http://www.duluthnewstribune.com/event/article/id/257252/
McKee v. Laurion
--- N.W.2d ----, 2013 WL 331558
Minn.,2013.
January 30, 2013
OPINION
PAGE, Justice.
This
case presents the narrow question of whether the court of appeals erred
in concluding that six allegedly defamatory statements made by
appellant Dennis Laurion regarding an encounter with respondent David
McKee, M.D., survive summary judgment. We hold that none of the six
statements is actionable either (1) because there is no genuine issue of
material fact as to the falsity of the statements or (2) because the
statements are not capable of conveying a defamatory meaning that would
harm respondent's reputation and lower him in the estimation of the
community. Therefore, we reverse.
On
April 17, 2010, Kenneth Laurion, the father of Dennis Laurion
(Laurion), was admitted to St. Luke's Hospital in Duluth after suffering
a hemorrhagic stroke.
On April 19, Kenneth Laurion was transferred from the intensive care
unit (ICU) of St. Luke's to a private room. The attending physician
arranged for Dr. McKee, a neurologist, to examine Kenneth Laurion. Dr.
McKee had never met Kenneth Laurion before he examined him on April 19.
Three
family members were present in Kenneth Laurion's hospital room when Dr.
McKee's examination began: Laurion, his mother, and his wife. The
examination lasted no longer than 20 minutes, during which time Dr.
McKee made certain statements and acted in a manner that, as a whole,
the Laurions perceived as rude and insensitive. After Kenneth Laurion
had been discharged from the hospital, Laurion posted the following
statements regarding Dr. McKee on various “rate-your-doctor” websites:
My father spent 2 days in ICU after a hemorrhagic stroke.
He saw a speech therapist and a physical therapist for evaluation.
About 10 minutes after my father transferred from ICU to a ward room,
Dr. McKee walked into a family visit with my dad. He seemed upset that
my father had been moved. Never having met my father or his family, Dr.
McKee said, “When you weren't in ICU, I had to spend time finding out if
you transferred or died.” When we gaped at him, he said, “Well, 44% of hemorrhagic strokes
die within 30 days. I guess this is the better option.” My father
mentioned that he'd been seen by a physical therapist and speech
therapist. Dr. McKee said, “Therapists? You don't need therapy.” He
pulled my father to a sitting position and asked him to get out of bed
and walk.[ ] When my father said his gown was just hanging from his neck
without a back, Dr. McKee said, “That doesn't matter.” My wife said,
“It matters to us; let us go into the hall.” Five minutes later, Dr.
McKee strode out of the room. He did not talk to my mother or myself.
When I mentioned Dr. McKee's name to a friend who is a nurse, she said,
“Dr. McKee is a real tool!”
*2
Laurion also
sent letters to a variety of medically-affiliated institutions
complaining about Dr. McKee's conduct. The letters included
substantially the same statements communicated in the online postings.
According to Laurion, his purpose in sending the letters was to get
somebody to tell Dr. McKee (1) that he exhibited “poor behavior” and (2)
that the recipients “don't like getting letters like this.”
After
learning of Laurion's online postings from another patient, Dr. McKee
commenced this action against Laurion, asserting claims for defamation
per se and interference with business. Dr. McKee's complaint alleged
that 11 statements from Laurion's online postings and letters were
defamatory. After some discovery, Laurion moved for summary judgment
seeking dismissal of Dr. McKee's lawsuit. The district court granted
Laurion's motion and dismissed Dr. McKee's claims with prejudice,
concluding that, as a whole, the statements lacked defamatory meaning
and that, individually, the statements were either protected opinion,
substantially true, or too vague to convey a defamatory meaning.
The
court of appeals affirmed the district court's dismissal of the
interference with business claim, but reversed the district court with
respect to six of the allegedly defamatory statements posted online by
Laurion.
McKee v. Laurion, No. A11–1154, 2012 WL 177371, at *6–7 (Minn.App. Jan.23, 2012).
As to those six statements, the court concluded that (1) the statements
were factual assertions and not opinions, (2) there were genuine issues
of material fact as to the statements' falsity, and (3) the statements
tended to harm Dr. McKee's reputation.
Id. at *2–6. The actionable statements identified by the court of appeals are as follows:
•
Statement 1: Dr. McKee said he had to “spend time finding out if you [Kenneth Laurion] were transferred or died.”
•
Statement 2: Dr. McKee said, “44% of hemorrhagic strokes die within 30 days. I guess this is the better option.”
•
Statement 4: Dr. McKee said, “[I]t doesn't matter” that the patient's gown did not cover his backside.
Id. at *6.
*3
[5] 
To establish the elements of a defamation claim in Minnesota, a
plaintiff must prove that: (1) the defamatory statement was
“communicated to someone other than the plaintiff”; (2) the statement is
false; (3) the statement tends to “harm the plaintiff's reputation and
to lower [the plaintiff] in the estimation of the community,”
Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919–20 (Minn.2009); and (4) “the recipient of the false statement reasonably understands it to refer to a specific individual.”
State v. Crawley, 819 N.W.2d 94, 104 (Minn.2012).
To establish the elements of a defamation claim in Minnesota, a
plaintiff must prove that: (1) the defamatory statement was
“communicated to someone other than the plaintiff”; (2) the statement is
false; (3) the statement tends to “harm the plaintiff's reputation and
to lower [the plaintiff] in the estimation of the community,”
Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919–20 (Minn.2009); and (4) “the recipient of the false statement reasonably understands it to refer to a specific individual.”
State v. Crawley, 819 N.W.2d 94, 104 (Minn.2012).Statements 1, 2, & 4
[6] [7] [8] [9] [10] [11] [12] Truth is a complete defense to a defamation action and “true statements, however disparaging, are not actionable.”
Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980). As a general rule, the truth or falsity of a statement is a question for the jury.
Lewis v. Equitable Life Assurance Soc'y of the United States, 389 N.W.2d 876, 889 (Minn.1986). If the statement is true in substance, minor inaccuracies of expression or detail are immaterial.
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991)
(explaining that the common law approach to falsity in the context of
libel “overlooks minor inaccuracies and concentrates upon substantial
truth”);
see also
Clancy v. Daily News Corp., 202 Minn. 1, 11, 277 N.W. 264, 269 (1938) (characterizing the question of truth as “[w]hether the publications were substantially true”); Restatement (Second) of Torts § 581A
cmt. f (1977) (“Slight inaccuracies of expression are immaterial
provided that the defamatory charge is true in substance.”). “Minor
inaccuracies do not amount to falsity so long as ‘the substance, the
gist, the sting, of the libelous charge [is] justified.’ “
Masson, 501 U.S. at 517 (quoting
Heuer v. Kee, 15 Cal.App.2d 710, 59 P.2d 1063, 1064 (Cal.Dist.Ct.App.1936)).
A statement is substantially true if it would have the same effect on
the mind of the reader or listener as that which the pleaded truth would
have produced.
Id. The plaintiff has the burden of proving falsity in order to establish a successful defamation claim.
Crawley, 819 N.W.2d at 104.
[7] [8] [9] [10] [11] [12] Truth is a complete defense to a defamation action and “true statements, however disparaging, are not actionable.”
Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980). As a general rule, the truth or falsity of a statement is a question for the jury.
Lewis v. Equitable Life Assurance Soc'y of the United States, 389 N.W.2d 876, 889 (Minn.1986). If the statement is true in substance, minor inaccuracies of expression or detail are immaterial.
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991)
(explaining that the common law approach to falsity in the context of
libel “overlooks minor inaccuracies and concentrates upon substantial
truth”);
see also
Clancy v. Daily News Corp., 202 Minn. 1, 11, 277 N.W. 264, 269 (1938) (characterizing the question of truth as “[w]hether the publications were substantially true”); Restatement (Second) of Torts § 581A
cmt. f (1977) (“Slight inaccuracies of expression are immaterial
provided that the defamatory charge is true in substance.”). “Minor
inaccuracies do not amount to falsity so long as ‘the substance, the
gist, the sting, of the libelous charge [is] justified.’ “
Masson, 501 U.S. at 517 (quoting
Heuer v. Kee, 15 Cal.App.2d 710, 59 P.2d 1063, 1064 (Cal.Dist.Ct.App.1936)).
A statement is substantially true if it would have the same effect on
the mind of the reader or listener as that which the pleaded truth would
have produced.
Id. The plaintiff has the burden of proving falsity in order to establish a successful defamation claim.
Crawley, 819 N.W.2d at 104.
[13]
Viewing the evidence here in a light most favorable to Dr. McKee, we
conclude that there is no genuine issue of material fact as to the
falsity of Statements 1, 2, and 4. As to Statement 1 (Dr. McKee said he
had to “spend time finding out if you transferred or died.”), Dr. McKee
described his account of the statement in his deposition testimony:
Viewing the evidence here in a light most favorable to Dr. McKee, we
conclude that there is no genuine issue of material fact as to the
falsity of Statements 1, 2, and 4. As to Statement 1 (Dr. McKee said he
had to “spend time finding out if you transferred or died.”), Dr. McKee
described his account of the statement in his deposition testimony:
I
made a jocular comment ... to the effect of I had looked for [Kenneth
Laurion] up 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.
In light of the substantial similarity between Statement 1 and Dr. McKee's account, we conclude that any differences between the two versions are nothing more than “minor inaccuracies” that cannot serve as a basis for satisfying the falsity element of a defamation claim. Masson, 501 U.S. at 516. Here, the “gist” or “sting” of Laurion's and Dr. McKee's versions are the same. Id. at 517. Both communicate the notion that patients in the intensive care unit who have suffered a hemorrhagic stroke leave the intensive care unit either because they have been transferred to a regular room or they have died. Therefore, “the substance” of Statement 1 is justified given the similarity of the two versions. Id. In other words, Dr. McKee's account of what he said would produce the same effect on the mind of the reader as Statement 1. The minor inaccuracies of expression in Statement 1 as compared to Dr. McKee's version of what he said do not give rise to a genuine issue as to falsity. For these reasons, we conclude that there is no genuine issue of material fact as to the falsity of Statement 1.
*4
[14] As to Statement 2 (Dr. McKee said, “Well, 44% of hemorrhagic strokes
die within 30 days. I guess this is the better option.”), Dr. McKee
acknowledged in his deposition that during the examination of Kenneth
Laurion, he communicated to those present that some ICU patients die.
However, he denies referencing a specific percentage. Thus, Dr. McKee
posits that Statement 2 is false, or that, at the least, there is a
genuine issue of material fact as to the falsity of Statement 2 because
he never stated a specific percentage. The problem for Dr. McKee with
respect to Statement 2 is that the gist or sting of Statement 2 is the
mention of hemorrhagic stroke
patients dying and not the percentage referenced. Statement 2 squarely
satisfies the test for substantial truth because it would have the same
effect on the reader regardless of whether a specific percentage is
referenced (or whether the percentage is accurate).
See
Masson, 501 U.S. at 517. The presence or absence of a
specific percentage within Statement 2, without more, has no bearing on
how a reader would perceive the statement because the gist or sting of
Dr. McKee's reference to death does not change based on the statistical
reference. Nor does the presence, absence, or inaccuracy of the stated
percentage, without more, cast Dr. McKee in a more negative light than
does his discussion of patients dying. That is especially true when the
reader is given no context for the statistics. Therefore, we conclude
that there is no genuine issue of material fact as to the falsity of
Statement 2.
As to Statement 2 (Dr. McKee said, “Well, 44% of hemorrhagic strokes
die within 30 days. I guess this is the better option.”), Dr. McKee
acknowledged in his deposition that during the examination of Kenneth
Laurion, he communicated to those present that some ICU patients die.
However, he denies referencing a specific percentage. Thus, Dr. McKee
posits that Statement 2 is false, or that, at the least, there is a
genuine issue of material fact as to the falsity of Statement 2 because
he never stated a specific percentage. The problem for Dr. McKee with
respect to Statement 2 is that the gist or sting of Statement 2 is the
mention of hemorrhagic stroke
patients dying and not the percentage referenced. Statement 2 squarely
satisfies the test for substantial truth because it would have the same
effect on the reader regardless of whether a specific percentage is
referenced (or whether the percentage is accurate).
See
Masson, 501 U.S. at 517. The presence or absence of a
specific percentage within Statement 2, without more, has no bearing on
how a reader would perceive the statement because the gist or sting of
Dr. McKee's reference to death does not change based on the statistical
reference. Nor does the presence, absence, or inaccuracy of the stated
percentage, without more, cast Dr. McKee in a more negative light than
does his discussion of patients dying. That is especially true when the
reader is given no context for the statistics. Therefore, we conclude
that there is no genuine issue of material fact as to the falsity of
Statement 2.
[15]
As to Statement 4 (Dr. McKee said, “That doesn't matter” that the
patient's gown did not cover his backside), Dr. McKee testified that he
told the patient that the gown “looks like it's okay” because it did not
appear that the gown was at risk of falling off. We are not persuaded
that there is any meaningful difference between the two versions of the
statements sufficient to create a genuine issue as to the falsity of
Statement 4. The substance or gist of the two versions is the same.
Commenting that the gown “looks like it's okay” is another way of
communicating that “it didn't matter” that the gown was not tied in the
back. Thus, any inaccuracy of expression does not change the meaning of
what Dr. McKee admits to having said. For these reasons, we conclude
that Statement 4 is not actionable.
As to Statement 4 (Dr. McKee said, “That doesn't matter” that the
patient's gown did not cover his backside), Dr. McKee testified that he
told the patient that the gown “looks like it's okay” because it did not
appear that the gown was at risk of falling off. We are not persuaded
that there is any meaningful difference between the two versions of the
statements sufficient to create a genuine issue as to the falsity of
Statement 4. The substance or gist of the two versions is the same.
Commenting that the gown “looks like it's okay” is another way of
communicating that “it didn't matter” that the gown was not tied in the
back. Thus, any inaccuracy of expression does not change the meaning of
what Dr. McKee admits to having said. For these reasons, we conclude
that Statement 4 is not actionable.Statements 3, 5, & 6
[16] [17] [18] [19] [20] [21]
Next, we consider whether Statements 3, 5, and 6 are capable of
conveying a defamatory meaning. In order for a statement to be
defamatory, it must tend to “harm the plaintiff's reputation and ...
lower him in the estimation of the community.”
Stuempges, 297 N.W.2d at 255. In the context of libel, “a
publication may be defamatory on its face; or it may carry a defamatory
meaning only by reason of extrinsic circumstances.”
Utecht v. Shopko Dept. Store, 324 N.W.2d 652, 653 (Minn.1982). The question of whether a statement's language reasonably conveys a defamatory meaning is one of law.
Id. Whether a defamatory meaning is conveyed depends upon how an
ordinary person understands “the language used in the light of
surrounding circumstances.”
Gadach v. Benton Cnty. Co-op. Ass'n, 236 Minn. 507, 510, 53 N.W.2d 230, 232 (1952).
In deciding whether the words bear an innocent meaning, the words “must
be construed as a whole without taking any word or phrase out of
context.”
Morey v. Barnes, 212 Minn. 153, 156, 2 N.W.2d 829, 831 (1942).
If the words are capable of conveying a defamatory meaning, it is for
the jury to decide whether they were in fact so understood.
Utecht, 324 N.W.2d at 654.
[17] [18] [19] [20] [21]
Next, we consider whether Statements 3, 5, and 6 are capable of
conveying a defamatory meaning. In order for a statement to be
defamatory, it must tend to “harm the plaintiff's reputation and ...
lower him in the estimation of the community.”
Stuempges, 297 N.W.2d at 255. In the context of libel, “a
publication may be defamatory on its face; or it may carry a defamatory
meaning only by reason of extrinsic circumstances.”
Utecht v. Shopko Dept. Store, 324 N.W.2d 652, 653 (Minn.1982). The question of whether a statement's language reasonably conveys a defamatory meaning is one of law.
Id. Whether a defamatory meaning is conveyed depends upon how an
ordinary person understands “the language used in the light of
surrounding circumstances.”
Gadach v. Benton Cnty. Co-op. Ass'n, 236 Minn. 507, 510, 53 N.W.2d 230, 232 (1952).
In deciding whether the words bear an innocent meaning, the words “must
be construed as a whole without taking any word or phrase out of
context.”
Morey v. Barnes, 212 Minn. 153, 156, 2 N.W.2d 829, 831 (1942).
If the words are capable of conveying a defamatory meaning, it is for
the jury to decide whether they were in fact so understood.
Utecht, 324 N.W.2d at 654.
*5
[22]
We conclude, as a matter of law, that Statements 3, 5, and 6 are not
capable of conveying a defamatory meaning. Statement 3 was published as
follows: “Dr. McKee said, ‘Therapists? You don't need therapy.’ “ We
fail to see how this statement, standing alone, is capable of a
defamatory meaning that would harm Dr. McKee in the eyes of the
community. By itself, Statement 3 is harmless. Doctors routinely
evaluate whether therapy is appropriate for a given patient. Reading
Statement 3 in the context of the entire posting,
see
Morey, 212 Minn. at 156, 2 N.W.2d at 831, we reach the same
conclusion. The posting is silent as to Kenneth Laurion's actual need,
if any, for therapy after his stroke. Given that neurologists routinely
evaluate whether a patient does or does not need therapy and the
posting's silence as to whether Kenneth Laurion actually needed therapy,
we fail to see how Statement 3 could harm Dr. McKee's reputation.
Simply put, there are no facts in the posting, or in the record before
us for that matter, that provide a context in which Statement 3 is
capable of lowering Dr. McKee in the estimation of the community.
See
Stuempges, 297 N.W.2d at 255. Presumably, the purpose of Dr.
McKee's visit was to evaluate Kenneth Laurion's condition. Given this
purpose, a determination as to whether or not Kenneth Laurion needed
ongoing therapy was appropriate. Therefore, we reject Dr. McKee's
assertion that the statement calls into question his competency as a
physician. We also reject the notion that, in the light of surrounding
circumstances, Statement 3 is capable of conveying a defamatory meaning
as published and conclude that it is not actionable as a matter of law.
Doctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.
ReplyDeleteDoctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.
The Star Tribune said it's a frustrating end for McKee, 51, who said he's spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him -- likely from people who never met him. He hasn't ruled out a second lawsuit stemming from those posts.
"The financial costs are significant, but money is money and five years from now I won't notice the money I spent on this," he said. "It's been the harm to my reputation through the repeated publicity and the stress."
McKee's lawyer, Marshall Tanick, told the Associated Press that he and McKee plan no further appeals and that they were disappointed with the ruling. "We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse," Tanick said.
In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”
Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from "an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it's “an endorsement that statements of opinion are protected under the First Amendment.”
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.”
In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I've been tracking doctor v. patient lawsuits for online reviews. . . doctors usually lose or voluntarily drop these lawsuits. Indeed, with surprising frequency, doctors end the lawsuit by writing a check to the defendant for the defendant's attorneys' fees where the state has a robust anti-SLAPP law. Doctors and other healthcare professionals thinking of suing over online reviews, take note: you're likely to lose in court, so legal proceedings should be an absolute last-resort option--and even then, they might not be worth pursuing.”
Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”
Still being talked about April 4, 2014:
ReplyDeleteThis 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]