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Doctor Plans To Appeal Ruling That Said Complaining About His Bedside Manner Was Not Defamation

from the this-isn't-helping-your-cause dept

We recently wrote about a court ruling against a doctor who tried to sue someone who wrote some bad reviews about the doctor's bedside manner online. Thankfully, the court ruled that those reviews were not defamatory. The court noted that the guy posting the material was clearly not happy with Dr. David McKee, but that:
"In modern society, there needs to be some give and take, some ability for parties to air their differences.... 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."
Now, a smart doctor might take that lesson and move forward, and perhaps look into ways to respond reasonably to complaints. Or, there's Dr. David McKee, who has announced that he has "no choice" but to appeal the ruling. That's actually wrong. He has plenty of choices. For example, he could not appeal the ruling.

Amusingly, part of the reason that Dr. McKee is apparently filing the appeal is because he claims that the same guy started writing a bunch more critical messages about him online after the ruling came out. However, the guy, Dennis Laurion, insists that he hasn't posted anything since the lawsuit began, and suggests that perhaps all of those anti-McKee posts came about because of the negative publicity associated with the lawsuit. Specifically, he notes that "there was an influx of Internet chatter about McKee after a link to a story about McKee appeared on the high-traffic website reddit.com." So what next? Will Dr. McKee try to sue a bunch of Reddit posters too? I'm sure that will go over well...


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  1.  
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    That Anonymous Coward, Jun 30th, 2011 @ 1:11am

    Its your fault people think I am a horrible doctor! None of my actions can possibly lead to this!

    Personal Responsibility.... its dead...

     

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    Anonymous Coward, Jun 30th, 2011 @ 2:23am

     

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    Nicedoggy, Jun 30th, 2011 @ 2:45am

    If anything that doctor deserves more bad reviews just for being so stupid.

     

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    tebee (profile), Jun 30th, 2011 @ 2:59am

    You know who's effect....

    I think Dr McKee needs an introduction to my friend Ms. Streisand .

    I have this feeling he may not have heard of her, but will be getting to know her very well soon.

     

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    OtherKevin, Jun 30th, 2011 @ 3:21am

    One other choice...

    ...Improve his bedside manner. There have been numerous studies showing a strong link between negative bedside manner and malpractice lawsuits. Basically, the better your bedside manner and the more your patients like you personally, the less likely you are to be sued for malpractice, even when you screw up.

    But apparently this dude just LOVES spending money on lawyers.

     

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    The Devil's Coachman (profile), Jun 30th, 2011 @ 3:52am

    Sounds like this quack is someone to avoid.

    If it looks like a duck...........

     

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    senshikaze (profile), Jun 30th, 2011 @ 4:43am

    what exactly is defamation?

    Can anyone explain the US defamation laws? It seems fairly arbitrary, what is the difference between a bad review and defamation?

    Though this doctor should be beaten by court order for his utter stupidity. It's just a review. America needs to grow up and stop treating the legal system as a nanny.

     

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    John William Nelson (profile), Jun 30th, 2011 @ 5:02am

    Re: what exactly is defamation?

    I have a few posts on defamation law on my law and tech blog:

    http://www.lextechnologiae.com/category/defamation-2/

    Defamation is arbitrary in one sense: it's a fact-based determination often left for a jury.

    As to what is defamation; opinion is not. One way to look at defamation is that it's an intentional untruthful statement about another that harms that persons reputation.

    Opinions, however, are not defamation because they are not fact — they cannot be said to be truthful or untruthful.

    Think of this fact scenario:

    Someone posts on a doctor review site that a doctor's bedside manner was not great.

    "This doctor is cold and I felt I never connected with him. He also left me sitting in the room waiting for hours each time I went. He never talked to me when he examined me. When he did talk, he was annoying."

    Which parts of the statement are facts and which opinion? Two facts stand out: leaving the person sitting in the room for hours and never talking. You could prove or disprove those facts. They could be said to be truthful or non-turthful.

    Compare with "the doctor is cold" and "I never connected with him." Those are opinions. You can't really prove those in court; they're based on the patient's feelings. Similarly, the belief the doctor was annoying is an opinion.

    Opinions and facts can be wrapped together, however. Take, for example, "he never talked to me." You might argue that it's clearly an exaggeration and indicates the patient's belief (and therefore opinion) that the doctor didn't make and effort to communicate well. You might also argue that it says what it says: he literally never talked to the patient.

    When facts and opinions get intertwined, it creates a fact-based question the court must consider. Sometimes, though, opinions are just opinions and facts are just facts.

    Hope that sheds some light.

    This doctor (and his lawyer) are likely going to lose. U.S. defamation cases can be quite difficult to win, and courts defer intuitively to the First Amendment quite a bit.

     

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    The Devil's Coachman (profile), Jun 30th, 2011 @ 5:46am

    Then the doctor and his lawyers will have to find another pond to paddle about it. Hope it's not duck season!

     

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    DannyB (profile), Jun 30th, 2011 @ 5:57am

    Re: what exactly is defamation?

    > Can anyone explain the US defamation laws?
    > It seems fairly arbitrary, what is the difference
    > between a bad review and defamation?


    Defamation starts out life, in this situation, as a bad review. If the subject of the bad review is not merely incompetent, but also a litigious nut willing to spend money to sue everyone, then the bad review grows up and becomes defamation.

    In short: the difference is whether one can afford the money and vast waste of time of a lawyer.

    Hope that answers your question.

     

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    Brian Schroth (profile), Jun 30th, 2011 @ 6:30am

    Re: Re: what exactly is defamation?

    The bad review grows up and becomes defamation? Sounds like the makings of a Schoolhouse Rock song.

     

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    John William Nelson (profile), Jun 30th, 2011 @ 6:45am

    Re: Re: what exactly is defamation?

    A bad review is not defamation. U.S. defamation is essentially the intentional telling of an untruth that harms the reputation of another person.

    A bad review might be defamation, but it might not. See the above for a more complete description of defamation.

     

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    Noah V, Jun 30th, 2011 @ 7:08am

    Read the judge's report

    On Point News posted the judge's order as a .pdf.

    http://www.onpointnews.com/docs/Mckee-v-Laurion.pdf

     

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    M, Jun 30th, 2011 @ 7:17am

    Show of hands, how many here would have Dr. McKee have ANYTHING to do with their medical treatment? What, no takers? How come?

     

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    FormerAC (profile), Jun 30th, 2011 @ 8:08am

    Did you see the Google News search on Ratemds?

    When I followed the link to ratemds, I notice a box in the middle with a current "Google News" results for Dr. David Mckee ... which is, of course, an article about him vowing to appeal the ruling, LOL

     

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    Overcast (profile), Jun 30th, 2011 @ 8:17am

    And here we go again.

    I ran into this same issue. I was referred to a *surgeon* by my family doctor. Not just a normal doc now, a surgeon....

    I checked him out on-line. I read some posts that bashed his bedside manner and concern for the patient. But since my family doctor recommended him, and I trust my family doctor - I ignored the online information and went to make this 'call' myself.

    I found the online comments were totally wrong. IF this doctor were to start suing, I may reconsider using him - because then it starts to look political or like he's covering something up. So I'll be using this doctor for surgery, regardless of what it says online.

    Don't believe everything you read on the web. But when people start to sue - it does make you wonder...

     

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    Any Mouse (profile), Jun 30th, 2011 @ 9:42am

    Re:

    Finding a doctor that you like is a very personal thing, which some people do not realize. There are doctors that I will have nothing to do. They're great doctors. They have patients who truly love them and what they do. On the other hand, my personality clashes with his, and we do not ever see eye to eye. I think he's rude, cold and argumentative. it's all just personal opinions one way or the other.

    Now, if the doctor is a total screw-up, doesn't know shit, and acts like he's the best thing to come out of the medical profession, well... doubt anyone's going to like him, anyways.

     

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    BeeAitch (profile), Jun 30th, 2011 @ 12:38pm

    Re: Re:

    I have to second this point. My significant other has numerous serious medical issues. Her doctor has been nothing less than excellent with her care. He has gone above and beyond simple care and attention to health. He has given her his home phone number so she can call him when we have to take a trip to the emergency room (happens usually at least twice a month).

    The same doctor was on duty at the ER when I came in with a case of acute pancreatitis. I ended up leaving that hospital and going to another(I even removed my own IV lines and walked out when they told me I couldn't check myself out). I did not get along with him at all as a patient. I know he is an excellent doctor, but his bedside manner really pissed me off.

    This man is probably the best doctor I have ever known, and is a pleasant person for me to deal with in a non-doctor/patient relationship. He and I butted heads about my care, and he is not my doctor now. If I gave a review, it might very well sound negative to another even though he is an excellent doctor.

    Any review should be taken with a grain of salt.

     

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  19.  
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    Ben, Sep 16th, 2011 @ 4:27am

    The hearing is scheduled.

    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&expandP arty=Y&display=false&view=N

     

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  20.  
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    Reddit Reader, Sep 28th, 2011 @ 4:53am

    So what next? Will Dr. McKee try to sue a bunch of Reddit posters too?

    This doctor's profile is at http://www.vitals.com/doctors/Dr_David_Mckee.html#ixzz1ZFNBJx4T .

    Before his ratings is a field called General Information. On 9/28/11 it says "Personal Statement: This site, and similar sites are an unreliable way of assessing physicians. They are easily abused and virtually no surveillance is undertaken by the site to prevent this. My ratings and comments have been contaminated by a very malicious person, Dennis Laurion and friends of his who have made well over 100 negative postings on Vitals and Health Grades. Mr. Laurion's entries have been dishonest and those of his acquaintances pure fiction. Vitals should not allow anonymous comments and should make it easier for physicians to remove blatantly false or fictional ones. Health Grades was very responsive and quickly identified the 60+ bogus entries and removed them. Vitals has been remarkably difficult to work with. Even after acknowledging the fact that most or all of the negative ratings were bogus it took week to get them to do even a partial retraction. They have agreed to provide IP addresses for suspicious entries; that is something I suppose."

    So, yes, it appears Dr. McKee might try to sue a bunch of Reddit posters.

     

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    Half Fast, Apr 14th, 2012 @ 7:48pm

    Doctor Plans To Appeal Ruling That Said Complaining About His Bedside Manner Was Not Defamation

     

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    Content Scraper, Aug 23rd, 2012 @ 12:36am

    State Supreme Court to hear McKee v Laurion

    http://www.mncourts.gov/Documents/0/Public/Calendars/September_2012.pdf
    Oral hearings for David McKee MD vs Dennis Laurion to be held 9/4/12
    At Minnesota Supreme Court, Second Floor, State Capitol, St. Paul MN

     

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  23.  
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    Court Watch, Nov 15th, 2012 @ 9:53pm

    Supreme Court heard McKee vs Laurion

    According to "The Legal Infrastructure of Business," the September hearing was held. The article tells the review that caused the suit.

    From "The Legal Infrastructure of Business"

    In April 2010, Dennis Laurion accompanied his parents to a neurologist appointment with Dr. David McKee after Mr. Laurion’s father had been hospitalized for a stroke. After a 10-15 minute visit with Dr. McKee, Mr. Laurion returned home, upset with the visit and posted the following review online:

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

    The facts in these types of cases typically fall into the “my word against theirs” category. Below I discuss some of the arguments in the case to highlight how granular the distinction can be between what is a fact versus opinion.

    1. “I had to spend time finding out if you transferred or died” – Dr. McKee maintains that he made a lighthearted comment to the effect of I had looked for him up 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. While the comments are substantially similar, Dr. McKee maintains that the “sting” is very different. In Mr. Laurion’s version, Dr. McKee seems to blame the patient and joke about their death, but in his statement, expresses happiness for the patients improved condition. Therefore, if a jury believes Dr. McKee’s recollection, then the statements by Mr. Laurion are not substantially accurate.

    2. Mr. Laurion asserts that in response to the patient’s gown not covering his backside, Dr. McKee said, “That doesn’t matter” – Dr. McKee maintains that he said something to the effect of “I thought it would be fine” or “It looks like it's okay” to indicate that the gown was sufficiently tied. While these statements are similar, to a listener they can come across very different with the first implying that a patient’s concern doesn’t matter, while the second can be interpreted as reassuring a patient. Again, the distinction between these comments has large implications on whether Mr. Laurion’s statements are substantially accurate or not.

    3. “A friend who is a nurse, she said, “Dr. McKee is a real tool!” – The court is not evaluating whether what the nurse said is fact or not, the court is evaluating whether there is in fact a nurse that made the statement or not.

    See rest of article: http://picker.typepad.com/legalinfrastructure/2012/11/when-online-reviews-become-defamation-suits.ht ml
    Or
    http://www.modernhealthcare.com/article/20121112/INFO/311139941/the-ratings-game?template=sm artphone

     

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  24.  
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    Tribune Reader, Feb 6th, 2013 @ 8:58pm

    High court rules online post didn't defame doctor

    Article by: ABBY SIMONS , Star Tribune, Updated January 30, 2013 - 9:59 PM

    Finding no harm done, justices toss out lawsuit by Duluth physician.

    Dennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father's neurologist. 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.

    The unanimous ruling reverses an earlier Appeals Court decision and brings to an end the closely watched case that brought to the forefront a First Amendment debate over the limits of free speech online.

    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.

    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. After his father was discharged, he wrote the reviews and sent the letters.

    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!'"

    McKee sued after he learned of the postings from another patient. A St. Louis County judge dismissed the lawsuit, saying Laurion's statements were either protected opinion, substantially true or too vague to convey a defamatory meaning. The Appeals Court reversed that ruling regarding six of Laurion's statements, reasoning that they were factual assertions and not opinions, that they harmed McKee's reputation and that they could be proven as false.

    The Supreme Court disagreed. 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. Page added that the "tool" statements also didn't pass the test of defaming McKee's character. He dismissed an argument by McKee's attorney, Marshall Tanick, that the "tool" comment was fabricated by Laurion and that the nurse never existed. Whether it was fabricated or not was irrelevant, the court ruled. "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.

    Tanick said the ruling could present a slippery slope.

    "This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse," he said.

    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."

    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."

    Full article: http://www.startribune.com/local/189028521.html?refer=y

     

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    Content Scraper, Mar 7th, 2013 @ 12:33am

    Tanick said the ruling could present a slippery slope.

    In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

    Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from "an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it's “an endorsement that statements of opinion are protected under the First Amendment.”

    According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”

    Anfinson was also interviewed by Minnesota Lawyer. He said, “Anyone who knew about the case, who observed the oral arguments, and who knows something about libel law is about as unsurprised with this result as they can be. It’s about as perfunctory and routine as the Supreme Court ever gets. It was a completely straightforward application of long-settled libel-law rules.”

    Anfinson said the case is more significant for social commentary purposes than for its legal analysis, noting that perhaps the justices only accepted the case to fix an error of the Court of Appeals.

    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."

    Commenting about this case on his own blog, February 8, 2013, Aaron Kelly, internet law & defamation law attorney, said “Thanks to the First Amendment, free speech is the law of that land, and that means being able to communicate our views publicly – no matter how offensive.”

    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. . . 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.”

     

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    Dennis, Apr 3rd, 2013 @ 11:37pm

    the financial costs are significant

    [quote] 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." [end quote]

    Five years from now I WILL notice the money I spent on this. 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 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.

    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.

    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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  27.  
    identicon
    McKee V. Laurion, Jun 8th, 2013 @ 7:15am

    McKee V. Laurion cited as precedent by a 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 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.

     

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  28.  
    identicon
    Chicago Brick, Jan 2nd, 2014 @ 7:32pm

    Among top three 2013 lawsuits in Minnesota

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

    Never Shout "He's a Tool!" On a Crowded Website?

    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. That’s just free speech, isn’t it?

    It sure is, says Laurion’s 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… doesn’t change the quality of a statement from non-defamatory to defamatory.”

    But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation.
    “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

    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 can’t grasp why that wouldn’t 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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