Wednesday, September 5, 2012

Minn. High Court Distinguishes Medical Device from Medical 'Tool'

Historic Minnesota Supreme Court Chamber in th...
(Photo credit: Wikipedia)
The Minnesota Supreme Court yesterday heard oral arguments in David McKee, M.D. v. Dennis Laurion (Case No. A11-1154), a libel case that turns on the question of whether the plaintiff was defamed by a comment by the defendant on a rate-your-physician Web site.

McKee, a neurologist at Northland Neurology and Myology in Duluth, treated the defendant's father, Kenneth Laurion in April 2010, when the 65-year-old was hospitalized after suffering a stroke, according to an article in The Minneapolis Star-Tribune. The defendant, displeased with the neurologist's bedside manner, posted the following allegedly defamatory comment on a Web site: "When I mentioned Dr. McKee's name to a friend who is a nurse, she said, 'Dr. McKee is a real tool!'"

A trial court dismissed McKee's defamation claim, but the Minnesota Appeals Court reinstated the case last January. The defendant is asserting Internet free speech rights and arguing that calling someone a "tool" is a statement of opinion not susceptible to a defamatory meaning, a position that the Star Tribune article suggested found favor with some of the Minnesota Supreme Court justices (and the humble staff of "TUOL"). Plaintiff's counsel, however, argued the defendant fabricated the purported conversation with a nurse and damaged the doctor's reputation by portraying him as uncaring and insensitive.

A decision is expected from the High Court within three to five months, according to the Star Tribune article. Until then, the medical experts at "TUOL" prescribe that the plaintiff take two pills a day until the swelling in his ego goes down.
Enhanced by Zemanta


  1. The Minnesota Supreme Court records its oral arguments.

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

    Taken from Marshall Tanick’s 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 . . .

  3. There are many good things a physician can do if a patient posts negative comments about him or her on a physician review site.

    But first of all, let’s make absolutely clear what a physician should not do in response to negative comments: Do not sue the patient.
    The lawsuit filed by Dr. David McKee, a neurologist from Duluth, Minn., is a case in point. Dr. McKee sued a patient’s son for defamation after he posted negative online reviews. Apparently, the son was spreading the heinous charge that Dr. McKee is “a real tool.”

    The case has been pursued all the way to the Minnesota Supreme Court, with witnesses called to reinforce the fact that the son of his patient really did refer to Dr. McKee as “a real tool.”

    Is there anyone on earth thinking right now, “Hey, I think I’ll call that guy Dr. McKee for an appointment today. He’s really standing up for unfair attacks on physicians.”

    So, please, physicians, don’t sue your patients over negative online reviews. Instead, learn from them.

    Software Advice‘s David Fried recently wrote a blog that gives some excellent tips on how to shift negative reviews to positive. Among some of my favorites are:
    Pick your battles.
    Use the feedback to improve your practice.
    Craft a response that demonstrates a commitment to improvement.
    Reach out to the patient who posted the negative review.
    Work with the rating service to get truly libelous reviews removed.
    Encourage happy patients to post reviews.
    That’s much better than a lawsuit, right?

    Excerpted from:

  4. 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." ]
    Full article

  5. McKee v Laurion has been 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 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.”

    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: