Dinah, ClinkShrink, & Roy produce Shrink Rap: a blog by Psychiatrists for Psychiatrists, interested bystanders are also welcome. A place to talk; no one has to listen.
Sunday, June 03, 2012
More About On-Line Doctor Reviews
I wrote about my experience of getting a one-star review of my psychiatric practice on HealthGrades.com.
I wrote about it on Shrink Rap: Here
I wrote about it on Clinical Psychiatry News: Here
and I wrote about it on Psychology Today: Here.
Some of the responses have suggested that patients/clients should be able to write such reviews and that people should be able to look up information about their doctors. Well, they are, these sites exist and you can also look up whether your doc has been sanctioned on your state's licensing site.
I thought I would address some of the comments in new post
As I mentioned, I Google new docs before I see them, and I would be put off by a bad review. There are good docs and mediocre docs and bad docs. I'm not sure how I feel about doctors being reviewed on line. On my Psychology Today post, a couple of college professors came on and noted that students who get poor grades review them harshly. I know waiters who have been fired because of gripes put up on Yelp, some of them rather subjective. The online world is full of pressure.
Should doctors be the focus of On-line ratings? They are, and maybe that's okay, but I have specific gripes with how this is currently done. Let me outline those gripes.
1) My information is put up without my permission or consent. It includes a map to my office. Some doctors work alone in isolated settings and may feel unsafe having this information on the internet. We should at least be asked. Oh, and the information is wrong, the address listed has not been my address for years. The websites don't seem to care. They want me to register with their sites and correct it. I want nothing to do with them, so I'm not registering with them and my information may as well be wrong. It's public information, you say? There are lots of things that are "public information" everything from legal case searches and home addresses. Does that mean that anyone who wants has the right to put it on their website? Public information-- would you want someone searching you and putting up on their website every speeding ticket you'd gotten, every DWI, every bill collector's claim, your age, your home phone number and address, and any licensing violation --on their website? It's all public information but does that give a third party a right to publish it? Legal, yes. Ethical--I don't think so. HealthGrades took my listing down when I requested it. Vitals.com, however, tells me that I have no option to not be listed with them. I'm still chewing on that.
2) Ratings should not be anonymous and there should be some way to ascertain that the reviewer has really been a patient of the doctor, otherwise these reviews are worthless. Some commenters (I think mostly on the Psychology Today website) feel that being able to write reviews empowers patients, but if someone who doesn't know a doctor (or an angry neighbor, ex, etc) goes in and writes poor reviews, or if the doctor or his friends go in and write great reviews, then there really is no empowerment on either end. In order for their to be any usefulness or empowerment to these sites, the ratings need to be done honestly.
3) There should be a mechanism to remove a review if the rater changes their mind.
4) The issues being rated all reflect individual taste and subjective interpretation and don't reflect
good medical care. There are no questions about "Did the treatment this doctor recommended cure or alleviate your problem?" There is a question about how quickly you get seen in an emergency, but what does that mean? If the doctor talks to you and says "Go to the Emergency Room" is that bad? He didn't SEE you. If the doctor is on vacation but his coverage sees you, does that count? Do we really care about the lighting in the waiting room? What about, "Did your doctor seek consultation or refer you to a specialist appropriately?" That's not a question. How long did you wait?--that's a question. Do you want a doctor who is always on time? Convenient, yes, but it means that he holds to his schedule religiously-- he doesn't squeeze in emergencies, and if he's telling you that you're going to die of cancer soon, you only get your allotted time to ask questions and don't go over because he's holding to his precise schedule. Does your doctor listen and answer questions is a reasonable question. Did he spend the appropriate amount of time with you? Again, isn't this an individual call? Some people are chatters, some are not.
5) I don't understand why HealthGrades will take down behavioral health ratings. I asked, they didn't answer. You can rate a psychiatrist, it's not that they block it, it's just that if the psychiatrist complains, they take it down. This really negates any value and skews the results in favor of the doctor (at least in theory, I think most doctors believe they are powerless and there is no recourse, and don't actually ask to have their reviews removed).
Roy, here's a career for you: create a website that provides a public service of rating doctors with some verification of who the reviewer is, with questions that reflect both warm and caring treatment as well as good medical care. And ask the docs to participate.
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One of the greatest assets in evaluating a physician is your own primary care physician. Most people don't realize it and it has hardly been written about as far as I can tell - but your internist or family physician has much greater experience with physicians and clinics, their outcomes and how they treat people than an Internet site trying to get more hits by posting reviews. Even if your primary care physician has no direct experience with the physician in question they can discuss alternatives and what you need to find out about that doctor.
Another good reason to have a relationship with primary care physician.
My PCP referred me to a god-awful shrink. Every week i'd go into his office and say "I'm going to kill myself" and he'd say "it's normal for a depressed person to feel that way" or "uh-huh, how else do you feel?" And I'd say no really, I'm going to do it, I have it all planned out, isn't there something you can do to help me? And he'd say "it's normal to feel that way. We can try raising the lamictal if it's really unbearable" and then he'd raise the lamictal, that would do nothing, and we'd be back to square one. Thank god I finally woke up and went to someone new. But, I haven't rated him online - I don't trust the online rating sites of docs since there is no oversight, there are no standards, and they're just out to make money.
The problem with your complaints about online rating is that we, as consumers, have become accustomed to using online rating systems. I try to leave feedback about purchases to help other buyers, and I value comments left by other shoppers. I read reviews before I buy a TV, a coat, a bra, etc. Further, I have come to trust these online reviews. I often find more information about products from reviews than the company itself describes.
The only way to combat the problem of crackpots and angry neighbors leaving bad reviews, would be to have an online rating system set up through doctor's offices, so that patients would leave a review just after an appointment. No appointment, no ability to leave a review.
You are not going to stop online ratings. They are part of the culture and the business environment.
There is nothing wrong with these online reviews. There is nothing to stop a doctor from replying to re,views on certain sites. Most people are as smart, if not smarter than the doctors who get worked up over a single lousy review. Psyche doctors, "behavioral health specialists", review patients all the time. It is called a medical record. Very often, the contents are based upon subjective impression colored by bias of all kinds. It is less a reflection of a patient's condition and more a fairy tale drawn from the imagination of the practitioner. Patients may have factual errors removed, but they do not have a voice when it comes to contesting a doctor's opinion about them which is then passed on to other treaters. When it comes to a single review which the doctor feels is "fake", please try to get over it. In general, accept that the internet has provided a forum that is democratic and carries both the benefits and flaws of any democratic exchange. Until recently, psychiatrists ,most of all, have not had to face the people and their wrath. Your reviewer may have had some facts wrong. It does seem odd though that you seem not to believe that there may be a patient or two who have negative experiences of you and that those are rooted in a combination of both personal opinion and fact. Are you perfect?
My psychiatrist in the psychiatric unit of the hospital was terrible. He was rude and derisive. He did not listen to me. He did not explain my condition. I can't explain how much he hurt me. I went online after I got home and, even though I've never been to his "office," I gave him the lowest scores I possibly could in every category. I'm generally a pretty understanding person, but he used his power to hurt me, and that brings out the worst in me. I admit-- I also had my brother rank him as well. At the time, I was so angry about it, had I had the money, I probably would have taken out a billboard with his picture with the caption, "This psychiatrist SUCKS. And he's mean." However, hating him kept me sane for a while, because I thought, "He expects me to kill myself, and I can't let him win."
well, acute care settings are so focused on PressGaney scores and marketing surveys that address the decor and not the outcomes of care that it is no surprise that online sites ranks MDS in a similar way. your public information is out there, and anyone who wants to find you and your details can do it - these sites may make it easier, but they are also not very accurate. anyone who has security concerns needs to talk to a security firm that addresses on line data and try to remove your information. i understand it can be done, for a fee.
asking a site to remove your information is appropriate, and they did so. a letter from your atty. might persuade the other site to do the same.
their behavior is not illegal, it is not ethical, it's 'just business'.
I've rated my doctors online, on RateMDs. I did so because they deserved it.
For my family doctor, I'd kept mum for some time because I just didn't see the point... until somebody rated him poorly, and in a way that wasn't at all helpful or explanatory of what the actual issue was. So I rebound-reviewed -- that is, I saw that my doctor was unfairly rated and so I provided my input to balance the responses and provide a more informative view. Others followed suit, providing even informative reviews. These reviews outshine the one negative review, and people looking up their new doctor are going to recognize what a whackjob that one negative reviewer is.
Sometimes a negative review brings out the positive ones. It can actually result in more reviews with more helpful information, often discrediting the negative review.
On my psychiatrist, I was the first reviewer. In fact, I set up his profile in the system just so I could review him. I did so because he was nothing like other psychiatrists I've had to "deal with". He was just what I needed, and he changed my entire view of psychiatrists. Buddy deserved a good review, and since nobody had bothered to do so yet, I made sure he got a good name on the internet.
Thing is, had I been required to put my name to either of these, even though they were positive I wouldn't have reviewed them. A negative reviewer, however, often feels so strongly about their issue (and has usually already cut ties with their doctor thus no health repercussions) that they will put their name to it.
A snap negative reviewer won't think about the repercussions of using their real name, they're angry and not thinking things through.
A positive reviewer won't have that same snap response; they'll think about whether or not their doctor might treat them differently, or if they want their friends or employers knowing who their doctor is and how they feel about that doctor. I'd never have reviewed my awesome psychiatrist had I had to put my name to it, because I don't want future employers knowing that I see a psychiatrist and I don't want my psychiatrist treating me differently.
You would, by requiring names, actually cause a more severe imbalance for doctors in fields that people don't want the world knowing they see -- more snap negative reviews than balanced and fair ones.
(and I surmise that the reason they will remove behavioural health workers on request is because those workers are really the only ones who can lock you up against your will, and being negatively reviewed for keeping a person from harming themselves or others creates imbalance in the review process)
George--I completely agree
Demok--I'm not perfect, but I'm not horrible across the board. It's the thoughtlessness of rating my staff a "1" (I don't have a staff) that sold me that it's not a patient, and the '1' ratings in terms of my accessibility and >45 minutes wait on average for appointments. These just aren't true.
Anon: I didn't mean that the sites should publish the patient's names (I agree with your predictions about who would rate), I just meant they should collect them.
There is already litigation on this subject: http://nashvillepost.com/news/2010/12/21/plastic_surgeon_fighting_online_reviews
I was looking for a particular brand of shoes once and showed up at a dusty side strip to a mostly abandoned mall. All it really needed was a howling wind and some tumbleweed and I wouldn't have been surprised to see whoever from Have Gun Will Travel. This was thanks to info from the internet. I had a vicious comment about me in re: denying somebody what sounded like a large dose of Xanax, a rather useful warning I thought.
Absolutely disagree with the right to anonymity! In a psych world, there is already a dangerous and inherent skew towards the doctor. The doctor - or his colleagues, or my future doctors - should absolutely not have the right to impinge on my anonymity - that does not mean I don't have the right to post my experience and opinion for other potential clients to see. I saw an unethical and all around awful psychiatrist. You might not be horrible, Dinah, but she was, and potential patients deserve to be turned off from my bad, ACCURATE review the same way you'd be turned off from a bad review. As a patient, anything I saw about a shrink is skewed towards potentially invalidated by mental illness, personality disorder etc. There is zero call for getting rid of anonymity. That would, I suspect, result in many honest and accurate reviews no longer being posted.
Not to mention -- why should my name/email/etc be targeted for mental health ads, services, etc. Confidentiality? Seriously, Dinah. I shouldn't be surprised, but I am.
That should say, absolutely disagree with Dinah's dismissal of a right to online anonymity.
An online review of a physician wouldn't have any impact on my decision to see him/her, but an ethics violation/illegal conduct,etc on the state board website definitely would. Best to talk with people who know the physician - check with a physician you respect, talk to nurses, etc.
I've left positive reviews and one negative review. The negative review was specific and truthful, and when I left it I registered under my real name. I'm not worried about libel because it's only libel if what is written is untrue.
Incidentally, in my state a psychiatrist who was disciplined by the state medical board for sleeping with his patients has one 5 star review on Health Grades, so people would be wise not to choose based on that. He probably reviewed himself.
Check the medical board website and talk to people who know the physician. That's the best way.
A patient recently left a negative review of me on Angie's List, and they informed me. The review was more of an indictment of our system than of me. I basically agreed with most of what the patient said (except maybe the terrorist part). I wrote a response without referring to the patient, and I discharged the patient. The patient deserves a doc she/he likes. We all do.
Bad review = good doc.
Moviedoc, if they were writing a negative review of you they probably weren't planning on returning to see you anyway.
Bad review = good doc makes as much sense as good review = bad doc.
Off topic, but when I read Moviedoc's post, I immediately opened up another internet tab so that I could find that Angie's List review...And I swear to Allah (swt) that I was seriously going to type in "Moviedoc" as the physician's name. And then I stopped myself and thought, What am I doing? Dense!
When this topic was last posted, I brought up talking to therapists in order to see who has the best reputation in your area. Case managers can be good, too. If you're receiving services privately (i.e. not within a county or state system), therapists will be pretty straight with you (For example, my therapist told me, "Yeah, don't go to that guy, he is clueless and hands out benzos like they'll fit in a Pez dispenser" - this mirrored the sentiments of my coworkers, who also worked in the field. She also said, "I feel comfortable referring you to anyone in the office, but I think you'll like this guy best; he's very friendly and has an interest in Bipolar Disorder" I've been seeing the guy for seven months or so, and I like him a lot). They'll be a bit more likely to try to find you someone you'll click with personality-wise and has an interest in your diagnosis versus a primary care physician. They're also just as efficient or more so at getting you in to see a psychiatrist if the mental health worker themselves have a good reputation. And, at least when I worked for a county mental health contractor who employed psychiatrists, the case workers and therapists did their best to get folks in to see a psychiatrist they thought would be best for the person they worked with.
Or so my experience goes. Primary care doctors don't spend as much time with you compared to a therapist or case manager, so they often can't tell you who will work best for you. Working with a psychiatrist is different than working with, say, a cardiologist. Even if you're not doing therapy with them, you're still unloading a lot of personal information and will have more appointments with them when you're feeling unwell and emotionally vulnerable. Having a good relationship with a doctor is important, but it's extremely important to get along with a psychiatrist considering the emotions that are involved.
Of course, inpatient, rural, and involuntary treatment are different animals. You're frequently stuck with who you're stuck with. Definitely check the mental health codes for your state - you might have the right to request a new provider regardless of whether or not you're hospitalized and/or on an involuntary treatment order. If you're going to a hospital voluntarily and you have a mental health worker, ask them to try to get you into a hospital that isn't terrible. They'll usually do their best. And a therapist/case manager worth a salt will try to give you as many options as possible if you're on an order.
Keep in mind if you're receiving government services, you'll likely have the option of filing a rights complaint in addition to reporting to the medical board if your provider is doing something unethical. In my state, these complaints are actually taken very seriously - each one is investigated, and you have the right to appeal if your complaint isn't substantiated. Getting a substantiated rights complaint follows a provider for the rest of their career (in my state), and it makes it very hard to find work again even if they're a psychiatrist.
The Internet doesn't allow for much anonymity if you are a provider. It's the price you pay for working in human services. As a therapist-in-training, I'm OK with online reviews despite their limitations. But I suggest anyone who is having issues with their psychiatrist to tell their primary care doctor, therapist, case worker, whoever. I even recommend calling your insurance company if you have private insurance and give them a head's up if you're taking legal action - they don't want to work with providers who screw up. It may feel futile to report psychiatrists to the powers that be considering that people with psych diagnoses frequently aren't take seriously, but it is a drop in the bucket. Enough complaints and their sources of referrals will be minimized.
@Jane. Unless you live in his catchment area and want to pay the list to access any review on Berryman, you wouldn't find it anyway.
response once again "eaten by blogger...."
Star Tribune, September 4, 2012, Maura Lerner
Two years ago, a Duluth neurologist, Dr. David McKee, sued the son of an elderly patient for defamation over some negative comments that were posted on rate-your-doctor websites.
On Tuesday, the state's top court was asked to decide whether the lawsuit should finally go to trial, after the case was thrown out by a lower court and reinstated on appeal. The lawsuit is one of a growing number of legal battles testing the limits of free speech on the Internet.
A good portion of the oral arguments were devoted to the meaning of the words that Dennis Laurion, 65, used to describe his family's encounter with McKee in April, 2010, when Laurion's father, Kenneth, then 84, was hospitalized with a stroke.
John Kelly, Laurion's attorney, noted that Internet sites are a "free for all" for people to share opinions and that his client's comments were perfectly appropriate. "We have a word, the word 'tool,'" Kelly told the justices. "When you look at the word, you have to ask: Is it defamatory?" He argued that the phrase, while "it clearly is not a compliment," is no worse than "calling someone an idiot or a fool."
During questioning, some of the justices seemed to agree. "Saying someone's a 'real tool' sounds more like an opinion than a statement of fact," Justice Christopher Dietzen said. Chief Justice Lorie Skjerven Gildea had a similar reaction. "The point of the post is, 'This doctor did not treat my father well,'" she said. "I can't grasp why that wouldn't be protected opinion."
High court rules online post didn't defame doctor
MINNEAPOLIS -- 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.
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.
For full articles:
[quoted from original post]
2) Ratings should not be anonymous.
3) There should be a mechanism to remove a review if the rater changes their mind.
I agree with your third point, but I disagree with your second point unless such postings conferred limited privilege.
I posted the same review of a physician on three rate-your-doctor sites. I signed my name, but the sites truncated my avatar to my first name.
Upon receipt of a threat letter asking the name and address of my lawyer and insurer, I contacted the review sites to request deletion. I forwarded their confirmation emails to opposing counsel, but I was sued from 2010 into 2013.
Although the Minnesota Supreme Court dismissed David McKee MD vs Dennis Laurion, the 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. 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, posting 108 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.
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.
Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.
Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit - for fear of creating the "Streisand Effect." As a retired layman, I brought far less resources to the battle of financial attrition.
"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.” 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.
In spite of Supreme Court disagreement and subsequent peer disagreement, 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, 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.
[ QUOTE] 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.” [/QUOTE}
According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “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.”
Anfinson was also interviewed by Minnesota Lawyer. He said, “Anyone who knew about the case, who observed the oral arguments, and who knows something about libel law is about as unsurprised with this result as they can be. It’s about as perfunctory and routine as the Supreme Court ever gets. It was a completely straightforward application of long-settled libel-law rules.”
Anfinson said the case is more significant for social commentary purposes than for its legal analysis, noting that perhaps the justices only accepted the case to fix an error of the Court of Appeals.
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…”
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, posting 108 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.
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.
After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.
"Defendant In Jesse Ventura V. Taya Kyle Cites Mckee V. Laurion Precedent In Her Legal Brief"
The widow of Chris Kyle, author of "American Sniper", is appealing former Navy SEAL and Minnesota Governor Jesse Ventura's defamation award against Kyle's estate. Her brief to the United States Court of Appeals for the Eighth Circuit cites David McKee MD V. Dennis Laurion as a precedent.
In July, Ventura was awarded $1.845 million for claims made by Kyle in American Sniper Ventura says were fabricated and damaging to Ventura's career and reputation.
Excerpts from brief:
United States Court of Appeals for the Eighth Circuit
Jesse Ventura a/k/a James G. Janos, Plaintiff-Appellee,
Taya Kyle, as Executor of the Estate of Chris Kyle, Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA Civ. No. 12-cv-472 (RHK/JJK) – District Judge Richard H. Kyle
BRIEF and ADDENDUM of APPELLANT TAYA KYLE,
EXECUTOR OF THE ESTATE OF CHRIS KYLE
FAEGRE BAKER DANIELS LLP
Attorneys for Appellant Taya Kyle,
Executor of the Estate of Chris Kyle
SUMMARY OF CASE AND REQUEST FOR ARGUMENT
Appellant Taya Kyle, executor of the estate of Chris Kyle, asks this Court to reverse the judgment awarding Jesse Ventura $500,000 for defamation and $1,345,477.25 for unjust enrichment. Review of the record establishes that Ventura did not prove material falsity or actual malice. The court’s unjust enrichment award based on allegedly defamatory speech is unprecedented, distorts Minnesota common law, and violates the First Amendment. The judgment, therefore, must be reversed and the case dismissed.
This Court should reverse the defamation judgment because the district court incorrectly instructed the jury about the questions of whether the statements at issue were materially false and published with actual malice. The First Amendment requires an appellate court to examine the record independently and enter judgment for the defendant where, no properly instructed jury could have found defamation liability. See Sullivan, 376 U.S. at 285.
. . .
The district court erred when it instructed the jury it could impose defamation liability based on the entirety of the “story” Kyle told about Ventura, rather than explaining that its original instruction required Ventura to prove all of the elements of his defamation claim with respect to at least one of the three specific statements at issue.
A jury instruction is erroneous if it misstates the law. Wolfe v. Fayetteville, Ark. Sch. Dist., 648 F.3d 860, 864 (8th Cir. 2011). To establish a defamation claim, a plaintiff must prove that a specific statement is both defamatory and false. McKee v. Laurion, 825 N.W.2d 725, 729 - 30 (Minn. 2013). In addition, the First Amendment requires a public figureto prove that such a statement was published with actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323, 327-28 (1974).
The Supreme Court, this Court, and the Minnesota Supreme Court have all left no doubt that, to sustain a defamation claim with respect to a group of allegedly false and defamatory statements, a plaintiff must prove each of the elements of his cause of action with respect to each such statement. See, e.g., Air Wis., 134 S. Ct. at 864-65; Masson v. New Yorker Magazine, 501 U.S. 496, 502, 522-25 (1991); Stepnes v. Ritschel, 663 F.3d 952, 964-65 (8th Cir. 2011); Aviation Charter, 416 F.3d at 868-71; Michaelis v. CBS Inc., 119 F.3d 697, 700-03 (8th Cir. 1997); Price v. Viking Penguin, 881 F.2d 1426, 1429 (8th Cir. 1989); McKee v. Laurion, 825 N.W.2d at 729-30.
I do find it a bit amusing that a psychiatrist, a professional who interviews and writes up mental health assessments, prescribes medication and evaluates the effectiveness of the medication would be so worried about online reviews. You mention in your article that you like reviews of movies, restaurants and resorts. You take what's written up with a grain of salt, weigh what's written and then make a decision about how much credibility to give the review. You run a business. You hope to attract "customers", consumers, clients or patients. Don't you think that those individuals have the same ability to weigh the credibility of any reviews written about your professional service?
I totally understand that sometimes people who seek out medical services or mental health care aren't happy with the service they get. How is that any different than me being dissatisfied with my hairdresser and deciding to write a scathing review? Potential clients can read the review, decide it has merit or make a decision to give your services a "try-out" due to a million other different reasons. I've heard this argument from other mental health professionals many times (and yes, my career is as a mental health professional), and I find it sadly lacking in merit. Psychiatry, psychology, clinical social work, professional counselors and marriage and family therapist have lived inside a private, "confidential" bubble for way too many years. It's time to open up the consulting room and let some real air into the stuffy, sometimes abusive environment that surrounds mental health services. People are still embarrassed to seek out mental health services, and when something ugly or abusive happens (and you and I both know it happens more than we'd like to admit), they have no one to talk openly to. Perhaps on line reviews gives the client a place to air their therapist/psychiatrist's total lack of attunement to them. In my opinion it's about time that happened.
And just so you know, yes, I've had a rotten review before. But I pulled up my big girl panties and realized that not every client is going to like me or my service. Relax, if you're as good as you're saying, one lousy review isn't going to kill your practice . . . especially considering the shortage of psychiatrists! Relax and get on with your practice.
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