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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    BruceLD, Jul 15th, 2010 @ 1:30am

    Subject

    Some of the experiences some of her clients must have had are absolutely horrific. No human, or animal for that matter, should go through what they had to endure.

    I guess the moral of this story is, do not go to her. I hope she loses her license.

     

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  2.  
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    Pete Austin, Jul 15th, 2010 @ 1:57am

    One of Henry's positive reviews has been Annotated by Admin

    Draw your own conclusions

    "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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  3.  
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    Anonymous Coward, Jul 15th, 2010 @ 2:07am

    Welcome to Streisand land Doc. I suspect you're gonna really hate your stay.

     

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  4.  
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    Red Monkey (profile), Jul 15th, 2010 @ 3:25am

    libel v malpractice

    If a patient thinks treatment is substandard, the usual remedy is to sue for malpractice. That way you at least have a hope of some compensation for harm. Mouthing off wouldn't really help as it just creates a paper trail of evidence that is not really within your control.

     

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  5.  
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    Rose M. Welch (profile), Jul 15th, 2010 @ 3:43am

    Someone who stated that they were from Dr. Henry's office claimed that Dr. Henry had never had a single patient with a post-op infection requiring a hospital visit.

    Never.

    Not a single one.

    Huh.

     

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  6.  
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    Cipher-0, Jul 15th, 2010 @ 3:58am

    Re: libel v malpractice

    If a patient thinks treatment is substandard, the usual remedy is to sue for malpractice. That way you at least have a hope of some compensation for harm.

    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.

    Mouthing off wouldn't really help as it just creates a paper trail of evidence that is not really within your control.

    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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  7.  
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    bob, Jul 15th, 2010 @ 4:14am

    HIPAA

    Might DoctorScorecard be in violation of HIPAA regulations?
    As might the Plastic Surgeon?

     

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  8.  
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    anotherjoshua (profile), Jul 15th, 2010 @ 4:38am

    it's outrageous

    consumers free to talk about their experiences with someone they've done business with??!?!?!!?!?! i'm aghast.

    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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  9.  
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    AJB, Jul 15th, 2010 @ 4:58am

    Funny

    Many of the reviews on the site have been removed due to TOS. Guess I'll go to Google and see if the cached pages show the rest...

     

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  10.  
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    abc gum, Jul 15th, 2010 @ 5:39am

    WTH is "interference with prospective economic advantage"

    This looks like complete BS.

     

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  11.  
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    Anonymous Coward, Jul 15th, 2010 @ 6:28am

    Re: libel v malpractice

    It's not libel if it is something they truly experienced. Mouthing off? Are you serious? This isn't their parent that told them they couldn't have cookies before dinner! What's your deal?

     

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  12.  
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    Anonymous Coward, Jul 15th, 2010 @ 6:33am

    Re:

    Yea, a million ways she could have handled this better instead of suing people.

    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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  13.  
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    augman (profile), Jul 15th, 2010 @ 6:41am

    Heil, mein Doctor Henry!

     

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    Solomon Linda, Jul 15th, 2010 @ 6:44am

    Re: libel v malpractice

    F"#$% that bro.

    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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  15.  
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    Anonymous Coward, Jul 15th, 2010 @ 6:50am

    the guy who runs the site later admitting he didn't realize that he didn't have to do that

    What a dork...

     

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  16.  
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    average_joe (profile), Jul 15th, 2010 @ 7:05am

    Re:

    "WTH is "interference with prospective economic advantage""

    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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  17.  
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    Greg G, Jul 15th, 2010 @ 7:21am

    Re: HIPAA

    Nope. HIPAA regs are for medical personnel that have access to patient information. Said personnel cannot give out PII (Personally Identifiable Information.)

    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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  18.  
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    Red Monkey (profile), Jul 15th, 2010 @ 7:55am

    Re: Re: libel v malpractice

    No, it's not the doctor's thin skin I'm worried about, it's the patient. If the patient tries to sue doctor for malpractice, all his posted comments may just come back to haunt him at trial. (same advice to doctor, anything she says might also come back to haunt her).

    I don't know why you're bringing up Walmart.

     

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  19.  
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    Red Monkey (profile), Jul 15th, 2010 @ 7:58am

    Re: Re: libel v malpractice

    If the patient posts things on-line and later tries to sue Doctor for malpractice, everything patient says becomes evidence one way or the other and may harm his case. Is that what you want?

    Posting stuff may make you feel good and warn others, but it won't help you recover $$ for negligent care.

     

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  20.  
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    iamtheky (profile), Jul 15th, 2010 @ 7:59am

    Comment #24 on Doctors Scorecard is NSFW, its also not safe if you are trying to enjoy your chick-n-minis.

     

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  21.  
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    Red Monkey (profile), Jul 15th, 2010 @ 8:03am

    Re: Re: libel v malpractice

    Dr. Henry's case is just "sound and fury signifying nothing." The case law is against her. I can understand being annoyed that she is trying to shut you up, but as a practical matter, her effort is just doomed to fail.

     

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  22.  
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    drkkgt (profile), Jul 15th, 2010 @ 8:49am

    Re: libel v malpractice

    In this day of business leaning arbitration, suing for malpractice isn't really an option. So if you can't sue and don't have a lot of hope in arbitration, what's your third choice? Be quiet? Seems to me that being quiet about shady practices of businesses and govt is what got us here in the first place.

     

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  23.  
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    Red Monkey (profile), Jul 15th, 2010 @ 9:16am

    Re: Re: libel v malpractice

    Usually, malpractice suits are tried before a jury, not in arbitration. I don't see why it isn't an option. It is not unusual for a jury to find negligence if the facts are compelling.

    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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  24.  
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    DanVan (profile), Jul 15th, 2010 @ 12:15pm

    Rather than simply doing better work, she will now be known as a doctor who got terrible reviews AND I am sure many will now hit her up with worse reviews simply for suing online commentators

     

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  25.  
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    vilain (profile), Jul 15th, 2010 @ 12:25pm

    Re: Re: libel v malpractice

    Actually, "it's all true" isn't a defense against a claim of libel. So be very careful what you post that's critical. Someone doesn't like it, they can sue regardless. Stupid, I know.

    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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  26.  
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    6 (profile), Jul 15th, 2010 @ 1:20pm

    Does anyone here realize that "Kimberly Henry" is the name of the girl on Nip/Tuck who was Christian Troy's (plastic surgeon) main love interest? I get the feeling that this might all be bogus.

     

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  27.  
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    Anonymous Coward, Jul 15th, 2010 @ 6:01pm

    Re: Subject

    Some of the experiences some of her clients must have had are absolutely horrific.

    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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  28.  
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    Anonymous Coward, Jul 15th, 2010 @ 6:23pm

    Re: Re: Re: libel v malpractice

    "Someone doesn't like it, they can sue regardless"

    Yep, they could also just burn their money.

     

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  29.  
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    Anonymous Coward, Jul 15th, 2010 @ 6:25pm

    Re: Re: Re: libel v malpractice

    "Is that what you want?"

    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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  30.  
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    Red Monkey (profile), Jul 16th, 2010 @ 4:51am

    Re: Re: Re: Re: libel v malpractice

    "Yes, because that's what it's all about - suing for $$$"

    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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  31.  
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    Anonymous Coward, Jul 16th, 2010 @ 3:49pm

    Re:

    In California "interference with prospective economic advantage" is a legit Tort cause of action

     

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  32.  
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    circus-circus, Jul 16th, 2010 @ 9:53pm

    Circus folk

    This is a big,ugly money-grab by a couple of A-clowns who need to have their hats handed to them by a Judge -ASAP

     

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  33.  
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    North, Aug 1st, 2010 @ 11:48pm

    Doctor sues detractor

    Patient’s son complains; Duluth doctor sues
    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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  34.  
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    Yelp Is Dishonest, Nov 12th, 2010 @ 9:35am

    Our business has had 5 reviews so far. One is a negative review from a man who is lying about being a client; the other four are very positive. Yelp keeps only the dishonest negative review on our Yelp page, and filters out all positive reviews. Then, after complaining about this, they start hitting me up to set up a "business" account. I will never trust Yelp, again.

     

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  35.  
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    Josh King (profile), Nov 18th, 2010 @ 9:06am

    Disciplined as Well

    Turns out Kimberly Henry was also reprimanded by the California Medical Board a few years back: http://www.avvo.com/doctors/kimberly-henry-2501690.html

     

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  36.  
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    alanbleiweiss (profile), Mar 3rd, 2011 @ 5:07am

    Update: The Doctor Responds

    LOL I'd forgotten about Doctor Henry, then doing a general Google search on my name came across this article. After refreshing my memory on it I just checked Yelp. Dr. Henry actually provided counter-comments to two of her quite negative Yelp results, but only did so in February...

    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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  37.  
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    Reddit, Apr 30th, 2011 @ 12:51am

    doctor's defamation suit dismissed

    Judge tosses Duluth doctor's suit against patient's family


    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. Lukes 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. Lukes 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 Laurions 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 wasnt enough objective information provided to justify asking a jury to decide the matter.


    Laurion was relieved by the courts ruling.


    My parents, who are now 86, my wife and I have found this process very stressful for the past year, since my fathers stroke. There was never just one defendant, he said. Were 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 didnt need therapy; that McKee said it didnt matter that the patients gown was hanging from his neck with his backside exposed; that McKee blamed the patient for the loss of his time; and that McKee didnt treat his patient with dignity.


    Read more: http://www.grandforksherald.com/event/article/id/197679/publisher_ID/36/

     

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  38.  
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    Polo Outlet, Aug 6th, 2011 @ 1:34am

    Polo Outlet

    Your article swept me away with its vast information and great writing. Thank you for sharing your views with such passion. I like your views.

     

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  39.  
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    Anonymous Coward, May 9th, 2012 @ 4:10am

    Plastic surgeons get sued left right and centre - the sort of patients who have cosmetic surgery done are the ones who are likely to be ungrateful bastards. As a doctor I can tell you that patients are never happy even if you do everything right. I hope he takes them to the cleaners in court

     

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  40.  
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    Anonymous Coward, May 9th, 2012 @ 4:15am

    Re: Subject

    Plastic surgeons get sued left right and centre - the sort of patients who have cosmetic surgery done are the ones who are likely to be ungrateful bastards. As a doctor I can tell you that patients are never happy even if you do everything right. I hope he takes them to the cleaners in court

     

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  41.  
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    Anonymous Coward, May 9th, 2012 @ 4:16am

    Re: it's outrageous

    Plastic surgeons get sued left right and centre - the sort of patients who have cosmetic surgery done are the ones who are likely to be ungrateful bastards. As a doctor I can tell you that patients are never happy even if you do everything right. I hope he takes them to the cleaners in court

     

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  42.  
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    Anonymous Coward, May 9th, 2012 @ 4:21am

    Re: Disciplined as Well

    bet most doctors in california have been. I will say what I always say - if you think you can do a better job, why dont you give it a go? see how long you last before being reprimanded. tit.

     

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  43.  
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    Anonymous Coward, May 9th, 2012 @ 4:23am

    Re:

    sounds like a pretty good surgeon to me.

     

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  44.  
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    Anonymous Coward, May 9th, 2012 @ 4:27am

    Re:

    I think the main problem here is that ugly people have cosmetic surgery believing that it is possible to polish a turd. Surprisingly, it is actually possible to polish a turd. But a polished turd is still a turd at the end of the day - no amount of surgery/lawsuits/complaints/bitching/whining will ever correct that.

     

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  45.  
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    Court Watch, Feb 5th, 2013 @ 11:19pm

    Re: doctor's defamation suit dismissed

    [ MINNEAPOLIS -- A man's online post calling a doctor "a real tool" is protected speech, the Minnesota Supreme Court ruled Wednesday. The state's highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient's son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor "a real tool," slang for stupid or foolish. ]

    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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  46.  
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    Dennis, Apr 3rd, 2013 @ 9:52pm

    doctor's defamation suit dismissed

    Although the Minnesota Supreme Court dismissed David McKee MD v 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 fathers stroke by somebody who didnt 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 dont want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children dont often bring it up, because they dont 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. Ive been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. Thats not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

    After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldnt 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. Ive referred them to my lawyers. Ive also received encouragement from other persons who have been sued over accusations of libel or slander.

    Ive learned that laws about slander and libel do not conform to ones expectations. Ive read that online complaints are safe "if you stick to the facts." Thats exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what Id heard. I dont like to read generalities like Im upset. He did not treat my father well. He was insensitive. He didnt 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 defendants 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 plaintiffs version for each of the statements as provided in deposition and defendants version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiffs 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. McKees version of his comment about the intensive care unit was substantially similar to Mr. Laurions. In other words, Dr. McKees 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. McKees 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 wasnt 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 youre someplace like this or you leave because youve 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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  47.  
    identicon
    McKee V. Laurion, Jun 8th, 2013 @ 6:31am

    Minnesota doctor defamation case cited as precedent in U. S. Federal Appeals Court

    Minnesota defamation case, David McKee MD v Dennis 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.


    In deciding an Appeal from the United States District Court for the Eastern District of North Carolina at Wilmington, MYGALLONS LLC and ZENACON LLC STEVEN VERONA v. U. S. BANCORP, VOYAGEUR FLEET SYSTEMS INC, And K. E. AUSTIN CORP (12-1287); The United States Court of Appeals for the Fourth Circuit cited David McKee MD v. Dennis Laurion.


    From pages 13-14 of http://www.ca4.uscourts.gov/Opinions/Unpublished/121287.U.pdf:


    The parties agree that the defamation claim is governed by Minnesota law because the alleged defamation originated in Minnesota. They also agree that under Minnesota law, the elements of a defamation claim are: (1) the defamatory statement was communicated to someone other than the plaintiff; (2) the statement is false; (3) the statement tends to harm the plaintiffs reputation and to lower [the plaintiff] in the estimation of the community; and (4) the recipient of the false statement reasonably understands it to refer to a specific individual. McKee v. Laurion, 825 N.W.2d 725, 729-30 (Minn. 2013) . A defamation claim cannot be based on a true statement. Id. at 730. True statements include statements that are true in substance and contain only minor inaccuracies of expression or detail. Id. 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. Id.

     

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  48.  
    identicon
    Facelift No Pain, Dec 19th, 2013 @ 8:27pm

    Plastic Surgery Is Always A Bit Risky

    You've got to wonder how cases like this are taken seriously. plastic surgery is always risky but most people don't understand that basic fact.

     

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  49.  
    identicon
    Chicago Brick, Jan 3rd, 2014 @ 11:41pm

    One of top 3 Minnesota lawsuits in 2013

    Twin Cities Business Magazine "The Top Lawsuits Of 2013" by Steve Kaplan, December 20, 2013

    Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor a real tool. As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.

    Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. Thats just free speech, isnt it?

    It sure is, says Laurions 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 doesnt change the quality of a statement from non-defamatory to defamatory.

    But McKees lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. The thing thats often misunderstood is that this was not just about free speech, but about making actual false statements, Tanick says. The problem is todays unfettered opportunity to express opinion, whether or not the substance of whats 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 cant grasp why that wouldnt be protected opinion. As to referring to the doctor as a real tool, Justice Alan Page wrote that the insult falls into the category of pure opinion because the term cannot be reasonably interpreted as a fact and it cannot be proven true or false.

    The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.

     

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  50.  
    identicon
    Chicago Brick, Apr 12th, 2014 @ 11:45pm

    The following is taken from a longer article, Insult And Injury: How Doctors Are Losing The War Against Trolls, written by Jake Rossen, BuzzFeed contributor, April 4, 2014.

    "The Streisand Effect. refers to the consequence of inviting even more negative attention by trying to remove negative attention. (The) inspiration was Barbra Streisands 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. Laurions father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneths condition.

    Both McKee and Dennis Laurion agree on substance, if not necessarily intent: The doctor entered the room and expressed that he was initially puzzled the elder Laurion had been moved from intensive care. Usually, McKee said, there are only two ways out of the ICU, and he offered this was the better option. McKee intended for the comment to be lighthearted; the Laurions found it crass.

    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 Kenneths modesty. His son was right there, McKee counters. If he was concerned about the gown, he didnt 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 nurses 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 hospitals ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

    I just wanted someone with M.D. after their name to say, This doesnt reflect well on you. Laurion says. I wanted someone to say he should tone it down and be more personable. The dozen letters, he says, were to account for any overlapping bureaucracy though he admits even his own lawyer questioned the avalanche of paperwork.

    For good measure, he also posted reviews on rating sites including Vitals.com and Insiderpages.com. In addition to critiquing his bedside manner, Laurion quoted a nurse he ran into who once knew McKee. The doctor, she allegedly said, was a real tool.

    McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurions 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 Laurions 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.

    I got a cold call from an online reputation site, he recalls. They said, Boy, youre all over the internet. You want some help? One of the physicians three daughters was handed a printout of an online post in school and ridiculed. She came home crying.

    The internet creates a scenario where people with most emotional energy behind their opinions will become the most visible, he says. But the 7,000 patients Ive seen since practicing in Duluth that have little or no feelings are invisible. Convinced Laurion was behind the multitude of postings (though they coincided with the Reddit discussion, a large number allegedly came from Duluth, where Laurion resided), McKee renewed his litigation and his lawyer hired a private investigator to find the nurse Laurion claimed to have run into. She was never located.

    When he sued me, he opened Pandoras box, says Laurion, who denies submitting any posts beyond the initial two. Whether all of it was proportionate, I dont know. My intent all along was simply to have someone he respected say to him, When a patient complains, it behooves us to conduct ourselves more circumspectly. That was my goal.

    McKee found no easy way to exit the situation. You get drawn in, he says, suggesting his lawyer nudged him into further action. Its 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 thats 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.

    Nearly $70,000 in legal fees later, McKee would agree. He argued his case in front of the Minnesota Supreme Court, which ultimately concluded Laurions comments were opinions. And because the court could not rule on the meaning of tool, it became impossible to determine whether that was libelous.

    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, read the ruling, which was excruciating in its examination of a schoolyard insult and found in favor of Laurion.

    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, Ill be the jerk neurologist who was rude to a World War II veteran, the physician says. Im stuck with it forever.

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

     

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