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.

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Comments on “Plastic Surgeon Sues Online Reviewers Who Gave Her Bad Reviews”

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53 Comments
Anonymous Coward says:

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”

Anonymous Coward says:

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

Pete Austin says:

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

Cipher-0 says:

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.

Red Monkey (profile) says:

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.

Red Monkey (profile) says:

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.

Red Monkey (profile) says:

Re: Re: Re:2 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).

vilain (profile) says:

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.

drkkgt (profile) says:

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.

Red Monkey (profile) says:

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.

Greg G says:

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.

Anonymous Coward says:

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

North (user link) says:

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.

Yelp Is Dishonest says:

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.

alanbleiweiss (profile) says:

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.

Reddit (user link) says:

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. Luke?s hospital, among others.

Laurion was critical of the treatment his father, Kenneth, received from McKee after suffering a hemorrhagic stroke and spending four days at St. Luke?s hospital from April 17-21 last year. Kenneth Laurion recovered from his condition.

Dennis Laurion claimed that any statements he made about the doctor were true and that he was immune from any liability to the plaintiff.

In his 18-page order dismissing the suit, Sixth Judicial District Judge Eric Hylden wrote that looking at Laurion?s ?statements as a whole, the court does not find defamatory meaning, but rather a sometimes emotional discussion of the issues.?

Hylden addressed the fact that Laurion posted some of his criticisms of McKee on websites. ?In modern society, there needs to be some give and take, some ability for parties to air their differences,? the judge wrote. ?Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory.?
Hylden concluded his order by stating that there wasn?t enough objective information provided to justify asking a jury to decide the matter.

Laurion was relieved by the court?s ruling.

?My parents, who are now 86, my wife and I have found this process very stressful for the past year, since my father?s stroke. There was never just one defendant,? he said. ?We?re grateful that Judge Hylden found no need for a trial.?

In his suit, McKee alleged that Laurion made false statements including that McKee ?seemed upset? that Kenneth Laurion had been transferred from the Intensive Care Unit to a ward room; that McKee told the Laurion family that he had to ?spend time finding out if [the patient] had been transferred or died;? that McKee told the Laurions that 44 percent of hemorrhagic stroke victims die within 30 days; that McKee told the patient that he didn?t need therapy; that McKee said it didn?t matter that the patient?s gown was hanging from his neck with his backside exposed; that McKee blamed the patient for the loss of his time; and that McKee didn?t treat his patient with dignity.

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

Anonymous Coward says:

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.

Court Watch (user link) says:

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&section=/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_doctor
Was the doctor defamed?

http://www.mncourts.gov/opinions/sc/current/OPA111154-0130.pdf.
Unanimous ruling of the Supreme Court of Minnesota

Dennis (user link) says:

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 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.

I feel that defamation lawsuits are much too easy for wealthy plaintiffs. If I were to attempt suing a doctor for malpractice, my case would not proceed until I’d obtained an affidavit from another doctor, declaring that the defendant?s actions did not conform to established procedures. In a defamation suit, there’s generally no exit short of a judge’s dismissal order – which can be appealed by the plaintiff. Being called “defendant” is terribly personal, but the civil suit path is totally impersonal. During the three years that I went through depositions, interrogatories, a dismissal hearing, an appellate hearing, and a state Supreme Court hearing; I never once spoke to a judge. At depositions, the plaintiff and I sat opposite each other, while I answered his lawyer’s questions, and he answered my lawyer ‘s questions. We were not to speak to each other.

From the American Health Lawyers Association:
In this case, the court found the six allegedly defamatory statements were not actionable because the ?substance, the gist, the sting? of plaintiff?s version for each of the statements as provided in deposition and defendant?s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff?s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was ?a real tool?) based on ?how an ordinary person understands the language used in the light of surrounding circumstances.?

From the Business Insurance Blog:
The Minnesota high court said, for instance, that Dr. McKee?s version of his comment about the intensive care unit was substantially similar to Mr. Laurion?s. ?In other words, Dr. McKee?s account of what he said would produce the same effect on the mind of the reader,? the court said. ?The minor inaccuracies of expression (in the statement) as compared to Dr. McKee?s version of what he said do not give rise to a genuine issue as to falsity.?

From the Duane Morris Media Blog:
The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, ?I made a jocular comment? to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn?t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you?re someplace like this or you leave because you?ve died.? The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.

McKee V. Laurion (user link) says:

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 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.

Chicago Brick says:

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. 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.

Chicago Brick says:

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 Streisand?s 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. Laurion?s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth?s 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 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.?

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 nurse?s 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 hospital?s 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 doesn?t 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 Laurion?s 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 Laurion?s 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, you?re all over the internet. You want some help??? One of the physician?s 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 I?ve 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 Pandora?s box,? says Laurion, who denies submitting any posts beyond the initial two. ?Whether all of it was proportionate, I don?t 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. ?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.

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 that?s 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 Laurion?s 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, 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

Laurion says:

Doctors are losing the war against trolls

BUZZFEED: ?Insult And Injury: How Doctors Are Losing The War Against Trolls?

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 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.

Harry Nevus says:

Jesse Ventura Defamation Lawsuit Cites McKee V. Laurion as precedent

“Defendant In Jesse Ventura V. Taya Kyle Cites Mckee V. Laurion Precedent In Her Legal Brief”
The widow of Chris Kyle, author of “American Sniper”, is appealing former Navy SEAL and Minnesota Governor Jesse Ventura’s defamation award against Kyle’s estate. Her brief to the United States Court of Appeals for the Eighth Circuit cites David McKee MD V. Dennis Laurion as a precedent.
In July, Ventura was awarded $1.845 million for claims made by Kyle in American Sniper Ventura says were fabricated and damaging to Ventura’s career and reputation.
Excerpts from brief:

United States Court of Appeals
for the
Eighth Circuit

Jesse Ventura a/k/a James G. Janos, Plaintiff-Appellee,
vs.
Taya Kyle, as Executor of the Estate of Chris Kyle, Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
Civ. No. 12-cv-472 (RHK/JJK) – District Judge Richard H. Kyle

BRIEF and ADDENDUM of APPELLANT TAYA KYLE,
EXECUTOR OF THE ESTATE OF CHRIS KYLE

FAEGRE BAKER DANIELS LLP
Attorneys for Appellant Taya Kyle,
Executor of the Estate of Chris Kyle

SUMMARY OF CASE AND REQUEST FOR ARGUMENT

Appellant Taya Kyle, executor of the estate of Chris Kyle, asks this Court to reverse the judgment awarding Jesse Ventura $500,000 for defamation and $1,345,477.25 for unjust enrichment. Review of the record establishes that Ventura did not prove material falsity or actual malice. The court’s unjust enrichment award based on allegedly defamatory speech is unprecedented, distorts Minnesota common law, and violates the First Amendment. The judgment, therefore, must be reversed and the case dismissed.

This Court should reverse the defamation judgment because the district court incorrectly instructed the jury about the questions of whether the statements at issue were materially false and published with actual malice. The First Amendment requires an appellate court to examine the record independently and enter judgment for the defendant where, no properly instructed jury could have found defamation liability. See Sullivan, 376 U.S. at 285.

. . .

The district court erred when it instructed the jury it could impose defamation liability based on the entirety of the “story” Kyle told about Ventura, rather than explaining that its original instruction required Ventura to prove all of the elements of his defamation claim with respect to at least one of the three specific statements at issue.

A jury instruction is erroneous if it misstates the law. Wolfe v. Fayetteville, Ark. Sch. Dist., 648 F.3d 860, 864 (8th Cir. 2011). To establish a defamation claim, a plaintiff must prove that a specific statement is both defamatory and false. McKee v. Laurion, 825 N.W.2d 725, 729 – 30 (Minn. 2013). In addition, the First Amendment requires a public figureto prove that such a statement was published with actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323, 327-28 (1974).

The Supreme Court, this Court, and the Minnesota Supreme Court have all left no doubt that, to sustain a defamation claim with respect to a group of allegedly false and defamatory statements, a plaintiff must prove each of the elements of his cause of action with respect to each such statement. See, e.g., Air Wis., 134 S. Ct. at 864-65; Masson v. New Yorker Magazine, 501 U.S. 496, 502, 522-25 (1991); Stepnes v. Ritschel, 663 F.3d 952, 964-65 (8th Cir. 2011); Aviation Charter, 416 F.3d at 868-71; Michaelis v. CBS Inc., 119 F.3d 697, 700-03 (8th Cir. 1997); Price v. Viking Penguin, 881 F.2d 1426, 1429 (8th Cir. 1989); McKee v. Laurion, 825 N.W.2d at 729-30.

Reference: http://www.upi.com/Top_News/US/2014/12/26/American-Sniper-widow-appeals-Jesse-Venturas-defamation-award/4981419620802/

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