Supreme Court considering case of Duluth doc who sued after reviewer called him "a real tool"

Categories: Health Care, Law
stethoscope.jpeg
Image by Tatiana Craine -- Dr. McKee picture from Quora
Dr. McKee claims a negative online review of his work constitutes defamation.
Two years ago, Dennis Laurion, upset about the way his stroke-afflicted father was treated by Duluth neurologist Dr. David McKee, took to a rate-your-doctor website to express his displeasure.

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"When I mentioned Dr. McKee's name to a friend who is a nurse, she said, 'Dr. McKee is a real tool!'" Laurion wrote. Dr. McKee later sued for $50,000 in damages, alleging that Laurion's review defamed him. In April 2011, a district judge threw out McKee's suit, but in January, an appeals court overruled the district court and green-lighted the defamation case. Now, the status of Dr. McKee's lawsuit is being considered by the Minnesota Supreme Court, which is expected to issue its ruling sometime during the next few months.

From the Jewish World Review:
In his online postings, Dennis Laurion wrote that McKee "seemed upset" because he thought his father, then 84, was still in intensive care.

"Never having met my father or his family, Dr. McKee said, 'When you weren't in the ICU, I had to spend time finding out if you transferred or died,'" according to Laurion's account. "When we gaped at him, he said, 'Well, 44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option.'"

Laurion, who was visiting with his wife and mother, wrote that McKee was brusque and dismissive during the exam, especially when his father raised concerns that his hospital gown was hanging open at the back. "Dr. McKee said, 'That doesn't matter,'" according to Laurion's account. "My wife said, 'It matters to us,'" and they left the room.
McKee claims he spent more than $7,000 to "scrub" more than 100 negative comments about his work, many of them originating from a single IP address in Duluth, the Review reports.

The Duluth News Tribune places Dr. McKee's case in its broader context:
McKee's case highlights the tension that sometimes develops on websites such as Yelp and Angie's List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their names.

"Patients now have power to affect their businesses in ways they never had," said Eric Goldman, a professor at the Santa Clara University School of Law who studies the issue. Health care providers are "evolving how to deal with patient feedback, but they're still in the process of learning how to do that."

Most online reviews never provoke any response. And successful challenges to negative reviews are rare. Americans are legally entitled to express opinions, as long as they don't knowingly make false statements.

But if the two sides contest basic facts, disputes can swiftly escalate.
For what it's worth, Dr. McKee has received mixed reviews on ratemds.com, though some of the negative reviewers cite his court case as a reason they dislike his work.



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6 comments
tryingourpatients
tryingourpatients

“The Streisand Effect.” refers to the consequence of inviting even more negative attention by trying to remove negative attention. (The) inspiration was Barbra Streisand’s objecting to a photo of her house in California being made part of a series documenting coastal erosion. Her complaints made the image far more pervasive online than it would have been had she simply ignored it.

David McKee, M.D., a Duluth, Minn., neurologist, was unaware of this phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

McKee asked if Kenneth felt like getting out of bed so he could make an assessment on mobility. He did, though his gown was partially undone in the back. According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

The family exited the room while McKee conducted a brief examination. Laurion says he returned to find his father partially conscious. His head, Laurion asserts, was “pushed against the railing” of the hospital bed, appearing to be a victim of postural hypotension that resulted in a brief fainting spell.

Unaware of any resentment, McKee went to the nurse’s station to dictate notes; an irritated Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. At no point did he approach McKee to clear the air. Instead, he fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events. McKee claims the writer called him shortly before close of business Friday to solicit a quote; the story ran the following day. “The article was written like I was being reviewed for misconduct,” McKee says. In fact, no action had been taken against him by any of the organizations Laurion had written to.

Two events further demoralized McKee. In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. Worse, a user on Reddit.com 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.” Their software was apparently unable to determine that a surge of opinion over a matter of hours was highly unusual activity for a physician who normally received perhaps three comments in a year.

McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

Law professor Eric Goldman, who says he feels physicians are “thin-skinned” when it comes to patient complaints, is confident that litigation is never the answer. “I imagine many lawyers saying that’s not good idea,” he says. “Good lawyers, anyway. McKee made a bad call. There are no winners in defamation lawsuits, and you should advise clients of that.”

McKee was rated for several years as a top provider in Duluth Superior Magazine, a well-regarded lifestyle publication that recently folded. But his online reputation will outlive that. “From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”

Full article:

http://www.buzzfeed.com/jakerossen/insult-and-injury-inside-the-webs-one-sided-war-on-doctors

laurion
laurion

In spite of the Supreme Court decision, 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.

tryingourpatients
tryingourpatients

This lawsuit, McKee v Laurion, was named among "The top lawsuits of 2013" by "Twin Cities Business Magazine” on December 20, 2013:

If hamburgers could sue, the courts (like the eater’s arteries) would be clogged. Scroll down any of the dozens of websites that rate restaurants and you’ll see food described in the vilest terms: hog slop, garbage-dump-ready, rat -meat. The proliferation of rating sites shows both that these sites are providing an appreciated service and that people love to give their opinion. But when you move from hamburgers and hotel rooms to rating people, quite often the fun ends.

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.

laurion
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. It has been the 800 pound gorilla in the room. 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.

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.

Andy Franson
Andy Franson

If he is suing he could be... gotta hear the full story...(defamation of character?)

laurion
laurion

@tryingourpatients  

As one of the “trolls” detailed in the article, I have no issue with the accuracy of the text - at least as it pertains to me - but the tone of the title fails to distinguish sincere complaints about bedside manner from attacks on mental stability, attacks on medical prowess, fake websites, allegations of dangerous injections, and use of multiple identities. The author said “McKee and Laurion agree on substance…”

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.

 

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