Category Archives: Medical Malpractice

 

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 23rd, 2007

New York Surgeon On Trial For Fatal Face Lift


From today’s New York Post:

May 23, 2007 — Dr. Sherrell Aston, one of the world’s most acclaimed cosmetic surgeons, is being sued by a Connecticut man who claims the renowned doctor’s “gross negligence” led to his wife’s death.

Susan Malitz, 56, had gone to Manhattan Eye, Ear and Throat Hospital in 2004 for what was supposed to be a routine face-lift operation by Aston, whose patients have reportedly included Tipper Gore, Anna Wintour and Catherine Deneuve.

Two hours later, Malitz was dead – the second patient to die during cosmetic surgery at the hospital in a two-month period.

The claim is lidocaine toxicity, as found by the New York Medical Examiner. Dr. Aston says the medical examiner is wrong. An article from 2004 in the New York Times on the matter is here.

Addendum 5/25/07 – The case has now settled for $3.1M, with the anesthesiologist, Dr. Gary Mellen, paying $2.7M and the hospital $400K. Settlement also appears in the New York Post.

 

May 18th, 2007

Is Medical Testimony Getting A New Standard?


Any trial attorney knows the phrase that must be asked of the medical expert: Do you have an opinion, with a reasonable degree of medical certainty, that…

This may now change. According to a blog posting by John Day (Day on Torts) late yesterday, the American Law Institute is scrapping that phrase for the Restatement of Torts, 3rd. According to Day:

Among the actions taken by the ALI at the meeting in San Francisco this past week was the rejection of the need for the magic words “reasonable degree of medical certainty.”

The following language was approved for Section 28(a) of the Restatement of Torts Third:

“Subject to Subsection (b), the plaintiff has the burden to prove that the defendant’s tortious conduct was a factual cause of the plaintiff’s physical harm.”

Subsection (b) describes the circumstances under which the burden of proof is shifted to the defendants.

Comment (e) rejects the need for an expert to state an opinion to a “reasonable degree of medical [or scientific] certainty” or a “reasonable degree of medical [or scientific probability.” The Comment states that “[t]here is a troubling inconsistency in imposing a higher threshold for the admissibility of expert testimony than is required for a party to meet the burden of proof” and that “the reasonable-certainty standard provides no assurance of the quality of the expert’s qualifications, expertise, investigation, methodology, or reasoning.”

The Reporter’s Note cites with approval Judge Cain’s opinion in Bara v. ClarksvilleMem’l Hospital Sys., Inc., 104 S.W.3d 1 (Tenn. App. 2002) ( holding instruction to the jury requiring plaintiff to prove causation to reasonable degree of medical certainty was erroneous and required reversal.).

 

May 16th, 2007

Med-Blogger Flea, Previously Live-Blogging His Trial, Takes Down Entire Site


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