Today, Avvo, a lawyer-rating service introduced a new rating service for doctors. Though Avvo isn’t first to market with doctor review sites — more than a year ago, there were already several other players in the field — Avvo’s entrance shows one thing: whether we professionals like it or not, consumer ratings services are here to stay. Indeed, that’s an observation that Niki Black and I noted in this section of our book, Social Media for Lawyers , where we explained that a robust social media presence could serve as an antidote to negative reviews.
Like many lawyers, doctors aren’t necessarily embracing consumer reviews. Some doctors have gone so far as to demand that patients sign waivers agreeing not to post online comments. Others, however, such as Dr. Kevin Pho, a primary care physician and USA Today contributor, argues that doctors should encourage patients to leave online reviews, since more data are needed to make the ratings useful. Pho points out a fact that lawyers should take to heart: almost 90 percent of online patient reviews were positive. But Pho also contends that online services should not allow anonymous reviews since accountability allows doctors to use the feedback to improve their practice. (As an aside, in my view, anonymity is a red herring, since anyone can post a negative screed about a provider online; they don’t need ratings sites to do it. Moreover, I’m confident that the market will sort out any anonymity issues; in other words, a site that contains too many crazy ramblings of anonymous reviewers will eventually lose credibility with users. So review sites will have no choice but to deal with the anonymity issues at some point to maintain quality).
To its credit, the ABA hasn’t cracked down on lawyer ratings sites (though how could it with MartindaleHubbell, the great granddaddy of ratings companies as a frequent ABA sponsor?). Still, the ABA’s recent probe regarding the transparency of lawyer rating sites as part of the Ethics 2020 Initiative seems a bit ominous. State disciplinary bodies are far worse, though. South Carolina has no problem with ratings, but has held that lawyers may violate ethics rules by failing to monitor their profiles at third party sites to ensure that client testimonials meet state ethics rules. And as I learned at last week’s MyLegal Conference, the Virginia Bar, sua sponte, is auditing third party sites and issuing take-down notices to lawyers with non-compliant testimonials at third-party sites, even if those testimonials were unsolicited.
Lawyer regulators claim to regulate ratings sites in the name of consumer protection. But to date, I am not aware of a single complaint by a consumer alleging that he or she was mislead or deceived about a lawyer’s quality due to customer rating sites. More importantly, as Avvo’s recent venture into medical reviews demonstrates, customers are hungry for feedback and reviews about professional service providers; specifically, for information that comes from other consumers and focuses on characteristics that matter to them: returned phone calls, prompt service, taking time to explain a matter. To try to quash ratings service and testimonials on third-party sites now that consumers are demanding them doesn’t serve the public interest, but runs counter to it.
How ironic that just as lawyer regulatory bodies are demanding transparency of ratings sites, they themselves are not transparent about their real interests: to return to a system where well-connected law firms dominate the profession, boxing out competition from smaller and equally qualified rivals.
Don’t forget to sign up for the briefing on ABA Ethics 2020 Commission rules on lawyer use of the web and cloud computing, set for November 4, 2010, here.
Judge tosses Duluth doctor’s suit against patient’s family
By Mark Stodghill, April 28, 2011, Duluth News Tribune
A judge threw out a lawsuit today filed by a Duluth physician who said he was defamed by a man who publicly criticized his bedside manner.
Dr. David McKee, a neurologist with Northland Neurology and Myology, alleged that Dennis Laurion of Duluth defamed him and interfered with his business by making false statements to the American Academy of Neurology, the American Neurological Association, two physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s hospital, among others.
Laurion was critical of the treatment his father, Kenneth, received from McKee after suffering a hemorrhagic stroke and spending four days at St. Luke’s hospital from April 17-21 last year. Kenneth Laurion recovered from his condition.
Dennis Laurion claimed that any statements he made about the doctor were true and that he was immune from any liability to the plaintiff.
In his 18-page order dismissing the suit, Sixth Judicial District Judge Eric Hylden wrote that looking at Laurion’s “statements as a whole, the court does not find defamatory meaning, but rather a sometimes emotional discussion of the issues.”
Hylden addressed the fact that Laurion posted some of his criticisms of McKee on websites. “In modern society, there needs to be some give and take, some ability for parties to air their differences,” the judge wrote. “Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory.”
Hylden concluded his order by stating that there wasn’t enough objective information provided to justify asking a jury to decide the matter.
Laurion was relieved by the court’s ruling.
“My parents, who are now 86, my wife and I have found this process very stressful for the past year, since my father’s stroke. There was never just one defendant,” he said. “We’re grateful that Judge Hylden found no need for a trial.”
In his suit, McKee alleged that Laurion made false statements including that McKee “seemed upset” that Kenneth Laurion 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.
According to the Minnesota Board of Medical Practice website, McKee has had no disciplinary actions brought against him.
“I’m very disappointed by this court’s decision because as far as I can see the only avenue that I can see that I had to respond to this overwhelming attack was through the courts, and for the time being it appears that avenue has been closed without me ever getting a chance to present my evidence,” McKee said.
McKee said he hadn’t had a chance to confer with Marshall Tanick, his Minneapolis attorney. He said he will do so before he decides whether to appeal the decision. Tanick told the News Tribune he had not yet seen the decision and couldn’t comment on it.
“Dennis Laurion is a liar and a bully and a coward,” McKee said.
More: http://www.duluthnewstribune.com/event/article/id/197679/publisher_ID/36
Ruling: http://www.onpointnews.com/docs/Mckee-v-Laurion.pdf
WELL as a patient I need some kind of place to share my experience with others so they do not have to go through what I went through. Kind of like ‘consuner’s report for Doctors…I have NEVER been treated like this before..I just had my 3rd surgery for serve nerve pain in my foot. (9 years of suffering) Dr. Dellon came highly recommend. Here it is 3 months later and the pain is unbelievable, worse than ever. Dr. Dellon has been a very difficult Doctor to deal with from filling the insurance codes incorrectly (so now I am out $20,000.00) to telling me I should not be in pain and accusing me of just wanting pain meds. (I was told it would be a painful 6-9 month recovery). I have never been treated so horribly and don’t know where to turn. I wish I could find more information about this uncaring doctor. I fear back-lash from Dr. Dellon
Neurologist
appeals dismissal of online rating defamation lawsuit MAR 2012
http://herald-review.com/news/national/doctor-s-suit-tests-limits-of-online-criticism/article_972968c4-78f2-11e1-8852-0019bb2963f4.html
State
Supreme Court to hear oral arguments about doctor online rating defamation
lawsuit.
Two years ago, Dennis Laurion
logged on to a rate-your-doctor website to vent about a Duluth neurologist, Dr.
David McKee.
McKee had examined Laurion’s
father, Kenneth, when he was hospitalized after a stroke. The family, Laurion
wrote, wasn’t happy with his bedside manner. “When I mentioned Dr. McKee’s
name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'” he
wrote.
McKee wasn’t amused. He sued
Laurion for defamation, and now the case is pending before the Minnesota
Supreme Court.
McKee, 50, is one of a small
number of doctors who have gone to court to fight online critics, in cases that
are testing the limits of free speech on the Internet. “Doctors are not
used to public criticism,” said Eric Goldman, an associate professor at
the Santa Clara University School of Law in California, who tracks such
lawsuits. “So it’s a new phenomenon for them.”
While such cases are rare,
Goldman said, they’ve been popping up around the country as patient review
sites such as vitals.com and rateyourdoctor.com have flourished. Defamation
suits are “kind of the nuclear option,” Goldman said. “It’s the
thing that you go to when everything else has failed.”
McKee’s lawyer, Marshall
Tanick, said the doctor felt he had no choice but to sue to protect his
reputation and his medical practice. “It’s like removing graffiti from a
wall,” said Tanick. He said Laurion distorted the facts — not only on the
Internet, but in more than a dozen complaint letters to various medical groups.
“He put words in the doctor’s mouth,” making McKee “sound
uncaring, unsympathetic or just stupid.”
McKee calls Laurion “a
liar and a bully,” and says he has spent more than $7,000 to
“scrub” the Internet of more than 100 vitriolic comments, many traced
to a single computer (IP address) in Duluth.
“Somebody who holds a
grudge against you can very maliciously go on the Internet, post anything they
want, and … basically redefine who you are,” he said.
Laurion, 65, a retired Coast
Guard chief petty officer, says he deleted the Internet comments shortly after
the lawsuit was filed and “never rewrote them.”
At the same time, his
lawyer, John D. Kelly, defends the postings. He says it was Laurion’s
perception that “the doctor’s speech and conduct were tactless and
inconsiderate.” And that, he argued, is “constitutionally
protected.”
So far, Minnesota courts
have had mixed reactions. A district court in Duluth dismissed McKee’s lawsuit
last year, but the state Appeals Court reinstated it in January. Laurion has
appealed to the Minnesota Supreme Court.
The dispute isn’t about
McKee’s medical decisions, but about something less tangible: his body language
and comments when he walked into Kenneth Laurion’s room at St. Luke’s Hospital
in Duluth on April 20, 2010.
In his online postings,
Dennis Laurion wrote that McKee “seemed upset” because he thought his
father, then 84, was still in intensive care. “Never having met my father
or his family, Dr. McKee said, ‘When you weren’t in the ICU, I had to spend
time finding out if you transferred or died,'” according to Laurion’s
account. “When we gaped at him, he said, ‘Well, 44 percent of hemorrhagic
strokes die within 30 days. I guess this is the better option.'”
Laurion, who was visiting
with his wife and mother, wrote that McKee was brusque and dismissive during
the exam, especially when his father raised concerns that his hospital gown was
hanging open at the back. “Dr. McKee said, ‘That doesn’t matter,'”
according to Laurion’s account. “My wife said, ‘It matters to us,'”
and they left the room.
McKee discovered the online
comments when a patient brought them to his attention. He filed suit, seeking
more than $50,000 in damages. “The way he quoted me was completely
inaccurate,” McKee said in an interview. At the time, he said, nobody in
the room “appeared to me to be the slightest bit upset.”
According to court
documents, McKee admitted making a “jocular comment” about only two
ways to leave the intensive care unit, but said he only meant that he was
relieved to find Laurion in his hospital bed. He denied citing any statistic
about stroke deaths and said the entire story was distorted beyond recognition.
“Every physician gets
an occasional complaint from a patient, or even a patient’s family member, but
this was so ridiculous,” he said. “This just seemed so extremely over
the top, and really meant to be harmful.”
In the first legal battle,
district Judge Eric Hylden in Duluth sided with Laurion. “The statements
in this case appear to be nothing more or less than one man’s description of
shock at the way he and in particular his father were treated by a
physician,” he wrote in dismissing the suit in April 2011.
The appeals court disagreed,
ruling in January that some of the statements were fair game for a defamation
suit and sending the dispute back for trial.
Tanick, McKee’s lawyer, said
the case isn’t just about someone voicing an opinion. He said Laurion defamed
the doctor by accusing him of things “that never happened.”
Laurion’s lawyer, however,
says it’s a matter of perception. “Something happened in that room that
disturbed the four members of the family significantly,” he said.
More than a dozen defamation
suits have been filed since 2004 by doctors or dentists over online reviews;
most have been dismissed or settled, according to Eric Goldman, an associate
professor at the Santa Clara University School of Law in California.
Some medical practices have
even tried to silence critics by requiring patients to sign a form forbidding
them from posting comments on the Internet. But Dr. Jeffrey Segal, a North Carolina
neurosurgeon who promoted the controversial forms, says he’s since had a change
of heart; he “retired” them last year in the face of widespread
criticism. Now his firm, MedicalJustice.com, advises doctors how to use
consumer websites to their advantage. “Doctors need to know how they’re
being perceived,” he said. “If you’ve got 100 people saying he’s a
jerk, maybe he is a jerk,” he said. But the vast majority of reviews are
positive, he noted.Most of the time, Segal said, a negative review can be neutralized
“with something as simple as saying, ‘Hey, I was having a bad day. I’m
sorry.'” Or calling the patient to apologize for getting off on the wrong
foot. “Those words often solve the problem,” he said.
Still, Goldman says it’s
important for consumers to “choose their words” carefully in online
reviews. “We’ve been given the power to critique vendors in the
marketplace,” he said, “but no one’s taught us how to make sure that
we aren’t going to lose our house by doing so.”
Further reading:
http://www.mncourts.gov/Documents/0/Public/Calendars/September_2012.pdf
Oral
hearings for David McKee MD vs Dennis Laurion to be held 9/4/12 at Minnesota
Supreme Court, Second Floor, State Capitol, St. Paul MN
http://www.mncourts.gov/Documents/0/Public/Calendars/September_2012_Summary.htm#a111154
Summary
Of Issues prepared by the Supreme Court Commissioner’s Office
http://defamationlaw.net/mckee-v-laurion-the-defamation-saga-continues/
WHEN A DOCTOR HIRES A PRIVATE
DETECTIVE TO FIND OUT WHICH NURSE . . .
A man’s online post calling a doctor “a real tool”
is protected speech, the Minnesota Supreme Court ruled Wednesday. The state’s
highest court dismissed a case by Duluth neurologist David McKee, who took
offense when a patient’s son posted critical remarks about him on
rate-your-doctor websites. Those remarks included a claim that a nurse called
the doctor “a real tool,” slang for stupid or foolish.
On Wednesday, the court tossed a lawsuit filed by
neurologist David McKee, who claimed he was defamed by several statements made
by defendant Dennis Laurion on websites used to rate doctors, report the Duluth
News Tribune, the Minneapolis Star Tribune and the Associated Press.
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.
Laurion expressed his dismay in several online posts with
what he considered the doctor’s insensitive manner.
Laurion had posted his comments on a website where patients
review their doctors. The case has been watched with interest because of the
potential conflict between free speech versus protection of professional
reputations on the Internet.
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!'”
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’ and that would be the end of it,” the 66-year-old Duluth retiree
said. “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.
In 2011, State District Judge Eric Hylden ruled that McKee
was not defamed by the criticism and dismissed the doctor’s lawsuit.
McKee appealed to the Minnesota Court of Appeals; and in
January 2012, that court sent the case back to the district court for a jury to
decide whether six statements Laurion posted about McKee on rate-your-doctor
websites and distributed elsewhere were defamatory.
Laurion appealed the Court of Appeals decision to the
Supreme Court and the case was heard in St. Paul in September.
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.
The ruling also said it doesn’t matter whether the unnamed
nurse actually exists. McKee’s attorney argued that Laurion might have
fabricated the nurse, something Laurion’s attorney denied. And it said the
doctor’s objections to Laurion’s other comments also failed the required legal
tests.
“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.
“I’m sure he and his family are very happy with this
result,” Laurion’s attorney, John Kelly, said. “It’s been a long and
difficult process for them.”
Laurion said the entire experience was stressful on his
family.
“The initial excitement has not worn off,” he told the News
Tribune. “I’m very gratified it’s all over.”
Laurion, whose father survived the stroke and is now 87,
said he feels vindicated — not in the sense that he’s proven the things he
said, but that he had the right to express his opinion of a single encounter on
a website designed to rate doctors.
He regrets the cost of the litigation — in his case, the
equivalent of two years’ income, he said, some of which he had to borrow from
relatives who dipped into their retirement funds.
“I regret that it became as painful as it was,”
Laurion said. “I don’t think I regret having posted the comment. I thought
at the time that it was my right to do so.”
McKee’s lawyer, Marshall Tanick, said he and McKee plan no
further appeals and that they were disappointed with the ruling.
McKee, a neurologist with Northland Neurology and Myology,
said Wednesday 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.
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.”
He said he offered to settle the case at no cost after the
Supreme Court hearing. Laurion contends they couldn’t agree on the terms of the
settlement, and said he not only deleted his initial postings after he was
initially served, but had nothing to do with subsequent online statements about
McKee.
Tanick said the ruling could present a slippery slope.
“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.
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.”
Minnesota Newspaper Association attorney Mark Anfinson, who
watched the oral arguments before the Supreme Court in September, said on
Wednesday the justices made the right decision. That being said, “You can’t
blame a guy like Dr. McKee for being upset,” Anfinson said. “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.”
Before the Internet, people who complained about others
typically did so to a small group of family, friends and acquaintances. “No one
in the wider world ever heard them,” Anfinson said. That is no longer the case.
“If you’re a practicing physician or other professional in a
highly competitive environment, and this stuff is out there for any potential
patient or client to see, it isn’t as simple as a superficial reading of the
Supreme Court opinion would suggest,” he said. “I kind of feel for the guy, but
the law as it is currently constituted really doesn’t provide him much of a
remedy. That is the moral of the story.”
The case highlighted the tension that sometimes develops on
ratings sites, such as Yelp and Angie’s List, when the free speech rights of
patients clash with the rights of doctors, lawyers and other professionals to
protect their good names.
Experts say lawsuits over negative professional reviews are
relatively uncommon and rarely succeed, partly because the law favors freedom
of speech.
Laurion’s attorney, John D. Kelly, said the fact that
Laurion’s speech was made online was inconsequential to the ruling, which
treated it as a standard defamation case. “It’s almost as if things were
said around the water cooler or perhaps posted in a letter to the editor,”
he said. “I think the principles they worked with are applicable to
statements made irrespective of the medium.”
While the decision is not binding in other states, Kelly and
Tanick agreed that it might influence how other courts would rule on similar
questions. Kelly said lawyers often look at rulings from other jurisdictions
when they put cases together, sometimes for leads or guidance.
“Certainly this is a cutting edge issue and I’m sure
lawyers and courts in other jurisdictions will pay attention to this decision
and give it the weight it deserves,” 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.”
Mark A Fischer of Duane Morris LLP, a full-service law firm
with more than 700 attorneys in 24 offices in the United States and
internationally, said on February 11, 2013, “For those who are under criticism,
one of the practical consequences of bringing a defamation action is that more
publicity for the accused statements is almost an inevitable result, whether
the statements are ultimately found libelous or not. In other words, in
weighing the pros and cons of initiating a lawsuit, all potential defamation
and privacy claim plaintiffs should consider the rule of Hippocrates applicable
to physicians, ‘First do no harm.’”
In his Technology & Marketing Law Blog, Eric Goldman
said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for
online reviews. See my compilation. As you can see from a quick perusal,
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.
Compilation. See:
http://www.startribune.com/local/189028521.html
http://comments.startribune.com/comments.php?d=content_comments&asset_id=189028521§ion=/local&comments=true
Duluth doctor’s lawsuit against patient’s son over online
criticism dismissed
Article by: ABBY SIMONS , Star Tribune, January 30, 2013
http://www.duluthnewstribune.com/event/article/id/257287/
Court protects Duluth doctor’s online critic
By: STEVE KUCHERA, Duluth News Tribune, January 30, 2013
http://hosted.ap.org/dynamic/stories/U/US_ONLINE_RATING_RISKS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT
Minnesota high court says online post legally protected
By STEVE KARNOWSKI, January 30, 5:34 PM EST, 2013
http://www.mncourts.gov/opinions/sc/current/OPA111154-0130.pdf.
Unanimous ruling of the Supreme Court of Minnesota
http://learningboosters.blogspot.com/search/label/.%20McKee%20v%20Laurion
http://blogs.duanemorris.com/duanemorrisnewmedialawblog/entry/bedside_manners_was_the_doctor