The Minnesota Court Of Appeals has scheduled David McKee MD v Dennis Laurion for a hearing by a panel of three judges. The oral hearing will be November 10, 2011, at 10:00 AM in the Sixth District Court House of Duluth.

http://macsnc.courts.state.mn.us/ctrack/view/publicCaseMaintenance.do?csNameID=71108&expandParty=Y&display=false&view=N

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.

On Wednesday, the court tossed a lawsuit filed by neurologist David McKee, who claimed he was defamed by several statements made by defendant Dennis Laurion on websites used to rate doctors, report the Duluth News Tribune, the Minneapolis Star Tribune and the Associated Press.

The lawsuit followed the hospitalization of Laurion’s father, Kenneth, for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude.

Laurion expressed his dismay in several online posts with what he considered the doctor’s insensitive manner.

Laurion had posted his comments on a website where patients review their doctors. The case has been watched with interest because of the potential conflict between free speech versus protection of professional reputations on the Internet.

On at least two sites, Laurion wrote that McKee said that “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option,” and that “It doesn’t matter that the patient’s gown did not cover his backside.”

Laurion also wrote: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”

He expected at most what he calls a “non-apology apology.”

“I really thought I’d receive something within a few days along the lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that would be the end of it,” the 66-year-old Duluth retiree said. “I certainly did not expect to be sued.”

He was. Dr. David McKee’s defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor’s reputation.

In 2011, State District Judge Eric Hylden ruled that McKee was not defamed by the criticism and dismissed the doctor?s lawsuit.
McKee appealed to the Minnesota Court of Appeals; and in January 2012, that court sent the case back to the district court for a jury to decide whether six statements Laurion posted about McKee on rate-your-doctor websites and distributed elsewhere were defamatory.

Laurion appealed the Court of Appeals decision to the Supreme Court and the case was heard in St. Paul in September.

Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted.

The ruling also said it doesn’t matter whether the unnamed nurse actually exists. McKee’s attorney argued that Laurion might have fabricated the nurse, something Laurion’s attorney denied. And it said the doctor’s objections to Laurion’s other comments also failed the required legal tests.

“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,” Page wrote.

“I’m sure he and his family are very happy with this result,” Laurion’s attorney, John Kelly, said. “It’s been a long and difficult process for them.”

Laurion said the entire experience was stressful on his family.
?The initial excitement has not worn off,? he told the News Tribune. ?I?m very gratified it?s all over.?

Laurion, whose father survived the stroke and is now 87, said he feels vindicated — not in the sense that he’s proven the things he said, but that he had the right to express his opinion of a single encounter on a website designed to rate doctors.

He regrets the cost of the litigation — in his case, the equivalent of two years’ income, he said, some of which he had to borrow from relatives who dipped into their retirement funds.

“I regret that it became as painful as it was,” Laurion said. “I don’t think I regret having posted the comment. I thought at the time that it was my right to do so.”

McKee’s lawyer, Marshall Tanick, said he and McKee plan no further appeals and that they were disappointed with the ruling.

McKee, a neurologist with Northland Neurology and Myology, said Wednesday 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.

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.”

He said he offered to settle the case at no cost after the Supreme Court hearing. Laurion contends they couldn’t agree on the terms of the settlement, and said he not only deleted his initial postings after he was initially served, but had nothing to do with subsequent online statements about McKee.

Tanick said the ruling could present a slippery slope. “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.

Jane Kirtley disagreed. The professor of media ethics and law at the University of Minnesota School of Journalism said the ruling stems from “an elementary principle of libel law. I understand the rhetoric, but this is not a blank check for people to make false factual statements,” she said. “Rather, it’s an endorsement that statements of opinion are protected under the First Amendment.”

Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said on Wednesday the justices made the right decision. That being said, ?You can?t blame a guy like Dr. McKee for being upset,? Anfinson said. ?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.?

Before the Internet, people who complained about others typically did so to a small group of family, friends and acquaintances. ?No one in the wider world ever heard them,? Anfinson said. That is no longer the case.

?If you?re a practicing physician or other professional in a highly competitive environment, and this stuff is out there for any potential patient or client to see, it isn?t as simple as a superficial reading of the Supreme Court opinion would suggest,? he said. ?I kind of feel for the guy, but the law as it is currently constituted really doesn?t provide him much of a remedy. That is the moral of the story.?

The case highlighted the tension that sometimes develops on ratings sites, such as Yelp and Angie’s List, when the free speech rights of patients clash with the rights of doctors, lawyers and other professionals to protect their good names.

Experts say lawsuits over negative professional reviews are relatively uncommon and rarely succeed, partly because the law favors freedom of speech.

Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. “It’s almost as if things were said around the water cooler or perhaps posted in a letter to the editor,” he said. “I think the principles they worked with are applicable to statements made irrespective of the medium.”

While the decision is not binding in other states, Kelly and Tanick agreed that it might influence how other courts would rule on similar questions. Kelly said lawyers often look at rulings from other jurisdictions when they put cases together, sometimes for leads or guidance.

“Certainly this is a cutting edge issue and I’m sure lawyers and courts in other jurisdictions will pay attention to this decision and give it the weight it deserves,” Tanick 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.?

Mark A Fischer of Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, said on February 11, 2013, ?For those who are under criticism, one of the practical consequences of bringing a defamation action is that more publicity for the accused statements is almost an inevitable result, whether the statements are ultimately found libelous or not. In other words, in weighing the pros and cons of initiating a lawsuit, all potential defamation and privacy claim plaintiffs should consider the rule of Hippocrates applicable to physicians, ?First do no harm.??

In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, ?I?ve been tracking doctor v. patient lawsuits for online reviews. See my compilation. As you can see from a quick perusal, 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.

Compilation. See:

http://www.startribune.com/local/189028521.html

http://comments.startribune.com/comments.php?d=content_comments&asset_id=189028521&section=/local&comments=true

Duluth doctor’s lawsuit against patient’s son over online criticism dismissed
Article by: ABBY SIMONS , Star Tribune, January 30, 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://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.mncourts.gov/opinions/sc/current/OPA111154-0130.pdf.
Unanimous ruling of the Supreme Court of Minnesota

http://learningboosters.blogspot.com/search/label/.%20McKee%20v%20Laurion

http://blogs.duanemorris.com/duanemorrisnewmedialawblog/entry/bedside_manners_was_the_doctor

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 plaintiff?s 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.

?DOC?S DEFAMATION LAWSUIT: THE PATIENT?S SIDE?
PHYSICIANS WEEKLY
GUEST POST 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, a 4-year legal battle ended up in the Minnesota Supreme Court. The story recently came up again because BuzzFeed posted an article entitled ?Insult And Injury: How Doctors Are Losing The War Against Trolls,? discussing how doctors are having trouble defending themselves against negative reviews.

? David McKee, M.D., a Duluth, Minn., neurologist, was unaware of the Streisand 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.

? 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.?

? Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. 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.

? In April 2011, the judge granted Laurion?s motion for summary judgment, ruling his comments were protected free speech. 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.?

? 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.

? McKee was rated for several years as a top provider in Duluth Superior Magazine, but ?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

I tweeted a link to that article, and Dennis K. Laurion, whose father was the patient in the Minnesota, case wrote to me. He says no one ever asks him about his side of the story. He?s agreed to let me publish his comments:

? 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 [the doctor in the case] 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.

? 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 here. 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?yet very few [cases] go all the way to trial and verdict.?

? 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.

? 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.

Correspondence of Skeptical Scalpel and Dennis K. Laurion:

[ Skeptical 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. While spending nearly 24 years as a surgical chairman, I learned that there are always two sides to every story.

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

[ Skeptical Scalpel ] I agree that most of the stories about your case tended to sympathize with the doctor and that his defamation suit brought far more attention to him and his behavior than if he had simply let it go. I have some questions. Is the litigation completely over?

[ Laurion ] Yes. For a while, the plaintiff threatened, mostly 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. The statute of limitations has now passed.

[ Skeptical Scalpel ] If so, did you win the case?

[ Laurion ] I won dismissal with prejudice 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, rather than reply only to the plaintiff, I filed my reply through the court, putting the suit into public record and the attention of newspapers.

[ Skeptical 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.

[ Skeptical Scalpel ] Are you familiar with strategic lawsuit against public participation(SLAPP) 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?s lawyer only charged me for my internet rating site reviews and my letter to the hospital. The complaint avoided any 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.

[ Skeptical Scalpel ] May I ask how you discovered that I had tweeted a link to the BuzzFeed article?

[ Laurion ] I searched the opening sentence of the article. The search revealed blogs that copied the article, but it also reviewed Facebook postings and tweets.

[ Skeptical Scalpel ] Finally, do you have any interest in my publishing your email to me on my blog? I think it would be of value for people to hear your side of the story.

[ Laurion ] Yes, I appreciate your offer. You may also quote my answers to your questions, if you wish.

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 is board-certified in general surgery and critical care and has re-certified in both several times. He blogs at SkepticalScalpel.blogspot.com and tweets as @SkepticScalpel. His blog averages 1400 page views per day, and he has over 9100 followers on Twitter.