Tuesday, July 6, 2010

Doctor Sues for Lousy OnLine Ratings



I must say I think Dr. Kimberly Henry, cosmetic surgeon,  has made a big professional mistake.  She has filed a lawsuit to stop online reviewers from badmouthing her on the Internet.  She is seeking injunctions against at least 12 reviewers from sites such as Yelp.com  and DoctorScorecard.com.  Dr. Henry claims libel and defamation, invasion of privacy and interference with prospective economic advantage and is seeking $1million in general damages and $1million in special damages, etc etc etc.

Now I don't know Dr. Henry, nor do I know of her plastic surgery technique.   I don't know who the disgruntled patients are or if they are unfairly targeting her.  What I do know is that the Internet is here to stay and there is no place to hide if you do not provide excellent customer service.  I was curious and checked DoctorScorecard.com and there is a new complaint placed today, so I don't think this publicity is helping her.  It will bring more angry patients out to comment, I'm afraid.

A similar case was filed last year by a dentist in San Francisco, Gelareh Rahbar, who filed a case against a patient who wrote a negative review on Yelp.com.  The case was thrown out by the judge and Rahbar was ordered to pay $43K for the patient's legal fees.  Anti-SLAPP (strategic lawsuits against public participation) laws provide some protection for online commentators as a preservation of free speech.

I wrote about medical rating sites back in 2007 and in 2008 and those posts have proven to be correct. (Reading my old posts is rather interesting and I agree with myself all over again!)  I know some physicians feel it is unfair that angry patients can say whatever they want and there is no rebuttal.  But if a surgeon has that many disgruntled patients who would take the time to comment, there might just be a problem.   Customer service can dwindle if no one in the office has medical coding certification.  And let's face it, those sites are anonymous and I know of doctors who post their own "good" ratings.  It swings both ways.

I feel sorry for Dr. Kimberly Henry because no one likes criticism and public critique is especially hard to swallow.  But bringing it even more public with a lawsuit (that may be hard to win!) is just throwing oil on the fire.  Better to spend that time and effort satisfying patients and asking them to post great comments to counteract the bad.

13 comments:

DBenzil said...

I generally agree though I was quite amazed to learn that many sites like HealthGrades had me listed as NOT Board Certified more than 5 years after I completed certification! and I would never have known if a patient hadn't told me. It would be nice at least if these sites were held accountable for the correctness of "public information" such as medical school, specialty boards, etc.

Anonymous said...

It would be interesting to be on that jury and see the outcome of this case and evidence. But if what the patients complaints are upset about is true there should be a way to warn other future patients and she deserves it if she blames the patient for her mistakes,damages, and failures in surgery. It certainly doesn't look good for a physician to sue a patient unless it is for a very valid reason. The good doctors I know would never have this kind of negative publicity from patients, or maybe a rare problem,out of a happy majority but never so many hurt angry patients.

stop smoking help said...

We all tell our family, friends and neighbors which doctors we like or dislike. The internet, like you said, is here to stay. With agencies like The Joint Commission, encouraging patients and their family members to hold healthcare providers accountable, this seems like a natural flow in this current information age we find ourselves in.

It would be nice though, if (like DBenzil said), the rating sites had accurate information. But as far as client/patient reviews go, I think they're beneficial.

Lucky for us in the healthcare world that we already know which doctors or other health professionals are "good" and can go to them without having to use the internet.

Vorobiev said...

What an interesting article.

What Dr. Henry did, was inefficient in the long run.

Yes, the iinternet is gaining strength, and trying to shut people up can never result in anything good.

She should have tried and found what was the problem people were complaining about and do something about it.

sim so dep said...

I wonder if she is also sueing for any positive comments on her cosmetic surgery practice? If people can't post their negative experiences with a specific doctor/practice/clinic, then we are all in deep trouble. And it isn't libel, as the comments are about her as a doctor, not her as a person. There is a professional - not personal - difference!

Court Watch said...

State Supreme Court Hears Online Doctor Rating Defamation Suit SEP 2012


Star Tribune, September 4, 2012, Maura Lerner

Two years ago, a Duluth neurologist, Dr. David McKee, sued the son of an elderly patient for defamation over some negative comments that were posted on rate-your-doctor websites.


On Tuesday, the state's top court was asked to decide whether the lawsuit should finally go to trial, after the case was thrown out by a lower court and reinstated on appeal. The lawsuit is one of a growing number of legal battles testing the limits of free speech on the Internet.


A good portion of the oral arguments were devoted to the meaning of the words that Dennis Laurion, 65, used to describe his family's encounter with McKee in April, 2010, when Laurion's father, Kenneth, then 84, was hospitalized with a stroke.


John Kelly, Laurion's attorney, noted that Internet sites are a "free for all" for people to share opinions and that his client's comments were perfectly appropriate. "We have a word, the word 'tool,'" Kelly told the justices. "When you look at the word, you have to ask: Is it defamatory?" He argued that the phrase, while "it clearly is not a compliment," is no worse than "calling someone an idiot or a fool."


During questioning, some of the justices seemed to agree. "Saying someone's a 'real tool' sounds more like an opinion than a statement of fact," Justice Christopher Dietzen said. Chief Justice Lorie Skjerven Gildea had a similar reaction. "The point of the post is, 'This doctor did not treat my father well,'" she said. "I can't grasp why that wouldn't be protected opinion."


Full Article:
http://www.startribune.com/printarticle/?id=168552176

Anonymous said...

From Associated Press:
[ 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. ]

Please also see:

http://www.startribune.com/local/189028521.html

http://comments.startribune.com/comments.php?d=content_comments&asset_id=189028521&section=/local&comments=true

Duluth doctor's lawsuit against patient's son over online criticism dismissed
Article by: ABBY SIMONS , Star Tribune, January 30, 2013


http://www.duluthnewstribune.com/event/article/id/257287/
Court protects Duluth doctor's online critic
By: STEVE KUCHERA, Duluth News Tribune, January 30, 2013


http://hosted.ap.org/dynamic/stories/U/US_ONLINE_RATING_RISKS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT
Minnesota high court says online post legally protected
By STEVE KARNOWSKI, January 30, 5:34 PM EST, 2013


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


http://learningboosters.blogspot.com/search/label/.%20McKee%20v%20Laurion


http://blogs.duanemorris.com/duanemorrisnewmedialawblog/entry/bedside_manners_was_the_doctor

Anonymous said...

http://patients.about.com/b/2013/02/11/and-david-mckee-fires-back-proving-the-point.htm
Plaintiff remarks about the lawsuit

http://learningboosters.blogspot.com/search/label/.%20McKee%20v%20Laurion
Defendant remarks about the lawsuit

Dennis Laurion said...

Although the Minnesota Supreme Court ultimately dismissed this lawsuit, 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, writing 19 letters, and 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.

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.

Uranus said...

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
MYGALLONS LLC and ZENACON LLC STEVEN VERONA
versus
U. S. BANCORP, VOYAGEUR FLEET SYSTEMS INC, And K. E. AUSTIN CORP
(12-1287),
an Appeal from the United States District Court for the Eastern District of North Carolina at Wilmington; 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.

Original Case A11-1154: http://mn.gov/lawlib/briefs/a111154sc.html

Harry Nevus said...

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.

Dennis said...

In spite of Supreme Court disagreement and subsequent peer disagreement, Marshall Tanick is STILL saying "The thing that’s often misunderstood is that THIS WAS NOT JUST ABOUT FREE SPEECH, BUT ABOUT MAKING ACTUAL FALSE STATEMENTS. 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."

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 said...

"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/