Minnesota Doctor Loses Effort To Sue Patient’s Son For Defamation About His Allegedly Poor Bedside Manners

Dr. David McKee, a neurologist with Northland Neurology and Myology, has failed in his bid to sue the son of a former patient for complaining about his bedside manners, including statements to professional associations and posting comments on the Internet. Sixth Judicial District Judge Eric Hylden wisely dismissed the action.

According to the article below, Dennis Laurion of Duluth complained 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.

His father, Kenneth Laurion, Dennis was shocked by what he viewed as McKee poor treatment of his father. Dennis listed an array of statements that he said were made by McKee including:

1. Angry comments by McKee over the fact that Laurion had been transferred from the Intensive Care Unit to a ward room;

2. Verbal complaint by McKee that he had to “spend time finding out if [the patient] had been transferred or died;”

3. Observations that 44 percent of hemorrhagic stroke victims die within 30 days;

4. Dismissive statements that Laurion didn’t need therapy;

5. Dismissive statements that he did not care about the fact that the patient’s gown was hanging from his neck with his backside exposed;

6. Blaming the patient for the loss of his time; and

7. Generally treating Laurion with a lack of respect or dignity.

These appears to be opinions that are generally not actionable. The line between opinion and fact can be a precious one as shown in reviews of customers and critics of other businesses. The case reminds one of Mr. Chow of New York v. Ste. Jour Azur, 759 F.2d 219, (2d Cir. 1985), where a Chinese restaurant sued a food critic for a negative review. The reviewer made the following allegedly libelous comments:

(1) “It is impossible to have the basic condiments … on the table.”

(2) “The sweet and sour pork contained more dough … than meat.”

(3) “The green peppers … remained still frozen on the plate.”

(4) The rice was “soaking … in oil.”

(5) The Peking Duck “was made up of only one dish (instead of the traditional three).”

(6) The pancakes were “the thickness of a finger.”

The jury found for the restaurant and awarded $20,000 in compensatory and $5 in punitive damages. However, the court of appeals reversed and found that the statements were protected as “opinion.” Notably, the statement about the Peking Duck came closest in the court’s view since it was a factual statement, but the court still found that it would not support the verdict due to the absence of malice:

Hylde wrote: “In modern society, there needs to be some give and take, some ability for parties to air their differences. 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.”

In his suit, McKee alleged that Laurion made false statements including that
According to the Minnesota Board of Medical Practice website, McKee has had no disciplinary actions brought against him.

Dr. McKee seemed intent on responding to the case but giving his own example of protected opinion:

“Dennis Laurion is a liar and a bully and a coward. He knowingly made false and malicious statements about me to a total of 19 different professional and medical organizations, regulatory agencies and websites. He often used false names and attributed his statements to fictitious third parties. I’ll make the observation that every one of those organizations that was required to make an official decision or take an official action either determined that the statement that he made was so ludicrous that it required no response from me at all or decided that his complaint had no merit.”

Source: Duluth News Tribune

Jonathan Turley

23 thoughts on “Minnesota Doctor Loses Effort To Sue Patient’s Son For Defamation About His Allegedly Poor Bedside Manners

  1. Wow…I am glad that they dismissed this case…some people with specialties have this Ginormous Ego of entitlement for respect….I noted that it did not say the decedents son…which is good…

  2. Wonderful pair: Zealot Family Member and Arrogant Physician. Wonder when I can get them to my house for dinner.

  3. I’m not sure about this one. Mckeee’s allegation that Laurion went over the top to discredit him, covertly, if true, conveys malice.
    But without proof, or even if he had proof, he has no case. Suppose he acted badly and Laurion went the whole 9 yards of nailing him, even to the extent of imposture? We’ll never know.

  4. From Duluth (MN) News Tribune of JAN 24, 2012:

    The Minnesota Court of Appeals, in a decision released Monday, sent back to St. Louis County District Court for trial the case of Dr. David McKee v. Dennis Laurion. District Court Judge Eric Hylden had ruled in April that McKee was not defamed by the criticism and threw out the doctor’s lawsuit . . .

    McKee, a neurologist with Northland Neurology and Myology, filed the defamation lawsuit against the son of one of his patients in June 2010. McKee alleges that Laurion defamed him and interfered with his business by posting false statements on the internet and to various third parties . . .

    Laurion’s defense attorney, John Kelly of Duluth, had gained summary judgment from Hylden . . . In his order throwing out the case, Hylden wrote that the alleged defamatory statements constituted opinions, true statements and statements too vague to carry defamatory meaning . . .

    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 of 2010.

    The appellate court determined McKee’s defamation suit should proceed regarding six claims Laurion publicly made about McKee:

    • That McKee told the patient he had to “spend time finding out if you were transferred or died.’’

    • That McKee said, “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option.’’

    • That McKee said, “You don’t need therapy.’’

    • That McKee said, “It doesn’t matter’’ that the patients gown did not cover his backside.

    • That McKee left the patient’s room without talking to the patient’s family.

    • That a nurse told Laurion that McKee was “a real tool.”

    In an e-mail to the News Tribune, Laurion said he was dismayed by the decision. “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,” Laurion wrote. “I’ve been said to have run a cottage industry vendetta, writing 19 letters, and posting 108 adverse Internet postings in person or through proxies. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again . . .

    Decision of Minnesota Court of Appeals
    http://www.mncourts.gov/opinions/coa/current/opa111154-012312.pdf

    Case History:
    http://macsnc.courts.state.mn.us/ctrack/cases/caseMaintenance.do?csNameID=71108
    Ask for case # A111154, if necessary

  5. I kind of hope the “sue for any negative comment” thing gets to be habit, though, because I have invented a way to punish big corporations or law firms for misconduct: Speak against them publicly, get sued by them for doing so, and defend on the grounds of “the truth is an absolute defense” because although the courts are weighted against the little guys when they try to be plaintiffs, when they are defendants nobody can kick them out of court! Just make sure that the people saying the true, but negative things about the angry defendants, are JUDGMENT PROOF! :mrgreen: :mrgreen: :mrgreen: HA HA HA HA HA HA HA!

    Oh, and I know something else about that doctor that his patient’s son didn’t even know: he stopped at a rest step in New Jersey and had sex with an overage person! At least I think it was him. There was a poodle in the car, too.

  6. From: http://www.minnesota-litigator.com/2012/09/04/huge-threats-challenges-defamation-cases/

    The case, by the way, is being argued before the Minnesota Supreme Court this morning. The trial court had tossed out Dr. McKee’s complaint. The Court of Appeals reversed in part, concluding: that appellant’s defamation claim shall proceed with respect to the following statements: (1) appellant told the patient that he had to “spend time finding out if you were transferred or died”; (2) appellant said, “44% of hemorrhagic strokes die within 30 days. I guess this is the better option”; (3) appellant said, “You don’t need therapy”; (4) appellant said, “it doesn’t matter” that the patient’s gown did not cover his backside; (5) appellant left the patient’s room without talking to the patient’s family; and (6) a nurse told respondent that appellant was “a real tool.”

    Has Dr. McKee’s lawsuit made him more likely or less likely to be widely viewed as “a real tool”?

  7. Lawyer tells Supreme Court how to safely rate a doctor online – the video link cited by Content Scraper shows the plaintiffs attorney telling the Minnesota Supreme Court how the defendant should have avoided a defamation lawsuit.

    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:
    http://www.tpt.org/courts/MNJudicialBranchvideo_NEW.php?number=A111154#

    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 . . .

  8. http://chronicle.augusta.com/stories/2001/08/27/bus_321610.shtml

    Toledo Blade 8/24/2001 reprinted article from Minneapolis – St. Paul Star:

    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.

  9. Doctor sues patient for a negative online review—really?!

    This case went all the way up to the Minnesota Supreme Court.
    By Dan Hinmon | Posted: January 2, 2013

    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 (1) 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?

    Dan Hinmon is the principal of Hive Strategies. You can read more in the Hive Strategies blog here.

    http://www.healthcarecommunication.com/Main/Articles/10118.aspx#
    links to http://postbulletin.com/news/stories/display.php?id=1512760

  10. 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’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 and let people make their own conclusions. 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 to determine if they’re true or false. 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 plaintiffs who can say ” . . five years from now I won’t notice the money I spent on this.” 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.

    Minnesota and two other states allow “hip pocket” lawsuits. The plaintiff can start a suit by sending the summons and complaint to the defendant without filing the documents in court. The plaintiff enjoys complete anonymity from public awareness. The defendant has 20 days to respond, but the court is unaware that the suit exists. The plaintiff can conduct interrogatories and depositions while the court is unaware that the suit exists. The plaintiff can send settlement demands to the defendant ‘s insurance company while the court is unaware that the suit exists. Until the suit is actually filed, the plaintiff’s lawyer orchestrates everything as the officer of the court. If the defendant files his answer, in order to publicly get onto the docket and under the supervision of a judge, the defendant pays the filing fee. In Minnesota, if the plaintiff loses his effort at rule by law, the rule of law generally allows the defendant no remuneration. The plaintiff can lose the suit while winning the battle of financial attrition.

  11. 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 http://www.ca4.uscourts.gov/Opinions/Unpublished/121287.U.pdf 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.”

  12. This lawsuit, McKee v Laurion, was named among “The top lawsuits of 2013″ by “Twin Cities Business Magazine” on December 20, 2013:

    If hamburgers could sue, the courts (like the eater’s arteries) would be clogged. Scroll down any of the dozens of websites that rate restaurants and you’ll see food described in the vilest terms: hog slop, garbage-dump-ready, rat -meat. The proliferation of rating sites shows both that these sites are providing an appreciated service and that people love to give their opinion. But when you move from hamburgers and hotel rooms to rating people, quite often the fun ends.

    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.”

    As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”

    The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it.

    Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.

  13. Marshall Tanick is STILL saying “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.

  14. This is from an April 4, 2014, Buzzfeed article by Jake Rossen.
    [Excerpt begins]

    David McKee, M.D., a Duluth, Minn., neurologist, was unaware of the Streisand phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

    According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

    Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. He fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

    McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events.

    In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. A user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.”

    McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

    McKee was rated for several years as a top provider in Duluth Superior Magazine, but“From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”
    [Excerpt ends]

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