Critical online reviews can carry legal risks

A Minnesota doctor took offense when a patient's son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician "a real tool."
Associated Press
Oct 26, 2012

So Dr. David McKee had an unusually aggressive response: He sued the son for defamation. The Duluth neurologist's improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.

"His reputation is at stake. He does not want to be a target for false and malicious remarks," said his lawyer, Marshall Tanick.

McKee's case highlights the tension that sometimes develops on websites such as Yelp and Angie's List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names.

"Patients now have power to affect their businesses in ways they never had," said Eric Goldman, a professor at the Santa Clara University School of Law who studies the issue. Health care providers are "evolving how to deal with patient feedback, but they're still in the process of learning how to do that."

Most online reviews never provoke any response. And successful challenges to negative reviews are rare. Americans are legally entitled to express opinions, as long as they don't knowingly make false statements.

But if the two sides contest basic facts, disputes can swiftly escalate.

At issue are six of Dennis Laurion's statements, including the account of the nurse's name calling. McKee and his attorney say the unnamed nurse doesn't exist and that Laurion invented her to hide behind. Laurion maintains she is real, but he can't recall her name.

In arguments before the court in September, Laurion attorney John Kelly said his client's statements were legally protected opinion that conveyed dismay over how McKee treated Laurion's father, who had suffered a stroke. The posts described a single visit that lasted 10 to 15 minutes.

The review said McKee seemed upset that after Laurion's father had been moved from intensive care to a regular hospital room, the doctor "had to spend time finding out if you transferred or died."

Laurion also complained that McKee treated them brusquely and was insensitive to the family's concerns about the patient being seen in public in a gown that gaped open in the back.

In an interview, Kelly said nothing Laurion posted was defamatory — a false statement that harms a person's reputation.

The court is expected to rule on the case sometime in the next few months.

Lawsuits over professional reviews are uncommon in part because most patients write positive reviews, Goldman said. And many states have passed laws that block the kind of lawsuits that are filed mainly to scare someone into shutting up on matters of public concern.

Known as "strategic lawsuits against public participation," those complaints are often forbidden by broad laws that protect criticism even if it's wrong, Goldman said.

When health care providers do sue, they rarely succeed. Of 28 such lawsuits that Goldman tracked, 16 had been dismissed and six settled. The others were pending.

One notable exception was a Maine case in which a chiropractor sued a former patient for postings on Facebook and websites that accused him of sexually assaulting her. The courts concluded she probably fabricated her story.

In June, a judge ruled that the chiropractor could legally attach $100,000 worth of the patient's property to his claim as security pending further proceedings in the case, which remains open.

Yelp says reviewers are well within their rights to express opinions and relate their experiences.

Spokeswoman Kristen Whisenand says the company discourages professionals from using what she called the "nuclear option" of suing over a negative review. She said they rarely succeed and wind up drawing more attention to the review they dislike.

Angie Hicks, co-founder of Angie's List, said people shouldn't be afraid to post honest opinions about health care or other services.

"Everyone has the right to free speech," Hicks said. "The key here is giving your honest opinion. Honesty is your best defense. Truth is your best defense."

Jeff Hermes, director of the Citizens Media Law Project at Harvard University's Berkman Center for Internet and Society, said 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.

Goldman advises reviewers to remember that they are still taking a risk anytime they criticize someone in a public forum.

"The reality is that we bet our house every time that we post content online," Goldman said. "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."

 

Comments

wiredmama222

Welcome to the new world, were everything we think do and feel is out there for all to see. There is no such thing as privacy any more since the advent of the computer and the cellphone. Today it is tweet, tweet, tweet to our hearts content as we email and chat our lives away from day break to sundown. Our every movement is seen by everyone, our thoughts and dreams reach everywhere in the world the minute that little light goes on and viole, the world is at our finger tips.

We tell it all, how many times we go potty to how many time Frank slept with Janet or Harry. Nothing is out of bounds. And we seem to like it that way....until someone says something about us personally. Then wow....the nails come out then it's off to the races. Facebook and twitter light up with one dirty comment after another. You unfriend this one and tweet bad about that one. You try to get this one to unfriend her or him too and pretty soon your war is raging. Oh, yes, you are the general, rallying your troops. You call the cops because Missy said this about you or that. (read the police reports)

Oh, give me the days when, if, I wanted a plumber, I asked my next door neighbor over the back fence! If I needed a good doctor I asked a few friends. I hate all this electronic crap. Oh, yeah, I use some of it....but not facebook and twitter.

I don't LIKE it and I never TWEET. I don't own a cellphone.

I like my privacy too much. I have not told anyone I went potty since I was two. I like it like that. How about you?

buckeye15

I would like to comment on this right now, but alas...I have to go potty.

wiredmama222

I am so happy for you, I may join you. LOLOLOL

Contango

@ wiredmama222:

Agree with your sentiments.

No Facebook and I wouldn't have touched the stock directly either.

I've tweeted, but only to friends.

Huron_1969

If you dislike online media sooooo much, why do you frequently post your thoughts and opinions ?

JACKEL

Good one !

wiredmama222

Ah, my opinions, not my personal things like so many do on facebook and twitter....which, if you read the comments above would know and understand. That is the point. I do not like facebook and twitter or cellphones. They have become the downfall of this society....people cannot stay off of them for even a few minutes. At least I can turn this darn thing off for awhile and enjoy actual PEOPLE.

starryeyes83

The only public comments I do are on here and I am very careful about what personal info I put forth, I don't use text, twitter or facebook. Other people.... not so much.

The concept of Big Brother isn't just government.

JACKEL

Did you know they can get a court order to your alias,pen name or whatever ?

wiredmama222

exactly. to both of you

Randy_Marsh

There are entire websites committed to rating local services. http://www.angieslist.com/ Some of its useful, Some of its not. Are people supposed to lie to avoid being sued if they didnt like the service? It will be interesting to see the results of this.

Contango

One of the major problems I have with Facebook is that they are increasingly looking for avenues to sell the personal info they have on their customers.

http://finance.yahoo.com/blogs/b...

I get enough spam, telemarketing calls and junk mail as it is.

The "Do not call" list is a joke. For one, it doesn't include political calls.

luvblues2

Everything you do or say on line can be found by someone.

"Citibank is the consumer banking arm of US banking giant Citigroup. The company paid a $2 million fine to a state regulator and fired a junior analyst over a probe into leaks of confidential information on Facebook's public offering, officials said Friday. US banking giant Citigroup paid a $2 million fine to a state regulator and fired a junior analyst over a probe into leaks of confidential information on Facebook's public offering, officials said Friday. A senior tech analyst also left Citi Friday, the banking group confirmed, after the Massachusetts investigation uncovered "prohibited contact" with a French business journalist on nonpublic estimates for Google's YouTube. "We are pleased to have this matter resolved," Citi said in a statement after the fine was announced by Massachusetts Commonwealth Secretary William Galvin. "We take our internal policies and procedures very seriously and have taken the appropriate actions." According to an agreement filed by the regulator, Citi terminated the employment of an unnamed junior analyst in September for disclosing research on Facebook which came from underwriters and was to remain confidential until 40 days after the IPO. The document said the analyst released the confidential information to the news website TechCrunch, a unit of AOL. The leaked data included an analysis of "investment risks" and "investment positives" for Facebook ahead of the IPO in May. The state official said the fine was for "improper disclosures of nonpublic information," including the Facebook IPO. Citi also confirmed the "departure" of star tech analyst Mark Mahaney, who was the "senior analyst" cited by regulators. The document said the senior analyst provided confidential revenue estimates for YouTube to a reporter for the French business publication Capital in April. The regulator said the analyst violated company guidelines which prohibit discussion of an outlook for a company if this has not been published in a report. Citi said Mahaney's departure "was not linked to Facebook." (c) 2012 AFP

Read more at: http://phys.org/news/2012-10-cit..."

rjk1915

The sheer volume of the trash defeats itself; no one can read even a minute amount of it, and lower class comment is easily recognizable to anyone whose opinion mattars. I don't go to Facebook, etc.

wiredmama222

but you must recognize, rjk, that some people cannot live without that or their cellphones or twitter these days. In fact, the social media of the cellphone and facebook has become one of the biggest problems in today's society. We give them to children and adults alike. They are never far away from mmost people who use them all the time. So whether one sees them as "crap" or not, or whether the "lower" or "upper class" is commenting, someone is watching and listening.

To whom do you think the opinion matters? What is "said" is followed, so who is the person or persons who are recognizing the opinion that matters?