Is it defamatory to call a doctor a "real tool"?
Or to claim that a nurse described a doctor that way?
The Minnesota Supreme Court wrestled with those questions on Tuesday, as the justices heard arguments in a case about what is or isn't fair game on the Internet.
Two years ago, a Duluth neurologist, Dr. David McKee, sued the son of an elderly patient for defamation over some negative comments that were posted on rate-your-doctor websites.
On Tuesday, the state's top court was asked to decide whether the lawsuit should finally go to trial, after the case was thrown out by a lower court and reinstated on appeal. The lawsuit is one of a growing number of legal battles testing the limits of free speech on the Internet.
A good portion of the oral arguments were devoted to the meaning of the words that Dennis Laurion, 65, used to describe his family's encounter with McKee in April 2010 when Laurion's father, Kenneth, then 84, was hospitalized with a stroke.
After McKee examined his father, Laurion complained about the doctor's bedside manner on several websites. "When I mentioned Dr. McKee's name to a friend who is a nurse, she said, 'Dr. McKee is a real tool!'" he wrote.
Opinion or defamation?
John Kelly, Laurion's attorney, noted that Internet sites are a "free for all" for people to share opinions and that his client's comments were perfectly appropriate. "We have a word, the word 'tool,'" Kelly told the justices. "When you look at the word, you have to ask: Is it defamatory?" He argued that the phrase, while "it clearly is not a compliment," is no worse than "calling someone an idiot or a fool."
During questioning, some of the justices seemed to agree. "Saying someone's a 'real tool' sounds more like an opinion than a statement of fact," Justice Christopher Dietzen said.
Chief Justice Lorie Skjerven Gildea had a similar reaction. "The point of the post is, 'This doctor did not treat my father well,'" she said. "I can't grasp why that wouldn't be protected opinion."
But McKee's lawyer, Marshall Tanick, argued that Laurion had gone beyond opinion, "making up" statements that were untrue. He noted that Laurion had never been able to identify the nurse who allegedly called McKee a tool. "There was no nurse," Tanick said. "He made it up."
He also accused Laurion of putting words in McKee's mouth that made him look "insensitive and uncaring." At one point, Laurion wrote that McKee had horrified the family by quoting a statistic when they first met: "Well, 44 percent of hemorrhagic strokes die within 30 days." Tanick said Laurion later admitted that he had gotten the statistic from Wikipedia.
Kelly said the versions of what happened may differ, but that the family clearly perceived McKee as insensitive. In that situation, he said, people "ought to have a degree of latitude in expressing their opinion."
The justices are expected to issue their ruling within three to five months.
Maura Lerner • 612-673-7384