but the court is unaware that the suit exists. The plaintiff can conduct interrogatories and depositions while the court is unaware that the suit exists. The plaintiff can send settlement demands to the defendant 's insurance company while the court is unaware that the suit exists. Until the suit is actually filed, the plaintiff’s lawyer orchestrates everything as the officer of the court. If the defendant files his answer, in order to publicly get onto the docket and under the supervision of a judge, the defendant pays the filing fee. In Minnesota, if the plaintiff loses his effort at rule by law, the rule of law generally allows the defendant no remuneration. The plaintiff can lose the suit while winning the battle of financial attrition.

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This lawsuit, McKee v Laurion, was named among "The top lawsuits of 2013" by "Twin Cities Business Magazine” on 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.

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REPLY: 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.

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The Court found that the statements, when compared to representations made by Dr. David McKee in his deposition, were “true in substance” and therefore, not actionable. The court also found that the statements failed to convey a defamatory meaning because they failed to harm Dr. McKee’s reputation in the eyes of the community. Specifically, the court noted that the statements did not call into Dr. McKee’s competency as a physician.

Defense Lawyers Defense Leaders
January 31, 2013

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