Critical online reviews can carry leg...

Critical online reviews can carry legal risks

There are 24 comments on the Ventura County Star story from Oct 27, 2012, titled Critical online reviews can carry legal risks. In it, Ventura County Star reports that:

Marshall Tanick is the attorney for Dr. David McKee, who sued a patient's son for defamation after critical remarks about McKee were posted on some rate-your-doctor websites.

Join the discussion below, or Read more at Ventura County Star.

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Court Watch

San Jose, CA

#1 Oct 28, 2012
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 ...

Case Summary:
http://www.mncourts.gov/Documents/0/Public/Ca...

Video:

http://www.tpt.org/courts/MNJudicialBranchvid... #
Content Scraper

Mclean, VA

#2 Nov 2, 2012
Doctor Hires Investigator To Find Nurse Who Called Him A Tool

When a doctor hires a private detective to find out which one of the 4,400 nurses in St. Louis County, MN may have called him a “tool” you know the man is serious about defending his reputation. That is just what Dr. David McKee of Northland Neurology and Myology is doing in preparation for the next leg of his defamation lawsuit against the son of a former patient, Dennis Laurion.

When neurologist Dr. David McKee treated World War II veteran Kenneth Laurion his reportedly insensitive remarks and dreadful bedside manner had the vet’s son, Dennis Laurion, up in arms. The younger Laurion took his wrath to the web and posted unfavorable reviews about Dr. McKee on several rate-your-physician websites. Dennis Laurion contended that Dr. McKee failed to treat the elder Laurion with concern and respect. According to Laurion, Dr. McKee “seemed upset” that Kenneth McKee was moved to a ward after a stint in the intensive care unit and said to his patient,“When you weren’t in ICU, I had to spend time finding out if you transferred or died.” Laurion also reported that the doctor dismissed the stroke patient’s need for therapy before pulling Kenneth Laurion up to his feet and forcing him to walk without any regard for whether the patient’s hospital gown was tied at the back. Dennis Laurion even went so far as to write that when he “mentioned Dr. McKee’s name to a friend who is a nurse, she said,‘Dr. McKee is a real tool!’”

Angered by Laurion’s Internet critique, Dr. McKee filed a defamation suit against Dennis Laurion for $50,000.

See more:

http://defamationlaw.net/mckee-v-laurion-the-...
Doctor Hires Investigator To Find Nurse Who Called Him A Tool

http://www.aaronkellylaw.com/tag/doctor-defam...
Doctor Defamation Lawsuits
Wisconsin Badger

San Jose, CA

#3 Nov 20, 2012
From "The Legal Infrastructure of Business" NOV 2012

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 rest of article: http://picker.typepad.com/legalinfrastructure...
Or
http://www.modernhealthcare.com/article/20121...
Under The Troll Bridge

New York, NY

#4 Dec 9, 2012
Toledo Blade 8/24/2001 reprinted article from Minneapolis – St. Paul Star:

Firm sues over messages on the Internet.

If a (plaintiff) sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win, said Marshall Tanick ... The strategy is to force the other person to incur huge legal expenses that will deter them and others... very few cases go all the way to trial. A (plaintiff’s) strategy typically includes filing in a state that might be inconvenient and costly for defendants. Lawyers will seek ways to avoid First Amendment issues because they are hard to prove.

Read more:
http://news.google.com/newspapers...

http://chronicle.augusta.com/stories/2001/08/...
Paging Doctor Streisand

Torrance, CA

#5 Dec 26, 2012
Modern Health Care, November 10, 2012
By Andis Robeznieks

According to legend, the term Streisand Effect was coined when singer Barbra Streisand tried to have a photo of her home—one among thousands of pictures that were part of an online display showing coastline erosion in California—deleted from that site. The ensuing publicity essentially guaranteed the image will never disappear from the Internet.

It could be unlikely that combative efforts to counter negative profiles on physician review websites will lead to a similar occurrence known as a the “Dr. McKee Effect.”

Dr. David McKee, a neurologist from Duluth, Minn., is suing a patient's family member for defamation after the man posted negative reviews of him online. The case was argued in September before the Minnesota Supreme Court and, while its legal precedent-setting impact might not extend beyond the state's boundaries, attorneys for both sides say it could serve as a guide in future legal proceedings - wherever the jurisdiction may be.

The parties are awaiting a decision from Minnesota's high court since the trial is over, but the discussion it spawned appears to be just getting started.

“You can exacerbate the situation if you respond too combatively—and that can lead to more negative comments,” says Brent Franson, vice president of Reputation.com , a company that offers an online “reputation management service” that is now a benefit offered to members of the American Medical Association.
Franson says privacy concerns also can arise when doctors respond online to a website's review, and he recommends being “very polite and specific” when doing so—otherwise the Streisand Effect can get started. For example, according to the review Dennis Laurion posted about McKee on several websites, a nurse told him “Dr. McKee is a real tool.” That phrase is now etched forever in a Minnesota Appellate Court opinion that can be found online, and a Google search of “'David McKee'+'real tool'” will pull up more than 4,300 online references to the case.

That story began with Laurion's father spending two days in an intensive-care unit at St. Luke's Hospital in Duluth after a hemorrhagic stroke in April 2010. According to the review Laurion posted, McKee walked into his father's room and “seemed upset” the patient had been moved and said,“When you weren't in ICU, I had to spend time finding out if you transferred or died.” When that remark was met with surprise, Laurion wrote that McKee said,“Well, 44% of hemorrhagic strokes die with 30 days. I guess this is the better option.”

The appellate court opinion notes how McKee reportedly dismissed the patient's unwillingness to get out of bed and walk while wearing a hospital gown that was open in back. The appellate court decision adds that Laurion also sent letters to the hospital and various medical associations telling a story of the doctor blaming the patient for the loss of his time and treating Laurion's father as a “task and charting assignment.”

While a district court dismissed McKee's defamation suit, the state appellate court - in a Jan. 23, 2012 decision - ruled in the doctor's favor and remanded the case for trial. It asserts that, while opinions, true statements and vague statements are generally non-actionable, McKee had challenged 11 comments Laurion made as false statements presented as fact. The appellate court ruled that six of them were statements of fact rather than an opinion, and that it was up to a jury to decide whether they were true or false and defamatory. But rather than go before a jury, Laurion won an appeal, and the case went to the Minnesota Supreme Court.

The appellate court cited a previous decision that states how “inaccuracies of expression or detail” do not establish the falsity element in a defamation claim, for “a statement is substantially accurate if its gist or sting is true,” and it notes that Laurion's versions of the story may carry a different “sting” than McKee's.
Tribune Reader

Sydney, Australia

#7 Apr 5, 2013
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.ht...
Full article

http://comments.startribune.com/comments.php...
Comments
False Statements

Saint Paul, MN

#8 Apr 6, 2013
It seems the Doctor can display unethical bad behavior, ridicule and criticize the patient, rant like a baby and even lie about a patient, and when the patient doesn't stand for it they will fill your record with more lies to cover their behind. Don't think any other staff who know the truth will speak up in defense of the patient, they don't want trouble in their job. So, with the remarks in the now new electronic files that are suppose to be protected, which is a joke, every healthcare facility the patient goes to looks at the record with the defamation against the patient and of course believes the Doctor.
Critical Online Med Recs

Saint Paul, MN

#9 Apr 11, 2013
Critical Online Medical Records that defame a patient due to a Doctors incorrect report, cannot in anyway be changed, which makes it difficult for the patient at any medical facility they go to. I feel NO sympathy for this or any Doctor who feels they can defame a patient but the patient cannot say anything about them. He got what he deserved. I applaud the family for standing strong and I hope the legal system isn't intimidated by his title and see him for what he really is. I hope citizens keep posting on this, and it is not just forgotten.
Cross References

Anonymous Proxy

#10 Apr 13, 2013
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.

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

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.”
Dennis

Duluth, MN

#11 Apr 16, 2013
Five years from now I WILL notice the money I spent on this.

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.

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.

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 descriptions or
conclusions – like “shabbily.” 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. However, if one purports to say what happened, factual recitations can be litigated.
McKee V Laurion

Anonymous Proxy

#13 Jun 3, 2013
McKee v 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.

Page 13 of http://www.ca4.uscourts.gov/Opinions/Unpublis... says: McKee v. Laurion , 825 N.W.2d 725, 729 - 30 (Minn. 2013) A defamation claim cannot be based on a true statement. "True statements” include statements that are “true in substance” and contain only “minor inaccuracies of expression or detail.” 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.”
Mankato Visitor

San Jose, CA

#14 Jul 19, 2013
Other view: Court correct to dismiss doctor’s defamation suit
By: Mankato Free Press editorial board, Mankato (Minn.) Free Press

Thumbs up to the Minnesota Supreme Court for ruling that making disparaging remarks about a doctor online does not open someone to being sued for defamation (“Minnesota Supreme Court: Website comments about Duluth doctor not defamatory,” News Tribune, Jan. 30).

Dr. David McKee filed a lawsuit against Dennis Laurion after Laurion posted remarks on a rate-your-doctor website. Laurion thought his father wasn’t treated as well as he should be by the doctor and said so. Among other things, the doctor was referred to as “a tool,” as in a foolish man.

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 different from knowingly telling a lie about someone in order to harm their reputation or business.

The high court, in throwing out the doctor’s defamation suit, pointed out that you can’t prove if someone is or is not “a tool.”

It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.
Taco Bender

Austin, TX

#16 Sep 25, 2013
David McKee MD v. Dennis Laurion was cited by United States District Court, District of Minnesota in Civil No. 11-812 (JNE/JJG), Karen Eckstrom, Plaintiff, v. Bio-Medical Applications of Minnesota, Inc.(BMA); an affiliate of Fresenius Medical Care Holdings, Inc.; a/k/a Fresenius Medical Care, all foreign corporations doing business in Minnesota; Patrick Howard and John Marietti.

“To establish the elements of a defamation claim in Minnesota, a plaintiff must prove that:(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).

“The plaintiff has the burden of proving falsity in order to establish a successful defamation claim.” McKee v. Laurion, 825 N.W.2d 730 (Minn. 2013).

“Truth is a complete defense to a defamation action and ‘true statements, however disparaging, are not actionable.’” McKee v. Laurion, 825 N.W.2d 730 (Minn. 2013).

Generally the truth or falsity of a statement is a question for the jury, but “[i]f the statement is true in substance, minor inaccuracies of expression or detail are immaterial.” McKee v. Laurion, 825 N.W.2d 730 (Minn. 2013).

“Minor inaccuracies to not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge [is] justified.’” McKee v. Laurion, 825 N.W.2d 730 (Minn. 2013).
Page 27 of http://docs.justia.com/cases/federal/district...
Chicago Brick

Chicago, IL

#17 Jan 21, 2014
TWIN CITIES BUSINESS
The Top Lawsuits Of 2013
by Steve Kaplan
December 20, 2013

Never Shout "He's a Tool!" On a Crowded Website?

Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.

Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?

It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride.“The court held that what my client was quoted as saying was not defamatory,” he says.“I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”

But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation.“The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says.“The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote,“The point of the post is,‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.”

See rest of article: http://tcbmag.com/Industries/Law/2013-Lawsuit...
Dennis

Duluth, MN

#18 Jan 22, 2014
In spite of Supreme Court disagreement and subsequent peer disagreement, Marshall Tanick is STILL saying about David McKee MD v. Dennis Laurion: "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.
Mile HighReader

Phoenix, AZ

#19 Jan 31, 2014
In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said,“I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

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.”
WuetendHund

Frankfurt, Germany

#25 Jul 14, 2014
Professor Sally Vogl-Bauer and her lawyer, Timothy Edwards, seem not from this four-year illustration of the Streisand Effect to have learned anything.
"UW-Whitewater professor sues student over postings"
By Associated Press 22 May 2014
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.
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.
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, 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
(*) The Minnesota case was David McKee MD V. Dennis Laurion, Minnesota Supreme Court File # A11-1154
WutendHund

Frankfurt, Germany

#26 Jul 14, 2014
This has been for spacing repeated.

UW-Whitewater professor sues student over postings

By Associated Press 22 May 2014

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.

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.

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, 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

(*) The Minnesota case was David McKee MD V. Dennis Laurion, Minnesota Supreme Court File # A11-1154
Gradual Student

Miami, FL

#27 Jul 24, 2014
A Texas teacher is following the bad example of David McKee MD, Marshall Tanick Esquire, Professor Sally Vogl-Bauer, and Timothy Edwards Esquire.

"Texas teacher sues two students for defamation"
Posted By Kristen Butler, UPI, May 13, 2013

May 13 (UPI)-- High school English teacher Elizabeth Ethredge has filed suit against two students claiming she was suspended and may be fired because they told the principal that she had asked her class to stalk a suspected thief on Facebook. Ethredge claims she was giving an "oral storytelling" lesson in November 2012 when she told her class an anecdote about her son having personal property stolen at a high school in another district, reports Courthouse News Service.

The complaint states that Ethredge "mentioned to her students that they might be able to help recover her son's property." She invited any student with a Facebook account to help by messaging the suspected thief to try and purchase the stolen item from him.

Ethredge claims the two students only brought it up months later, in March of this year, when she sent them to the principal's office for disruptive behavior and a dress code violation.

"Defendants wrote statements about the oral storytelling exercise that were clearly retaliatory in nature, designed to take the focus off of their inappropriate behavior and to instead focus the principal's attention on plaintiff," the complaint states.

As further evidence of the students' alleged "deliberate and malicious intent to injure plaintiff's reputation," the complaint shows that one student posted a message to Facebook during school hours that said, "Hey Ethredge, "I threw stones at your house" what you got for me big bada**? Case closed!"

The second student named in the suit commented on the post, saying "Hahahahah [expletive] ain't got [expletive]!"

Days after the cited Facebook posts, the Board of Trustees of the Waller Independent School District proposed termination of Ethredge's employment.

Ethredge seeks punitive damages for defamation and intentional infliction of emotional distress.

Source: http://www.upi.com/blog/2013/05/13/Texas-teac...
Former Wisconsin Badger

San Jose, CA

#28 Jul 26, 2014
The Texas teacher probably has a tangible claim for damages. Elizabeth Ethredge got fired according to http://www.texednews.com/2013/38/Ethredge_v_W... .

So far as I know Professor Sally Vogl-Bauer still has tenure at University of Wisconsin, and Dr. David McKee still works for Northland Neurology and Myology, still works for Integrity Health Network, and still sees patients at St. Luke's Hospital in Duluth MN.

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