Court: Calling a doctor ‘a tool’ is protected speech

The Minnesota Supreme Court has thrown out the case against a man for rating a doctor online.

Kenneth Laurion had a stroke in 2010 and was examined in the hospital by neurosurgeon Dr. David McKee in Duluth. Laurion’s son found McKee to be “rude and insensitive” during the 20-minute examination.

So he posted the following on some “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!”

McKee sued for defamation. A district court judge court threw the case out, but an appeals court kept the defamation claims intact.

Today, the Minnesota Supreme Court threw those claims out, too, saying there’s no indication they were false, and there does not appear to be any harm to the doctor.

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.

Of particular interest in the case is the debate over whether calling a doctor “a tool” is protected speech.

It is, the court said today:

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…. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990). We conclude that it is an opinion amounting to “mere vituperation and abuse” or “rhetorical hyperbole” that cannot be the basis for a defamation action. (explaining that people often engage in name-calling “without any real intent to make a defamatory assertion, and it is properly understood by reasonable listeners to amount to nothing more”).

Nonetheless, the assertion that a nurse told Laurion that Dr. McKee is a “real tool” is one of fact because whether a nurse actually made the statement to Laurion is an assertion that can be proven true or false. Dr. McKee argues that Laurion’s possible fabrication of the existence of the nurse, and thus the statement attributed to the nurse, creates a genuine issue of fact as to the falsity of Statement 6. As described above, Laurion’s assertion that the nurse made the statement to him and the implicit assertion that the nurse exists are susceptible to proof. We nevertheless conclude that even though Statement 6 includes a factual assertion that can be proven true or false, Statement 6 is not actionable because the statement is incapable of conveying a defamatory meaning. First, the part of the statement that can be proven true or false–whether a nurse made the statement to Laurion–does not itself place Dr. McKee in a negative light even if it is false. The assertion that a nurse made the statement only has the potential to cast Dr. McKee in a negative light when combined with the second part of the statement–that Dr. McKee is a “real tool.” However, attributing the statement to an unidentified nurse does not add defamatory meaning to the statement.

As a final matter, a review of Laurion’s online posting as a whole does not change our holding in this case. Given the reasoning underlying our conclusion that the six individual statements at issue are not actionable, it would defy logic to conclude that the posting, when viewed as a whole, is somehow actionable. Therefore, we reject any argument that the totality of Laurion’s statements makes his online posting actionable.

Here’s the full opinion.

Nonetheless, there’s clearly a lesson here regarding posting material online: Be careful.

Jeff Hermes, director of the Citizens Media Law Project at Harvard University’s Berkman Center for Internet and Society, told the Associated Press at the beginning of the case that “people who want to post critical reviews should think about whether they can back up their statements. And they can strengthen their position by stating the facts on which their opinions are based.”

“The reality is that we bet our house every time that we post content online,” Goldman told the AP. “It’s a lousy answer from a societal standpoint because we need people to share their experiences so vendors will be punished or rewarded as appropriate.”

  • GT

    Wow, if I sued when someone called me a name, people might think I was a real tool!

  • Joanna

    I notice that the court did not rule on whether or not the doctor exhibited toolish behavior in their consideration of whether or not the statement concerning his toolhood was fact or opinion.

    It is my opinion that the description of the doctor’s behavior suggests a violation of the hospital’s Patients’ Bill of Rights.

  • Bob Collins

    // did not rule on whether or not the doctor exhibited toolish behavior in their consideration of whether or not the statement concerning his

    They weren’t asked to rule on that.

  • Gary from St. Paul

    So now thousands of people are made aware of Dr. McKee’s “toolish” behavior who would never have heard of it otherwise. If the good doctor was hoping to protect his reputation, I think he actually did the exact opposite. Which is another lesson we can take away from the whole affair.

  • BJ

    //another lesson we can take away from the whole affair.

    Is that lesson that bullying works? I’m sure many people think the doctor is a tool (even I do) but if the lesson is to let bullies get away with something – because you deserve it – is still bullying.

    Free speech has limits – this person doesn’t appear to have come close to crossing it. But that doesn’t mean that just because you can say a thing, that you should say a thing.

    Like the title implies the opinion of the doctors behavior,calling this guy a tool, is protected. It appears that his skills as a doctor (besides beside manor) were not discussed in the online postings.

    Bob wrote – “there’s clearly a lesson here regarding posting material online: Be careful.”

  • tribune reader

    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.

    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.

    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.

    In reply to an 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.”

    The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been
    established that people may spout any opinion they want without fear of being
    sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”

    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

    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.”

    • Harry Nevus

      From Twin Cities Business “The Top Lawsuits Of 2013”
      by Steve Kaplan December 20, 2013

      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.

  • Wütend Hund

    In March of 2013, Maura Lerner said in her blog, San Diego Education
    Report, “Even after losing his defamation lawsuit in the Minnesota Supreme Court, Dr. David McKee seems completely unaware that he has tormented a patient’s family for discussing his bedside manner on the Internet. Dr. McKee also claims not to believe that a nurse described him as a tool. Many people would consider Dr. David McKee to be cowardly and relentless to have dragged a man through the courts simply for taking advantage of his First Amendment rights. The financial resources of the doctor and the man he sued were vastly disparate.”

    Ms. Lerner then quoted from a posting by Dr. David McKee on the website
    of Patient Advocate Trisha Torrey:

    [posting] Okay let me set you straight on a few things. First, Mr Laurion and I do not agree at all as to what was said and what happened. More importantly, Mr. Laurion (the son, not the patient) contradicted his account of what happened numerous times. No Trisha, I am not a real SOB as you have concluded based on accepting the statements which I sued Laurion over as truthful. If they were truthful I would
    not have brought the suit forward. Dennis Laurion is a sick malicious bully. He
    wrote several versions of what transpired in his father’s hospital room, each
    more slanderous and exaggerated than the last. As an example, in the earliest
    versions of Laurion’s description, he mentioned, accurately, that I helped his
    father to a standing position. A later version stated that I pulled his father
    out of bed; still later that I jerked his father against a closed bedrail and
    against his will.

    Laurion also complained that I humiliated his father by not tying the back of
    his father’s hospital gown. In fact, Dennis Laurion was sitting in a chair on
    the same side of his father’s bed as the patient. He would have needed only to
    lean forward a little to reach the ties of the gown. I was on the opposite side
    of the bed and could not have reached the back of the gown if I had wanted to.

    After I left the patient’s room I was sitting at a nurses station only 30 feet
    from where Dennis Laurion was sitting and in plain sight. He could have discussed
    any concern with me then without the slightest difficulty. Instead he chose to
    begin his smear campaign against me. He fired off 19 letters of complaint
    within the next few days.

    He tried for several weeks to get the local media outlets interested; none would have anything to do with him until he met up with Mark Stodghill of the Duluth News Tribune. The two of them met several times over a 2 week period to come up with a great doctor bashing piece of propaganda. Stodghill placed a call to my office at 4:55 p.m. on a Friday. I was not on call and had left for the day. This was the only attempt he made to contact me. The newspaper article came out only 10 hours later. Still the one half hearted attempt to reach me allowed the reporter to
    accurately state that “calls to Dr. McKee were not returned”, implying that I
    had something to hide. The article was so biased that of approximately 80
    conversations with patients who brought up the matter, only 2 understood that I
    was suing Laurion; the rest misunderstood and believed I was being sued by

    I have been the victim of a cowardly relentless series of attacks by a truly
    sick human being. The fact that you appear to always assume that if a complaint
    is made against a physician, the physician must be in the wrong, makes you
    little better than Mark Stodghill who was willing to use the lowest possible
    journalistic standards seemingly designed to get the story wrong so as to allow
    for the most inflammatory headline possible. [/posting]