Eric Turkewitz, The Turkewitz Law Firm, New York, NY
Thursday, May 31, 2007
More on Doctor "Flea" Being Outed On The Witness Stand
The outing of Flea's real identity in the Boston Globe is now generating an immense amount of comment in the blogosphere. (For those new to the story, see Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court): So I'd like to add a few additional observations and links:First, I learned of Flea's outing yesterday when Jonathan Saltzman of The Boston Globe called me for comment. To say I was stunned would be an understatement. While I had discussed the risks of his posting confidential trial prep work back on May 8th, I told Saltzman I was surprised to see it actually happen.
Second, I wrote this morning's lengthy post last night, and then held it for today, since the story belonged to the Globe, and not me.
Third, I picked up a hard copy of the Globe. The story is front page, above the fold. Which is to say, his patients and colleagues will all see it.
Fourth, the Globe story said the outing was on May 14th, and the settlement was the 15th. Flea took down his blog in totality on the 16th. So the blog came down after it was all over.
Fifth, while I hadn't appreciated it before, the Flea photo from his blog (with guitar, above) is apparently that of the musician by the same name. (Hat tip to Michael Grant.)
Addendum -- Sixth, Saltzman informed me during our conversation yesterday that Flea's attorneys were unaware of the blog, which means of course, that Flea didn't tell them and he wasn't prepped by his attorneys on the subject on how to deal with it if it should come up.
Below are some of the medical and legal blogs that have already picked up various parts of this story today:
- The Flea Settles Down (Simple Justice)
- Flea (Kevin, M.D.)
- Blogging Defendant Blows Defense (Volokh Conspiracy)
- Flea Collared (Odd Time Signatures)
- Cross-examination reveals the defendant was that anonymous blogger who's been writing about the trial (Althouse)
- A Law Blog First? Defendant Blogs His Own Trial (WSJ Law Blog)
- Flea's Fall Sobering For Other Bloggers (White Coat Notes - Boston Globe)
- Fleased (symtym)
- Days of Fame (symtym)
- Flea Collared (Drums and Whistles)
- An attorney weighs in on Flea’s malpractice settlement (Notes from Dr. RW)
- Un(settling) End In The Case Of The Disappearing Flea (Dr. J's House Calls)
- Rich People Blog Too (The Hub)
- Flea Outed In Court (Universal Health)
- Flea, flea as fast as you can (Legal Antics)
- Updates, May 31 (Overlawyered)
- Stand By Your Flea (Health Business Blog)
More:
- Flea: Another Argument for Tort Reform? (Health Care BS)
- Kevin M.D.: Flea (GruntDoc)
- Blogging MD Defendant Exposed (ZiefBrief)
- "Aw Sh*t!": My Reaction to the Flea Debacle (Musings of a Dinosaur)
- Paging Dr. Flea (MetaFilter)
- On Flea (OnThePharm)
- Flea Revealed in Boston Newspaper (Ami Chopine)
- Dr. Flea Blogged His Malpractice Trial, Settles When Outed (Clinical Cases and Images)
- The Flea Flicker: Risks of (anonymous) blogging (Health Care Law Blog)
- Flea-ting Thoughts (Massachusetts Liberal)
- A Fool for a Client (Discourse.net)
- More Blogging Thoughts (Evil HR Lady)
- Dr. Strangeblog (The Paperback Museum)
- (Yet) Another Object Lesson in Blogging Biting Back (Infinity Ranch)
- For Med-Mal Doc, Blogging Proves Bad Medicine (Law.Com Blog Network)
- The strange case of the arrogant physician, and related musings on the propriety of physician blogging and other online behavior (HealthBlawg)
- A Small Thought About Flea (TortsProf)
Addendum 6/1/07 -- More:
- Details unfold about Flea’s day in court (Notes from Dr. RW)
- The Doctors' Revenge (plus the Flea Feeding Fenzy) (Simple Justice)
- Doctor Flea exposed in court (The Angry Dad)
- Elsewhere: Of Fleas, Blogs, and Client Control (Kentucky Law Review)
- The Flea Saga and WOM (The Independent Urologist)
- More On Litigants Blogging (The Divorce Law Journal)
- Is there a flea in the house? (Manic Mommies)
- Blog Obsession (MotherThoughts)
- Malpractice Suit Defendant Unmasked as Anonymous Blogger; Settles Case (The Blog Herald)
- Flea Bites (QuizLaw)
- The Blogocratic Oath: First, Do No Harm (The Opinionated Marketers)
- Blogging Doctor Reveals Secret Identity Under Oath (PR Communications)
- Blogging Your Own Trial - Transparency is the Verdict (VisInsights)
- Blog Scandal Hits Home (Notes of an Anesthesioboist)
- Self-immolation on the witness chair via the power of the internet (BeldarBlog)
- Blogging malpractice defendant exposed : Case settled (Real Lawyers Have Blogs)
- Blogging Your Court Case Is A Very Bad Idea! (Feminist Law Professors)
- The Blog as Public Record (Magnosticism)
- Don't Blog Your Court Appearances (PsychCentral)
- The Malpractice Cast Net (Scalpel)
- Random Thoughts (Catscanman)
- "Flea" Bite (Not My Second Opinion)
- Could Have Lied (Blogborygmi)
- There's Flea! And the news is not good (ScienceBlogs)
- The Dr. [] / "Flea" anonymous blog outing - Blogging HARMS! (Infothought Blog)
- A Flea Squashed: Bloggers Sweat After Court Case (Bostonist)
- Why Didn't Anyone Warn Flea? (I'm a blogaholic)
- Flea Outed and Settles Malpractice Case (OBGYN Tips)
- Do I feel bad (?) (The BFC Computing Weblog)
- Some thoughts on Flea (Tales From the Womb)
- About Dr. Flea (Cathy's Place to blog)
- "Flea" Proves to be His Own Biggest Pest in Boston Personal Injury Lawsuit (The Injury Blog)
- Pediatric Grand Rounds 2:4 (Adventures of an awesome (sometimes) mother)
- Dr. Flea, Pediatrician blogs his own med-mal suit, learns the perils (The blawgraphy)
- On Flea and Fishing (Dr. Wes)
- Deconstructing the Trial of Flea - Part 1
- Deconstructing the Trial of Flea - Part 2
- Flea, The Boston Globe and Morality in Journalism and Blogging
Labels: Blogging, Flea Medical Malpractice Case, Medical Malpractice
Comments:
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I notice you didn't express an opinion on the plaintiff's attorney.
I would, except that I do not wish to use expletives, firstly because I am a guest here, and secondly, because it would be a waste, and a dilution of some perfectly good insults.
Where are the days when "sworn officers of the court" were about finding the truth? Did these days ever exist? Or are plaintiff's attorneys forsworn, the lot of them?
Dismayed,
Felix Kasza.
I would, except that I do not wish to use expletives, firstly because I am a guest here, and secondly, because it would be a waste, and a dilution of some perfectly good insults.
Where are the days when "sworn officers of the court" were about finding the truth? Did these days ever exist? Or are plaintiff's attorneys forsworn, the lot of them?
Dismayed,
Felix Kasza.
# posted by 
: May 31, 2007 8:50 PM
: May 31, 2007 8:50 PM
I notice you didn't express an opinion on the plaintiff's attorney.
I don't know anyting about her other than what is on her web site.
From the Globe article, it appears Flea was being cross-examined on a medical text. Since he had publicly stated that his attorneys told him to read up on the relevant sections, that might be relevant. Apparently the questioning never went any further though, so we don't know whether that line of questioning would have been found relevant by the court.
--ET
I don't know anyting about her other than what is on her web site.
From the Globe article, it appears Flea was being cross-examined on a medical text. Since he had publicly stated that his attorneys told him to read up on the relevant sections, that might be relevant. Apparently the questioning never went any further though, so we don't know whether that line of questioning would have been found relevant by the court.
--ET
As a medical malpractice attorney, I can imagine that Flea was a nightmare client. Anyone willing to discuss their attorney-client communications on the internet during a trial has got to be difficult. While I can certainly appreciate a doctor feeling angry about being sued, his blog posts were more rants than informational.
As for those who are critical of the case, none of us know any of the facts; therefore, classifying this as a frivolous lawsuit would be a specious argument. What we do know is that every medical malpractice case requires expert testimony that the doctor violated the standard of care. This testimony must come from a medical doctor. So, at least one medical doctor (and probably more) believed Flea did not act as a prudent pediatrician.
Hans Poppe
p.s. you can read more about it here: http://www.poppelawfirm.com/blog/index.cfm?id=711
As for those who are critical of the case, none of us know any of the facts; therefore, classifying this as a frivolous lawsuit would be a specious argument. What we do know is that every medical malpractice case requires expert testimony that the doctor violated the standard of care. This testimony must come from a medical doctor. So, at least one medical doctor (and probably more) believed Flea did not act as a prudent pediatrician.
Hans Poppe
p.s. you can read more about it here: http://www.poppelawfirm.com/blog/index.cfm?id=711
Mr. Turkewitz, I noticed your name prominently mentioned in a couple of Dr. Lindeman's blog posts. You may have disclosed it elsewhere, perhaps in another post of your own, but this makes me wonder -- and I'm not implying any criticism here of anyone, just genuinely curious -- what connection you have with him or the med-mal case in which he was being sued?
I'm a lawyer-blogger myself, and have also blogged about this story (which included a link to your blog; but I'm not on Blogger and can't quite figure out how to generate a trackback or linkback to your posts).
I'm a lawyer-blogger myself, and have also blogged about this story (which included a link to your blog; but I'm not on Blogger and can't quite figure out how to generate a trackback or linkback to your posts).
what connection you have with him or the med-mal case in which he was being sued?
No connection other than commenting on each other's blogs.
As to the technical question of how Blogger creates trackbacks, I have no idea. Sorry.
--ET
No connection other than commenting on each other's blogs.
As to the technical question of how Blogger creates trackbacks, I have no idea. Sorry.
--ET
I don't think you're going to see an end to this for quite some time, Mr. Turkewitz.
What gets me is that his observations on the legal process, opposing counsel, and the jury have nothing to do with his care of the poor child who passed away. I fail to see why posts of that nature would even be allowed into evidence as it seems to me they'd prejudice the jury unnecessarily.
But then again, I'm not a lawyer, merely an office drone, and one who is blessedly out of the legal profession at that. So my observations likely aren't based in legal reality.
The whole situation was just dreadful. You're definitely correct on that point.
What gets me is that his observations on the legal process, opposing counsel, and the jury have nothing to do with his care of the poor child who passed away. I fail to see why posts of that nature would even be allowed into evidence as it seems to me they'd prejudice the jury unnecessarily.
But then again, I'm not a lawyer, merely an office drone, and one who is blessedly out of the legal profession at that. So my observations likely aren't based in legal reality.
The whole situation was just dreadful. You're definitely correct on that point.
Beldar- to get the Blogger link to this post, go to the end of Eric's post, where it says "posted by..." and you'll see the post date/time which is hyperlinked. Right-click on the hyperlink, copy the link, and use that as the trackback link to the post.
Amanda- I was also wondering about the admissibility of this line of questioning. But, if his attorneys were unaware of the blog, they probably didn't have time to object before he answered.
It would have been interesting to see how this would have played out in court.
To Eric and other legal readers here: is this the first time one's blog writings have played such a significant part in a trial (not just medical, but any)? Can you describe scenarios in which they would or would not be admissible? How does this enter into your own blogging activities and topics?
Thanks.
Amanda- I was also wondering about the admissibility of this line of questioning. But, if his attorneys were unaware of the blog, they probably didn't have time to object before he answered.
It would have been interesting to see how this would have played out in court.
To Eric and other legal readers here: is this the first time one's blog writings have played such a significant part in a trial (not just medical, but any)? Can you describe scenarios in which they would or would not be admissible? How does this enter into your own blogging activities and topics?
Thanks.
Roy, to my knowledge this is the first time a blog has played such a major role in any trial. Their are several situations in which blog posts might become "relevant." Relevance, as a legal term, is evidence having any tendencey to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. As a result, all "relevant" evidence is admissible, unless its probabtive value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury.
So, depending on the content of the blog, all, some, or none of it could be relevant in a trial.
In addition to possibly being relevant as evidence, the blog posts might also be used to show prior inconsistent statements for puroposes of impeachment. Again, it depends on the blog's content. A witnesses credibility is always at issue. If he says things on the stand that he said differently on his blog, well you get the picture.
Hans Poppe
www.PoppeLawFirm.com/blog
So, depending on the content of the blog, all, some, or none of it could be relevant in a trial.
In addition to possibly being relevant as evidence, the blog posts might also be used to show prior inconsistent statements for puroposes of impeachment. Again, it depends on the blog's content. A witnesses credibility is always at issue. If he says things on the stand that he said differently on his blog, well you get the picture.
Hans Poppe
www.PoppeLawFirm.com/blog
To Eric and other legal readers here: is this the first time one's blog writings have played such a significant part in a trial (not just medical, but any)? Can you describe scenarios in which they would or would not be admissible? How does this enter into your own blogging activities and topics?
Yes. Since the credibility of a witness is always at stake, the manner in which he was coached by a professional to act in front of the jury would have been a significant evidentiary issue. Since he discussed his dealing with his trial team publically, it would likely have been fair game.
--ET
Yes. Since the credibility of a witness is always at stake, the manner in which he was coached by a professional to act in front of the jury would have been a significant evidentiary issue. Since he discussed his dealing with his trial team publically, it would likely have been fair game.
--ET
I completely agree with those readers and commenters that the blog should not be admissible in court and that Dr. Lindeman's opinion of the trial, the jury, the plaintiff's attorney has nothing, but absolutely nothing, but absolutely nothing at all to do with death of a child several years ago. To me it confirms sadly what Flea had blogged:
The opinion of a jury and the outcome of a trial depends on subjective opinion of the jury concenring the defendant, not on the facts.
The fact that Flea settled before the facts of the case could be heard does not change that. Most definitley, his attorney advised him to settle. Most definitely, his attorney was reasonably certain that bringing the blog into the trial would harm the jury's opinion about the defendant. Otherwise they would not have settled. It was a sad day for true justice.
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The opinion of a jury and the outcome of a trial depends on subjective opinion of the jury concenring the defendant, not on the facts.
The fact that Flea settled before the facts of the case could be heard does not change that. Most definitley, his attorney advised him to settle. Most definitely, his attorney was reasonably certain that bringing the blog into the trial would harm the jury's opinion about the defendant. Otherwise they would not have settled. It was a sad day for true justice.
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Eric Turkewitz has litigated New York personal injury and medical malpractice cases for over 20 years, and is the founder of The Turkewitz Law Firm in New York. His firm's website is at www.TurkewitzLaw.com.
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May 31, 2007 8:50 PM
Eric Turkewitz //
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