Saturday, October 08, 2011

Doctor sues patient?

"When a dog bites a man, that is not news,
because it happens so often. But if a man
bites a dog, that is news."

Medical malpractice suits are common (even if they are not as common as some doctors fear). But a suit by a doctor against a patient? That would seem to fit the ancient definition of news.

Yet I hadn't heard of Dr. David McKee's defamation suit against Dennis Laurion before I received an email about the case yesterday.

Actually, Dennis Laurion was not McKee's patient. Dr. McKee, a neurologist, treated Dennis's father, Kenneth, a World War II vet, who suffered a hemorrhagic stroke in April 2010. The younger Mr. Laurion was not at all happy with how Dr. McKee treated his father. The elder Mr. Laurion survived, but his son felt that Dr. McKee failed to accord his father appropriate dignity and respect. He didn't sue for malpractice; instead, he blasted the doctor on a number of ratings sites.

There are ratings services for every business and profession out here on the Internet (including sites that rate lawyers). I haven't used the Internet to check out a doctor since... let's see... yesterday. Usually, though, I'm only looking for confirmation of the spelling of the doctor's name, or to verify an address or phone number. I personally don't put much stock in so-called "reviews." On any random site, some reviews will seem as if they'd been written by the doctor's mother. Others read as if they'd been written by the doctor's bitter ex-spouse.

Nevertheless (and understandably), doctors are a bit sensitive about how they are portrayed online. See, "Why doctors hate online reviews," by Dr. Rahul Parikh, in the "Pop Rx" column on, September 5, 2011.

There are services that promise to provide some protection to the small businessperson who suffers the slings and arrows of outrageous Internet attacks. ReputationDefender is one product that advertises heavily in this market (and the website seems to pitch at doctors in particular); is another one I found in a quick search today. Public relations firms would, presumably, be able to offer some assistance to the aggrieved professional in straits similar to those in which Dr. McKee apparently found himself.

But Dr. McKee decided to sue instead.

The trial court entered summary judgment against McKee. The various sources I've consulted today dispute whether Dennis Laurion voluntarily removed his comments from ratings sites when Dr. McKee asked. Depending on the point of view of the poster, McKee's suit was either an honorable response to vicious online attacks or a callous attempt to stifle the Laurion family's free speech rights. And there may have been a SLAPP angle, too: In addition to posting negative reviews, Dennis Laurion made a complaint to the hospital where Dr. McKee worked and to the Minnesota Board of Medical Practice. Supposedly, just before the summary judgment motion was resolved against McKee, a hundred new negative reviews appeared on line about Dr. McKee. McKee's lawyer blamed Laurion; Laurion denied it. I have to wonder whether these additional postings might have been a product of the Streisand Effect.

In the course of today's efforts, I do not claim to have peeled through the many layers of conflicting opinion to reveal any hard kernel of truth about this case. The headline on this post, however, "Doctor sues patient’s family — and everybody loses" (, May 10, 2011), struck me as probably accurate. I can report that McKee's appeal is scheduled for a hearing before the Minnesota Court of Appeals, in Duluth, on November 10.

Not knowing the actual facts and being unschooled in Minnesota law (and being unlicensed in that state), I venture no prediction about the outcome of the doctor's appeal.

But the question arises how a similar suit might fare in Illinois. Would our Citizen Participation Act (735 ILCS §110/1 et seq.) apply? Shoreline Towers Condominium Association v. Gassman, 404 Ill.App.3d 1013, 936 N.E.2d 1198 (1st Dist. 2010), may provide some guidance.

Ms. Gassman kept installing a mezuzah outside the front door of her condominium; the homeowners' association kept taking it down, insisting it was prohibited by a policy that prohibited "[m]ats, boots, shoes, carts or objects of any sort... outside Unit doors." Gassman, a lawyer, initiated a raft of lawsuits and religious discrimination complaints with a number of state agencies, challenging the association's ban.

The association changed its policy. And, for good measure, the City of Chicago passed an ordinance and the State of Illinois passed a law prohibiting others from attempting similar bans.

But relations between Gassman and the Association had soured in the meantime to the point where all sorts of accusations were made by one side and the other. Ultimately the Association filed a 10-count complaint against Gassman alleging a variety of theories. Gassman moved to dismiss all counts under the Citizen Participation Act (or, as it also sometimes called, the anti-SLAPP Act). The trial court agreed that the Act applied to some, but not all of the counts.

On appeal, the Association argued that the Act shouldn't have applied to any of its claims (404 Ill.App.3d at 1020):
Shoreline argues that SLAPP suits are “lawsuits brought to silence public outcry regarding issues of significant public concern,” and it characterizes SLAPP suits as actions brought against “a person or group [who] was using a public forum to voice an opinion regarding a public issue.” It suggests that “[i]t could hardly be argued that [Gassman's] campaign of defamation, tortious interference, harassment, intimidation, and personal attacks, as to the affairs of a private condominium association, and against the members of the Board personally, rises to the level of an ongoing attempt to petition a governmental entity for public redress.”
But the Appellate Court disagreed (404 Ill.App.3d at 1021-22):
[T]he Act does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected. Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action.
To the extent, then, that our hypothetical Illinois doctor's suit might be seen as retaliation for complaints to licensing authorities, my suspicion is that an Illinois court might find that the anti-SLAPP statute applicable. Maybe.

But the anti-SLAPP statute provides no license for Internet trolls out to sabotage a professional's reputation.


Anonymous said...

You've said "He didn't sue for malpractice; instead, he blasted the doctor on a number of ratings sites."

I'm not sure what point you are making. Forgive me if I'm wrong, but it sounds like suing for malpractice would show more conviction than rating site postings.

You and your readers know that it is very difficult to bring a malpractice suit - contingency, expert testimony, little likelihood of success.

Other website postings about this lawsuit suggest the family just wanted to say the doctor was rude. They did not malign his discharge exam prowess or seek any financial gain.



Jack Leyhane said...

Anon -- Thank you for your comment and the additional links.

As stated in the post, I am not privy to the all of the actual facts of the case. From the various accounts I've seen, I know the father survived; that suggests, though by no means does it establish, that Dr. McKee achieved a good result in the case. Whether or not the result can be considered "good," the Laurion family's not suing for malpractice may suggest that Mr. Laurion and his father either believed or were advised that Dr. McKee's treatment was within the applicable standard of care. I would not want to suggest that suing for malpractice would be preferable, or appropriate, in such a case. I'm not sure what you mean by "show[ing] more conviction," but filing an essentially frivolous suit would certainly not have been in any sense "better" than posting negative reviews.

While I agree that Mr. Laurion has the right to have and express his opinions about Dr. McKee's allegedly rude demeanor, I don't really understand why he felt compelled to post these opinions on doctor rating sites. As a personal matter, I would not be inclined to publicly blast someone who got a good result for me or a family member, even if the doctor was somewhat lacking in bedside manner. Although I'd prefer to have a doctor who is kind and gentle and an interesting conversationalist, I don't think I'd really care all that much about any of that if he or she could take proper care of me. But I do not express any opinion concerning the parties in the case of McKee v. Laurion.

Anonymous said...

I Googled "I had to find out if you transferred or died." I found .

It sounds like the doctor's role was limited to a discharge physical or single visit consult. It sounds like the family didn't know him or expect him.

Anonymous said...

The dismissal of David McKee MD v Dennisd Laurion was appealed to the Minnesota Court of Appeals and was accepted for review by the Minnesota Supreme Court.
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.
Summary Of Issues prepared by the Supreme Court Commissioner’s Office.

Jack Leyhane said...

Thank you for this update.

Anonymous said...

Supreme Court to decide whether Duluth doctor gets jury trial
By: Mark Stodghill, Duluth News Tribune

The Minnesota Supreme Court heard the case of a Duluth neurologist Tuesday who sued a patient’s son after being criticized on rate-your-doctor websites for his bedside manner.

Dr. David McKee, a neurologist with Northland Neurology and Myology, in 2010 filed the defamation lawsuit against Dennis Laurion of Duluth. McKee alleged that Laurion defamed him and interfered with his business by posting false statements on the internet and to various third parties, including the American Academy of Neurology, the American Neurological Association, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s hospital, among others.

Defendant Laurion claimed that any statements he made about the doctor were true and that he is immune from any liability to the plaintiff. McKee is asking for more than $50,000 in damages.

State District Judge Eric Hylden last year 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 that court sent the case back to the district court for a jury to decide if 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 state Supreme Court and the case was heard in St. Paul on Tuesday. Duluth attorney John Kelly presented Laurion’s position to the high court. “I argued that the posting to a website is part of the context that colors or shapes what Mr. Laurion was trying to do, and the essential nature of one of these websites is to provide subjective feedback and people get lots of subjective feedback from different perspectives and from different experiences,” Kelly said.

“I believe that people going to these websites don’t expect any one recitation or report to be definitive. They’re looking for a range. So seen in that light, what Mr. Laurion was doing was offering his view of an encounter and his overall impression was that the doctor hadn’t responded as well, or wasn’t as respectful, toward his father as he would have hoped.”

Read more:

Watch more:

McKee V. Laurion said...

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 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.”

Eggs Bened1ct said...

This issue was still covered in April 2014:

“The Streisand Effect.” refers to the consequence of inviting even more negative attention by trying to remove negative attention. (The) inspiration was Barbra Streisand’s objecting to a photo of her house in California being made part of a series documenting coastal erosion. Her complaints made the image far more pervasive online than it would have been had she simply ignored it.

David McKee, M.D., a Duluth, Minn., neurologist, was unaware of this 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.

McKee asked if Kenneth felt like getting out of bed so he could make an assessment on mobility. He did, though his gown was partially undone in the back. 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.”

The family exited the room while McKee conducted a brief examination. Laurion says he returned to find his father partially conscious. His head, Laurion asserts, was “pushed against the railing” of the hospital bed, appearing to be a victim of postural hypotension that resulted in a brief fainting spell.

Unaware of any resentment, McKee went to the nurse’s station to dictate notes; an irritated Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. At no point did he approach McKee to clear the air. Instead, 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. McKee claims the writer called him shortly before close of business Friday to solicit a quote; the story ran the following day. “The article was written like I was being reviewed for misconduct,” McKee says. In fact, no action had been taken against him by any of the organizations Laurion had written to.

Two events further demoralized McKee. In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. Worse, a user on posted the newspaper story. Almost overnight, dozens of “reviews” popped up on and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.” Their software was apparently unable to determine that a surge of opinion over a matter of hours was highly unusual activity for a physician who normally received perhaps three comments in a year.

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.

Law professor Eric Goldman, who says he feels physicians are “thin-skinned” when it comes to patient complaints, is confident that litigation is never the answer. “I imagine many lawyers saying that’s not good idea,” he says. “Good lawyers, anyway. McKee made a bad call. There are no winners in defamation lawsuits, and you should advise clients of that.”

McKee was rated for several years as a top provider in Duluth Superior Magazine, a well-regarded lifestyle publication that recently folded. But his online reputation will outlive that. “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.”

Full article:

Jack Leyhane said...

I wrote about the Minnesota Supreme Court's ruling in this case in January 2013, when the opinion was handed down. You can click here to get to that post. (I updated that post today to refresh the link to the Minnesota Court's opinion.)

This link should take you directly to the court's opinion.

As for the comment by "Eggs Benedict," the quote by Prof. Goldman reminded me of Lincoln's famous advice: "Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough."

Dennis Laurion said...

Mr. Leyhane, thanks for your recent analysis.

BUZZFEED: “Insult And Injury: How Doctors Are Losing The War Against Trolls”

As one of the “trolls” detailed in the article, I have no issue with the accuracy of the text - at least as it pertains to me - but the tone of the title fails to distinguish sincere complaints about bedside manner from attacks on mental stability, attacks on medical prowess, fake websites, allegations of dangerous injections, and use of multiple identities. The author said “McKee and Laurion agree on substance…”

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.

This entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. It has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents.