Wednesday, January 30, 2013

McKee v. Laurion resolved: Online comments about doctors are protected speech, not defamation

It's okay to rate doctors in online reviews.

The Minnesota Supreme Court agrees with Mr. Dennis Laurion that patients and their families have a right to comment on the Internet regarding doctors' behavior. Patients also have the right to report their opinions to medical groups. I don't know what country Dr. McKee thought he was living in. I believe Dr. McKee proved that he has a bad attitude by hounding Mr. Laurion through the courts.

See: Dennis Laurion answers questions.
See: Can you tag your doctor a 'tool' online?
See Doctors Silencing Patients on Thank Heaven for Insurance Companies blog.
Read the decision HERE.

Court: Calling a doctor 'a tool' is protected speech
by Bob Collins
MPR News
January 30, 2013

The Minnesota Supreme Court has thrown out the case against a man for rating a doctor online.

Kenneth Laurion had a stroke in 2010 and was examined in the hospital by neurosurgeon Dr. David McKee in Duluth. Laurion's son found McKee to be "rude and insensitive" during the 20-minute examination.

So he posted the following on some "rate-your-doctor" websites:

My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and a physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, "When you weren't in ICU, I had to spend time finding out if you transferred or died." When we gaped at him, he said, "Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option." My father mentioned that he'd been seen by a physical therapist and speech therapist. Dr. McKee said, "Therapists? You don't need therapy." He pulled my father to a sitting position and asked him to get out of bed and walk.[] When my father said his gown was just hanging from his neck without a back, Dr. McKee said, "That doesn't matter." My wife said, "It matters to us; let us go into the hall." Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or myself. When I mentioned Dr. McKee's name to a friend who is a nurse, she said, "Dr. McKee is a real tool!" McKee sued for defamation. A district court judge court threw the case out, but an appeals court kept the defamation claims intact.

Today, the Minnesota Supreme Court threw those claims out, too, saying there's no indication they were false, and there does not appear to be any harm to the doctor.

Statement 3 was published as follows: "Dr. McKee said, 'Therapists? You don't need therapy.' " We fail to see how this statement, standing alone, is capable of a defamatory meaning that would harm Dr. McKee in the eyes of the community. By itself, Statement 3 is harmless. Doctors routinely evaluate whether therapy is appropriate for a given patient.

Of particular interest in the case is the debate over whether calling a doctor "a tool" is protected speech.

It is, the court said today:

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.... See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990). We conclude that it is an opinion amounting to "mere vituperation and abuse" or "rhetorical hyperbole" that cannot be the basis for a defamation action. (explaining that people often engage in name-calling "without any real intent to make a defamatory assertion, and it is properly understood by reasonable listeners to amount to nothing more").

Nonetheless, the assertion that a nurse told Laurion that Dr. McKee is a "real tool" is one of fact because whether a nurse actually made the statement to Laurion is an assertion that can be proven true or false. Dr. McKee argues that Laurion's possible fabrication of the existence of the nurse, and thus the statement attributed to the nurse, creates a genuine issue of fact as to the falsity of Statement 6. As described above, Laurion's assertion that the nurse made the statement to him and the implicit assertion that the nurse exists are susceptible to proof. We nevertheless conclude that even though Statement 6 includes a factual assertion that can be proven true or false, Statement 6 is not actionable because the statement is incapable of conveying a defamatory meaning. First, the part of the statement that can be proven true or false--whether a nurse made the statement to Laurion--does not itself place Dr. McKee in a negative light even if it is false. The assertion that a nurse made the statement only has the potential to cast Dr. McKee in a negative light when combined with the second part of the statement--that Dr. McKee is a "real tool." However, attributing the statement to an unidentified nurse does not add defamatory meaning to the statement.

As a final matter, a review of Laurion's online posting as a whole does not change our holding in this case. Given the reasoning underlying our conclusion that the six individual statements at issue are not actionable, it would defy logic to conclude that the posting, when viewed as a whole, is somehow actionable. Therefore, we reject any argument that the totality of Laurion's statements makes his online posting actionable.

Nonetheless, there's clearly a lesson here regarding posting material online: Be careful.

Jeff Hermes, director of the Citizens Media Law Project at Harvard University's Berkman Center for Internet and Society, told the Associated Press at the beginning of the case that "people who want to post critical reviews should think about whether they can back up their statements. And they can strengthen their position by stating the facts on which their opinions are based."

"The reality is that we bet our house every time that we post content online," Goldman told the AP. "It's a lousy answer from a societal standpoint because we need people to share their experiences so vendors will be punished or rewarded as appropriate."

Comments (4) Wow, if I sued when someone called me a name, people might think I was a real tool! Posted by GT | January 30, 2013 11:01 AM...

19 comments:

McKee V. Laurion said...

McKee v Laurion cited as precedent by UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT upon Appeal from the United States District Court for the Eastern District of North Carolina.

Page 13 of http://www.ca4.uscourts.gov/Opinions/Unpublished/121287.U.pdf says "McKee v. Laurion , 825 N.W.2d 725, 729 - 30 (Minn. 2013) A defamation claim cannot be based on a true statement. "True statements” include statements that are “true in substance” and contain only “minor inaccuracies of expression or detail.” In articulating this standard, the Minnesota courts explain that “substantial truth ” means that “the substance, the gist, the sting , of the libelous charge [is] justified” and the statement “would have the same effect on the mind of the reader or listener as that which the pleaded truth would have produced.”

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CanadiaN Bacon said...

“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

Dennis said...

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…”

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.

Laurion said...

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. 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.

What it’s like for a patient or family member to be caught up in a case like this was already described by the plaintiff’s lawyer in a Star Tribune newspaper article, “Company sues over info put on Yahoo message board,” August 27, 2001, and repeated in http://chronicle.augusta.com/stories/2001/08/27/bus_321610.shtml . It said in part: “If a company sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win,” said Marshall Tanick, a First Amendment expert at Mansfield & Tanick in Minneapolis. “The strategy is to force the other person to incur huge legal expenses that will deter them and others from making such statements,” he said … “yet very few (cases) go all the way to trial and verdict,” Tanick said.

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.

It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father’s room. The public could decide what to believe and what - if any - impact it had on them: insensitive doctor or overly-sensitive consumer?

Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit - for fear of creating the “Streisand Effect.” As a retired layman, I brought far less resources to the battle of financial attrition.

Gradual Student said...

“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

Harry Nevus said...

“DOC’S DEFAMATION LAWSUIT: THE PATIENT’S SIDE”
PHYSICIANS WEEKLY BY SKEPTICAL SCALPEL

Are you familiar with a case in Minnesota where a doctor sued a patient’s son for defamation over a negative review he posted? Dr. David McKee’s defamation lawsuit recently came up again because BuzzFeed posted an article entitled “Insult And Injury: How Doctors Are Losing The War Against Trolls.” (The Jake Rossen article - http://www.buzzfeed.com/jakerossen/insult-and-injury-inside-the-webs-one-sided-war-on-doctors - would appear here but is deleted because Gradual Student posted it above May 7)

I tweeted a link to that article, and Dennis Laurion, whose father was the patient in the Minnesota, case wrote to me. (Laurion's reply to Jake Rossen’s article would be here, but it was posted above on May 7.)

Correspondence of Skeptical Scalpel and Dennis K. Laurion:

[Scalpel] I very much appreciate your email and the clarification of your situation. I hope you realize that I personally took no side in the dispute you had with Dr. McKee.

[Laurion] Thanks, Doctor, for the courtesy of your reply. I do realize that you just tweeted the existence of the article.

[Scalpel] Most of the stories about your case tended to sympathize with the doctor and, his defamation suit brought far more attention to him and his behavior than if he had simply let it go. Is the litigation completely over?

[Laurion] Yes. For a while, the plaintiff threatened in settlement demands, to sue me for 500+ remarks made on Reddit.com. His “proof” was that most of the remarks came from Duluth, and I live in Duluth; he also lives and works in Duluth. He threatened to subpoena IP numbers and sue every poster, presumably all my relatives and friends, if I didn’t settle. I hadn’t posted to Reddit, I don’t know anybody who did, and nobody ever asked my ISP for my IP number or browsing history.

[Scalpel] Did you win the case?

[Laurion] I won dismissal from the Minnesota Supreme Court; he won the right to make me spend $56K I didn’t have. Minnesota allows “hip pocket lawsuits.” The plaintiff served me but didn’t file in court. He almost immediately asked my insurance company for a settlement, apology, and confidentiality agreement. This lawsuit was apparently supposed to last 3 weeks and never be filed in court; however, my insurance company doesn’t offer me defamation coverage, and I filed my reply through the court, putting the suit into public record and the attention of newspapers.

[Scalpel] Do you have any recourse as far as say, counter-suing Dr. McKee?

[Laurion] No. In Minnesota, each party is responsible for their own legal fees. Dr. McKee had to reimburse me about $2000 of filing fees and printing costs. I’d have contemplated a suit for abuse of process, but the Appellate Court’s decision not to dismiss tended to dilute my complaint.

[Scalpel] Are you familiar with strategic lawsuit against public participation lawsuits? If I recall correctly, your case took place in Minnesota which has an anti-SLAPP law.

[Laurion] I wanted my lawyer to file a SLAPP motion, but Minnesota SLAPP law only applies to actions that are wholly or in part government petitions. The plaintiff’ only charged me for my internet rating site reviews and mention of my letter to the Medicare Ombudsman, the County Health Department, or the Minnesota Board of Medical Review; however, my comments to those sources were quoted in briefs and newspaper comments.

Reference: http://www.physiciansweekly.com/docs-defamation-lawsuit-patients-side/

Skeptical Scalpel is a retired surgeon and was a surgical department chairman and residency program director for many years. He blogs at SkepticalScalpel.blogspot.com and tweets as @SkepticScalpel.

Uranus said...

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

Gradual Student said...

To follow the court progress or for information about the plaintiff and defendant - Sally Vogl-Bauer V. Anthony Llewellyn, not David McKee MD V. Dennis Laurion -

1. Visit http://wcca.wicourts.gov/index.xsl .
2. Click "I agree" .
3. You'll be taken to http://wcca.wicourts.gov/simpleCaseSearch.xsl;jsessionid=640964EA587D052C62E1CAF493A883FA.render6 .
4. Name = Llewellyn .
5. County = Walworth .
6. Case Number = 2013CV001140 .

W├╝tend Hund said...

David McKee, MD V. Dennis Laurion has precedent become.

David McKee, MD V. Dennis Laurion (Minnesota Supreme Court Case Number A11-1153) was in United States Court of Appeals, Eighth Circuit, Case Number 12-3625, Dave THOMAS v. UNITED STEELWORKERS LOCAL 1938 and so further, cited.

[[ Dave Thomas appealed the district court’s grant of summary judgment in favor of United Steelworkers Local 1938 (Local 1938); United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW); and Jon Malek on Thomas’s state-law defamation claim arising out of a fact-finding meeting concerning a workplace dispute. In affirming the dismissal, the United States Court of Appeals, Eighth Circuit, Decision, filed February 20, 2014 stated:

[[ To satisfy the falsity element of a defamation claim under Minnesota law, “a plaintiff must make an initial demonstration that there is a material dispute as to the truth or falsity of the statements at issue,” Weinberger v. Maplewood Review, 668 N.W.2d 667, 680 (Minn.2003), and “ ‘[o]nly statements that present or imply the existence of fact that can be proven true or false are actionable.’ “ Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1147 (8th Cir.2012) (alteration in original) (quoting Schlieman, 637 N.W.2d at 308). For instance, “[i]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 facts,’ the statement is not actionable.” Id. (quoting Schlieman, 637 N.W.2d at 308). Whether a statement is an opinion or fact is a matter of law, Lund v. Chi. & Nw. Transp. Co., 467 N.W.2d 366, 369 (Minn.Ct.App.1991), but “the truth or falsity of a statement is inherently within the province of a jury.” Kuechle v. Life’s Companion P.C.A., Inc., 653 N.W.2d 214, 218 (Minn.Ct.App.2002). “ ‘[T]rue statements, however disparaging, are not actionable.’ “ McKee v. Laurion, 825 N.W.2d 725, 730 (Minn.2013)

[[ We agree with the district court that Malek’s statements that “Thomas is a prick,” “he is tired of [Thomas's] crap,” and he “is not going to put up with his sh-anymore” are all statements of Malek’s subjective view or opinion and, by themselves, are not actionable as a matter of law. See McKee v. Laurion, 825 N.W.2d at 733; see also Lund, 467 N.W.2d at 369 (holding that statements at issue were protected expressions of opinion because they lacked specificity and precision, and the factual implications concerning such statements were unclear). We do not, however, agree with the district court’s conclusion as it relates to the remaining statements.

[[ Although we are aware that Minnesota courts have held “[m]inor inaccuracies do not amount to falsity so long as the substance, the gist, the sting,” of the defaming statement can be justified, McKee v. Laurion, 825 N.W.2d at 730 (internal quotation marks omitted)), the inaccuracies here are substantial enough to create a genuine dispute of material fact as to their truth. ]]

Anonymous said...

David McKee, MD V. Dennis Laurion (Minnesota Supreme Court Case Number A11-1153) has been cited in State of Minnesota Court of Appeals Case Number A13-1012, Connie Grill, Appellant, V. North Star Mutual Insurance Company., Respondent.

Grill sued North Star for denial of her total - loss claim, and the district court granted summary judgment to North Star and denied Grill’s claim for living expenses. In affirming the dismissal, the Court of Appeals Opinion filed January 27, 2014 stated:

A district court properly grants summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits. . . show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. Appellate courts conduct a de novo review of the district court’s summary - judgment decision and “view the evidence in the light most favorable to the party against whom summary judgment was granted.” McKee v. Laurion, 825 N.W.2d 725, 729 (Minn. 2013).

Tribune Reader said...

Gradual Student said {{ 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.}}

Duluth News Tribune, Saturday, June, 12, 2010

[ Article begins ] A Duluth physician is suing the son of a former patient for publicly criticizing his bedside manner. Dr. David McKee, a neurologist with Northland Neurology and Myology, filed the lawsuit, which was made public Friday, in St. Louis County District Court. McKee alleges that Dennis Laurion of Duluth defamed him and interfered with his business by making false statements to various third parties, including 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 hospital, among others.


Laurion claims that any statements he made about the doctor were true and that he is immune from any liability to the plaintiff. He referred questions to his Duluth attorney, John Kelly.


McKee is asking for more than $50,000 in damages. The doctor was paged Friday but did not return a call seeking comment. He is being represented by Minneapolis attorney Marshall Tanick, who in a phone interview alleged that Laurion defamed his client in several ways, including posting negative reviews of McKee on various websites. The basis for the lawsuit is the defamatory statements that were made on websites and to other sources, Tanick said. However, by no means does Dr. McKee want to in any way prevent or affect any kind of communications that may be made to the Board of Medical Practice or any other regulatory agencies. The purpose of the lawsuit is to prevent defamation being made on the websites and through other sources.


Kenneth Laurion, 85, a Navy combat medic in the Solomon Islands during World War II, suffered a hemorrhagic stroke and spent four days at St. Luke hospital from April 17-21. He recovered from his condition.


McKee also alleges that the defendant made false statements about him to others including: McKee seemed upset’ that Kenneth Laurion had been transferred from the Intensive Care Unit to a ward room. McKee told the Laurions that he had to spend time finding out if [the patient] had been transferred or died. McKee told the Laurions that 44 percent of hemorrhagic stroke victims die within 30 days. McKee told the patient that he did not need therapy. McKee said that it didn’t matter that the patient gown was hanging from his neck with his backside exposed. McKee blamed the patient for the loss of his time. McKee didn’t treat his patient with dignity.


Defense attorney Kelly said it was a tense and emotional situation for the Laurion family. They were worried about Dad and the doctor comes along and, from their point of view, of what they saw and what they heard, they felt that the doctor didn’t act appropriately toward the father, Kelly said. So, among other things, they saw fit to report it to the hospital and to the Board of Medical Practice, which they have every right to do under the patient Bill of Rights, and they get sued.


Kelly said his client did post ratings of McKee on some websites but said he asked to have them removed, and they were. The defense attorney thinks that the lawsuit is without merit. “I think it is an unfortunate incident of someone attempting to punish a person who has spoken out of concern for a family member,” Kelly said.


According to the Minnesota Board of Medical Practice website, McKee has had no disciplinary action brought against him. [ Article ends ]


Star Tribune Reader said...

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.”

Court Watch said...

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.

Eschew Obfuscation said...

Star Tribune Reader said [[ 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. ]]

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.”

Goldman Fan said...

Marshall Tanick of Hellmuth Johnson 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 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.”

Maura Larkins said...

Doctors should do a better job of policing themselves. They should work to improve the care they give. They tend to protect each other from responsibility rather than working to make sure that patients get proper care.

Who are we kidding when we pretend that doctors don't deserve criticism? They're human beings; they make mistakes. Also, sometimes they intentionally ignore patient needs. They are pulling in a huge portion of our economy, and putting a great deal of stress on that economy. They shouldn't be allowed to operate under a veil of secrecy.

Anonymous said...

Timothy Edwards comments about Ms. Sally Vogl-Bauer's intentions to welcome criticism but sue defamation cause me to think defamation plaintiff lawyers must use templates for talking to the press.

Professor Sally Vogl-Bauer's lawyer, Timothy [[ Edwards released a statement: “Students have a right to express their opinion, 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.” ]]

[[ “When you make false statements of fact repeatedly about another person with the intent of harming them, that’s over the line,” said Tim Edwards, attorney for UW-Whitewater communications professor Sally Vogl-Bauer. “If you truthfully say, ‘In my experience, this isn’t a good teacher, I didn’t have a good experience, she was late’ and that’s your opinion,
that’s fair,” Edwards said. ]]

A Duluth News Tribune article of June 2010 quoted Marshall Tanick, now employed by Hellmuth Johnson law firm, who in a phone interview alleged that Laurion defamed his client in several ways, including posting negative reviews of McKee on various websites. "The basis for the lawsuit is the defamatory statements that were made on websites and to other sources," Tanick said. "However, by no means does Dr. McKee want to in any way prevent or affect any kind of communications that may be made to the Board of Medical Practice or any other regulatory agencies. The purpose of the lawsuit is to prevent defamation being made on the websites and through other sources."

Duluth News Tribune, November 10, 2011: “The doctor maintains he was vilified unjustly and inaccurately on the Internet and in postings and correspondence to colleagues and peers and thinks that Mr. Laurion falsified statements and incidents that did not occur,” Minneapolis attorney Marshall Tanick said outside the courtroom after the hearing. “We maintain the case should be submitted to a jury to ensure that Dr. McKee and Mr. Laurion have their day in court so that the jury may determine this important issue.” Tanick told the panel his client is a highly regarded neurologist who has been defamed by Laurion’s comments, which appear pervasively on the Internet and falsely portray McKee as being insensitive and incompetent.

From Minneapolis Star Tribune March 25, 2012: 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. "He put words in the doctor's mouth," making McKee "sound uncaring, unsympathetic or just stupid."

Taken from videotaped 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 . . ."

From BuzzFeed, 2014: 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.”

Anonymous said...

{{ 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 . . ." }}

Doctor Sues And Gets A Ham

He can stand at St. Luke's
With a placard of rebukes.
He can say "I'm upset."
He can say it till he's wet.
He can write some letters,
To those he thinks his betters.

He can say it here or there.
"I don't like him anywhere."
He can say it in a house.
"I don't like him with a mouse,
I don't like him here or there,
I don't like him anywhere."

He can say it in a car.
He can say it in a tree.
"I don't like him in a box,
I don't like him with a fox,
I don't like him in a house,
I don't like him with a mouse,
I don't like him here or there,
I don't like him anywhere."

He can say it in on a train.
He can say it in the rain
He can say it in the dark.
He can say it in the park.
"I don't like him in on a train,
I don't like him in the rain,
I don't like him in the park,
I don't like him in the rain,
I don't like him with a goat,
I don't like him on a boat."

He can say it here or there,
He can say it anywhere,
He can speak till numb,
Even if some should say,
There should be some
Awful Hell Toupee.