Healthcare News & Insights

Doctor sues patient’s family — and everybody loses

HealthLaw

A recipe for disaster: Patient’s son complains about a doctor’s bedside manner online. Doctor sues patient’s family for defamation. And nobody wins.

Dr. David McKee, a neurologist with Northland Neurology and Myology, Duluth, Minnesota, filed a lawsuit against Dennis Laurion, alleging he had made untrue and defamatory statements about the doctor’s treatment of Laurion’s father.

Laurion had filed complaints about McKee with several organizations, including St. Luke’s Hospital, the St. Louis County Public Health and Human Services Advisory Committee, the American Academy of Neurology, the American Neurological Association, as well as other local health care professionals. The complaints were lodged with a total of 19 different agencies, regulatory bodies and health-related websites. McKee claimed that many of the comments were made by Laurion using false names, or attributing the complaints to third-parties.

Laurion’s complaints about McKee included that he:

  • acted angry after Laurion’s father was transferred from intensive care to another unit
  • told the family that he had to spend time finding out if Laurion’s father had been transferred or died
  • said 44% of hemorrhagic stroke victims die within 30 days, and
  • was unconcerned that the patient’s gown at one point was hanging in such a way that his rear was exposed.

In his response to the suit, Laurion claimed the statements were true, and therefore, not defamatory.

A judge tossed the case, saying there wasn’t enough objective information available to ask a jury to weigh whether the accusations were defamatory. He noted that while the issues raised were driven by emotion, patients and their families are entitled to take to the web and other media to air their complaints.

At the time of publication, McKee said he hadn’t decided if he would appeal.

  • Reddit Reader

    Your link to the newspaper article is broken, but the court order can be seen at:

    http://www.onpointnews.com/docs/Mckee-v-Laurion.pdf .

    • Carol Katarsky

      Thanks. I’ve fixed the link.

  • Noah V
  • Reddit Reader

    The Minnesota Court Of Appeals has scheduled David McKee MD v Dennis Laurion for a hearing by a panel of three judges. The oral hearing will be November 10, 2011, at 10:00 AM in the Sixth District Court House of Duluth.

  • Tribune Reader

    ABBY SIMONS , Star Tribune, January 30, 2013

    [ 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.’ 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.

    The unanimous ruling reverses an earlier Appeals Court decision and brings to an end the closely watched case that brought to the forefront a First Amendment debate over the limits of free speech online.

    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. After his father was discharged, he wrote the reviews and sent the letters.

    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!'”

    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 and that the nurse never existed. Whether it was fabricated or not was irrelevant, the court ruled. “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.” ]

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

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

    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

    (Quote) 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.” (End quote)

    Five years from now, I shall still notice the money I spent on this. This 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.

    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.

  • Dennis

    [quote] Laurion had filed complaints about McKee with several organizations, including St. Luke’s Hospital, the St. Louis County Public Health and Human Services Advisory Committee, the American Academy of Neurology, the American Neurological Association, as well as other local health care professionals. The complaints were lodged with a total of 19 different agencies, regulatory bodies and health-related websites. McKee claimed that many of the comments were made by Laurion using false names, or attributing the complaints to third-parties. [end quote]

    It is my belief that letters I wrote BEFORE the lawsuit and letters I wrote AS A RESULT of the lawsuit totalled 19. I did no doctor reviews as third parties.

    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?

    This entire experience has been distressing to my family. We were initially shocked
    and blindsided by “jocular” comments made so soon after my father’s stroke by
    somebody who didn’t know us. We were overwhelmed by my being sued after posting
    a consumer opinion, and we were shocked by the rapidity with which it happened.
    It has been the 800 pound gorilla in the room. My parents would be 88-year-old
    witnesses. My mother and wife prefer no discussion, because they don’t want to
    think about it. Conversation with my father only reminds him of his anger over
    this situation. My siblings and children don’t often bring it up, because they
    don’t know how to say anything helpful. I have been demoralized by three years
    of being called “Defendant Laurion” in public documents. While being sued for
    defamation, I have been called a passive aggressive, an oddball, a liar, a
    coward, a bully, a malicious person, and a zealot family member. I’ve been said
    to have run a cottage industry vendetta, posting 108 adverse Internet postings
    in person or through proxies. That’s not correct. In reality, I posted ratings
    at three consumer rating sites, deleted them, and never rewrote them again.

    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.

    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.

Subscribe Today

Get the latest and greatest healthcare news and insights delivered to your inbox.