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Court Says Complaining About Doctor's Bedside Manner Is Not Defamation
from the good-ruling dept
We keep hearing stories about doctors suing patients for bad reviews. However, there's some good news, in that a recent court ruling was pretty clear that complaining about your doctor is not defamation. In this case, it wasn't even just complaining via online reviews, but the son of the patient filed complaints about the doctor's treatment and bedside manner with "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." In other words, the son was not happy with Dr. David McKee and made that widely known.
The court clearly saw someone who was upset and emotional, and saw no defamatory intent:
The court clearly saw someone who was upset and emotional, and saw no defamatory intent:
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.”As for the public online reviews that the son filed also? Perfectly reasonable:
“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.”It's really nice to see some judges recognize this simple point. I doubt we'll see any slowdown of such lawsuits any time soon, but any case law that comes out reasonably seems like a good thing.
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When a plaintiff files defamation knowingly over true statements, is there some sort of recourse possibly an anti-SLAPP provision and is it up to the DA to file or can anyone do this?
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Both the people who believe what they read on the web and the doctor who cares.
I ran into JUST this situation over the last month.
I need surgery - my family doctor recommended a specific surgeon and I do trust his judgment.
Still, I went to the web and researched this surgeon. I read a review that said *exactly that* - it complained about the surgeon's bedside manner, lack of explaining things, and similar.
I'm not dumb, but I am cynical. What's to stop 'Doctor A' from bashing 'Doctor B' - for whatever reasons? Or what's to stop a patient from whining, maybe because ol' Doc didn't hook them up with a fat enough supply of painkillers?
I totally ignored the web information.
When I did speak to the surgeon, I found his bedside manner to be superior to most all doctors I have ever dealt with. In addition, he explained the details of the operation *fully* to me, I had NO questions after leaving. He didn't rush me, act annoyed or anything. He was a very cordial person who I have a lot of confidence in now.
I'm SO very glad I ignored what I read on the web.
Other people should try that sometime.
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Truth & Opinion
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No reason for a suit
Like any thing on line, you have to apply reason, logic and common sense. A law suit is none of the above, bitching about your doctor is not defamation.
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Re: No reason for a suit
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Re:
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Re: Opinions
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Judge's ruling online
http://www.onpointnews.com/docs/Mckee-v-Laurion.pdf
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Re:
For years, movies have been making profits based on advertising hype. On today's internet you can find a half dozen synopses and perspectives on a movie within hours of it's first screening. Should you trust amateur bloggers' opinions implicitly? Of course not. Should movie studios be able to shut down review sites because they don't like what's on them? Of course not. The entertainment industry can circumvent or otherwise trample the constitution when it comes to potential alleged piracy... defamation isn't piracy, and thus doesn't threaten our national security.
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The doctor has appealed the defamation dismissal
The Minnesota Court of Appeals website shows a status of "briefing."
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The hearing is scheduled
http://macsnc.courts.state.mn.us/ctrack/view/publicCaseMaintenance.do?csNameID=71108&expandP arty=Y&display=false&view=N
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David McKee MD vs Dennis Laurion
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McKee vs Laurion dismissed by state Supreme Court
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§ion=/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&TEMPL ATE=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://blo gs.duanemorris.com/duanemorrisnewmedialawblog/entry/bedside_manners_was_the_doctor
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McKee and Laurion react to ruling
Plaintiff remarks about the lawsuit
http://learningboosters.blogspot.com/search/label/.%20McKee%20v%20Laurion
Defendant remarks about the lawsuit
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