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.

http://www.duluthnewstribune.com/event/article/id/257287/
News Tribune: Court protects Duluth doctor’s online critic

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

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.

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 . . .

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

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”?

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.

http://statecasefiles.justia.com/documents/minnesota/supreme-court/list-6.pdf?ts=1333562830
Minnesota Supreme Court To Review McKee v Laurion

Try:
http://caselaw.findlaw.com/mn-court-of-appeals/1592166.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawMinnCtApp+(FindLaw+Case+Law+Updates+-+MN+Court+of+Appeals)

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

http://www.hospitalgripe.com/complaints/I-had-to-find-out-if-you-transferred-or-died_93.0.15.html .

The judge’s order has been posted at:

http://www.onpointnews.com/docs/Mckee-v-Laurion.pdf .