Dentist Threatens Patient Who Left Yelp Criticism With Criminal Charges
from the enter-good-lawyer dept
We’ve seen lots of folks freak out when a bad Yelp review gets left about their service, but some people take it to extremes. Over at Popehat there’s an example of a dentist, William Coppola, in San Antonio, Texas, who had a lawyer, Isabel de la Riva, send an absolutely ridiculous legal threat letter to a Yelp user named Jen B, who had left the following negative review of Dr. Coppola on Yelp:
I would never recommend this place to anyone. It is nice and clean. But the people are very pushy. I feel like they are doing more dental work than required. I went with a referral from a general dentist and they only spoke down to me about him, my child and came up with about 7 other teeth that had “issues” etc. They are seriously just out there for the money. Funny how when I went to a different dentist for another opinion they sided with MY dentist!!! DO NOT GO HERE.
Definitely harsh. Of course, there are a variety of different ways Dr. Coppola could have responded. He chose perhaps the worst: his lawyer didn’t just threaten Jen B with highly questionable civil charges, but flat out ridiculous and bogus criminal charges as well. de la Riva first made some claims that were quite unbelievable, that she had somehow been able to get Jen B’s medical records from another dentist — which, if true, would violate all sorts of medical privacy rules:
Your willfully false and defamatory comments including that my client is “just out there for the money” are false. Our initial investigation shows that your review was written PRIOR to even seeing another dentist for a second opinion; and that when you did receive that second opinion at a later date, the diagnosis you received was the same or extremely similar to the one you received from Dr. Coppola. Please note that your post to encourage individuals on the internet to “not go here” is actionable. There are numerous lawsuits regarding these types of issues, and the Courts have found that in actions where misinformation is provided, there is serious financial exposure for each and every one of the defamatory comments you have made. If our investigation shows that your actions have resulted in damages to our client and its several locations in Texas, we will pursue legal action against you.
And while it’s true that there are some (perhaps “numerous”) lawsuits “regarding these types of issues,” notice that de la Riva left out how nearly all of them end: with the service provider looking ridiculous after losing the lawsuit and getting a lot more negative attention for threatening to sue a customer for leaving bad feedback.
But, that wasn’t the worst. There was the escalation into suggestion that such a review was a criminal issue, which is clearly bogus:
You are hereby on notice that if you fail to retract your libelous post on yelp.com that we will recommend to our client that he pursue legal action against you. Dr. Coppola has already consulted with the authorities regarding criminal charges and the Guadalupe District Attorney’s Office stated that placing intentional false information on the internet can result in a felony charge of internet business defamation and libel. Although we have encouraged our client to pursue this avenue, he has not done so, mostly in deference to the military service of your husband. Dr. Coppola is a staunch supporter of the military and offers military discounts to his patients, such as yourself. However, he understands that if this matter is not rectified, that he must pursue all options at his disposal to protect his reputation of 33 years of exemplary service to his patients.
As Ken White points out, Texas repealed its criminal libel law in 1974. Also, just recently Texas passed what is probably the strongest anti-SLAPP law in the country, even better than the one in California. While de la Riva’s letter initially worked in stifling Jen B’s speech — scaring her into pulling the review — after White connected her with Leif Olson, a lawyer in Texas who was willing to help her out pro bono, things are looking up. Olson sent de la Riva and Coppola quite the epic reply. He notes that Jen B’s post was clearly not legally actionable, but the threat letter from Coppola and de la Riva in response is legally actionable under Texas’ anti-SLAPP law. Regarding the “investigation,” Olson pointed out:
Your “initial investigation” has led you to facts that are wrong. Your letter stated that the “investigation” led you to the substance and timing of young Miss B’s post-Coppola dental diagnosis and work. Northeast Children’s doesn’t need information about services young Miss B received from other dentists to secure whatever payment it might still be owed, and I assume that you and he aren’t violating HIPAA and its regulations by getting access to young Miss B’s medical records without her consent. This leads me to suspect that your “investigation” involved (1) conversations with an insurer that called to ask after possible double-billing after seeing claims from both Dr. Coppola and the dentist whom Jen B trusted to the dental work and (2) a search on Yelp, and possibly other review websites, for other reviews of dentists that Jen B left. This isn’t the diligence required before one begins slinging accusations of libel.
Regarding the actual suggestion that anything Jen B wrote was defamatory:
A statement isn’t defamatory unless it’s false, and a statement that is “substantially true” isn’t false. Nor is does “substantial truth” depends on how many nits Dr. Coppola thinks he can pick from Jen B’s statement. A court evaluating whether Dr. Coppola is “just in in for the money” or the any of Jen B’s other statements in the review will look to the “gist” of the statement in its complete context and whether a fully truthful statement would have been less damaging to an average reader than what Jen actually said. See McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990). This is the test whether Dr. Coppola is a public figure or not. See Garcia V. Allen, 28 S.W.3d 587, 593-94 (Tex. App. — Corpus Christi 2000, pet. denied) (applying test to non-public figure). It applies in business-disparagement cases like the one Dr. Coppola is threatening. See, e.g., Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 426 (Tex. App. — Waco 1997, writ denied).
Similarly, “[a]ll assertions of opinion are protected by the first amendment of the United States Constitution and article I, section 8 of the Texas Constitution.” Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989). Hyperbole isn’t defamation, either; according to the Supreme Court, rhetorical hyperbole “add[s] much to the discourse of our Nation.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990); see also New Times, Inc. v. Isaacks, 146 S.W.3d 144, 167 (Tex. 2004). The San Antonio Court of Appeals, whose rulings bind the courts in both Bexar and Guadalupe Counties, has bluntly held that “rhetorical hyperbole and opinion are not actionable under Texas law.” ABC, Inc. v. Gill, 6 S.W.3d 19, 32 (Tex. App. — San Antonio 1999, pet. denied).
The review isn’t defamatory.
Nothing in Jen B’s review is defamatory under these standards–certainly not the two things that Dr. Coppola has identified.
Protected opinion: The review, in its parts and in its whole, is protected opinion. That is clear from the language Jen B used. She “feel[s]” that Dr. Coppola is doing too much work. Different people will have different perceptions of whether they are “speaking down to” someone about another professional or the person’s child. That one dentist “sided” with a family dentist’s recommendations rather than Coppola’s recommendations depends on a person’s comparison of the three recommendations.
Jen didn’t express “opinions” that would lead a reasonable person to think that an untrue fact was true–as would have been the case, for instance, had she posted, feel it’s inappropriate for Dr. Coppola to keep all of that Hungarian erotica in the waiting room.” Nor did she post false statements of fact, as would have been the case had she written something like, “While I was there, Dr. Coppola waggled his wiggler at the wide women who walked west weirdly.” Her statements are classic expressions of opinion with which Dr. Coppola may disagree, but which he cannot suppress.
Hungarian erotica? There’s also a discussion on why hyperbole and rhetoric are protected. It’s much longer, but I have to call out this gem:
Had she written, “If Dr. Coppola’s grasp of dentistry is anything like his grasp of the First Amendment, it’s no wonder that all of his patients need dentures,” no reasonable person would think that every child who goes to Northeast Children’s Dentistry needs false teeth. Exaggerating for effect has a long, protected tradition in the United States; statements much more offensive than an accusation of greed are, as a matter of law, not defamatory.
Bravo, Mr. Olson. As for the anti-SLAPP law, Olson explains:
Dr. Coppola has no claim for business disparagement or defamation. Nor, despite what your artfully crafted language about conversations with the district attorney begged Jen B to infer, is there any basis to charge her with a crime. (Indeed, Texas repealed its criminal libel statute 50 years ago. Acts 1973, 63rd Legislature, Chapter 399, Section 3.) But letters from lawyers are scary things; had she not been able to hire me, Jen B might not have known that she faces no true consequences from Dr. Coppola’s threat other than a waste of her time. I trust that after you share this letter with Dr. Coppola, he will realize that, too.
Through his threat, and any possible follow-up he might pursue, however, Dr. Coppola has created some problems for himself. First, the lawsuit he threatens would Violate the Texas Citizens Participation Act, our version of an anti-SLAPP law. Tex. Civ. Prac. & Rem. Code ch. 27. Jen B’s review is a communication; she made it as part of her exercise of her liberty of free speech; and it is about a matter of public concern, the dental services that Dr. Coppola and Northeast Children’s are furnishing in the marketplace. The theoretical lawsuit would, unquestionably, be based on Jen B’s posting of the review–her exercise of her freedom to speak. Jen B would get an expedited hearing and ruling on her request to dismiss Dr. Coppola’s theoretical lawsuit. And once that theoretical case is dismissed, Jen B would be entitled to recover her legal fees–which are, I assure you, despite the eye-popping effect they sometimes generate, reasonable.
Too, Dr. Coppola now knows that there is no legal basis for his threats. Any lawsuit he files could be only for harassment, to impose costs upon Jen B, or to punish her for exercising her liberties, all of which are improper bases. He would, that is, be using the lawsuit as a form of extortion–using it to achieve an ulterior end that a defamation claim isn’t meant to achieve. The same would go for any criminal case that Dr. Coppola might connive the district attorney into bringing. This would make Dr. Coppola liable for malicious prosecution, the damages for which would be whatever other legal fees Jen hadn’t recovered in getting Dr. Coppola’s claims dismissed. See James v. Brown, 637 S.W.2d 914, 918 (Tex. 1982) (elements); Digby v. Texas Bank, 943 S.W.2d 914, 925-26 (Tex. App. — El Paso 1997, writ denied).
Jen B, however, doesn’t have to wait for Dr. Coppola to do anything. Dr. Coppola’s threats have brought into question Jen B’s rights and legal relations between her and Dr. Coppola, and Jen B is entitled to have the question of those rights and relations settled through a declaratory judgment. Tex. Civ. Prac. & Rem. Code ch. 37. Because she’s entitled to such a declaration, she can seek it without waiting to see if Dr. Coppola acts on his threat. And because she’s entitled to that declaration on a claim that would entitle her to fees, she’ll also be entitled to recover the fees she incurs seeking that declaration.
Leif Olson is also, obviously, well aware of how Dr. Coppola’s bogus threats may generate much more negative attention towards his practice, and suggested in his letter that Coppola take a quick crash course on abusing the law to seek to censor someone:
Perhaps most crippling for Dr. Coppola, who purports to be jealous of his reputation, is the fact that he hired someone to write that threat letter at all. Before he did so, someone–perhaps while you were conducting your “investigation”–should have asked him if he has ever heard of Barbra Streisand’s beach house. Someone even could have told him of the results that arise when someone runs the names Charles Carreon, Suburban Express, Bharat Aggarwal, or Thedala Magee through a search engine. Jen B’s Yelp review, needless to say, still exists–as does Jen B’s ability to digitize Dr. Coppola’s threat letter. Jen B posted her Yelp review to inform people that she thought Dr. Coppola pushy and concerned about money; one can only imagine her growing excitement at being able to bolster that opinion with a bullying letter that demands money.
Of course, rather than actually file an anti-SLAPP claim, as would be Jen B’s clear right as described above, Olson simply asked that Dr. Coppola promise not to pursue any claims against her, along with a handwritten (by Dr. Coppola) apology letter.
There’s more in that letter as well, but bravo to Olson for a fantastic letter, and yet another set of kudos to Ken White for successfully making use of the Popehat Signal to bring Olson and Jen B together to protect free speech yet again.
Filed Under: defamation, isabel de la riva, lief olson, reviews, texas, threats, william coppola
Companies: yelp
Comments on “Dentist Threatens Patient Who Left Yelp Criticism With Criminal Charges”
This dentist clearly didn’t know the landmine he was stepping on. Had he not made this issue I’m betting 99% of people wouldn’t have even bothered. Either way this guy sounds like he deserves the Streisand effect.
Re: Re:
After this, the doctor should sue his attorney for malpractice. “He made it 1000 times worse!”
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Or maybe this dentist should leave a yelp review on his attorney…
Proofreading
There is at least one error in your copying of the quotes from the letter. There may be others, but one stands out:
You missed “anti-SLAPP” in there. It should read:
First, the lawsuit he threatens would Violate the Texas Citizens Participation Act, our version of an Anti-SLAPP law.
Re: Proofreading
phew
Thanks, Keith.. I read that line over and over and finally shrugged, assuming it was some bit of legal language I just hadn’t heard before.
Re: Proofreading
There is at least one error in your copying of the quotes from the letter. There may be others, but one stands out:
Ick. Sorry. Relied too much on DocumentCloud’s built in OCR software which kicks out a transcript. I usually try to compare it carefully, but didn’t on this one… until now. That was the only major omission, though there were a few other minor ones (dropping letters mainly). Hopefully it’s all correct now.
re: Math
Mr Olson may know the law but he doesn’t know math…1973 was FORTY years ago.
Thanks for trying to add an extra decade to my age!
Re: re: Math
YOUR RIGHT! I should’ve caught that, considering Doctor Who is having it’s 50th anniversary this year.
Not sure how a dentist can threaten anyone with criminal charges. Isn’t it the DA who does this?
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when stupid lawyers write threats they claim they spoke with DA’s and stuff to scare the recipient and open themselves up to ethics charges.
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The thing about letters is that you can threaten anyone with anything. For example, I have a Klingon fleet waiting in orbit around Io and if you don’t give me your bank PIN they’re coming to getcha!
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Shields Up !!!
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Unless your a lawyer making threats to get your way when you don’t have legal footing to back up your claims.
Could have at least left me one...
Yeah, stay away I’ve used them it was not pretty.
I went in for a simple filling and woke up eight hours later in a tub with no kidneys or teeth, but I did have a new set of dentures.
I’m suspicious of most dentists in that I feel it’s too easy for them to manufacture an issue, e.g. claim you’ve got cavities when you don’t, in order to give themselves further work/profit.
Re: false diagnosis
if you are so mistrusting of the money hungry dentists, then just go to one that will teach you to read x-rays and identify decay, infection and take photos of your teeth and show you pictures of your problems. This is exactly what I do with ALL of my treatment presentations so people can never say I “made it up”. I started doing this so people can understand their health problems better and chose the right treatment for them selves, but I have found it also eliminated the “he only is making this up ‘cuz he wants a new mercedes perception.”
Opinion
Just simply say in My Opinion, in the statement
I once told a Federal Judge when I was called up to serve on a Federal Grand Jury that I, considered him to be the only Contemptible Person
in the Court. He had just made a stated lambasting the other men who
arrived to serve on the jury who did not wear a suit and tie in his presence
and told them the were contemptible.
He got so angry that he broke his gavel and told me to Get the Hell Out of his Court.
And I was looking forward to serving on the Jury.
Well this is just going to do wonders for his business.
Perception is reality
After 20 years of treating patients I have seen pretty much everything. I am always surprised to see people going with the opinions of those doctors which tell them what they want to hear not what is the reality4. This is how dentists who provide a through diagnosis are penalized when the patient sees a different dentist who is either careless, or not as educated or experienced providing a less expensive treatment plan. A smart individual, who receives 2 different medical opinions should seek out 3rd and maybe a 4th to corroborate the findings. However, most people go with the “cheapest” opinion. Sad but true.
Dr. William Coppola of Northeast Children’s Dentistry seems to be a total coward! No only does he hide behing a lawyer to sue an unhappy patients mother, but now tries to hide his cowardice by deleting facebook posts (https://www.facebook.com/pages/Northeast-Childrens-Dentistry/268691136513812.)
Its a shame that scumbags like Dr. William Coppola of Northeast Children’s Dentistry can so freely abuse the legal system to bully unhappy customers.
Hopefully Dr. William Coppola of Northeast Children’s Dentistry gets a taste of his own medicine and is put out of business.
similar case taken to state Supreme Court
Dr William Coppolla of Northeast Children’s Dentistry and his attorney, Isabel de la Riva of San Antonio, Texas, would have done well to review the case of Dr David McKee, Northland Neurology and Myology and St Luke’s Hospital, Duluth, Minnesota.
A man’s online post calling a doctor “a real tool” is protected speech, the Minnesota Supreme Court ruled. The state’s highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient’s son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor “a real tool,” slang for stupid or foolish.
On Wednesday, the court tossed a lawsuit filed by neurologist David McKee, who claimed he was defamed by several statements made by defendant Dennis Laurion
on websites used to rate doctors, report the Duluth News Tribune, the Minneapolis Star Tribune and the Associated Press.
The lawsuit followed the hospitalization of Laurion’s father, Kenneth, for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude.
Laurion expressed his dismay in several online posts with what he considered the doctor’s insensitive manner. Laurion had posted his comments on a website where patients review their doctors. The case has been watched with interest because of the potential conflict between free speech versus protection of professional reputations on the Internet.
On at least two sites, Laurion wrote that McKee said that “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option,” and that “It doesn’t matter that the patient’s gown did not cover his backside.”
Laurion also wrote: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”
He expected at most what he calls a “non-apology apology. I
really thought I’d receive something within a few days along the lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that would be the end of it,” the 66-year-old Duluth retiree said. “I certainly did not
expect to be sued.”
He was. Dr. David McKee’s defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor’s reputation.
In 2011, State District Judge Eric Hylden ruled that McKee was not defamed by the criticism and dismissed the doctor?s lawsuit.
McKee appealed to the Minnesota Court of Appeals; and in January 2012, that court sent the case back to the district court for a jury to decide whether six statements Laurion posted about McKee on rate-your-doctor websites and
distributed elsewhere were defamatory.
Laurion appealed the Court of Appeals decision to the Supreme Court and the case was heard in St. Paul in September.
Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted.
The ruling also said it doesn’t matter whether the unnamed nurse actually exists. McKee’s attorney argued that Laurion might have fabricated the nurse, something
Laurion’s attorney denied. And it said the doctor’s objections to Laurion’s other comments also failed the required legal tests.
“Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it
cannot be proven true or false,” Page wrote.
“I’m sure he and his family are very happy with this result,” Laurion’s attorney, John Kelly, said. “It’s been a long and difficult process for them.”
Laurion said the entire experience was stressful on his family. ?The initial excitement has not worn off,? he told the News Tribune. ?I?m very gratified it?s all over.?
Laurion, whose father survived the stroke and is now 88, 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.”
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, John Kelly and Marshall 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.?
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.?
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.
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. 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.
See:
http://www.startribune.com/local/189028521.html
http://www.duluthnewstribune.com/event/article/id/257287/
http://hosted.ap.org/dynamic/stories/U/US_ONLINE_RATING_RISKS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT
Re: similar case taken to state Supreme Court
ACCIDENTLY POSTED TWICE.
similar case taken to state Supreme Court
Dr William Coppolla of Northeast Children’s Dentistry and his attorney, Isabel de la Riva of San Antonio, Texas, would have done well to review the case of Dr David McKee, Northland Neurology and Myology and St Luke’s Hospital, Duluth, Minnesota, and his lawyer Marshall Tanick.
A man’s online post calling a doctor “a real tool” is protected speech, the Minnesota Supreme Court ruled. The state’s highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient’s son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor “a real tool,” slang for stupid or foolish.
On Wednesday, the court tossed a lawsuit filed by neurologist David McKee, who claimed he was defamed by several statements made by defendant Dennis Laurion
on websites used to rate doctors, report the Duluth News Tribune, the Minneapolis Star Tribune and the Associated Press.
The lawsuit followed the hospitalization of Laurion’s father, Kenneth, for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude.
Laurion expressed his dismay in several online posts with what he considered the doctor’s insensitive manner. Laurion had posted his comments on a website where patients review their doctors. The case has been watched with interest because of the potential conflict between free speech versus protection of professional reputations on the Internet.
On at least two sites, Laurion wrote that McKee said that “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option,” and that “It doesn’t matter that the patient’s gown did not cover his backside.”
Laurion also wrote: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”
He expected at most what he calls a “non-apology apology. I
really thought I’d receive something within a few days along the lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that would be the end of it,” the 66-year-old Duluth retiree said. “I certainly did not
expect to be sued.”
He was. Dr. David McKee’s defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor’s reputation.
In 2011, State District Judge Eric Hylden ruled that McKee was not defamed by the criticism and dismissed the doctor?s lawsuit.
McKee appealed to the Minnesota Court of Appeals; and in January 2012, that court sent the case back to the district court for a jury to decide whether six statements Laurion posted about McKee on rate-your-doctor websites and
distributed elsewhere were defamatory.
Laurion appealed the Court of Appeals decision to the Supreme Court and the case was heard in St. Paul in September.
Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted.
The ruling also said it doesn’t matter whether the unnamed nurse actually exists. McKee’s attorney argued that Laurion might have fabricated the nurse, something
Laurion’s attorney denied. And it said the doctor’s objections to Laurion’s other comments also failed the required legal tests.
“Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it
cannot be proven true or false,” Page wrote.
“I’m sure he and his family are very happy with this result,” Laurion’s attorney, John Kelly, said. “It’s been a long and difficult process for them.”
Laurion said the entire experience was stressful on his family. ?The initial excitement has not worn off,? he told the News Tribune. ?I?m very gratified it?s all over.?
Laurion, whose father survived the stroke and is now 88, 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.”
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, John Kelly and Marshall 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.?
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.?
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.
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. 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.
See:
http://www.startribune.com/local/189028521.html
http://www.duluthnewstribune.com/event/article/id/257287/
http://hosted.ap.org/dynamic/stories/U/US_ONLINE_RATING_RISKS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT
Silly dentist, lawsuits are for serious things
Honestly I think that this is the stupidest thing I’ve read all day, but then again, it happens all of the time. If you are going to own a business you had better be prepared to take the criticism from a customer/client. It’s just the way it works. You can’t come after them over a yelp review.
This is wrong and doing it with a letter is sad.
This is a very sad article. Can’t believe what I just read.
Top three 2013 lawsuits in Minnesota
This is extracted 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.
See rest of article: http://tcbmag.com/Industries/Law/2013-Lawsuits-Of-The-Year
so. an asshat in Popehat.
Professor sues over bad review
UW-Whitewater professor sues student over postings
By Associated Press
Published: 11:31 EST, 22 May 2014 | Updated: 11:31 EST, 22 May 2014
WHITEWATER, Wis. (AP) ? A University of Wisconsin-Whitewater professor is suing a former graduate student who posted online comments and videos that the teacher considers defamatory.
Anthony Llewellyn took a class last year from communications professor Sally Vogl-Bauer, but the experience didn’t go well, the Janesville Gazette reported (http://bit.ly/1hcjNmn ) Thursday.
Llewellyn posted comments on professor-rating sites accusing the teacher of criticizing his academic abilities, grading him unfairly and causing him to fail out of school. He said he spoke with her in April about his concerns, two months before he was told he had failed her class.
Vogl-Bauer contends the comments amount to defamation, while Llewellyn says his goal was simply to inform the public about how the professor treated him.
Tim Edwards, the attorney representing Vogl-Bauer, said the comments could be especially damaging to someone in a small professional community. He said he and Vogl-Bauer agree that students should be allowed to express their opinions, “but when you go so far beyond that, into a concerted effort to attack somebody’s reputation because things didn’t go your way, that’s much different.”
Edwards and Vogl-Bauer asked Llewellyn to take down his online comments and videos. They filed the lawsuit after he refused.
Llewellyn said it’s important for the videos and comments to stay online so the public can remain informed.
“I don’t feel I’ve (gone) too far with my videos and comments because everything posted basically communicates exactly how Sally Vogl-Bauer treated me,” Llewellyn said.
The lawsuit seeks punitive damages and attorney and trial fees. The case is scheduled to go a jury trial in September.
It’s not clear how successful the lawsuit will be, but a similar case in Minnesota ended with a ruling in favor of the person who posted the online rating.
In the case (David McKee MD vs Dennis Laurion), a doctor took offense when a patient’s son went on a rate-your-doctor website and called him “a real tool,” slang for stupid or foolish. The Minnesota Supreme Court ruled in January 2013 that the comment wasn’t defamatory because it was an opinion protected by free-speech rights.
___
Information from: The Janesville Gazette, http://www.gazetteextra.com
Another teacher sues for defamation
Like Dr. David McKee and Professor Sally Vogl-Bauer, a Texas teacher is suing for defamation.
“Texas teacher sues two students for defamation”
Posted By Kristen Butler, UPI, May 13, 2013
[[ May 13 (UPI) — High school English teacher Elizabeth Ethredge has filed suit against two students claiming she was suspended and may be fired because they told the principal that she had asked her class to stalk a suspected thief on Facebook. Ethredge claims she was giving an “oral storytelling” lesson in November 2012 when she told her class an anecdote about her son having personal property stolen at a high school in another district, reports Courthouse News Service.
[[ The complaint states that Ethredge “mentioned to her students that they might be able to help recover her son’s property.” She invited any student with a Facebook account to help by messaging the suspected thief to try and purchase the stolen item from him.
[[ Ethredge claims the two students only brought it up months later, in March of this year, when she sent them to the principal’s office for disruptive behavior and a dress code violation.
[[ “Defendants wrote statements about the oral storytelling exercise that were clearly retaliatory in nature, designed to take the focus off of their inappropriate behavior and to instead focus the principal’s attention on plaintiff,” the complaint states.
[[ As further evidence of the students’ alleged “deliberate and malicious intent to injure plaintiff’s reputation,” the complaint shows that one student posted a message to Facebook during school hours that said, “Hey Ethredge, “I threw stones at your house” what you got for me big bada**? Case closed!”
[[ The second student named in the suit commented on the post, saying “Hahahahah [expletive] ain’t got [expletive]!”
[[ Days after the cited Facebook posts, the Board of Trustees of the Waller Independent School District proposed termination of Ethredge’s employment.
[[ Ethredge seeks punitive damages for defamation and intentional infliction of emotional distress. ]]
Source: http://www.upi.com/blog/2013/05/13/Texas-teacher-sues-two-students-for-defamation/3031368455783/
McKee V. Laurion cited as precedent in Venture V. Kyle
“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 figure to 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/