Business Law 13th Edition by Frank Cross, Kenneth Clarkson, Roger LeRoy Miller

Exercise 16

In the language of the court
page, Justice.
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On April 17, 2010, Kenneth Laurion, the father of Dennis Laurion (Laurion), was admitted to St. Luke's Hospital in Duluth [Minnesota] after suffering a hemorrhagic stroke. On April 19, Kenneth Laurion was transferred from the intensive care unit (ICU) of St. Luke's to a private room. The attending physician arranged for Dr. [David] McKee, a neurologist, to examine Kenneth Laurion. Dr. McKee had never met Kenneth Laurion before he examined him on April 19.
Three family members were present in Kenneth Laurion's hospital room when Dr. McKee's examination began: Laurion, his mother, and his wife. The examination lasted no longer than 20 minutes, during which time Dr. McKee made certain statements and acted in a manner that, as a whole, the Laurions perceived as rude and insensitive. After Kenneth Laurion had been discharged from the hospital, Laurion posted the following statements regarding Dr. McKee on various "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 percent of hemorrhagic strokes die within 30 days. I guess this is the better option." * * * 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
" * * * *
After learning of Laurion's online postings from another patient, Dr. McKee commenced this action [in a Minnesota state court] against Laurion, asserting claims for defamation * * *. Laurion moved for summary judgment seeking dismissal of Dr. McKee's lawsuit. The * * * court granted Laurion's motion * * * , concluding that * * * the statements were * * * substantially true.
The court of appeals * * * reversed the [lower] court * * *. The [appellate] court concluded that * * * there were genuine issues of material fact as to the statements' falsity.
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Truth is a complete defense to a defamation action and true statements, however disparaging, are not actionable.
* * * If the statement is true in substance, minor inaccuracies of expression or detail are immaterial. Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge is justified. A statement is substantially true if it would have the same effect on the mind of the reader or listener as that which the pleaded truth would have produced.
proving falsity in order to establish a successful defamation claim. [Emphasis added.]
Viewing the evidence here in a light most favorable to Dr. McKee, we conclude that there is no genuine issue of material fact as to the falsity of [the] statements * * *. As to Statement 1 (Dr. McKee said he had to "spend time finding out if you transferred or died."), Dr. McKee described his account of the statement in his deposition testimony:
I made a jocular [funny] comment * * * to the effect of I had looked for Kenneth Laurion 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.
In light of the substantial similarity between Statement 1 and Dr. McKee's account, we conclude that any differences between the two versions are nothing more than minor inaccuracies that cannot serve as a basis for satisfying the falsity element of a defamation claim. Here, the gist or sting of Laurion's and Dr. McKee's versions are the same. Both communicate the notion that patients in the intensive care unit who have suffered a hemorrhagic stroke leave the intensive care unit either because they have been transferred to a regular room or they have died. Therefore, the substance of Statement 1 is justified given the similarity of the two versions. In other words, Dr. McKee's account of what he said would produce the same effect on the mind of the reader as Statement 1. The minor inaccuracies of expression in Statement 1 as compared to Dr. McKee's version of what he said do not give rise to a genuine issue as to falsity. For these reasons, we conclude that there is no genuine issue of material fact as to the falsity of Statement 1.
As to Statement 2 (Dr. McKee said, "Well, 44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option."), Dr. McKee acknowledged in his deposition that during the examination of Kenneth Laurion, he communicated to those present that some ICU patients die. However, he denies referencing a specific percentage. Thus, Dr. McKee posits that Statement 2 is false, or that, at the least, there is a genuine issue of material fact as to the falsity of Statement 2 because he never stated a specific percentage. The problem for Dr. McKee with respect to Statement 2 is that the gist or sting of Statement 2 is the mention of hemorrhagic stroke patients dying and not the percentage referenced. Statement 2 squarely satisfies the test for substantial truth because it would have the same effect on the reader regardless of whether a specific percentage is referenced (or whether the percentage is accurate). The presence or absence of a specific percentage within Statement 2, without more, has no bearing on how a reader would perceive the statement because the gist or sting of Dr. McKee's reference to death does not change based on the statistical reference. Nor does the presence, absence, or inaccuracy of the stated percentage, without more, cast Dr. McKee in a more negative light than does his discussion of patients dying. That is especially true when the reader is given no context for the statistics. Therefore, we conclude that there is no genuine issue of material fact as to the falsity of Statement 2.
As to Statement [3] (Dr. McKee said, "That doesn't matter" that the patient's gown did not cover his backside), Dr. McKee testified that he told the patient that the gown "looks like it's okay" because it did not appear that the gown was at risk of falling off. We are not persuaded that there is any meaningful difference between the two versions of the statements sufficient to create a genuine issue as to the falsity of Statement [3]. The substance or gist of the two versions is the same. Commenting that the gown "looks like it's okay" is another way of communicating that "it didn't matter" that the gown was not tied in the back. Thus, any inaccuracy of expression does not change the meaning of what Dr. McKee admits to having said. For these reasons, we conclude that Statement [3] is not actionable.
* * * * Because the [three] statements at issue, viewed individually or in the context of the entire posting, are not actionable, we conclude that the [lower] court properly granted summary judgment in favor of Laurion. Reversed.
Legal Reasoning Questions
1. What are the required elements to establish a claim of defamation? Which party has to plead and prove these elements?
2. Which element of the claim is undercut by the "truth"?
3. How did the court's interpretation of the "truth" affect its decision in this case?
4. Suppose that Laurion had posted online, "When I mentioned Dr. McKee's name to a friend who is a nurse, she said, 'Dr. McKee is a real tool!' " Would this statement have been defamatory? Explain.