Pediatrician and med-blogger Flea, who had been chronicling his own medical malpractice trial regarding the death of an infant, has apparently taken down his site. Not just a few posts as he did last week, but the whole thing. My initial thoughts on the risks of his losing the privileged nature of his contact with his attorneys and the risks to his own insurance coverage if his pseudonymous identity were revealed, were first published in Medical Malpractice Trial Starting For Med-Blogger. He was believed to be the first person to live-blog his own trial.

Best guess from here? He told his attorneys what he was doing and their heads exploded due to the risks I had discussed. But win, lose or settle, I think we’ll see his award-winning blog reappear when the litigation is over.

On a side note, posts can still be seen in my RSS reader, probably due to his having deleted them instead of “modifying” them. Had he modified (by simply by substituting anything else), I think that all RSS readers and caches would then have been updated to show only the new content. Something to think about if any of us wants to delete a post for any reason.

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

Medical blogger Flea has removed blog postings for his own medical malpractice trial. The blog had generated great interest throughout the medical and legal blogospheres, as he became the first person to live-blog his own trial. I had covered the subject in Medical Malpractice Trial Starting For Med-Blogger, listing the posts and their subject areas. The postings had also been cited at Overlawyered, Kevin, M.D., Law.com , Deliberations and Simple Justice, among other places.

The pseudonymous Flea — a pediatrician in the northeast currently in the midst of a wrongful death case regarding a child — ran risks with what he was doing, as he had publicly discussed the private counsel he had with his legal team. This opened the door to questions on that otherwise privileged subject at trial if his identity was discovered by plaintiff’s counsel, and potentially could jeopardize his insurance coverage if his carrier thought this hindered the defense of the action. His postings have included, among other things, advice on what to read, and a prep session where he had been taped and given a copy of the tape for review.

While the most recent postings about the trial are now gone, the older ones remain. Inexplicably, these remain regarding prep sessions with a trial advisor and contact with his lawyer: What Do Malpractice Juries Care About?, Flea Takes a Screen Test and Flea Gets His Syllabus.

There is no explanation from Flea as to why at least three of his recent postings came down, though it is reasonable to conclude that he had second thoughts on the subject and sought legal advice. I don’t understand why, however, if some of them came down, the others did not. Frankly, I can’t think of any lawyer allowing a client to take such risks, though it was fascinating to watch.

The questions are, has he been cross-examined yet (jury selection was two days ago and he was likely the first witness), and did plaintiff’s counsel know about the blog?

My own guess…we’ll see an explanation from Flea when the trial is over.

Addendum: Flea has now explained that he took down the three posts about the trial because he is superstitious, and doesn’t want to jinx what he sees as a good game in progress. (for him).

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

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:

• Dress Rehearsal (Flea spends two hours on the phone with his lawyer, and gives us some details);
• A Witness for the Prosecution (regarding the testimony of another doctor expected at trial);
• In Her Own Words (Flea Googles plaintiff’s counsel);
• What Do Malpractice Juries Care About (Flea opens the door on the attorney-client privilege to write about his trial prep);
• Flea Takes A Screen Test (describing his experiences being videotaped in a mock trial setting);
• Flea Gets His Syllabus (He lets us know what his lawyer told him to read);
• Another Day At The Office (Flea’s 2nd post on being deposed);
• God Was Watching Out For You Today (The 1st of 2 posts on being deposed);
• Something About The Law (The 2nd of two posts on the Complaint);
• Negligent, Careless and Unskillful (About the Complaint)

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)