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Trisha Torrey

Arrogant Doctors, Online Reviews, and the Hot Water Test

By February 6, 2013

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In 2011 I told you about the case of Laurion vs McKee - that is - son-of-a-patient-who-died Dennis Laurion who was sued for defamation of character by his father's neurologist Dr. David McKee.

The facts aren't in dispute.  Mr. Laurion was upset at the way the neurologist "communicated" with the family.  So he did something about it in the most public way he knew how.  He wrote reviews of Dr. McKee on 19 different websites, reporting, according to a Duluth (MN) news article in April 2011, that

. . . Dr. McKee "seemed upset" that Kenneth Laurion (the father) had been transferred from the Intensive Care Unit to a ward room; that McKee told the Laurion family that he had to "spend time finding out if [the patient] had been transferred or died;" that McKee told the Laurions that 44 percent of hemorrhagic stroke victims die within 30 days; that McKee told the patient that he didn't need therapy; that McKee said it didn't matter that the patient's gown was hanging from his neck with his backside exposed; that McKee blamed the patient for the loss of his time; and that McKee didn't treat his patient with dignity.

Bottom line - David Laurion felt the doctor had been arrogant, condescending and not respectful of his patient or his patient's family.  And when he said so publicly, the doctor sued him.

In the four years since Mr. Laurion Sr. died, (correction - see reader comments below - Mr. Laurion Sr did not die) the lawsuit has gone up the court ladder with varying outcomes. But last week, the Minnesota Supreme Court handed down the final verdict.  Mr. Laurion was within his rights to publicly recount his experience with Dr. McKee.  Mr. Laurion won the lawsuit.

So why is that important to empowered patients?  Because the more upset we get with the healthcare system, the more we blame doctors or other providers, the more frustrated we are that we aren't getting the care we think we need and deserve, the more tempted we all are to let the world know about our experiences.

However - despite the Minnesota Supreme Court's ruling - we do not have carte blanche to say what our anger and frustration tempt us to say.

A few notes for patients:

This lawsuit took place in Minnesota.  The laws may be different in your state and even then, the world of online reviews is still evolving.  Learn how to write a doctor review so that it makes you feel better, helps others, and doesn't get you into trouble.

The reason Mr. Laurion didn't lose the suit was because he related facts and observations - not opinions and generalities.  That's the real hot water test. The difference between recounting opinions vs facts can be the difference between winning and losing a defamation lawsuit.  Learn how to write a doctor review so that it's effective, and doesn't cross the line.

There are many more considerations to writing a doctor review online, whether or not you were happy with your doctor's treatment.  Learn how to share information fairly and comprehensively, in the right places, so that you help others and don't get yourself into hot water.

•  How to Write an Online Review of Your Doctor

•   How to Deal with an Arrogant Doctor

•   Share your story about dealing with an arrogant doctor.

•   Share your story about bad medical care.

A note for SOME doctors (and yes, you know who you are):

Whether or not you care to change your communications stripes, please note that the law and your income (think patient satisfaction and HCAHPS) are trending toward your need to improve your communications and for some of you, your attitude in general. No matter what you think of the outcome of this lawsuit, know that it cost Dr. McKee more than $60,000 out of his pocket, including his attempt to try to repair his reputation. Don't think you are above the same sort of scenario if you don't treat your patients with the respect and dignity they deserve. If you aren't a good communicator, then look for courses (even CMEs) to help you.  Your career and your reputation may depend on it.

OK. Off my soapbox.

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Comments
February 6, 2013 at 6:58 pm
(1) Dennis Laurion says:

Trisha, thanks for your coverage of David McKee vs. Mckee.

The reports of my (father’s) death are greatly exaggerated. Although I believe he was told there are only two ways to leave ICU – dead or transferred – he got the better option.

My father had his stroke at age 84. He is now 88. He has difficulty with gait and balance. His speech and mental resources remain well. My father enlisted in the Navy at age 17 during World War II. By age 19, he was a Navy combat medic in the Solomon Islands, a Second Class Petty Officer, the equivalent of an Army or Marine Corps Staff Sergeant. My father worked two jobs and supported a family while obtaining a Ph.B. and an M.S. in Geriatric Counseling. He was a Boy Scout leader, an Elder in his church, a high school teacher, and a systems analyst at the advent of the computer age.

February 6, 2013 at 7:09 pm
(2) Dennis Laurion says:

“No matter what you think of the outcome of this lawsuit, know that it cost Dr. McKee more than $60,000 out of his pocket, including his attempt to try to repair his reputation.”

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.

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.

February 6, 2013 at 7:34 pm
(3) Dennis Laurion says:

“The reason Mr. Laurion didn’t lose the suit was because he related facts and observations – not opinions and generalities. That’s the real hot water test. The difference between recounting opinions vs facts can be the difference between winning and losing a defamation lawsuit.”

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 – at least in Minnesota. 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. My three levels of adjudication have involved exercises to determine whether my statements were provable facts or opinion. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort. I thinks it’s better said that one should stick to opinions (without exaggeration), but have the facts at hand. Had the Minnesota Supreme Court concluded that I offered facts, I’d be awaiting jury trial. It was, I believe, the conclusion that I’d offered opinions that caused dismissal.

February 6, 2013 at 7:36 pm
(4) laurion@dennis.net says:

“He wrote reviews of Dr. McKee on 19 different websites, reporting, according to a Duluth (MN) news article in April 2011”

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 or 118 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.

Several newspapers accounts have repeated assertions about how many letters I wrote and how many reviews I wrote. You’ll find accusations that I wrote 108 or 118 subsequent postings. You’ll find remarks that most were traced to a single IP address in Duluth. It wasn’t mine, and my internet provider tells me that nobody has ever asked about my IP address.

February 7, 2013 at 8:25 am
(5) Trisha Torrey says:

Dennis,

Thank you for contributing to this report. I have corrected the statement about your father’s life and apologize for getting that wrong… may he stay healthy and happy for years to come.

re: your report on how many comments were made, who made them, etc — you have enlightened us all….

And it proves exactly what I was saying – we cannot assume that anything we write online, especially through anger or frustration, can’t be tested at unlimited cost. The power still remains with the monied and we can’t forget that.

Best of luck to you as you sort out the aftermath.

Trisha

February 7, 2013 at 4:14 pm
(6) gemdiamondintherough says:

I personally, had not been aware of this particular case. But I can assure you that there are many like it. (Not exactly the same, including court etc)
Again, this is where we need WISDOM to know what is appropriate. As humans, each one of us has probably failed in this area at some time.
Remember the Golden Rule, that you want to treat others as you would want to be treated. State FACTS AND OBSERVATIONS, NOT OPINIONS. This is true for BOTH the client and the caregiver. OPINIONS will usually not hold up, other than for you, yourself!!!!!!!!!! I KNOW THAT WE ARE ALL TEMPTED TO DO THAT FROM TIME TO TIME, BUT WHEN YOU FEEL BETTER OR ARE SOMEWHAT REMOVED FROM THAT PARTICULAR SITUATION, REVIEW IT YOURSELF AND ASK THE HARD QUESTION.
DID I STATE MY OPINION, OR DID I STATE THE FACTS AND OBSERVATIONS?
Many times our emotions get in the way and either we saw something that was not there, or heard something that was not said or intended.
We have to at times try to put ourselves in the other persons shoes and say, Am I overreacting, is this reasonable, could there be another reason than the one I think there is? Once you have reviewed the situation, than review it with a person that you trust. Keep upper most in you mind that you are not reacting due to emotion. But that you are stating FACTS and OBSERVATIONS. NOT OPINIONS!!!!!!! THERE IS A HUGGGGGGE DIFFERENCE BETWEEN THE TWO. Last of all, think about perhaps having a conversation with the person about it. You may be surprised that their take on it was totally different than yours!!!!!
I encourage each one of us to continue to COMMUNICATING.

February 7, 2013 at 4:39 pm
(7) Sandy says:

I suppose anyone who has serious medical issues and has interactions with many doctors will run into an arrogant a/:;;.
I had a bout of cancer three years ago , which required many tests , many doctors and finally a surgeon. The surgeon thought he was a God and let me know that no one else could do the surgery without causing extreme bodily harm to me. After the first surgery he , had me wait several weeks to get results, ( his office in a major University Hospital , a two hour drive from my home) and the office visit wait was well over three hours, to know whether the tumor was cancerous or not. After complaining to his staff several times about the wait, i told them i was leaving and he could call me with the results. At that point he somehow found the time to see me, sat with his back to me as his faced a computer, then announced that i had cancer, but the ” good news” was that it ” would not kill me” . I was there alone, and this diagnosis totally shocked me, besides, i was distressed at the wait and lack of compassion shown by him. He also had nasty words with staff members in my presence, and it was obvious they were all afraid of him. I needed another surgery, and went home, and distressed, found another surgeon who was at a different hospital, one that had a cancer center, the attitude and care was totally different and top rate. i repirted this doctor to his hospital and my insurance company as well. I doubt it made any difference

February 11, 2013 at 9:47 am
(8) Trisha Torrey says:
February 18, 2013 at 8:36 pm
(9) Linda Garvin says:

Trisha,

We all need to get behind these types of stories…Supporting the patient’s and their family members100%! I hope your article and comments about this case make it to Twitter & Facebook!

Linda

June 11, 2013 at 4:22 pm
(10) Uranus says:

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.

January 21, 2014 at 3:39 am
(11) Herb Rice says:

This is extracted from:

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-Lawsuits-Of-The-Year

February 21, 2014 at 6:05 am
(12) Dennis says:

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.

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.

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