Society for Participatory Medicine
e-patients.net blog
Guest post by SPM member @NickDawson, a former health system executive now focused on patient experience, staff happiness and healthcare innovation. He works for Frontier Health in Richmond, Virginia.
There’s a moment where something changes direction, irreversibly, because of irresistible forces – like when you toss your keys in the air. There is a split second when they stop traveling up, and start falling back towards you. We’re seeing examples of that moment every day in healthcare. One example is that the traditional doctor patient relationship, like your keys in the air, is changing direction. This week, a very poignant example came from Minnesota:
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 [a patient’s family member] because there was no proof that his comments were false or were capable of harming the doctor’s reputation.
Dennis Laurion’s father was ill and in the hospital. Frustrated by what Laurion perceived to be a poor experience, he tweeted his dissatisfaction about Dr. McKee. In the initial case, the trial court dismissed McKee’s defamation case saying:
[the online comments] were not defamation but rather an “emotional discussion of the issues.”
According to Dr. McKee:
“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.”
We all have two options for processing feedback: lean in or run away. Dr. McKee chose to run.
He could have simply said thank you. He could have read the online post with open eyes. Maybe it’s like any other medical intervention – try it and see what works. Instead, he became defensive and sued Laurion.
And here is where the moment occurs, where momentum shifts and things start heading in a different direction. As patients, we need to feel free to express our emotional state —satisfaction, dissatisfaction, wants, needs, fears, and hopes —with our community. Many times that community is online. And that doesn’t have to be a bad thing for doctors and other providers.
Clinicians have a golden opportunity. As patients take to the internet to post about their experiences, they are providing free feedback. They are focus groups, sharing (for better or worse) their experience with physicians. The trick is in the mental shift to seeing feedback, including the good, bad and ugly, as a gift.
According to the Star Tribune, McKee’s lawyer doesn’t see things this way:
”This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse,” he said.
That’s not the point - it’s a license to give feedback, to talk about what works and what doesn’t, in the consumer’s view. Some don’t understand this, but some do and are embracing it. Those are the ones on the other side of the moment, the ones who have shifted direction. They understand that the trajectory has changed – the keys are falling – and they’ve begun working with the changing tide, not trying to hold it back.
I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground. For example, one of Laurion’s comments was as follows:
“When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’ ”
The Minnesota Supreme Court held that calling someone a “real tool” is an expression of opinion and therefore not actionable.
Justice Page wrote in the opinion:
“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,” he said. “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.”
Statements of opinion are not actionable.
Note, however, that a person with the financial means to do so can always sue you, whether or not there is a basis in law to do so. Here the person who posted the remark about Dr. McKee was put through several years of litigation with the attendant anxiety and expense.
Marilyn, thanks for the thoughtful reply. To be clear, I’m not a lawyer. I think you are on to a sensitive subject: the idea that even the act of suing someone is hugely disruptive to both parties.
Nick –
Thanks for sharing your perspective on this case. It’s been a much-discussed and -watched case as it has made its way through the court system.
Your recommendation is spot-on: clinicians should draw on reviews as valuable information that may lead them to tweak one or more parts of their operations. As Marilyn notes, the chances of a finding in the clinician’s favor in a defamation case like this are slim unless there’s a clear misstatement of fact about the clinician (vs opinion).
As you well know, the other lesson that a clinician should take away from this case is that it is important to define her own online identities, so that it is not defined by a review or two on a third-party website.
This means development of an online strategy, including social, to harness the power of the internet and use it to promote positive and useful messages about the clinician’s practice, including curating and producing useful content for patients, families, referral sources, etc. (See the recent #HCSM tweetchat transcript on the value of creating and of curating >> #hcsm – January 27, 2013 – http://shrd.by/1HpgCz.)
Most, if not all, of the engaged patients reading this blog certainly want to connect with their clinicians and other health care providers in this way, but most health care providers just aren’t there yet … which means there’s still opportunity for providers to get into the conversation and distinguish themselves in the process. Yes, there are HIPAA concerns to contend with (there, I said it, the ‘H’ word), but these are not insurmountable.
This case should be yet another wake-up call to health care providers that they need to own their online identities, and that they need to plan carefully in order to build that online presence in a way that creates the most value for patients.
Thanks David
Love your comment:
>it is important to define her own online identities, so that it is not defined by a review or two on a third-party website.
I’d add, our online personas should simply be an extension of our real-life actions. In other words, this physician could have mitigated some risk by having an active online presence. He probably could have avoided it all together by cultivating better relationships throughout his life.
Your call to action for all of us to create and manage an online presence is a great addition – thanks for sharing it!
-N
http://patients.about.com/b/2013/02/11/and-david-mckee-fires-back-proving-the-point.htm
Plaintiff remarks about the lawsuit
http://learningboosters.blogspot.com/search/label/.%20McKee%20v%20Laurion
Defendant remarks about the lawsuit
As the defendant / appellant, I’ve read all articles and blogs about David McKee MD v Dennis Laurion. Yours is one of the best-written, and I enjoyed your unique analysis.
Dennis – thank you so much for the very kind words!