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.

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.

What it’s like for a patient or family member to be caught up in a case like this
was already described by the plaintiff’s lawyer in a Star Tribune newspaper
article, “Company sues over info put on Yahoo message board,” August 27, 2001,
and repeated in http://chronicle.augusta.com/stories/2001/08/27/bus_321610.shtml
. It said in part: “If a company sues,
alleging simple business disparagement or perhaps defamation, its goal isn’t
necessarily to win,” said Marshall Tanick, a First Amendment expert at
Mansfield & Tanick in Minneapolis. “The strategy is to force the other
person to incur huge legal expenses that will deter them and others from making
such statements,” he said … “yet very few (cases) go all the way to trial and
verdict,” Tanick said.

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.

It was not my intention to use any descriptions or conclusions. It was also not my
intention to claim that I had proof. Only my family and the doctor were in the
room. My intention was to portray my recollection of what happened in my
father’s room. The public could decide what to believe and what – if any –
impact it had on them: insensitive doctor or overly-sensitive consumer?

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.

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. I did not want to merely post my conclusions. I wanted
to stick to my recollection of what I’d heard. 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. The
plaintiff must prove the facts are willfully misstated, but the defendant can
go broke while waiting through the effort.

Marshall Tanick was the plaintiff lawyer in David McKee MD V. Dennis K. Laurion in 2010.

In 2001, Marshall Tanick had offered one utility of a defamation lawsuit.

[ MINNEAPOLIS-ST. PAUL STAR TRIBUNE / SCRIPPS HOWARD NEWS SERVICE

Reprinted July 31, 2014 in AUGUSTA CHRONICLE ]

If a company sues, alleging simple business disparagement or perhaps
defamation, its goal isn’t necessarily to win, said Marshall Tanick, a
First Amendment expert at Mansfield & Tanick in Minneapolis. The
strategy is “to force the other person to incur huge legal expenses that
will deter them and others” from making such statements, he said.
Companies typically shy from suing customers because it creates bad
publicity. Thus, much of the legal activity involves employees or former
workers. “I’m seeing it happen with increasing frequency … yet very few
(cases) go all the way” to trial and verdict, Tanick said. A company’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 difficult to win. One option is to
allege breach of contract or violation of trade secrets rather than
defamation, he said.

Source: https://tryingourpatients.wordpress.com/

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