The Patient Will Rate You Now

These days, I’d never consider trying a new restaurant or hotel without reading the on-line ratings on TripAdvisor or Yelp. I seldom even bother with professional restaurant or travel critics.

Until recently, there was little patient-generated information about doctors, practices or hospitals to help inform patient decisions. But that is rapidly changing, and the results may be every bit as transformative as they have been in traditionally consumer-centric industries like hospitality. Medicine has never thought much of the wisdom of crowds, but the times, as the song goes, they are a-changin’.

Even if one embraces the value of listening to the patient, several questions arise. Should we care about the patient’s voice because of its inherent value, or because it can tell us something important about other dimensions of quality? How best should patient judgments be collected and disseminated – through formal surveys or that electronic scrum known as the Internet? And what are some of the unanticipated or negative consequences of measuring patient satisfaction and experience? All of these questions are being debated actively, and some newly published data adds to the mix.

Traditional Surveys

For the past few years, Medicare has been administering the HCAHPS (Hospital Consumer Assessment of Healthcare Providers and Systems) survey to a random sample of 300-1000 patients discharged from every U.S. hospital. Results are now posted on Medicare’s Hospital Compare website. Starting in late 2012, hospital payments will be on the line, as part of Medicare’s pay-for-performance program, known as “Value-based Purchasing” (VBP).

When I lecture about VBP, I often ask audiences what weights they believe should be given to clinical quality data (process and outcome measures such as appropriate antibiotics for pneumonia or readmission rates) vs. HCAHPS survey results. Physicians invariably give answers like 80-20 or 90-10. I’ve even heard some say 100-0; namely, the patient’s voice should carry no weight. Such responses are usually accompanied by grumbling about how unfair it is to be dinged because of a hospital’s disastrous parking or inedible food.

Medicare has chosen to use a 70-30 ratio. In other words, fully 30% of a hospital’s bonus – or cut – under VBP will be determined by patient survey responses. For a large hospital like mine, our score on a single item (“rate the quality of nurse communication”) could be worth over $60,000 a year.

I’ve written before about how “patient-centeredness” has become nearly meaningless since it means so many different things to different people. But the knowledge that patient experience scores now carry real weight has provided tangible focus to efforts to promote patient-centeredness. For example, UCSF Medical Center now pays employees bonuses based on patient satisfaction scores – and these scores have improved markedly since this practice began. On my own medical service, the patient satisfaction committee now scours our results and has launched a program to observe our physicians as they interact with patients, then provide feedback. There is even a communication checklist that offers something of a script, with items such as Knock/Ask (“Hi, is it ok if I come in”), Concerns (“I’d like to review a few things with you, but first, is there anything you’d like to be sure we talk about today?” ….. “I see. So you’re concerned the headache may be due to a tumor?”) and Check Understanding (“To be sure I’ve been clear, can you just repeat back to me your understanding of the plan?”).

While the idea of scripting can seem inauthentic – such as when the bank teller asks you if you are having a great day or have plans for the weekend – it can be extremely useful. I now use a script of my own when introducing myself to a hospitalized patient. Since many patients and families still don’t quite understand what a hospitalist is or does, I often say something like, “You may get a survey after you leave, asking ‘did you have any sense that someone was in charge of your care in the hospital.’ I hope you’ll answer yes, because that is precisely my job… to be your orchestra conductor while you’re here.” Patients seem to get it.

While today’s HCAHPS survey focuses on the hospital, another survey – currently being pilot tested in two states –will roll out soon, asking about individual doctors. Medicare plans to publish the results of these MD surveys in the next few years. Don’t be surprised if a physician-level VBP plan, incorporating these data, follows in short order.

Web-Based Ratings

While many traditionalists object to the very notion of using patient experience ratings as part of transparency and payment initiatives, these objections were muted when the data were gathered via a well-validated survey, professionally constructed and administered. But that orderly world is being rapidly supplanted by one that centers on web-based ratings, in all their über-democratic, Yelpy glory. Predictably, the squawking is getting louder.

Enough Internet physician ratings sites have popped up to fill a large bubble, perhaps of the dot-com variety. For example, RateMDs, started by the same guy who started the popular RateMyProfessors.com site (where profs are rated by their quality, clarity, helpfulness, and “hotness”), now hosts reviews on more than 1 million docs in the US and Canada. Other sites in this “space” include Vimo, RevolutionHealth, Vitals.com, HealthGrades, and Angie’s List.

Attempting to bring order to this world, in 2008 the UK’s National Health Service launched its own patient ratings portal. Called “NHS Choices,” it allows patients to rate practices and hospitals, but not individual doctors. Comments are screened (“inflammatory” comments are blocked) and practices are encouraged to post responses. A 2010 JAMA article by Lagu and Lindenauer praised NHS Choices and encouraged Medicare to begin experimenting with a similar site.

It would be an understatement to say that the physician community has not been enthusiastic about on-line reviews and ratings. One concern relates to the possibility that the most disgruntled patients would be the one likeliest to complete surveys or enter comments. This concern is exacerbated by the relatively small number of responses per physician on many of the websites.

While these concerns are understandable, emerging data suggests that most reviews, of both practices and doctors, are positive. For example, a recent study of 386,000 physician ratings on RateMDs found that nearly 50% were a perfect 5 out of 5, and only 12 % were below 2 out of 5. Similarly, two-thirds of patients posting on NHS Choices said that they would recommend the practice or hospital to a friend.

A second objection is that ratings would be frivolous, capturing the “hotel” aspects of hospital care but not the substance. In fact, a recent New York Times article, written by an oncology nurse, argued that “we hurt people because it’s the only way we know to make them better… which is why the growing focus on measuring ‘patient satisfaction’ as a way to judge the quality of a hospital’s care is worrisomely off the mark.” I found this argument specious. Yes, there are times we do have to hurt people to help them (invasive procedures or surgery, for example), but that’s true for all hospitals and physicians. Some are undoubtedly better than others at helping patients prepare for the discomfort, minimizing it, and empathizing with and supporting the patient who experiences it. I’d like to know who they are.

In any case, the argument that patients focus on thread counts and arugula is increasingly being poked full of holes. In the recent study of RateMDs, physicians who were board certified, went to highly rated medical schools, and had never been sued for malpractice received better ratings. While disentangling cause and effect is challenging, these results support the notion that patient ratings are capturing other important elements of care.

An even more persuasive study was recently published by a group of researchers at Imperial College London led by Dr. Felix Greaves (I had the privilege of working with this group during my recent sabbatical, and am a co-author). We examined more than 10,000 patient ratings of hospitals (the average hospital received 62 ratings) on NHS Choices. We found that positive ratings correlated with lower overall mortality and readmission rates. Moreover, hospitals rated by patients as cleaner had a 42% lower MRSA rates than those with poorer ratings. Clearly, patients are clued into some central truths about clinical aspects of their care.

Another objection is that ratings might be submitted by individuals – who may not even be patients – with axes to grind. After finding one horrid rating of himself, and few other ratings, on DrScore.com, Dr. Kent Sepkowitz, a Memorial Sloan Kettering ID specialist, gleefully confessed to entering his own ratings on the site. Writing in Slate, he says that after reading the nasty review:

… I did what any normal American male under e-assault would do. I stuffed the ballot box. I pretended to be a patient of mine… and talked up my friendly attitude and thoroughness, gushed over the oodles of time I spent examining me, and declared my overall treatment a success. Not to limit the kudos, I also gave high marks to parking availability by my office. [A quick editorial aside: We’re talking about parking on Manhattan’s Upper East Side, so now we’re getting into some really serious fiction.] …. With my unceasing selfishness campaign, I was able to hike my scores to levels that would make my mother and even my mother-in-law proud.

Concerns about fraudulent entries can cut in both directions. I’m reminded of the mini-scandal that hit Amazon.com in 2004, when the Times reported that a glitch in Amazon’s Canadian site briefly revealed the true identity behind some anonymous book reviews. Turns out some, like Sepkowitz, had praised their own work. Others – including several prominent authors – had trashed the books of competitors.

While these concerns are real, they are similarly real for reviews of hotels and restaurants. My sense is that – with large enough numbers – the truth generally wins out. And there are ways to mitigate this potential hazard. Amazon, for its part, now allows readers to vote on reviews (“Was this review helpful to you?”) and to “report abuse.” The solution to problems with voting, it seems, is more voting.

Personally, my greatest concern relates to the potential tension between patient ratings and appropriate care. There will be times when giving a patient with a viral URI an unnecessary antibiotic is the surest path to a happy patient and a good review. One hopes that future quality measures will include not only patient experiences but also other measures of appropriateness and evidence-based care designed to counteract this perverse incentive.

The Bottom Line On Patient Ratings

Several years ago, I needed to see a dermatologist for a skin lesion. I was referred to a doctor in a downtown San Francisco medical office building. I decided to not play the “I’m a doctor” card, but rather to simply take in the experience. After entering his shabby office, I was ignored by the receptionist for about 10 minutes before she brusquely shoved a clipboard in my direction and told me to fill out a form. I was ushered in to see the doctor about 30 minutes after my scheduled appointment. The doctor, an elderly man in a white coat, was clearly in a rush. He barely looked at me while taking my history with staccato, closed-ended questions, leaving no room for nuance or embellishment. He then spent about 45 seconds looking at the lesion in question, looking up to offer a monotonic (and indecipherable, to a lay person) diagnosis and some vague recommendations. He scribbled a prescription, offering no explanation as to its purpose or its risks. Before I could say a word, and after a visit that couldn’t have lasted more than 5 minutes, he turned for the door and was gone. I was pissed.

At the time, there were no surveys to complete and no websites on which to rate his care. I would have drawn great satisfaction from writing a damning review, and suspect that a few of them might have led to a change in his behavior. At least, I hope so.

As we work our way through this new world of patient surveys and ratings, there will be some hazards to overcome and some unfair results to contend with. We’ll need to do all we can to anticipate these problems and mitigate them, and to try to bring some order to a chaotic marketplace. These seem like surmountable issues, and I am confident that the outcome of capturing the patient’s voice and giving it some real weight is sure to be better care.

Robert Wachter, MD, professor of medicine at UCSF, is widely regarded as a leading figure in the patient safety and quality movements. He edits the federal government’s two leading safety websites, and the second edition of his book, “Understanding Patient Safety,” was recently published by McGraw-Hill. In addition, he coined the term “hospitalist” in an influential 1996 essay in The New England Journal of Medicine and is chair-elect of the American Board of Internal Medicine.  His posts appear semi-regularly on THCB and on his own blog, Wachter’s World.

20 replies »

  1. “Insult And Injury: How Doctors Are Losing The War Against Trolls”

    As one of the “trolls” detailed in the article, I have no issue with the accuracy of the text – at least as it pertains to me – but the tone of the title fails to distinguish sincere complaints about bedside manner from attacks on mental stability, attacks on medical prowess, fake websites, allegations of dangerous injections, and use of multiple identities. The author said “McKee and Laurion agree on substance…”

  2. “The Streisand Effect.” refers to the consequence of inviting even more negative attention by trying to remove negative attention. (The) inspiration was Barbra Streisand’s objecting to a photo of her house in California being made part of a series documenting coastal erosion. Her complaints made the image far more pervasive online than it would have been had she simply ignored it.

    David McKee, M.D., a Duluth, Minn., neurologist, was unaware of this 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.

    McKee asked if Kenneth felt like getting out of bed so he could make an assessment on mobility. He did, though his gown was partially undone in the back. 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.”

    The family exited the room while McKee conducted a brief examination. Laurion says he returned to find his father partially conscious. His head, Laurion asserts, was “pushed against the railing” of the hospital bed, appearing to be a victim of postural hypotension that resulted in a brief fainting spell.

    Unaware of any resentment, McKee went to the nurse’s station to dictate notes; an irritated Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. At no point did he approach McKee to clear the air. Instead, 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. McKee claims the writer called him shortly before close of business Friday to solicit a quote; the story ran the following day. “The article was written like I was being reviewed for misconduct,” McKee says. In fact, no action had been taken against him by any of the organizations Laurion had written to.

    Two events further demoralized McKee. In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. Worse, 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.” Their software was apparently unable to determine that a surge of opinion over a matter of hours was highly unusual activity for a physician who normally received perhaps three comments in a year.

    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.

    Law professor Eric Goldman, who says he feels physicians are “thin-skinned” when it comes to patient complaints, is confident that litigation is never the answer. “I imagine many lawyers saying that’s not good idea,” he says. “Good lawyers, anyway. McKee made a bad call. There are no winners in defamation lawsuits, and you should advise clients of that.”

    McKee was rated for several years as a top provider in Duluth Superior Magazine, a well-regarded lifestyle publication that recently folded. But his online reputation will outlive that. “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.”

    Full article:

  3. In David McKee MD V. Dennis Laurion, plenty of sites have posted the defendant’s responses. Maura Lerner and Trisha Torrey have referenced the plaintiff’s responses in their respective blogs.

    In March of 2013, Maura Lerner said in her blog, San Diego Education Report (http://learningboosters.blogspot.com/search/label/.%20McKee%20v%20Laurion), “Even after losing his defamation lawsuit in the Minnesota Supreme Court (http://learningboosters.blogspot.com/2013/01/patient-who-commented-on-internet-wins.html), 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 Laurion.

    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]

    ( The entire conversation that ensued between plaintiff and defendant can be seen at:

  4. What it’s like for a patient or family member to be caught up in a case like David McKee MD versus Dennis Laurion was already described by Dr. David McKee’s lawyer, Marshall Tanick, 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:

    [ Message-board participants have the right under the First Amendment to voice their opinions. That freedom is troublesome for companies and their legal and public-relations staffs, which wince about the complaints and scramble to correct inaccurate information that could be posted by consumers, investors, employees or competitors. “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.

  5. Mark A Fischer of Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, said on February 11, 2013, “For those who are under criticism, one of the practical consequences of bringing a defamation action is that more publicity for the accused statements is almost an inevitable result, whether the statements are ultimately found libelous or not. In other words, in weighing the pros and cons of initiating a lawsuit, all potential defamation and privacy claim plaintiffs should consider the rule of Hippocrates applicable to physicians, ‘First do no harm.’”

  6. The Mankato Free Press said in February 2013: “It’s puzzling why Dr, David 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.”

  7. In spite of a Supreme Court analysis of plaintiff comments vice defendant comments, Marshall Tanick is STILL saying “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements. 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.”

    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.

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

    Never Shout “He’s a Tool!” On a Crowded Website?

    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.

  9. David McKee MD v. Dennis Laurion was also cited by United States District Court, District of Minnesota in Civil No. 11-812 (JNE/JJG), Karen Eckstrom, Plaintiff, v. Bio-Medical Applications of Minnesota, Inc. (BMA); an affiliate of Fresenius Medical Care Holdings, Inc.; a/k/a Fresenius Medical Care, all foreign corporations doing business in Minnesota; Patrick Howard and John Marietti.

    “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”; and (4) ‘the recipient of the false statement reasonably understands it to refer to a specific individual.’” McKee v. Laurion, 825 N.W.2d 725, 729-30 (Minn. 2013).

    “The plaintiff has the burden of proving falsity in order to establish a successful defamation claim.” McKee v. Laurion, 825 N.W.2d 730 (Minn. 2013).

    “Truth is a complete defense to a defamation action and ‘true statements, however disparaging, are not actionable.’” McKee v. Laurion, 825 N.W.2d 730 (Minn. 2013).

    Generally the truth or falsity of a statement is a question for the jury, but “[i]f the statement is true in substance, minor inaccuracies of expression or detail are immaterial.” McKee v. Laurion, 825 N.W.2d 730 (Minn. 2013).
    “Minor inaccuracies to not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge [is] justified.’” McKee v. Laurion, 825 N.W.2d 730 (Minn. 2013).

    Page 27 of http://docs.justia.com/cases/federal/district-courts/minnesota/mndce/0:2011cv00812/119408/34/0.pdf?1374061296

  10. Minnesota defamation case, David McKee MD v Dennis Laurion, cited as precedent by UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT upon Appeal from the United States District Court for the Eastern District of North Carolina.

    In deciding
    an Appeal from the United States District Court for the Eastern District of North Carolina at Wilmington; the United States Court of Appeals for the Fourth Circuit cited David McKee MD v. Dennis Laurion.

    From pages 13-14 of http://www.ca4.uscourts.gov/Opinions/Unpublished/121287.U.pdf:

    The parties agree that the defamation claim is governed by Minnesota law because the alleged defamation originated in Minnesota. They also agree that under Minnesota law, the elements of a defamation claim are: “(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; and (4) the recipient of the false statement reasonably understands it to refer to a specific individual.” McKee v. Laurion, 825 N.W.2d 725, 729-30 (Minn. 2013) . A defamation claim cannot be based on a true statement. Id. at 730. “True statements” include statements that are “true in substance” and contain only “minor inaccuracies of expression or detail.” Id. In articulating this standard, the Minnesota courts explain that “substantial truth” means that “the substance, the gist, the sting, of the libelous charge [is] justified” and the statement “would have the same effect on the mind of the reader or listener as that which the pleaded truth would have produced.” Id.

    Original Case A11-1154: http://mn.gov/lawlib/briefs/a111154sc.html

  11. 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. Newspaper stories have caused people to call or write me to relate their own medical experiences. I’ve referred them to my lawyers. I’ve also received encouragement from other persons who have been sued over accusations of libel or slander.

    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.

    I feel that defamation lawsuits are much too easy for wealthy plaintiffs. If I were to attempt suing a doctor for malpractice, my case would not proceed until I’d obtained an affidavit from another doctor, declaring that the defendant’s actions did not conform to established procedures. In a defamation suit, there’s generally no exit short of a judge’s dismissal order – which can be appealed by the plaintiff. Being called “defendant” is terribly personal, but the civil suit path is totally impersonal. During the three years that I went through depositions, interrogatories, a dismissal hearing, an appellate hearing, and a state Supreme Court hearing; I never once spoke to a judge. At depositions, the plaintiff and I sat opposite each other, while I answered his lawyer’s questions, and he answered my lawyer ‘s questions. We were not to speak to each other.

  12. Per Star Tribune:

    Tanick said the ruling could present a slippery slope.

    “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.

    – – – – – – – – – – – – – – – – – – – – – – –

    Per other sources:

    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.”

    Anfinson was also interviewed by Minnesota Lawyer. He said, “Anyone who knew about the case, who observed the oral arguments, and who knows something about libel law is about as unsurprised with this result as they can be. It’s about as perfunctory and routine as the Supreme Court ever gets. It was a completely straightforward application of long-settled libel-law rules.”

    Anfinson said the case is more significant for social commentary purposes than for its legal analysis, noting that perhaps the justices only accepted the case to fix an error of the Court of Appeals.

    Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. “It’s almost as if things were said around the water cooler or perhaps posted in a letter to the editor,” he said. “I think the principles they worked with are applicable to statements made irrespective of the medium.”

    Commenting about this case on his own blog, February 8, 2013, Aaron Kelly, internet law & defamation law attorney, said “Thanks to the First Amendment, free speech is the law of that land, and that means being able to communicate our views publicly – no matter how offensive.”

    Mark A Fischer of Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, said on February 11, 2013, “For those who are under criticism, one of the practical consequences of bringing a defamation action is that more publicity for the accused statements is almost an inevitable result, whether the statements are ultimately found libelous or not. In other words, in weighing the pros and cons of initiating a lawsuit, all potential defamation and privacy claim plaintiffs should consider the rule of Hippocrates applicable to physicians, ‘First do no harm.’”

    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.”

  13. Article by: ABBY SIMONS , Star Tribune, Updated January 30, 2013 – 9:59 PM

    Finding no harm done, justices toss out lawsuit by Duluth physician.

    Dennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father’s neurologist. He expected at most what he calls a “non-apology apology.”

    “I really thought I’d receive something within a few days along the lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that would be the end of it,” the 66-year-old Duluth retiree said. “I certainly did not expect to be sued.”

    He was. 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 Laurion because there was no proof that his comments were false or were capable of harming the doctor’s reputation.

    The unanimous ruling reverses an earlier Appeals Court decision and brings to an end the closely watched case that brought to the forefront a First Amendment debate over the limits of free speech online.

    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.”

    He said he offered to settle the case at no cost after the Supreme Court hearing. Laurion contends they couldn’t agree on the terms of the settlement, and said he not only deleted his initial postings after he was initially served, but had nothing to do with subsequent online statements about McKee.

    The lawsuit followed the hospitalization of Laurion’s father, Kenneth, for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude. After his father was discharged, he wrote the reviews and sent the letters.

    On at least two sites, Laurion wrote that McKee said that “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option,” and that “It doesn’t matter that the patient’s gown did not cover his backside.”

    Laurion also wrote: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”

    McKee sued after he learned of the postings from another patient. A St. Louis County judge dismissed the lawsuit, saying Laurion’s statements were either protected opinion, substantially true or too vague to convey a defamatory meaning. The Appeals Court reversed that ruling regarding six of Laurion’s statements, reasoning that they were factual assertions and not opinions, that they harmed McKee’s reputation and that they could be proven as false.

    The Supreme Court disagreed. Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted. Page added that the “tool” statements also didn’t pass the test of defaming McKee’s character. He dismissed an argument by McKee’s attorney, Marshall Tanick, that the “tool” comment was fabricated by Laurion and that the nurse never existed. Whether it was fabricated or not was irrelevant, the court ruled. “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,” Page wrote.

    Tanick said the ruling could present a slippery slope.

    “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.

    Jane Kirtley disagreed. The professor of media ethics and law at the University of Minnesota School of Journalism said the ruling stems from “an elementary principle of libel law. I understand the rhetoric, but this is not a blank check for people to make false factual statements,” she said. “Rather, it’s an endorsement that statements of opinion are protected under the First Amendment.”

    Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. “It’s almost as if things were said around the water cooler or perhaps posted in a letter to the editor,” he said. “I think the principles they worked with are applicable to statements made irrespective of the medium.”

    Full article:

    Comments: http://comments.startribune.com/comments.php?d=content_comments&asset_id=189028521&sort=E&section=/local&page_nbr=2&ipp=10

  14. From “The Legal Infrastructure of Business”

    In April 2010, Dennis Laurion accompanied his parents to a neurologist appointment with Dr. David McKee after Mr. Laurion’s father had been hospitalized for a stroke. After a 10-15 minute visit with Dr. McKee, Mr. Laurion returned home, upset with the visit and posted the following review online:

    My father spent 2 days in ICU after a hemorrhagic stroke.   He saw a speech therapist and physical therapist for evaluation.   About 10 minutes after my father transferred from ICU to a ward room, Dr. David C. 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 for evaluation.   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 me.   When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!”

    The facts in these types of cases typically fall into the “my word against theirs” category. Below I discuss some of the arguments in the case to highlight how granular the distinction can be between what is a fact versus opinion.

    1. “I had to spend time finding out if you transferred or died” – Dr. McKee maintains that he made a lighthearted comment to the effect of I had looked for him 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. While the comments are substantially similar, Dr. McKee maintains that the “sting” is very different. In Mr. Laurion’s version, Dr. McKee seems to blame the patient and joke about their death, but in his statement, expresses happiness for the patients improved condition. Therefore, if a jury believes Dr. McKee’s recollection, then the statements by Mr. Laurion are not substantially accurate.

    2. Mr. Laurion asserts that in response to the patient’s gown not covering his backside, Dr. McKee said, “That doesn’t matter” – Dr. McKee maintains that he said something to the effect of “I thought it would be fine” or “It looks like it’s okay” to indicate that the gown was sufficiently tied. While these statements are similar, to a listener they can come across very different with the first implying that a patient’s concern doesn’t matter, while the second can be interpreted as reassuring a patient. Again, the distinction between these comments has large implications on whether Mr. Laurion’s statements are substantially accurate or not.

    3. “A friend who is a nurse, she said, “Dr. McKee is a real tool!” – The court is not evaluating whether what the nurse said is fact or not, the court is evaluating whether there is in fact a nurse that made the statement or not.


  15. I went to Robert E. Edelmans Office and the first thing I noticed was his respect for the staff. In discussions I asked how they felt about the Doctor. Without exception they responded, the best. This gave me great comfort as a patient as I felt he was one a patient could trust to do his best with my vision. Dr. Edelman was upfront and honest with his recommendation, he did not recommend the most expensive lens, he recommended the one he felt was professionally requird. I am age 73, my vision is 20-20 in both eyes and I am grateful God provided me with this talented Doctor.

  16. Thank you Dr. Wachter for addressing this issue in a rather thorough manner. As a patient rights advocate, I have written that the 70/30 rule is not a true alignment in a patient centered care model. Not only must the patient view carry more weight, we must also be part of the medical experience in both our feelings about the experience- soft data and allowed to take an active part in the medical record creation through the patient portal-hard data. If there are complaints that we only give hotel style reviews, I think that the questions we are asked during the HCAHPS process define the experience. Was the room clean and was it quiet at night? Are valuable questions at Motel 6 and the local hospital, but we should go deeper.

  17. Of the millions of individuals and thousands of corporations the government contracts with, why is it that only doctors and hospitals will get their pay adjusted downwards based on user satisfaction. Why not big pharma? Why not Boeing, Halliburton, the cleaning crew at the local post office?

  18. I mostly agree that Dr. Wachter’s take is considerate, fair and balanced … but I think he neglects (or only mentions in passing) some clearly troublesome issues.

    “Personally, my greatest concern relates to the potential tension between patient ratings and appropriate care.”
    Yes. And it does not only apply to antibiotics. It applies to patients with somatization disorder, patients with nonorganic disability, patients convinced of evidence free (or unverified) diagnoses and approaches (e.g. chronic Lyme meningitis requiring constant ABx tx etc) … in short, all patients with inappropriate requests or agendas, be they intentional, or, in the case of somatization disorder, subconscious.

    I collected (in a previous practice location) a handful of scathing reviews (2 from chronic Lyme patients who disagreed with my diagnosis) without any positive ones, while my Press Ganey numbers (a commercial patient satisfaction researcher not relying on the patient’s initiative) at that time were about 90% positive (like for most other docs in my MSG). So there is selection bias on these sites.

    And the other problematic tendency is to base compensation and/or careers on ratings. This will certainly create undesired reactions from providers. Physicians will 1. decide to never discuss anything that could make a patient unhappy (this includes lifestyle counseling) and comply with inappropriate requests as outlined above (that’s already happening right now). 2. Physicians will try to shield themselves from difficult patients, patients who are hard to satisfy: patients with chronic pain, psychiatric comorbidity, patients seeking 3rd and 4th opinions. If the ratings in my department have an impact on anything carreer related, I will likely give up a subspecialty clinic dealing with certain pain syndromes within my specialty (because it is the nature of this clinic to produce a few dissatisfied, if not hostile patients, despite all efforts). And I am for sure not the only trying to shield him/herself from inappropriate negative feedback, which for sure will leave many patients stranded, some of which could be helped by appropriate medical care.

  19. Dr. Wachter, thank you for the well thought out and compelling discussion of ‘doctor ratings’ from the multiple angles you’re able to address.
    I wanted to bring in some additional positive reinforcement of a key point which may help to quiet the angry mob of doctors howling against the potential for ‘democratic’ review processes to sully their reputations and damage their businesses.
    In the 5 years that Doctor.com has been connecting patients with the care providers they need, and giving them an opportunity post-appointment to write reviews, the overwhelming majority have been positive. This is not a situation where only the dissatisfied come online to rage about sub par experiences.
    We’re not 100% what causes this phenomena, but it is born out across all medical review sites, and that simple fact, when digested, should serve doctors as a beacon of hope and inspiration to encourage their patients to write.