Ruling: You Can Call Your Doctor ‘A Real Tool’ In Online Review

(Janekpfeifer/Wikimedia Commons)

(Janekpfeifer/Wikimedia Commons)

Please forgive me for posting week-old news, but I somehow missed this important decision: The Minnesota Supreme Court has ruled in favor of a man whose online review of a Duluth neurologist included a nurse’s description of the doctor as “a real tool.”

The Associated Press report on the landmark case explains that “a tool” is “slang for stupid or foolish,” but my own translation into the vernacular, by which I mean Yiddish, would be “schmuck,” and the Online Slang Dictionary notes that “tool can also be found in the thesaurus categories ‘Words meaning penis’ and ‘Words meaning uncool person, jerk, asshole (general insults – list of).’”

So to move on from the lexical to the legal implications, this ruling — which the AP notes is not binding in other states but may influence future decisions — seems to strike a blow in favor of patients’ rights to disparage their doctors in online review sites. The AP reports:

The opinion, written by Justice Alan Page, said the comments posted by Dennis Laurion don’t add up to defamation because they’re opinions that are entitled to free speech protections.

“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. … We conclude that it is an opinion amounting to `mere vituperation and abuse’ or `rhetorical hyperbole’ that cannot be the basis for a defamation action,” the justices said.

And this from the losing lawyer:

“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,”

Readers, opinions? My first reaction is that doctor-shopping remains unacceptably difficult, and the more information online about various practices, the better. On the other hand, it’s true, some of the information on sites like Yelp may not be, shall we say, gold-standard…

Read the full AP report here.

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  • McKee V. Laurion

    Minnesota defamation case, David McKee MD v Dennis Laurion, cited as precedent by 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,
    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

    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) (alteration in original) (internal
    quotation marks and citations omitted). 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. (alteration in original) (emphasis added) (internal
    quotation marks omitted).

  • Dennis

    Although the Minnesota Supreme Court dismissed David McKee MD vs 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 prefered no discussion, because they didn’t want to think about it. Conversation with my father only reminded him of his anger over this situation. My siblings and children didn’t often bring it up, because they didn’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 characterized as 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.

    The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

    After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage. 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.

    It was not my intention to use any
    descriptions or conclusions. It was also not my intention to claim that I had
    proof. Only my family and the doctor were in the room. My intention was to
    portray my recollection of what happened in my father’s room. The public could
    decide what to believe and what – if any – impact it had on them: insensitive
    doctor or overly-sensitive consumer?

    Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit – for fear of creating the “Streisand Effect.” As a retired
    layman, I brought far less resources to the battle of financial attrition.

    I’ve learned that laws about slander
    and libel do not conform to one’s expectations. I’ve read that online
    complaints are safe “if you stick to the facts.” That’s exactly the
    wrong advice. I did not want to merely post my conclusions. I wanted to stick
    to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what
    happened, factual recitations can be litigated. The plaintiff must prove the
    facts are willfully misstated, but the defendant can go broke while waiting
    through the effort.

    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.

    Minnesota and two other states allow
    “hip pocket” lawsuits. The plaintiff can start a suit by sending the
    summons and complaint to the defendant without filing the documents in court.
    The plaintiff enjoys complete anonymity from public awareness. The defendant
    has 20 days to respond, but the court is unaware that the suit exists. The
    plaintiff can conduct interrogatories and depositions while the court is
    unaware that the suit exists. The plaintiff can send settlement demands to the
    defendant ‘s insurance company while the court is unaware that the suit exists.
    Until the suit is actually filed, the plaintiff’s lawyer orchestrates
    everything as the officer of the court. If the defendant files his answer, in
    order to publicly get onto the docket and under the supervision of a judge, the
    defendant pays the filing fee. In Minnesota, if the plaintiff loses his effort
    at rule by law, the rule of law generally allows the defendant no
    remuneration. The plaintiff can lose the suit while winning the battle of
    financial attrition.

  • Uranus

    Doctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune 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.

    The Star Tribune 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.”

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

    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.

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

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

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

    The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”

    In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013,
    “I’ve been tracking doctor v. patient lawsuits for online reviews. . . doctors
    usually lose or voluntarily drop these lawsuits. Indeed, with surprising
    frequency, doctors end the lawsuit by writing a check to the defendant for the
    defendant’s attorneys’ fees where the state has a robust anti-SLAPP law.
    Doctors and other healthcare professionals thinking of suing over online
    reviews, take note: you’re likely to lose in court, so legal proceedings should
    be an absolute last-resort option–and even then, they might not be worth pursuing.”

    Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”

  • Uranus
    contains this definition of tool: a tendentious lawyer who perpetuates a financial war of attrition in the form of a defamation suit on behalf of a wealthy client.

  • Court Watch

    Video: Lawyer tells Supreme Court
    how to safely rate a doctor online

    In David McKee MD vs Dennis
    Laurion, Minnesota Supreme Court Case A11-1154, the plaintiff’s attorney told
    the Minnesota Supreme Court the correct way to critique a doctor at a rating site.

    Taken from comments to Minnesota
    Supreme Court:

    . . . He may have been upset at how Dr. McKee treated his father.
    Apparently he was, and he’s entitled to say that. He can say that “I’m upset.
    Doctor McKee did not treat my father well. He was insensitive.” He can make
    statements like that: “He didn’t spend enough time in my opinion.” He can make
    factual (sic) statements, he can make them on the Internet, he can make them in
    letters, he can write a letter to the editor, he can stand in front of St.
    Luke’s Hospital with a placard saying those things if they are opinions . . .

    See the video: