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Plastic Surgeon Sues Online Reviewers Who Gave Her Bad Reviews
from the slapp-anyone-lately? dept
Alan Bleiweiss points us to the news of a plastic surgeon, Kimberly Henry, in Marin, California, who is not at all happy that some people wrote bad reviews of her work on Yelp and DoctorScorecard. You can see the Yelp reviews and DoctorScorecard reviews to see for yourself. It's true that some of them are really quite scathing. Of course, there are all sorts of ways to respond to such things... and Dr. Henry has chosen to sue all of her critics for " libel and defamation, invasion of privacy and interference with prospective economic advantage" and is "seeking $1 million in general damages, $1 million in special damages, unspecified punitive damages, legal costs, injunctions against the reviewers and restraining orders."
Similar lawsuits in the past have ended poorly -- especially in California where there are pretty well-defined anti-SLAPP laws that protect commenters from abusive lawsuits designed to silence criticism. Of course, if the comments actually are defamatory, that might be a different story. If you look at the DoctorScorecard reviews, it's interesting to see some of the reviews have responses from Dr. Henry's office claiming that what's said in the reviews are not true, and there's some back and forth on some of the reviews. It's also interesting to note that DoctorScorecard handed over the IP and email addresses of commenters when asked -- with the guy who runs the site later admitting he didn't realize that he didn't have to do that (and that he no longer does just hand over the info). Update: To clarify, DoctorScorecard received a subpoena, not realizing that a subpoena could be fought.
Similar lawsuits in the past have ended poorly -- especially in California where there are pretty well-defined anti-SLAPP laws that protect commenters from abusive lawsuits designed to silence criticism. Of course, if the comments actually are defamatory, that might be a different story. If you look at the DoctorScorecard reviews, it's interesting to see some of the reviews have responses from Dr. Henry's office claiming that what's said in the reviews are not true, and there's some back and forth on some of the reviews. It's also interesting to note that DoctorScorecard handed over the IP and email addresses of commenters when asked -- with the guy who runs the site later admitting he didn't realize that he didn't have to do that (and that he no longer does just hand over the info). Update: To clarify, DoctorScorecard received a subpoena, not realizing that a subpoena could be fought.
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Reader Comments (rss)
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Subject
I guess the moral of this story is, do not go to her. I hope she loses her license.
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One of Henry's positive reviews has been Annotated by Admin
"No where in the comments by 'RoPhlek' does it reveal that this is Henry or an employee of Henry. But yet, it came from an ISP labeled 'KIMBERLY HENRY MD'. Normally, we delete suspicious scorecards like this, but due to the legal actions by Henry, it seems appropriate to leave the evidence online as it was and let the public decide for themselves if this scorecard comes from a legitimate patient."
http://www.doctorscorecard.com/view?id=Kimberly_Henry_CA#foo
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libel v malpractice
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Never.
Not a single one.
Huh.
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Re: libel v malpractice
There's substandard care and there's actionable failure. You don't get to sue Walmart (successfully) because the clerk is unhelpful, only if they're malicious.
So because the doc has a thin skin and may be incompetent, people should just shut up about it?
That's complete and utter bullshit. If the comments aren't anywhere near libel/slander the doctor completely deserves to get stuck with the defendant's costs.
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HIPAA
As might the Plastic Surgeon?
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it's outrageous
this doctor is an idiot. all this moron has done is steer people who never would've gone to the site, to now go to the site and see what a fuk-up he is. ain't karma grand?
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Funny
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This looks like complete BS.
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Re: libel v malpractice
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Re:
Doesn't realize she is turning pissed of customers that were already complaining publicly... into people that will probably now go out of their way to know what they think about her.
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Re: libel v malpractice
If someone had screw up things and I got a lot of psychological, physical and financial pain, I would be pissed too and would be mighty pissed if that person or entity tried to shut me up because I choose to redress my grievance in public.
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What a dork...
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Re:
That means someone is intentionally trying to interfere with the doctor's business, like if a prospective patient were to read the negative reviews and decide not to hire this doctor.
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Re: HIPAA
If you're the patient creating a scorecard or responding in comments, you can tell everyone all about your medical history if you want to. The doctor cannot give anything but generalities. If the doctor or his/her staff do, then they would be in violation.
If the site provided IP addresses and names, it still really wouldn't be a HIPAA violation, but definitely a privacy act violation.
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Re: Re: libel v malpractice
I don't know why you're bringing up Walmart.
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Re: Re: libel v malpractice
Posting stuff may make you feel good and warn others, but it won't help you recover $$ for negligent care.
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Re: Re: libel v malpractice
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Re: libel v malpractice
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Re: Re: libel v malpractice
It's possible for a patient to willingly waive the right to a jury trial in favor of arbitration. But they would have to be stupid to do that.
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Re: Re: libel v malpractice
Then again, the attorney that's fighting this case for the MD sure saw her coming. I wonder if she's a real blonde 'cause she sure is acting like one. I wonder if the attorney told her that discovery for the case would probably be worse than an unsedated colonoscopy and last for much longer. And IMO, the upside of litigating this is very small. If you win, you're the MD that sued their critics on how bad your skills are. There's is no upside to the Streisand Effect.
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Re: Subject
Really? What facts are you using to conclude that the accusations are true? Accusations are cheap, but accusation doesn't = fact.
Maybe the accusations are true, but is your standard of proof "I read it on the internet"?
Unless you have actual knowledge of the situation the best you, I, or anyone else can say is that "someone doesn't like Dr. Henry"
You need to have a healthy skepticism of everyone -- both the doctor and the posters.
Remember, there is a reason that the standard for justice in this country is "innocent until proven guilty"
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Re: Re: Re: libel v malpractice
Yep, they could also just burn their money.
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Re: Re: Re: libel v malpractice
What strange thing to ask.
"Posting stuff may make you feel good and warn others, but it won't help you recover $$ for negligent care."
Yes, because that's what it's all about - suing for $$$
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Re: Re: Re: Re: libel v malpractice
You say that with such disparagement. But what else can you do? The dual social goals is to discourage carelessness and to try to put the victim in a position he would have been had the carelessness not occurred. Since you can't rewind time, the best you can do is give the victim $$$. If you have any other ideas on how to achieve these two goals, the world would like to hear them.
Public humiliation only achieves the first goal, but not the second. (On the other hand, neither do $$$, but it's the best anyone has come up with).
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Circus folk
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Doctor sues detractor
Mark Stodghill - 06/12/2010
http://www.DuluthNewsTribune.com
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’s 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 didn’t return a call seeking comment. He’s 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’s work 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’s hospital from April 17-21. He recovered from his condition.
McKee alleges that Dennis Laurion called him “a real tool.’’ 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 didn’t need therapy. McKee said that it didn’t matter that the patient’s 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’s 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 actions brought against him.
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Disciplined as Well
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Update: The Doctor Responds
Now mind you, it's February of 2011 right? The comments she replied to were dated March of 2010 and March of 2009. :-)
In the one from 2009 that called her a liar and said she wasn't to be trusted, she writes a diatribe in rebuttal, then at the end closes with
"We are glad that you are feeling better and we look forward to seeing you in the office."
Sincerely Yours,
Dr. Kimberly Henry
Wow. Just wow.
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Re: Doctor sues detractor
http://www.pinejournal.com/event/article/id/191109/publisher_ID/36/
and
http://www.aaronkellylaw.com/Internet-Law-and-Intellectual-Property-Articles/The-WWII-Vet-vs-The -Doctor-A-Case-of-Internet-Defamation.shtml
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doctor's defamation suit dismissed
Superior Telegram
By Mark Stodghill, April 28, 2011
A judge threw out a lawsuit today filed by a Duluth physician who said he was defamed by a man who publicly criticized his bedside manner.
Dr. David McKee, a neurologist with Northland Neurology and Myology, alleged that Dennis Laurion of Duluth defamed him and interfered with his business by making false statements to 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’s hospital, among others.
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 last year. Kenneth Laurion recovered from his condition.
Dennis Laurion claimed that any statements he made about the doctor were true and that he was immune from any liability to the plaintiff.
In his 18-page order dismissing the suit, Sixth Judicial District Judge Eric Hylden wrote that looking at Laurion’s “statements as a whole, the court does not find defamatory meaning, but rather a sometimes emotional discussion of the issues.”
Hylden addressed the fact that Laurion posted some of his criticisms of McKee on websites. “In modern society, there needs to be some give and take, some ability for parties to air their differences,” the judge wrote. “Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory.”
Hylden concluded his order by stating that there wasn’t enough objective information provided to justify asking a jury to decide the matter.
Laurion was relieved by the court’s ruling.
“My parents, who are now 86, my wife and I have found this process very stressful for the past year, since my father’s stroke. There was never just one defendant,” he said. “We’re grateful that Judge Hylden found no need for a trial.”
In his suit, McKee alleged that Laurion made false statements including that McKee “seemed upset” that Kenneth Laurion had been transferred from the Intensive Care Unit to a ward room; that McKee told the Laurion family that he had to “spend time finding out if [the patient] had been transferred or died;” that McKee told the Laurions that 44 percent of hemorrhagic stroke victims die within 30 days; that McKee told the patient that he didn’t need therapy; that McKee said it didn’t matter that the patient’s gown was hanging from his neck with his backside exposed; that McKee blamed the patient for the loss of his time; and that McKee didn’t treat his patient with dignity.
Read more: http://www.grandforksherald.com/event/article/id/197679/publisher_ID/36/
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Polo Outlet
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Re: Subject
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Re: it's outrageous
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Re: Disciplined as Well
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Re: doctor's defamation suit dismissed
See also:
http://hosted.ap.org/dynamic/stories/U/US_ONLINE_RATING_RISKS?SITE=AP&SECTION=HOME& TEMPLATE=DEFAULT
Minnesota high court says online post legally protected
By STEVE KARNOWSKI, January 30, 5:34 PM EST, 2013
http://www.duluthnewstribune.com/event/article/id/257287/
Court protects Duluth doctor's online critic
By: STEVE KUCHERA, Duluth News Tribune, January 30, 2013
http://www.startribune.com/local/189028521.html
Duluth doctor's lawsuit against patient's son over online criticism dismissed
Article by: ABBY SIMONS , Star Tribune, January 30, 2013
http://comments.startribune.com/comments.php?d=content_comments&asset_id=189028521&s ection=/local&comments=true
Star Tribune comments
http://learningboosters.blogspot.com/search/label/.%20McKee%20v%20Laurion
Laurion answers questions
http://blogs.duanemorris.com/duanemorrisnewmedialawblog/entry/bedside_manners_was_the_d octor
Was the doctor defamed?
http://www.mncourts.gov/opinions/sc/current/OPA111154-0130.pdf.
Unanimous ruling of the Supreme Court of Minnesota
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doctor's defamation suit dismissed
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.
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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