Internet won't protect your secret identity
■ A column analyzing the impact of recent court decisions on physicians
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A good medical malpractice defense attorney prepares his client for direct examination and for the plaintiff attorney's cross-examination. That preparation can be as simple as a one-on-one simulation, in which the attorney fires off questions the plaintiff's lawyer is likely to ask. Or it can be as elaborate as hiring a jury consultant and mock jurors and practicing in a mock courtroom at a local law school.
Both sides have gone through discovery, and most lawyers are fairly certain they can anticipate the questions the other side will ask. But every once in a while a defendant is forced to reveal something unexpected on the witness stand.
There was such a moment in Suffolk (County) Superior Court in Massachusetts during a medical malpractice trial in May, when the plaintiff's lawyer asked a witness -- a Boston-area pediatrician -- if he was Flea of the blog drfleablog. He said he was. The next day, the two sides reached a settlement in the lawsuit that alleged that Flea had failed to diagnose diabetes in a 12-year-old boy, who later died of diabetic ketoacidosis, according to media reports. The details of the settlement are confidential. The physician denied any wrongdoing. Shortly thereafter, the content of drfleablog was removed.
Too much information
Prior to the trial, Flea blogged about the complaint, in itself not a big deal because it is part of the public record. He also wrote about giving his deposition. But when he wrote about meetings with his attorney and a jury preparation expert, he strayed into dangerous territory.
He blogged that "Flea will probably be the plaintiff's first witness. He was instructed to angle his chair slightly toward the jury, and to keep his claws folded in his lap" and "He was instructed to turn his head toward the plaintiff's attorney while answering questions, then to turn to face the jury and answer slowly, separating words, and loudly enough for the farthest juror to hear."
Flea also noted that he was supposed to answer in no more than three sentences, but kept exceeding the limit during the practice run.
Legal experts said that in posting these details, Flea had risked losing attorney-client privilege, which would have allowed the plaintiff's attorney to question him about the coaching, should the lawyer have discovered the blog.
Because Flea was initially writing about his trial as it happened, bloggers in the legal and medical worlds were following what Eric Turkewitz, a New York personal injury attorney and blogger, called perhaps the "most compelling and extraordinary story" being played out in either blogosphere. Turkewitz reads several medical blogs regularly and "met" Flea when the physician posted a comment on Turkewitz's blog. Turkewitz has closely followed Flea's blogging about the lawsuit.
Turkewitz himself has posted nearly 50 times about physicians' blogs -- from "Overlawyered" to "Tales from the Emergency Room." And many medical and legal bloggers were bewildered and disappointed when Flea's blog entries about the trial disappeared around the time the settlement was reached. Shortly thereafter all of the entries disappeared, even though the URL is still in place.
Nearly a month after the settlement was reached, the Boston Globe published an article about Flea being outed at his trial, calling Turkewitz for comment. However, many details about which Turkewitz was curious were left out of the article, so he decided to do some investigating on his own.
He called the plaintiff's attorney and posted two follow-ups about the case.
If you write it, they will read
As it turns out, Turkewitz said, the plaintiff's attorney, Elizabeth Mulvey, had become aware of Flea's blog. Apparently, Flea had googled her and found a PowerPoint presentation she had given to a class of law school students. He went into great detail about the presentation on drfleablog.
Someone who knew Mulvey saw the posting, recognized the presentation as hers, and alerted her to the blog.
During the trial, Mulvey didn't ask Flea -- aka Robert P. Lindeman, MD, -- about his coaching session. However, in her examination, she did use some information she had found on his blog.
She had discovered an entry in which Flea described Nelson's Textbook of Pediatrics as the bible of pediatrics. So, when the physician was testifying on the fifth day of the trial, she asked him if he thought Nelson Textbook of Pediatrics was the bible of pediatrics, and he said no. The differing answers gave her a prior inconsistent statement, which she could have used to attack the doctor's credibility, once she had established that the pediatrician was indeed Flea.
Turkewitz said prior inconsistent statements are not uncommon tools at trial, but they are usually the result of a witness giving testimony on the stand that differs from what they said in a deposition.
He said that in medical malpractice trials, a plaintiff's lawyer will read any published work by the defendant physician and if the testimony conflicts with what's in the article, that can be used as a prior inconsistent statement. This case may, however, be the first time a blog entry has been used for prior inconsistent statement purposes.
Turkewitz also pointed out, however, that the value of a prior inconsistent statement can be limited. Empirical studies have shown jurors can be very forgiving about inconsistency, and it's impossible to know what effect it would have had at this trial because the case was settled before the jury had heard all the evidence.
The take-home message
What does Flea's "outing" mean for the blogosphere, where many of those blogging have not really considered that their veil of anonymity could be so easily torn?
A survey of blogs that have considered the issue showed some medical bloggers had removed or reworded some of their content. Others have developed tips for blogging which, when followed, could mean less disruption to a physician's professional career. Some suggestions:
- Don't use your blog, or a posting on someone else's blog, to blow off steam.
- Write to educate.
- If blogging anonymously, don't write anything you wouldn't want attributed to you if someone decodes your identity.
Bloggers cannot be sued for something someone else posts on their sites, but they can be sued for defamation if they themselves post something defamatory.
Noting that the proportion of doctors and lawyers who blog is still relatively small, Turkewitz said it is much too early to predict what Flea's outing at his own medical malpractice trial will mean for professionals who keep blogs. In itself, he said, this incident was just too obscure to have much of an impact.
However, five to 10 years from now -- when the number of professional bloggers is certain to have increased significantly -- blogging could become an issue that medical malpractice attorneys on both sides of the courtroom must address.