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:
- 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)