Category Archives: Blogging

 

May 8th, 2007

Medical Malpractice Trial Starting For Med-Blogger

Flea is a pediatrician. One of Flea’s little patient’s died. Flea was sued.

Except that Flea is not just a doctor, but a blogger. An award winning blogger.

So he’s doing something a bit different than other doctors that have been sued. Flea (photo at right) is blogging his experience as it happens, including contacts with his own attorneys, attorney-client privilege be damned. Make that a lot different than other doctors.

In what may be the most compelling and extraordinary story being played out in either the legal or medical blogospheres, the pseudonymous doctor discusses his experiences and emotions in depositions and trial preparation, including some advice and communications with his defense team.

In opening the door to the legal sanctuary however — that is, the special place where all contacts with one’s lawyers are protected — he is running two giant risks:

First, if his cover is blown and plaintiff’s counsel finds out he has been blogging, he can be cross-examined on those contacts and advice that he wrote about, for the privilege disappears when the substance is discussed publicly. Second, by opening that door, he runs the danger of his insurance carrier disclaiming against him in the event of a verdict on behalf of the plaintiff, on the claim that discussing his trial prep hindered the defense. The man is, if nothing else, a risk-taker in that regard.

His decision to walk this high-wire without a net brings us to a third issue: If plaintiff’s counsel finds out about the blog, should it be used at trial? A lawyer’s gut reaction may be yes, in order to claim to the jury that what they are seeing is a well-rehearsed act.

But if the risk is that the insurance carrier uses it as an excuse to disclaim on a plaintiff’s verdict, it may be entirely counterproductive. In this sense, Flea shares a common goal with his nemesis: They both want the insurance company standing there in case of a plaintiff’s verdict.

With jury selection starting tomorrow, I expect we will see quite a bit more on the subject. Some of the posts on Flea’s experiences, starting with the most recent:

Addendum, 5/11/07 – Flea has now taken down the three most recent posts. See: Med-Blogger, On Trial For Malpractice, Takes Down Trial Posts

Second Addendum (5/16/07): The site was taken down completely on May 15, 2007, without explanation.

Third Addendum (5/31/07) Doctor “Flea” Settles Malpractice Suit After Blog Exposed In Court

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

 

May 2nd, 2007

Blawg Review, Grand Rounds And Journeys

Brett Trout, of the Blawg IT-Internet Patent, Trademark and Copyright Issues Blog, took us for a tour of a motorcycle race track in Blawg Review #106. For an exhilarating look at the blawgosphere, it is worth checking out.

Meanwhile, the three psychiatrists at Shrink Rap, took us for an altogether different tour on Grand Rounds (Blawg Review’s medblogger equivalent), this one of the brain as they wind their way through the gray matter. (When you do medical malpractice law, reading medical blogs comes with the turf.) For one of the more interesting uses of technology, check out their linkable brain.

As for me, while those folks spent their weekends working their creative journeys, I took an altogether different, and more pedestrian, trip with one of my kids.

 

April 10th, 2007

Take Me Out To The Ballgame…


As Blawg Review #103 ran the bases yesterday with a weekly recap of the posts in the legal blogosphere, some of my brothers and I hit Shea Stadium for the home opener (that’s me on the left).

Completely missing from the recap, however, is a discussion of how the upper reaches of Shea can be the coldest place on earth in April (though beating the Phillies 11-5 helped).

We’re talkin’ baseball
Kluzuski Campanella
Talkin’ baseball
The man and Bobby Fella
The Scooter, the Barber, and the Newc
They knew them all from Boston to Dubuque
Especially Willie, Mickey, and the Duke.

 

April 4th, 2007

Chubb Insurance Trips Over Self In Trying To Regulate Law Blogs

Chubb, which claims to insure 90% of the law firms listed in The American Lawyer’s AM Law 200, seems to have tripped over itself in first trying to stop its insured from blogging, and is now trying to draw a distinction between “informational” and “advisory” blogs.

What the difference exactly is, escapes me. And that is because there are an unlimited number of shades of gray within this constantly morphing space.

Here are the definitions they are trying to create in their own bumbling way:

  • An informational blog presents information or offers a forum for discussing issues in a neutral, unbiased way. This type of blog offers information similar to that found in an article or presented by an individual in a seminar — informational blogs do not provide advice to a specific individual on a unique matter. Typically, these blogs pose a minimal level of risk from Chubb’s underwriting perspective.
  • In an advisory blog, however, a law firm offers advice. By its nature, then, it increases the risk of a malpractice lawsuit against the firm. An advisory blog can potentially establish an attorney-client relationship, possibly bypassing such safeguards as determining the suitability of a potential client and checking for possible conflicts of interest. As always, Chubb’s underwriters will evaluate each submission on its own merits.

Now in one recent post of mine I discussed the tough legal issues that any individual claimant faced in regard to the tainted pet food in the news. Is that “informational” or “advisory?” (I would call it my opinion.) The news story is certainly a unique matter.

And if I decide to rip into Chubb for trying to draw a line that doesn’t really exist, does that mean I am not discussing it in a neutral and unbiased way and therefore the blog is now outside their coverage? If I mock them for failing to have counsel review this new policy and I advise them to get it reviewed — for no attorneys in their right mind would ever try to draw such a line, so it stands to reason it wasn’t reviewed — is my posting now advisory instead of informational? If I strongly suggest it was foolish to do this, are my comments advisory or informational?

And how an “advisory blog” establishes an attorney-client relationship, by the way, is beyond me. To establish a relationship one needs to have one-to-one communications, not just an opinion shouted to the world. (I wonder if Chubb considers that comment of mine informational or advisory, regardless of whether it is right or wrong?)

In trying to define the legal blogosphere and place these ever-changing formats into neat categories, Chubb is creating a problem by trying to graft static definitions onto a dynamic beast.

If this is the place that Chubb wants to go, then law bloggers who have them as their insurer need to bring their business elsewhere.

The only thing Chubb seems to have done right here is place a bulls-eye on its back for ridicule.

(hat tip to Kevin O’Keefe at LexBlog, who also has a copy of the Chubb press release)
Addendum: Rush Nigut has a great response at Kevin’s blog:

Chubb is trying to save face. The company realizes it made a mistake with its blanket denial and the press release is a way to say, “We really didn’t mean we wouldn’t cover law firms that have blogs . . . you must have misunderstood us.”

2nd Addendum: Robert Ambrogi at the Law.Com Blog Network chips in more with: Insurer: ‘We Do Cover Blogs, Sort Of’

 

March 23rd, 2007

Hey, She’s Only 5 Years Old!!!

What, exactly was the school district of New Rochelle, NY thinking?

It appears that the policy for dropping children off a school bus is to simply leave them, even if no parent is there to meet them. We’re not talking teens, we’re talking as young as five.

While the school district will now re-visit that policy in light of the news story that broke, it makes one wonder exactly such a thing could even occur.

So during the same week that Chubb goes over the top trying to stop a law firm from blogging because of too much imagined risk, a school district is found to have not even considered risk for its youngest students. A little common sense on both ends seems to be in order.