Thursday, January 31, 2013

Court: Online Patient Reviews Are Protected Speech

Fierce Healthcare has;
Court: Online Patient Reviews Are Protected Speech

Minnesota Supreme Court says claims that a doctor is a 'real tool' cannot be proven true or false

Amid doctors' wariness about online review sites, the Minnesota Supreme Court yesterday ruled that an online patient review was not defamatory, the Associated Press reported.

The decision ends a four-year legal battle that stemmed from a defamation lawsuit by neurologist David McKee. Following the hospitalization of Dennis Laurion's father at St. Luke's Hospital in Duluth, Laurion wrote reviews on several sites, with one claiming a nurse called the doctor "a real tool," the Star Tribune article.

The high court dismissed the defamation lawsuit and reversed an Appeals Court ruling that the statements harmed McKee's reputation and could be proven as false. Moreover, according to the state Supreme Court, it doesn't matter if the unnamed nurse really exists, the AP noted.


"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," the opinion states.

The situation also highlights that defamation lawsuits are not without cost--to the providers and the patients involved.
McKee has spent at least $50,000 in legal fees, as well as $11,000 to clear his reputation after the incident prompted hundreds of negative online reviews. For Laurion, litigation costs have totaled more than two years' income, noted the Star Tribune.

"The financial costs are significant, but money is money, and five years from now, I won't notice the money I spent on this," McKee told the newspaper. "It's been the harm to my reputation through the repeated publicity and the stress."

Providers can take several steps to control their online reputation, such as training staff to impress and keeping listings up to date and accurate. To avoid defamation lawsuits, experts recommend providers first try to resolve the patient's complaint, if a name is provided, and encourage them to remove or amend their review, FiercePracticeManagement previously reported.

For more:
- read the AP 
article
- here's the 
Star Tribune article
Related Articles:
Docs wary of online review sites
Doc-rating websites reflect too few views
The case for embracing online reviews
Poor systems, not docs, drive bad online review

Thank You Fierce Healthcare and Ms Caramenico



Well now, at least for Minnesotans:

Next step is getting the U.S. Supreme Court to Rule it a blanket provision covering all 50 States.

Then just sit back and watch those Psychiatric Ideations draw in their lying through Omission/Therapeutic Privilege lobotomy peddlings.

Watch the threatening mail from Law Firms start flying into patients e-mail boxes.

And watch those patients tell those threatening letters All About Slander and Defamation, . . . .

Human Rights or Civil Rights? US 18C13 Sec 241 & 242

4 comments:

Anonymous said...

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

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

D Bunker said...

http://psychroaches.blogspot.com/2012/05/us-18c95-sec-1958-skull-at-banquet.html

Dennis Laurion said...

"The financial costs are significant, but money is money, and five years from now, I won't notice the money I spent on this," McKee told the newspaper. "It's been the harm to my reputation through the repeated publicity and the stress."

Five years from now, I'll 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.

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.

McKee V. Laurion said...

Minnesota defamation case, David McKee MD v Dennis Laurion, cited as precedent by UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT upon Appeal from the United States District Court for the Eastern District of North Carolina.

In deciding an Appeal from the United States District Court for the Eastern District of North Carolina at Wilmington, MYGALLONS LLC and ZENACON LLC STEVEN VERONA v. U. S. BANCORP, VOYAGEUR FLEET SYSTEMS INC, And K. E. AUSTIN CORP (12-1287); The United States Court of Appeals for the Fourth Circuit cited David McKee MD v. Dennis Laurion.

From pages 13-14 of http://www.ca4.uscourts.gov/Opinions/Unpublished/121287.U.pdf:

The parties agree that the defamation claim is governed by Minnesota law because the alleged defamation originated in Minnesota. They also agree that under Minnesota law, the elements of a defamation claim are: “(1) the defamatory statement was communicated to someone other than the plaintiff; (2) the statement is false; (3) the statement tends to harm the plaintiff’s reputation and to lower [the plaintiff] in the estimation of the community; and (4) the recipient of the false statement reasonably understands it to refer to a specific individual.” McKee v. Laurion, 825 N.W.2d 725, 729-30 (Minn. 2013) . A defamation claim cannot be based on a true statement. Id. at 730. “True statements” include statements that are “true in substance” and contain only “minor inaccuracies of expression or detail.” Id. In articulating this standard, the Minnesota courts explain that “substantial truth” means that “the substance, the gist, the sting, of the libelous charge [is] justified” and the statement “would have the same effect on the mind of the reader or listener as that which the pleaded truth would have produced.” Id.