UPDATE: Dennis Laurion wins victory for free speech in Minnesota Supreme Court against doctor who tried to silence him.
Should patients be punished for filing complaints to medical groups?
Doctor's suit tests limits of online criticism
By Maura Lerner
JewishWorldReview.com (MCT)
Two years ago, Dennis Laurion logged on to a rate-your-doctor website to vent about a Duluth, Minnesota neurologist, Dr. David McKee.
McKee had examined Laurion's father, Kenneth, when he was hospitalized after a stroke. The family, Laurion wrote, wasn't happy with his bedside manner. "When I mentioned Dr. McKee's name to a friend who is a nurse, she said, 'Dr. McKee is a real tool!'" he wrote.
McKee wasn't amused. He sued Laurion for defamation, and now the case is pending before the Minnesota Supreme Court.
McKee, 50, is one of a small number of doctors who have gone to court to fight online critics, in cases that are testing the limits of free speech on the Internet. "Doctors are not used to public criticism," said Eric Goldman, an associate professor at the Santa Clara University School of Law in California, who tracks such lawsuits. "So it's a new phenomenon for them."
While such cases are rare, Goldman said, they've been popping up around the country as patient review sites such as vitals.com and rateyourdoctor.com have flourished. Defamation suits are "kind of the nuclear option," Goldman said. "It's the thing that you go to when everything else has failed."
McKee's lawyer, Marshall Tanick, said the doctor felt he had no choice but to sue to protect his reputation and his medical practice.
"It's like removing graffiti from a wall," said Tanick. He said Laurion distorted the facts -- not only on the Internet, but in more than a dozen complaint letters to various medical groups...
6 comments:
Tangential to David McKee MD vs Dennis Laurion, Minnesota Supreme Court Case A11-1154, the utility of a defamation lawsuit was discussed in an August 24, 2001, Toledo Blade article reprinted from the Minneapolis – St. Paul Star Tribune:
. . . If a company 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 company’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.
These comments can be found at:
http://news.google.com/newspapers?id=MB0VAAAAIBAJ&sjid=wgMEAAAAIBAJ&pg=6682%2C2701449
and
http://chronicle.augusta.com/stories/2001/08/27/bus_321610.shtml .
The plaintiff’s attorney 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 . . .
Video:
http://www.tpt.org/courts/MNJudicialBranchvideo_NEW.php?number=A111154#
According to the First Amendment Center, the Associated Press also wrote about David McKee MD vs Dennis Laurion.
Associated Press - Critical online reviews carry risks
MINNEAPOLIS — A Duluth doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.”
So Dr. David McKee had an unusually aggressive response: He sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.
“His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick.
McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names.
“Patients now have power to affect their businesses in ways they never had,” said Eric Goldman, a professor at the Santa Clara University School of Law who studies the issue. Health care providers are “evolving how to deal with patient feedback, but they’re still in the process of learning how to do that.”
Most online reviews never provoke any response. And successful challenges to negative reviews are rare. Americans are legally entitled to express opinions, as long as they don’t knowingly make false statements.
But if the two sides contest basic facts, disputes can swiftly escalate.
At issue are six of Dennis Laurion’s statements, including the account of the nurse’s name calling. McKee and his attorney say the unnamed nurse doesn’t exist and that Laurion invented her to hide behind. Laurion maintains she is real, but he can’t recall her name.
In arguments before the court in September, Laurion’s attorney John Kelly said his client’s statements were legally protected opinion that conveyed dismay over how McKee treated Laurion’s father, who had suffered a stroke. The posts described a single visit that lasted 10 to 15 minutes.
The review said McKee seemed upset that after Laurion’s father had been moved from intensive care to a regular hospital room, the doctor “had to spend time finding out if you transferred or died.”
Laurion also complained that McKee treated them brusquely and was insensitive to the family’s concerns about the patient being seen in public in a gown that gaped open in the back.
In an interview, Kelly said nothing Laurion posted was defamatory — a false statement that harms a person’s reputation.
The court is expected to rule on the case sometime in the next few months.
Lawsuits over professional reviews are uncommon in part because most patients write positive reviews, Goldman said. And many states have passed laws that block the kind of lawsuits that are filed mainly to scare someone into shutting up on matters of public concern.
Known as “strategic lawsuits against public participation,” those complaints are often forbidden by broad laws that protect criticism even if it’s wrong, Goldman said.
When health care providers do sue, they rarely succeed. Of 28 such lawsuits that Goldman tracked, 16 had been dismissed and six settled. The others were pending.
Yelp says reviewers are well within their rights to express opinions and relate their experiences. Spokeswoman Kristen Whisenand says the company discourages professionals from using what she called the “nuclear option” of suing over a negative review. She said they rarely succeed and wind up drawing more attention to the review they dislike.
Source:
http://www.firstamendmentcenter.org/virtual-reviews-can-carry-real-world-risks
Twin Cities Business Magazine named David McKee MD v Dennis Laurion as one of top 3 lawsuits in Minnesota during 2013.
------------------
Never Shout "He's a Tool!" On a Crowded Website?
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.
UW-Whitewater professor sues student over postings
By Associated Press
Published: 11:31 EST, 22 May 2014 | Updated: 11:31 EST, 22 May 2014
WHITEWATER, Wis. (AP) — A University of Wisconsin-Whitewater professor is suing a former graduate student who posted online comments and videos that the teacher considers defamatory.
Anthony Llewellyn took a class last year from communications professor Sally Vogl-Bauer, but the experience didn't go well, the Janesville Gazette reported (http://bit.ly/1hcjNmn ) Thursday.
Llewellyn posted comments on professor-rating sites accusing the teacher of criticizing his academic abilities, grading him unfairly and causing him to fail out of school. He said he spoke with her in April about his concerns, two months before he was told he had failed her class.
Vogl-Bauer contends the comments amount to defamation, while Llewellyn says his goal was simply to inform the public about how the professor treated him.
Tim Edwards, the attorney representing Vogl-Bauer, said the comments could be especially damaging to someone in a small professional community. He said he and Vogl-Bauer agree that students should be allowed to express their opinions, "but when you go so far beyond that, into a concerted effort to attack somebody's reputation because things didn't go your way, that's much different."
Edwards and Vogl-Bauer asked Llewellyn to take down his online comments and videos. They filed the lawsuit after he refused.
Llewellyn said it's important for the videos and comments to stay online so the public can remain informed.
"I don't feel I've (gone) too far with my videos and comments because everything posted basically communicates exactly how Sally Vogl-Bauer treated me," Llewellyn said.
The lawsuit seeks punitive damages and attorney and trial fees. The case is scheduled to go a jury trial in September.
It's not clear how successful the lawsuit will be, but a similar case in Minnesota ended with a ruling in favor of the person who posted the online rating.
In the case (David McKee MD vs Dennis Laurion), a doctor took offense when a patient's son went on a rate-your-doctor website and called him "a real tool," slang for stupid or foolish. The Minnesota Supreme Court ruled in January 2013 that the comment wasn't defamatory because it was an opinion protected by free-speech rights.
___
Information from: The Janesville Gazette, http://www.gazetteextra.com
UW-Whitewater professor sues student over postings
By Associated Press
Published: 11:31 EST, 22 May 2014 | Updated: 11:31 EST, 22 May 2014
WHITEWATER, Wis. (AP) — A University of Wisconsin-Whitewater professor is suing a former graduate student who posted online comments and videos that the teacher considers defamatory.
Anthony Llewellyn took a class last year from communications professor Sally Vogl-Bauer, but the experience didn't go well, the Janesville Gazette reported (http://bit.ly/1hcjNmn ) Thursday.
Llewellyn posted comments on professor-rating sites accusing the teacher of criticizing his academic abilities, grading him unfairly and causing him to fail out of school. He said he spoke with her in April about his concerns, two months before he was told he had failed her class.
Vogl-Bauer contends the comments amount to defamation, while Llewellyn says his goal was simply to inform the public about how the professor treated him.
Tim Edwards, the attorney representing Vogl-Bauer, said the comments could be especially damaging to someone in a small professional community. He said he and Vogl-Bauer agree that students should be allowed to express their opinions, "but when you go so far beyond that, into a concerted effort to attack somebody's reputation because things didn't go your way, that's much different."
Edwards and Vogl-Bauer asked Llewellyn to take down his online comments and videos. They filed the lawsuit after he refused.
Llewellyn said it's important for the videos and comments to stay online so the public can remain informed.
"I don't feel I've (gone) too far with my videos and comments because everything posted basically communicates exactly how Sally Vogl-Bauer treated me," Llewellyn said.
The lawsuit seeks punitive damages and attorney and trial fees. The case is scheduled to go a jury trial in September.
It's not clear how successful the lawsuit will be, but a similar case in Minnesota ended with a ruling in favor of the person who posted the online rating.
In the case (David McKee MD vs Dennis Laurion), a doctor took offense when a patient's son went on a rate-your-doctor website and called him "a real tool," slang for stupid or foolish. The Minnesota Supreme Court ruled in January 2013 that the comment wasn't defamatory because it was an opinion protected by free-speech rights.
___
Information from: The Janesville Gazette, http://www.gazetteextra.com
Post a Comment