January 15th, 2008

My Interview with Robert (Dr. "Flea") Lindeman

In May 2007 Robert Lindeman, a pediatrician from the Boston area, found himself uncomfortably in the public eye when the Boston Globe exposed his pseudonymous life as a blogger in a sensational front page story. The reason? Dr. Lindeman, who clearly loves writing, had been live-blogging under the name “Flea” about his experiences as a medical malpractice defendant. The plaintiff’s attorney found out, he was exposed on the witness stand, and the case immediately settled. His site came down and he disappaeared from the blogosphere.

Since Dr. Lindeman had been commenting as Flea on my blog since before the trial (see the comments: Practice Tip: One Way to Cross-Examine The Attractive Doctor), and I covered the trial as best I could from the start and continued thereafter through the media fallout, I decided to follow-up with an interview request when I saw a short interview with him yesterday.

Dr. Lindeman graciously accepted my invitation and answered questions via email. These are, by far, the most extensive public comments he has made since the trial. The questions were designed to be open-ended and there were no edits, although I have added some links. All of my questions were answered, and he took me up on the offer to ask himself three more:
1. Are these questions being answered by Flea, or by Dr. Robert Lindeman? And what, if anything, is the difference?

These questions are being answered by Dr. Robert Lindeman. I often speak of Flea in the third person, just as Flea spoke of himself in the third person. But under the hood, Flea and Dr. Lindeman are the same guy. Flea uses more bad words in public than Dr. Lindeman does. Flea displayed visual imagery of scantily clad women and you won’t find this at my legitimate web site. There, however, I have unburdened myself of sharply-defined points of view designed to provoke thought. For example, the article I wrote for natickpediatrics.com on ear infections was far more inflammatory (pardon the pun) than the piece I wrote at Flea. I was surprised to see this when I looked at the pieces side by side.

2. When you were creating the posts about trial preparation, you must have known you were playing with fire. What were you thinking?

What is this, Saturday Night Live? Naturally, I was not thinking clearly. A better question might be “Why were you not thinking?” Here’s why not:

I was under a tremendous amount of stress. This patient’s catastrophic death struck me and everyone else involved in his care as a complete and utter surprise. I had been trying to help this boy, and he suddenly and unexpectedly died. Never, until the moment the process server showed up in my new office, did it occur to me that what I had and had not done could be construed as malpractice. When I opened the envelope and read these things about my being “negligent, careless, and without skill”, I picked up the phone and called my personal lawyer. I thought I was being accused of manslaughter. I had suffered the loss of a patient and now I was being accused of having killed him, or so I thought.

My lawyer calmly explained that I was being sued for malpractice, not manslaughter and advised me to call my malpractice carrier. I put the envelope in my top drawer and went in to see my first patient of the day. My new practice had been open for two months.

Over the next five years I managed to forget I was being sued for long enough to get through the day and take care of patients the best I could. As the trial date approached I felt increasingly isolated and anxious. I felt as though this story, and the story of malpractice litigation in general, is one that ordinary folks have never heard and doctors are reluctant to tell. I believed that the anonymity would shield me. I know what you’re saying to yourself now. Like I said, I was under a tremendous amount of stress. I’ve been told that stressed-out people do dumb things from time to time.

3. What went through your mind when you saw the front page of the Boston Globe with your name and photograph above the fold?

Honestly, my first thought was “Look! I stuffed Fred Thompson!” (the announcement of his presidential bid was below the fold). Seriously, I knew ahead of time that the article was coming out because my lawyer had called me the day before. I had no idea I’d be put on page one above the fold. With my picture. My next thought was, “holy-moly now I have to tell my parents! To this point they knew neither that I had been sued nor that I was a blogger. Things unfolded fairly quickly after that. Two of my sisters, who also knew nothing about any of this, began calling me frantically. I spent most of the day explaining.

4. What were the reactions to the Globe story from your friends, neighbors and patients?

The range of reactions can be categorized in three groups. The smallest group was the fugitive group. Within hours of getting the paper, several families called to ask to have their children’s records transferred. One father showed up in person to demand his daughter’s chart. One mother kept a well-visit, made no mention of the case during the visit, then called up a few days later angrily demanding the charts for her three children. Several more would depart over the coming weeks. Some parents called to talk about it. I suspect a few are still making up their minds as to whether they want to stay. Some of my colleagues have stopped talking to me. Some refuse to make eye contact.

The next largest group was the supporters. Almost immediately, I began getting calls and emails from colleagues and families telling me they supported me and appreciated what I was doing. My rabbi showed up at our home the evening the article appeared. My fellow-congregants at shul were particularly supportive, even one who had until recently written for the Globe. Another fellow-congregant is well-known as a fierce personal injury lawyer. He never said anything to me about the case, but the very next shabbos he made a point of sitting with me at Kiddush and schmoozing me. He didn’t need to say anything. I understood what the gesture meant.

My mother-in-law cancelled her subscription to the Globe.

The largest group is everybody else, most of whom don’t know what the hell to say or to think about any of this. The next day, several of my wife’s acquaintances crossed the street to avoid her or looked away as she walked by. I suspect they didn’t know how to react. As for patients, the majority said nothing. Half of this group doesn’t read English-language newspapers. Some friends, all highly educated people, sincerely didn’t understand what happened and asked me to explain it. The rest have simply said nothing.

5. You must have read many of the press/blog stories and commentary that followed your exposure. What was fair and what was not about the coverage?

Immediately afterward I didn’t read anything, even your blog. After several weeks the temptation became too great. I read some perfectly horrendous things said about me, but honestly, I wouldn’t characterize any of it as unfair. Nasty? Brutal? Sure. But not unfair. What’s unfair in the blogosphere? I’m sure there’s stuff I haven’t read, but I’d rather not look. One group that has been paying attention has been plaintiff’s lawyers. Former fellow-bloggers periodically send me their “hit reports” demonstrating that readers with domain addresses at law firms have been searching their blogs for my name or the word “Flea”. I dunno, Eric, is it “fair” to say that the sharks are still in the water?

6. What regrets do you have about the incident?

You’re kidding, right? Where do I start? I regret that this boy died. Boys aren’t supposed to die, particularly when physicians are trying to help them. I regret the effect that all of this had on the boy’s mother. I regret that her pain was drawn out and exacerbated by a plaintiff’s lawyer whom I suspect cares very little for her and for her boy. I regret the effect this had on my wife, who suffered mightily from beginning to end.

I regret the enormous waste of time and energy on the part of everyone involved in this case. I’m particularly sorry for the jurors, who really appeared to be trying to make sense out of what must have seemed to them one great confusing dog-and-pony show.

I regret that five-hundred years of the rule of law and trial by jury have left us with this enormity that you call malpractice litigation. Is this really the best we can do?

I regret the loss of several families with whom I had bonded. With only one exception, each departure stung.

I regret that I may have chilled some of the dialogue in the medical blogosphere. If I didn’t chill it, I suspect I turned down the temperature a few degrees.

7. What are the three most important things you would tell a new blogger, medical or otherwise?

That’s really two questions. My advice to new bloggers is 1) go on, 2) have fun, 3) knock yourselves out. The blogosphere is the true marketplace of ideas. Long may she reign. To medical bloggers my advice is the following: 1) Every time you post, recite the following to yourself as though it were a mantra: “I am cutting rope with which to hang myself. I am cutting rope with which to hang myself (etc.)” 2) Any time you write anything, anywhere, recite the following to yourself as though it were a mantra: “I am cutting rope with which to hang myself. I am cutting rope with which to hang myself (etc.)” 3) Don’t blog anonymously.

8. How, if at all, do you think the incident will affect you five or ten years from now?

Let’s start with tomorrow. Tomorrow I expect to wake up and the job I’ve done every day for the past 8 years. Multiply that times five and ten years and I suspect you have my answer. I guess most folks will forget about this incident … except for our colleagues the plaintiff’s lawyers. I already know that pdf copies of Flea, incomplete though they may be, have been downloaded and distributed to at least one plaintiff’s attorney firm that I know of in Boston. I suspect they’ll need sources of prior inconsistent statements if anyone should come to them with an inquiry. I don’t know if I’ll ever write for public consumption again.

9. You had an award-winning blog because you had something to say and you wrote well. What are your thoughts on returning to the blogosphere?

Thanks for the compliment. Almost every day I see something or read something that makes me absolutely want to howl. I almost immediately compose a blog post in my head. And there it remains. Why? Because if I ever blog again my wife will kill me. Then she’ll divorce me. And I’m obviously not the smartest physician in the world, but I ain’t that dumb.

10. A hypothetical question: You’ve been called for jury duty and the case involves a question of medical malpractice. What will you tell the attorneys during the jury selection process about your ability to sit impartially ?

I will tell them that Roger Clemens will admit to using performance-enhancing drugs before I will able to sit impartially on a malpractice jury.

11. If this happened to someone else, and you were going to ask questions like I am doing now, what three questions would you like to see asked? And how would you answer them?

Neat question, Eric, thanks.
[The next three questions are Dr. Lindeman’s own]

12. Do you think the public knows enough about malpractice litigation?

No. Someone who has been through it ought to tell the story.

13. What advice, if any, can you give to colleagues about lowering your risk of being sued?

Whereas I suppose it’s possible in theory to lower one’s risk of being sued, in practice it cannot be prevented. If you are a physician and you make diagnoses for a living, the odds are very good that you will fail to diagnose a disease some day. If the patient dies or suffers harm, the patient and/or his family will probably consult with a plaintiff’s attorney. In some instances, the attorney will take a shot at. In practice there is no number of tests, no number of x-rays, CTs or MRIs that will prevent you from being sued. If the patient dies, call immediately to express your grief.

14. If you could turn back the clock to junior year in college, knowing everything that will happen, would you change your mind about careers? Law perhaps?

No. Even now, every day when I wake up, after expressing gratitude to the Almighty for my having opened my eyes, and for the blessings of my wife and children, I thank God I’m a physician. What’s wrong with me?

On 1/16/08, Canadian Medicine published more of the interview with Dr. Lindeman. A small part of that interview had been the subject of it’s initial story. (Hat tip to Bob Coffield)

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January 14th, 2008

Doctor Flea Speaks Out

It’s been six months since I’ve mentioned the experience of “Flea,” the pediatrician who was not only an award winning blogger, but also decided to live blog his own medical malpractice trial under his pseudonym. He got busted on the witness stand by opposing counsel and the trial settled the next day. Two weeks later, it was on the front page of The Boston Globe (See: Doctor “Flea” Settles Malpractice Suit After Blog Exposed In Court.)

Flea has now given, it seems, his first interview on the subject. It comes in the National Review of Medicine (“Check my blog and call me in the morning“), a Canadian publication.

What does he have to say? From the article:

“No wonder when doctors write, they write namby-pamby noncommittal crap,” says Dr Lindeman, “it might get you in trouble someday.” His advice? “Don’t blog anonymously. For physicians, writing is dangerous. There is something really messed up about that.”

And, he adds, don’t write about your malpractice trial.


August 18th, 2007

American Medical Association Article on Flea

For those who want yet more on the saga of Flea, the pediatrician who was live-blogging his own medical malpractice trial under his pseudonym until he was outed on the witness stand by plaintiff’s counsel, the American Medical Association’s American Medical News has an article, Internet won’t protect your secret identity. It includes an interview I did with them last month.


June 6th, 2007

Flea, The Boston Globe and Morality in Journalism and Blogging

(Having discussed the trial of medical blogger Flea, I turn today to coverage by the Boston Globe)

Was it just me, I wondered? Flea’s name was plastered on the front page of the Boston Globe and I thought, “Is that really necessary?”

Leaving aside the issue of whether this pediatrician brought undue attention on himself due to his blog entries about his medical malpractice trial, we have to turn to the conduct of the Globe and ask some questions:

Was the outing of a doctor’s pseudonymous blog in a courtroom a human interest story? Yes.

Was it interesting enough to write about? Yes.

Was his name critical to the story? Well, no.

Did this deserve to be a front-page story, above the fold (without his name)? Maybe. Human interest stories do appear there, but when they sit atop a human tragedy, in this case the death of a 12-year-old, there really isn’t much of the “fun” quotient usually associated with such prominent placement. Page 10 of the local news, maybe.

When I saw the article appear I was surprised both by its extraordiary placement on the front page, and more significantly, the outing of the doctor’s actual name by the Globe in such a spot. So too with the names of the patient and his father. While the episode was surely interesting, these informational nuggets added little to the story. They were, however, guaranteed to bring heartache and pain for those named.

This is not a discussion of whether the Globe could do this — the First Amendment clearly protects them — but whether they should do it in the manner they did. It goes to morality, not to law.

After deciding to use the names, and deciding to blast the story with the acerbic blog comments across the front page, the writer then engages in a self-fulfilling prophecy:

The case is a startling illustration of how blogging, already implicated in destroying friendships and ruining job prospects, could interfere in other important arenas.

That’s true. It can interfere in important arenas. So why did they do it? Is it the policy of the Globe to inflict pain on people simply because they can? Was there some kind of sick gratification in seeing a young doctor get his comeuppance for perceived arrogance in his writings, and damn the consequences? While he was outed in the courtroom, it was an outing no one else knew of beyond those limited confines. Until, that is, the Globe thought it would be fun to blast it to the rest of the world.

I asked the plaintiff’s attorney, Elizabeth Mulvey, about the Globe article, which appeared over two weeks after the trial was over. She said:

I asked the Globe not to use either party’s name, as I felt both sides had been through enough and that it really didn’t add anything to the story, and also that I was not the original source of the story, which was leaked to the Globe by someone not involved with the case. Although I would have preferred not to comment at all, I felt that it was necessary to correct some misinformation supplied by this source. I really feel that it is regrettable that, because of this source’s indiscretion, both my clients and the doctor were subjected to unnecessary pain.

The result of the Globe’s decision to use names is that this story will repeatedly pop up when new patients Google this doctor years from now, since numerous blogs have now reprinted Flea’s name while quoting the article. That seems grossly unfair given that it results from his prominence as a medical blogger rather than any wrongdoing as a doctor.

But those bloggers that have already published his name, simply by quoting directly from the article, can un-do some of the damage they may have inadvertantly done if, upon reflection, they feel an injustice has been done. They can go back to their blog postings and edit out his name — using instead his initials, first name, or pseudonym — so that they are not unintended accomplices to the Globe’s lack of good judgment. The question to ask: Should Flea be permanently branded, in his real-life profession, because of this? Bloggers may not only wish to make that modest edit, but to explain to their readers what they have done and why, so that others might follow.

Will that scrub the Internet of such references? Of course not. But it might cut down on what could be page, after page, after page of such results. No matter what some might think of the comments Flea made, the punishment that the Globe sought to inflict upon him seems vastly disproportional to any sins he committed with his blog.

The Globe created a very high profile problem. The blogosphere magnified it. Can any of that damage be undone? It seems like an experiment worth trying.


June 5th, 2007

Deconstructing the Trial of Flea — Part 2

(In Part 1, I discussed how a plaintiff’s attorney discovered the identity of medical blogger Flea, and used it during his medical malpractice trial.)

When this trial ended in settlement many people wanted to know: Was the existence of the blog and the Boston Globe’s description of a “Perry Mason” moment a factor in the settlement?

The answer I come up with, after discussing limited facets of the case with plaintiff’s attorney Elizabeth Mulvey, is that while I doubt the blog or the Perry Mason moment made a big difference, the reality is that only the jurors would ever know. And they didn’t hear all the evidence.

While Mulvey wouldn’t discuss the facts of the case — the agreement is confidential and I doubt either the parents of the boy that died or Flea want to talk about it — I did learn that there had been five witnesses before the settlement, including Flea and two experts.

The trial started with Flea on the stand. It is a common tactic for the defendant to be called first by the plaintiff’s attorney. There was then a break in his testimony after Mulvey had done her direct exam so that the experts could testify, with Flea to return later. (This is not unusual, as scheduling expert witnesses is always a problem unless they are retired.) The blog outing occurred on the fifth day of trial. In addition to more testimony from Flea, there were still likely to be a couple more witnesses, with the defense team having another expert ready that could have testified if the trial continued.

Thus, even if a synopsis of the facts were available by someone, they would likely have been disputed. That’s why we have juries to look in the eyes of the witnesses and consider all of the available evidence placed before them. It is difficult for a summary by a newspaper or blogger to fully capture two weeks of trial for an in-depth analysis.

(As to the timing of the settlement, it is not at all unusual to have cases settle mid-trial, after the attorneys can evaluate the evidence. In fact, I’ve had four medical malpractice cases settle while the jury was deliberating on the verdict.)

And about that “Perry Mason moment?” Mulvey told me that while it was certainly interesting, it hardly amounted to the melodramatic rendering of it by the Boston Globe. Trial attorneys, you see, routinely confront witnesses with prior inconsistent statements. Sometimes it means something to jurors. And other times they shrug it off.

Just a few weeks ago Anne Reed wrote on this very subject at Deliberations, in The Overrated Prior Inconsistent Statement. From that posting, which has many links to original sources:

But are jurors really going to throw out a witness’s testimony because of one inconsistency, or even one lie? Think about it. Do you have a co-worker who has lied to you but with whom you still manage to work well? A family member who has lied to you whom you still love? Perhaps you yourself might have told a lie once, long ago? For most of us, the idea of falsus in uno is too simple to be useful in real life. [The latin phrase means that someone who lies about one thing is likely to lie about another, and a jury is therefore permitted to disregard all the testimony of the witness — ET]

Jurors are often forgiving and practical when a witness lies. That’s the conclusion of an empirical study by Jones Day lawyer Richard Stuhan, and trial consultants Melissa Gomez and Daniel Wolfe of TrialGraphix, Inc, collecting data from over 800 mock jurors in “over a dozen states.” Stuhan, Gomez, and Wolfe authored an extensive post about their study (and its limitations) at the Drug and Device Law blog, and plan to publish it in full in the April 2007 edition of DRI’s For the Defense magazine.

And so, while the confrontation with the blog may have been presented in the Boston Globe as exceptional, it appears that the only exceptional thing was where the prior statement came from.

This article was blasted across the front page a full two weeks after the trial was over. So the guy who wrote it, and the editors that placed it above the fold on the first page, weren’t even there.

Tomorrow, my final bit on the trial of Flea. But it really isn’t about him. It’s about the Boston Globe.