Pages

Sep 29, 2012

Lawsuits by Doctor, Dentist Over Patients' Reviews Dismissed

(cross posted at the Citizen Media Law Project)
 A doctor in New York and a dentist in Oregon have both found out that it may not be easy to sue for libel over online reviews of their services, after their separate lawsuits were both dismissed. And it turns out that most of the dentists and doctors who have sued over online reviews have reached similar results.


In the New York case, doctor Trilby J. Tener sued over a comment posted to the physician review website vitals.com. The comment, posted April 12, 2009, stated that "Dr. Tener is a terrible doctor. She is mentally unstable and has poor skills. Stay far away!!!"

Dr. Tener discovered the comment when she did a Google search for herself on May 28, 2009. But she did not file suit until April 8, 2010, four days before the expiration of the one-year statute of limitations (running from the day when the statement was initially posted). She then attempted to amend the complaint on June 8, 2010 to change the named defendant, claiming that it took that long to determine who was responsible for the posting.

Discovery in that case lead to an appellate decision, after Dr. Tener's efforts to obtain electronically-stored records from a hospital, in an attempt to identify the poster. The records were deleted through normal business operation. Calling it "our first opportunity" to address the issue, the appellate court noted that "[electronically stored information] is difficult to destroy permanently. Deletion usually only makes the data more difficult to access," and held that  against non-parties must utilize a cost-benefit analysis weighing the cost of retrieving the information against the value of the sought-for information. See Tener v. Cremer, 89 A.D.3d 75, 931 N.Y.S.2d 552 (N.Y. App. Div., 1st Dept. 2011).

That ruling raised the ire of the trial court because the "trial record" before the appellate court differed from that record that had been before the trial court when it made its initial decision in the discovery dispute. The problem turned out to be a clerical error in the trial court when the case was passed from one judge to another, that Dr. Tener's attorney did not correct.

Ruling on a defense motion to dismiss after the appellate decision, the trial court chided the plaintiff and her attorney for appealing rather than attempting to correct the record, and for not being diligent about identifying the proper defendant prior to filing suit. The court then proceeded to dismiss the suit on statute of limitations grounds, and also wrote that "even if this action was found to be timely, dismissal is warranted for failure to state a cause of action, as the alleged defamatory statements are statements of opinion, and, thus, are not actionable."  Tener v. Cremer, 2012 NY Slip Op 32022(U) (N.Y. Sup. Ct., N.Y. County July 16, 2012).

Meanwhile, an Oregon court dismissed a lawsuit by a Lake Oswego, Oregon dentist over reviews that a former patient posted on Yelp.com, DoctorOogle.com and Google. Circuit Court Judge Judith Matarazzo dismissed the lawsuit under the state's anti-SLAPP law on Sept. 5.

Such statutes, adopted in 28 states, the District of Columbia, and one U.S. territory (and by common law in two more states), allow for easy dismissal of libel and similar lawsuits that are primarily aimed at limiting discussion of public issues. (See the DMLP Legal Guide for more on anti-SLAPP laws.)

These cases stand as data points showing growing trend. According to this list of lawsuits (pdf) brought by doctors and dentists over online reviews of their services compiled by Eric Goldman of Santa Clara School of Law, physicians have not been very successful in such suits. Several suits have been dismissed under anti-SLAPP statutes. See Gilbert v. Sykes, 53 Cal. Rptr. 3d 752 (Cal. App. Ct. 2007); Kim v. IAC/InterActive Corp., 2008 WL 3906427 (Cal. App. Ct. 2008); Wong v. Jing, 189 Cal. App. 4th 1354 (Cal. App. Ct. 2010); Rahbar v. Batoon, No. CGC-09-492145 (Cal. Super., San Francisco filed Sept. 2, 2009), No. CGC-10-502884 (Cal. Super., San Francisco filed August 20, 2010), and No. CGC-11-515742 (Cal. Super., San Francisco filed Sept. 8, 2011). (In one case, the court declined to dismiss a doctor's lawsuit under Maine's anti-SLAPP law, finding that the plaintiff was likely to be able to prove that the patient fabricated the story posted on the review site. See Lynch v. Christie, 2011 WL 3920154 (D. Me. Sept. 7, 2011), appeal dismissed, No. 11-2172 (1st Cir. 2011).)

Others have been dismissed under section 230 of the Commmunications Decency Act. Other cases were withdrawn, and some settled.

None of the cases actually ended with court awards to the doctors.

30 comments :

Anonymous said...

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

Comments:
http://www.facebook.com/startribune/posts/527714173921326?comment_id=110848277&offset=0&total_comments=9

Anonymous said...

One more prominant case, a Santa Monica neurosurgeon, Dr. Aaron Filler, sued his former patient for defamation and loss of prospective economic advantage for rating him on a doctor rating website and reposting another patient review from a different site. This case was dismissed under California's Anti-SLAPP law and Dr. Filler was ordered to pay more than $50,000 of his former patient's attorneys fees. CMLP, Aaron Filler et. al. v Susan Walker et. al.

Eric P. Robinson said...

Thanks to the posters for the additional cases.

Anonymous said...

Would your stance regarding free speech and protected opinion differ regarding these physicians going after these posts if the person posting the comment were not a patient nor client, but instead were allegedly another doctor? For example an alleged disgruntled peer or former colleague with a history of bad blood (pardon the pun) posing as a disgruntled patient?

Anonymous said...

If a client posts a bad review as opinion, it's free speech. If a poser posts a lie, it's a lie.

Anonymous said...

I completely agree with that, but are lies by a poser still allowable under free speech per Mr. Robinson?

Anonymous said...

Protected opinion in the Tener v. Cremer case is then questionable in terms of free speech. Dr. Cremer, the defendant, is not a patient, but a colleague, a former co-chief resident from several years prior who currently practices at NYU Hospital. Mr. Robinson?

Eric P. Robinson said...

No matter who posts the comment, the legal standards would be the same. If the doctor is a public figure (determined by state law), s/he would have to prove that the statement is false and that it was made with "actual malice" (either knowledge that the statement was false, or reckless disregard for whether it was true or not). If the doctor is a private figure, lower standards would apply (again, depending on the state), but the doctor would win if s/he can show actual malice.

So, if the comment is by a genuine patient, and is an accurate statement of his/her experience, or entirely opinion, the doctor does not have a case. Comments made by a colleague or someone else with a vendetta would be published with actual malice, and could be held to be libel.

Thanks for the comments. (Standard disclaimer: This isn't legal advice, just a general educational statement about the law.)

Anonymous said...

You list the Wong case as an example of a libel claims being dismissed based on the anti-SLAPP statute. I think a closer reading makes clear that as to the actual author, the anti-SLAPP motion was denied and the case allowed to proceed.

Anonymous said...

I am in complete agreement. You mention that comments made by a colleague or someone else with a vendetta would be published with actual malice, and could be held to be libel. According to that statement, that Dr. Miriam Cremer or any such peer may be found liable for defamation per se iand would be warranted since she is a colleague, whether intentionally posed as a patient, and allegedly posted those comments about another colleague of hers that she has not been in any contact with for almost a decade. It is not published by a patient with recent or personal opinion but rather appears very much like a colleague to colleague vendetta as you mention, likely done with malice, yet we are led to believe by this article and outcome that it is an acceptable form of free speech. If this is so, it will be an allowable free-for-all for any professional colleague to do the same to other colleagues, peers, and businesses in order to effect a vendetta and/or affect livelihood and reputation. There should be limits to what colleagues/peers such as Dr. Cremer can post about other colleagues/peers, otherwise patients/clients will read posts and truly "stay far away" unnecessarily.

Lilburn cosmetic dentist said...

It is quite easy to establish a dentist/patient relationship.

Eric P. Robinson said...

Re: 10/26 comments:

The first commentator is right: while most of the claims were dismissed under the anti-SLAPP statute (by an appeals court, after the trial court declined to do so), but one libel claim against the author of the post remained. According to the online docket, that claim was dismissed in March 2012.

As for the second comment, in Tener v. Cremer the court dismissed the lawsuit because of the statute of limitations. It then added that even if the lawsuit had been timely, the statement at issue -- "Dr. Tener is a terrible doctor. She is mentally unstable and has poor skills. Stay far away!!!" -- was a statement of opinion, and thus not actionable in a libel case. For the statement to be actionable, it would have to include (or imply) a statement of fact, which can be proven either true or false.

Anonymous said...

Actually the case was within the statute of limitations. Also, it was indeed a statement of fact, not opinion. Dr. Cremer in her alleged statement of fact, the comment allows the reader to believe she has personal and recent knowledge of proof of the statement. That is not opinion. If Dr. Cremer, herself, felt her own skills were poor or her mental state unstable, that may lead the rrader to believe it is a statement of fact. The onus would have to be on Dr. Cremer would have to prove the statements to be true regarding Dr. Tener, which she could not. Not possible for someone with whom she has not been in contact for nearly a decade. Interesting that the fact Dr. Cremer is a colleague allegedly rendering this statement, and nowhere denies allegations of posting this statement about another colleague with whom she has no contact, is of no consequence. An ominous precedent.

Anonymous said...

From "The Legal Infrastructure of Business"

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

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

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

1. “I had to spend time finding out if you transferred or died” – Dr. McKee maintains that he made a lighthearted comment to the effect of I had looked for him up in the intensive care unit and was glad to find that, when he wasn't there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit;  you either have improved to the point where you're someplace like this or you leave because you've died. While the comments are substantially similar, Dr. McKee maintains that the “sting” is very different. In Mr. Laurion’s version, Dr. McKee seems to blame the patient and joke about their death, but in his statement, expresses happiness for the patients improved condition. Therefore, if a jury believes Dr. McKee’s recollection, then the statements by Mr. Laurion are not substantially accurate.

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

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

See http://picker.typepad.com/legalinfrastructure/2012/11/when-online-reviews-become-defamation-suits.html

doc21 said...

Please See Details Below: I am a physician who recently noticed that very suspicious activity was going on the physician rating sites which included 2 areas.

1. I suddenly began having negative surveys published about me.

2. A disgruntled colleague suddenly responded to negative surveys filled out about them, while simultaneously began having more positive surveys filled out than any other physician in my city.

"I have legitimite reason to believe that another provider in my city has falsely and fraudulently filled out negative ratings regarding my practice. This provider has multiple negative ratings on other sites, and has actually rebutted patients about their ratings. The providers spouse is trained in Informational Technology and due to a fallout with employment, I now have information that suggest the provider is covertly using sites to disseminate lies. It is an interesting phenomenon that this provider has a history of poor ratings over the last couple years, and then suddenly once the provider leaves to another office, has multiple (the most of any other provider in our field) new and extremely positive ratings, and simultameous response to the negative ratings. "

After I emailed the website where the comments were made, I received a notice that an investigation had taken place and due to the investigation 2 negative surveys were being removed from my ratings. This changed significantly my rating scores and improved my overall physician rating from 80% (the lowest in the city) to 100%.

Does this seem to meet the criteria for libel?

Lou David said...

I think it wouldn't be a great idea to charge libel to reviews you see on a certain dentist website. If you trust that you are credible enough, then just do your job and be mindless of those nonsense reviews.

drguido said...

that's really sad to know that the reviews dismiss. but thanks for the case detail. really need to know what happen further.

Dr Guido

Anonymous said...

Doc21, I think you have a valid argument. A disgruntled colleague with negative ratings leaving negative comments about others. Interestingly, your post caused me take a look at Dr. Miriam Cremer's own rating on the vitals.com website and I saw that she, herself, was labeled as "Unstable" just before she allegedly wrote the "Unstable" comment about another colleague. It is likely this was a case of Dr. Miriam Cremer allegedly being a disgruntled colleague and in rogue retaliation with malicious intent.

As Mr. Robinson posted, "For the statement to be actionable, it would have to include (or imply) a statement of fact, which can be proven either true or false." It would be easy to prove mental instability and poor skills.

It is my understanding that the name of the defendant was changed to Dr. Miriam Cremer after the lengthy process (these rating sites do not easily give out IP addresses without an attorney/attorney drawn out process)of obtaining the IP address from the vitals.com website and the source of the unfavorable comment was linked via IP address to Dr. Cremer's workplace at NYU.

At the very least, these doctors and dentists will think twice before posting negative comments about their colleagues. These negative and malicious commentators are disgrace to their professions.

Doc21 asks if it meets the criteria for libel. It appears so, but it also appears that these doctors who are victims of their own immoral peers are no the ones protected, but the peers, themselves, are the ones who are immune. Yes, really sad.

Amy Barnes said...

Now, these rating websites are just the arm pits of the Internet, really. When I have had trouble with a doctor, I have used the experience as a bargaining chip to remove medical bills for bad work. Just take pictures and/or find ways to gather enough physical evidence to sway a jury and offer the experience in return for a reasonable remedy. No need to go ape over an experience :)

Leona james said...

At the very least, these doctors and dentists will think twice before posting negative comments about their colleagues. These negative and malicious commentators are disgrace to their professions.
http://www.yazlawsuitteam.com/

Claudio Timbers said...

the trial court when it made its initial decision in the discovery dispute. The problem turned out to be a clerical error in the trial court when the case was passed from one judge to another, that Dr. Tener's attorney did not correct. Los Angeles dentist

Harry Nevus said...

"Minnesota high court says online post legally protected"

By STEVE KARNOWSKI, Associated Press

MINNEAPOLIS (AP) -- 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.

The decision reversed a Minnesota Court of Appeals decision that would have let the doctor's lawsuit proceed to trial.

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.

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.

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.

This dispute was over how McKee treated Laurion's father, who had suffered a stroke, during a single hospital visit in 2010 that lasted 10 to 15 minutes. Laurion expressed his dismay in several online posts with what he considered the doctor's insensitive manner.

"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."

McKee's lawyer, Marshall Tanick, said 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.

While the decision is not binding in other states, Kelly and 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.

Harry Nevus said...

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

"I really thought I'd receive something within a few days along the lines of 'I'm sorry you thought I was rude, that was not my intent' and that would be the end of it," the 66-year-old Duluth retiree said. "I certainly did not expect to be sued."

He was. Dr. David McKee's defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor's reputation.

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."

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.

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!'"

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

The Supreme Court disagreed. Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted. Page added that the "tool" statements also didn't pass the test of defaming McKee's character. He dismissed an argument by McKee's attorney, Marshall Tanick, that the "tool" comment was fabricated by Laurion. "Referring to someone as 'a real tool' falls into the category of pure opinion because the term 'real tool' cannot be reasonably interpreted as stating a fact and it cannot be proven true or false," Page wrote.

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

Jane Kirtley disagreed. The professor of media ethics and law at the University of Minnesota School of Journalism said the ruling stems from "an elementary principle of libel law. I understand the rhetoric, but this is not a blank check for people to make false factual statements," she said. "Rather, it's an endorsement that statements of opinion are protected under the First Amendment."

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

Comments: http://comments.startribune.com/comments.php?d=content_comments&asset_id=189028521&sort=E&section=/local&page_nbr=2&ipp=10

Eric P. Robinson said...

Fellow blogger Eric Goldman has written a blog post on this issue.

Harry Nevus said...

From 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.

Harry Nevus said...

From 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.

Harry Nevus said...

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.”

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.

Eric P. Robinson said...

More on this issue from my colleague Eric Goldman:

http://blog.ericgoldman.org/archives/2013/12/how-doctors-should-respond-to-negative-online-reviews-forbes-cross-post.htm

Harry Nevus said...

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

Harry Nevus said...

IS A SETTLEMENT IN THE WORKS FOR VOGL-BAUER V. LLEWELLYN?

Anthony Llewellyn now has three lawyers, Andrew Price, Kate E. Maternowski, and Laura Brenner . Jury trial is still scheduled for SEP 15 - SEP 17, 2014, in the Walworth County Judicial Center Courtroom of the Honorable Phillip A Koss; however, it is hard to find any of Anthony Llewellyn's videos online. IS HE TAKING THE VIDEOS DOWN?

Sally Vogl-Bauer apparently had her pre-trial hearing AUG 20, 2014. It is no longer listed on the pending court docket.

Visit http://wcca.wicourts.gov/index.xsl . Click agree.

On next page enter name = Llewellyn,

County = Walworth,

Case Number = 2013CV001140.

You'll see suit history and public data about Sally Vogl-Bauer and Anthony Llewellyn.

Post a Comment

Because of an influx of spam, we are now moderating comments. Sorry for the inconvenience.