Monthly Archives: May 2007

 

May 31st, 2007

More on Doctor "Flea" Being Outed On The Witness Stand


The outing of Flea’s real identity in the Boston Globe is now generating an immense amount of comment in the blogosphere. (For those new to the story, see Doctor “Flea” Settles Malpractice Suit After Blog Exposed In Court): So I’d like to add a few additional observations and links:

First, I learned of Flea’s outing yesterday when Jonathan Saltzman of The Boston Globe called me for comment. To say I was stunned would be an understatement. While I had discussed the risks of his posting confidential trial prep work back on May 8th, I told Saltzman I was surprised to see it actually happen.

Second, I wrote this morning’s lengthy post last night, and then held it for today, since the story belonged to the Globe, and not me.

Third, I picked up a hard copy of the Globe. The story is front page, above the fold. Which is to say, his patients and colleagues will all see it.

Fourth, the Globe story said the outing was on May 14th, and the settlement was the 15th. Flea took down his blog in totality on the 16th. So the blog came down after it was all over.

Fifth, while I hadn’t appreciated it before, the Flea photo from his blog (with guitar, above) is apparently that of the musician by the same name. (Hat tip to Michael Grant.)

Addendum — Sixth, Saltzman informed me during our conversation yesterday that Flea’s attorneys were unaware of the blog, which means of course, that Flea didn’t tell them and he wasn’t prepped by his attorneys on the subject on how to deal with it if it should come up.

Below are some of the medical and legal blogs that have already picked up various parts of this story today:

There will be others and I will try to update later…

More:

Somehow, I don’t think we have seen the end of this…

Addendum 6/1/07 — More:

Addendum 6/4/07 — More:

Last Addendum: After interviewing plaintiff’s counsel, I wrote three more posts on the subject:

 

May 31st, 2007

Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court

A Boston pediatrician blogging under the pseudonym Flea has been outed. It happened in court. During cross-examination. On his own medical malpractice trial. And now it is the top story in the Boston Globe.

Flea had written several posts about the upcoming trial, a wrongful death case involving a child. In the process he discussed his private prep sessions with his attorney, explaining how he had been coached to answer questions to be appealing to the jury, how he had been videotaped, and what materials his lawyers told him to read.

After seeing this, I wrote of the extraordinary risks of such disclosures, even under cover of pseudonymity. (See, Medical Malpractice Trial Starting For Med-Blogger.) The issues I raised, in the event plaintiffs’ counsel discovered his blog, ran to the risks of losing his attorney-client privilege for all such communications. If this happened, he could be cross-examined on how he was coached by his defense team to act in front of the jury and the advice they gave him. He also ran he risk of his own insurance carrier trying to disclaim coverage if it thought he was hindering the defense.

Shortly after, he took down three blog postings (Med-Blogger, On Trial For Malpractice, Takes Down Trial Posts), asserting he was superstitious and didn’t want to jinx things that were going well. Then he took down the entire blog, without explanation (Med-Blogger Flea, Previously Live-Blogging His Trial, Takes Down Entire Site).

Dozens of medical and legal bloggers had commented on the live-blogging of the trial, as well as the subsequent, unexplained disappearance of the popular, award-winning doctor-writer.

Well, as revealed in today’s Boston Globe, it appears that plaintiff’s counsel did find out about the blog. And at the end of the day when Flea was on the witness stand in “a Perry Mason moment,” the questions came:

Do you have a medical blog?
Are you Flea?

As per the Boston Globe article, court adjourned for the day, and the case quickly settled.

Why did he do it? While I don’t know Flea, and have no connection to him other than these postings, my best guess was this: He loved writing and this was great material. The subject was, simply put, irresistible. I know that I found his activity fascinating, not only for its raw content, but also for the walking-a-high-wire-without-a-net danger of what he was doing. As seen in the links below, I clearly wasn’t the only one rubbernecking.

How many people took note of this ongoing saga? These links help tell the tale (and there are others), both for the uniqueness of a doctor live-blogging his own malpractice trial and also due to the huge popularity of the blogger:

Finally, this case was a tragedy for two parents, and a nightmare for a doctor. If the parents had lost the trial, it would have added yet another layer of extraordinary emotional trauma. If Flea lost, it would no doubt have been emotionally difficult for him. A settlement allows each to move on with their lives without the additional fallout of a jury’s verdict. The parents might feel they had their day in court and that the settlement was based on the merits, while Flea might feel it was based on his own carelessness with his writing and the concerns a jury might not like the way his legal team was trying to manipulate the jury. Neither won and neither lost. And sometimes that is all for the best.

Addendum: Here is a cached version of Flea’s old site before it was taken down. (Hat tip to Hub Blog)

2nd Addendum: More on Doctor “Flea” Being Outed On The Witness Stand

(Eric Turkewitz is a personal injury attorney in New York)

 

May 29th, 2007

Health Court Legislation Again Introduced To Congress


Legislation that would provide federal funding for experimental “health courts” for medical malpractice cases has once again been introduced in both houses of Congress.

The bill calls for the federal government to fund experimental programs, yet to be devised, in numerous states. If the current version is like the last version from two years ago, several different models of courts are proposed, each of which raises various issues:

  1. The first “Purpose” of the act is to “to restore fairness and reliability to the medical justice system.” Given that research shows the current system works remarkably well, starting with a false premise probably doesn’t help. (See, The Myth of Frivolous Litigation)
  2. The Seventh Amendment to the U.S. Constitution guarantees jury trials, and at least some of these models clearly look to do away with the jury.
  3. While details are lacking there are a few that appear, and this includes the effort to limit non-economic loss (pain and suffering). Instead of a jury doing what is fair and reasonable under the unique circumstances of a case, the government will create “a defined payment schedule.” This is an inherently unworkable and unfair system for it is silly to assume that all injuries can be neatly placed into categories. It will, of course, adversely affect those most seriously injured who do not fit into the neat little government boxes that are created.
  4. One of the other rules provides for, “payment for the net economic loss of the patient, on a periodic basis.” But if a person lost something today, why should they be forced to wait for their compensation? This statement looks like it was drafted by the insurance lobby so that they could write annuity policies for the future payments.
  5. A least one of the models discourages fair offers of settlement. How? By this provision: “provide immunity from tort liability to any health care provider or health care organization that offers in good faith to pay compensation.” Good faith is a malleable concept. By merely making a token offer — not one of fair value but just good enough to get past “good faith” — they are rewarded with immunity from suit.
  6. And finally a political question: Why is the federal government extending its powers even more into matters that are almost always strictly state issues?

See also frm this blog, Medical Malpractice – Vetting the Case and Medical Malpractice Economics)
(hat tip to Sui Generis)

Addendum, 5/30/07: Why Health Courts Are Unconstitutional (Center for Justice and Democracy); Health Courts: Bad for Patients and Unconstitutional (Center for Justice and Democracy, via TortDeform)

 

May 29th, 2007

New York Attorney Advertising Rules – Update


According to Greg Beck of Public Citizen, they have filed their responsive brief on behalf of the plaintiffs in the lawsuit regarding New York’s new advertising rules for attorneys. Initial briefs can be found here (along with other links) from my update last week. The Public Citizen response can be found here: ResponseMemorandum.pdf (There was no responsive brief from the State.)

The central argument of the plaintiffs is that restrictions on commercial speech cannot be upheld without evidence that the restrictions alleviate real dangers, and that less restrictive options are not available.

In the past, I have discussed the vagueness of some of the rules with respect to New York attorney websites, so I found this particular piece of the response interesting:

The rules do not define a “technique[] to obtain attention” or explain what sorts of techniques are “relevan[t] to the selection of counsel.” Nor do they provide any guidance as to what lawyer characteristics are deemed to be “unrelated to legal competence” or what sorts of statements “impl[y] an ability to obtain results in a matter.” The rules, by their plain language, are so broad in scope as to cover essentially every advertisement ever used by an attorney beyond a business card, letterhead, or resume. Because all advertising will potentially be banned, bar authorities will be able to pursue enforcement against any attorneys whose advertisements they find personally distasteful, while ignoring most other ads. Unfettered discretion to distinguish among different speakers invites arbitrary enforcement and inevitably chills free speech rights. Moreover, in the absence of clear guidelines, attorneys will not know how to comply.

I still don’t know the answer to this question I posed on January 24, 2007: Is My Family Photograph An Ethical Violation in New York?

 

May 25th, 2007

Personal Injury Law Round-Up #13

The New York Personal Injury Law Blog presents the week that was:

Lawyers, drugs and money were big in the news this week, so we’ll alter the format a bit:

Let’s start with the money, before going to drugs and lawyers, and money starts with tort “reform.” Michael Townes Watson discusses at TortDeform, the fact that Medical Malpractice Reforms Don’t Increase Healthcare Safety;

And since we start with tort “reform,” I’ll point out that both Day on Torts and The Hartford Courant have stories on medical malpractice premiums dropping. That tends to happen when Mr. Market goes up, and a malpractice “crisis” develops when Mr. Market goes down;

Tort “reform” also leads to discussion of damage caps. But sometimes caps aren’t instituted by the legislature but by the limits of an insurance policy. Unfortunately, the merits of the action often take a back-seat to the practical realities of insurance coverage, as noted by Charles Silver at TortDeform in How Much Malpractice Coverage Does Your Doctor Have?

Now on to drugs: There was big drug news this week on Avandia, GlaxoSmithKline‘s diabetes drug now implicated in cardiac deaths, courtesy of an article in the New England Journal of Medicine. A round-up of many medical posts can be found at the Clinical Cases and Images Blog. New TortsProf blogger Sheila B. Scheuerman collects some posts on the problems at FDA regarding its approval process at Hearing on FDA’s Role In Evaluating Drug Safety. And perhaps most significantly from a medico-legal (and political) perspective, Public Citizen has stated that the FDA knew back in 2002 of the heart problems (via Pharmalot); And if you can’t get enough of the subject, Kevin, M.D. (the Howard Bashman of the medical world) has links to many more;

Can we bring a state-based pharmaceutical case based on the drug’s labeling, or does the drug company enjoy immunity because it was FDA approved? This goes to the heart of a state-federal power struggle that has roiled the nation since it was born, with the feds now wanting to claim it can preempt state laws without congressional approval, but with mere FDA support. Ironically, the seizure of such power is taking place under a Republican administration. Ed Silverman’s Pharmalot brings us the action for a case the Supreme Court may want to hear;

It could be, of course, that the drug problem isn’t from the labelling, but from dispensing too much. How does that happen you ask? Automatically. OnThePharm fills us in on the sad facts of auto-refills;

Did we check out that doctor that urged us to have surgery? Ben Stevens at the South Carolina Personal Injury Law Blog tells us of three doctors facing up to 50 years in prison for recruiting patients to undergo needless surgeries in order to defraud insurance companies;

Now on to the lawyers: As we look for an attorney, we wonder in this day and age of scams and con artists, is this person really an attorney? Solo Carolyn Elefant of My Shingle fame helps us find out;

It used to be that many would use Martindale–Hubbell to find, or at least research, counsel. But that seems to be going the way of the dinosaur, as Robert Ambrogi lets us know at Law.ComBlog in Firms Opt Out of Martindale–Hubbell;

But just being a member of the bar is no guarantee you have the right counsel. As Ken Shigley writes at his Atlanta Injury law and Civil Litigation Blog, there are unethical chiropractors, lawyers and runners out there, and it disgusts him. According to Ken, The Bar should act to penalize and deter illegal and unethical case solicitation. Yell it loud, Ken, I think the vast majority of us are in your corner. I hit a similar mark in one of my first posts as a blogger, discussing how to find a personal injury attorney;

In a similar vein, Tony Caggiano from the Orlando Injury Lawyer Blog reports: Federal Judge Acts on Improper Solicitation by Counsel. The reality is that if we don’t get rid of the bad apples, they will continue to tarnish the reputations of us all;

How will the lawyer get paid is an important issue, and more so since President Bush decided he didn’t want the federal government hiring lawyers on contingency. Better to let a firm run the hourly meter, I guess, than to pay for the efficiency of the contingent fee arrangement. The padding of those hourly bills is part of the opening to Enrico Schaefer’s Blawg Review #109 at The Greatest American Lawyer. Beck/Herrmann (Drug and Device Law) rounds up a slew of posts on the subject of the contingency fee arrangement, but never seems to address the fact that padded hourly rates could be far worse;

The judge you are assigned to might be in issue, if your case is in Florida and the insurance company doesn’t like the judge. According to Ronald Miller of the Maryland Personal Injury Law Blog, it seems one general counsel went so far as to accuse a judge of being “paid off.” While we’re over at that blog, we might as well rummage the many pleadings, motions and discovery devices that make up their Attorney Help Center to see if they can be of use to us;

And on to a few lawsuits: Some actions are easier than others, and no one will say the September 11th suits regarding post-attack air quality are easy. Sheila B. Scheuerman at TortsProf reports that the New York Medical Examiner has now confirmed a new death was due to the bad air, and discusses the ramifications for those pending lawsuits;

Since we are at TortsProf, Williams Childs lets us know of two odd amusement park lawsuits that struck his interest;

This New York legal malpractice case was premised on a medical malpractice case with a result the plaintiff didn’t like. Plaintiff’s counsel rejected a $1m offer and there was a subsequent $350 jury verdict. Plaintiff claims she was not properly informed of the offer. The case speaks to many different issues including jury risks, communications with client, and properly prepping your client for trial (via New York Attorney Malpractice blog);

And now for some quirky weekend reading/viewing:

MonkeyGirl isn’t pleased about all those pharma ads she sees, and figures out a way to wrap them into one with Men and their Pee-Pees; She also wants asks you….make that begs you…to make sure you and your children wear their seat belts, or else…

Biker-lawyer Norman Fernandez at the Biker Law Blog gets euphoric over the perfect commercial, while also showing us via video How to Get Yourself Killed Speeding on A Motorcycle in a Curve;

One more video, a classic Monty Python skit about lawyers (well, it’s about arguing) brought to you by Nicole Black at Legal Antics;

And finally, David Lat at Above the Law teaches us one thing to never say to a judge: “I suggest to you with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place.” And without peeking, any thoughts on what the judge did?

Put up the flag and enjoy the weekend.

(Submissions for next week’s edition may be made to blog[at]TurkewitzLaw.com)