A while back, I asked, “Where’s Flea?” The question was asked in response to the mysterious disappearance of his blog a couple of weeks ago, leaving only a blank Blogger blog. Flea, as you may remember, was one of my favorite physician-bloggers. A pediatrician, he consistently provided pithy and interesting commentary on life as a solo practice doctor, his battles with emergency room physicians who don’t call him when his patients show up in the ER, and various other issues, not to mention the occasional tussle with antivaccination loons. His disappearance seemed related to a malpractice suit filed against him, as I speculated when I asked my question.
I really hate being right (although in this case it doesn’t take much savvy or skill to be right). In fact, it’s worse than I imagined for Flea. Basically, his blog left him little choice but to settle his malpractice suit:
As Ivy League-educated pediatrician Robert P. Lindeman sat on the stand in Suffolk Superior Court this month, defending himself in a malpractice suit involving the death of a 12-year-old patient, the opposing counsel startled him with a question.
Was Lindeman Flea?
Flea, jurors in the case didn’t know, was the screen name for a blogger who had written often and at length about a trial remarkably similar to the one that was going on in the courtroom that day.
In his blog, Flea had ridiculed the plaintiff’s case and the plaintiff’s lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing.
With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.
The next morning, on May 15, he agreed to pay what members of Boston’s tight-knit legal community describe as a substantial settlement — case closed.
The case is a startling illustration of how blogging, already implicated in destroying friendships and ruining job prospects, could interfere in other important arenas. Lawyers in Massachusetts and elsewhere, some of whom downloaded Flea’s observations and posted them on their websites, said the case has also prompted them to warn clients that blogs can come back to haunt them.
Now, there’s been a lot of wailing and gnashing of teeth over this and about what it means for physician blogs and bloggers. (Kevin, MD has helpfully provided a link roundup of reactions here and here, as did Eric Turkewitz, a personal injury lawyer.
As much as I liked Flea’s blog and, I suspect, would like Flea/Lindeman himself if we were ever to meet in person, my take on this is that this was entirely a self-inflicted wound on Flea’s part. In that, I agree with Symtym. No, it wasn’t Flea’s blogging per se that inflicted the wound. Other than his blogging about the trial, there was really nothing in his blog that did anything other than reflect how much Flea cared about his patients; the worst that could be said was that he was capable of a level of snark similar to mine. Given that, I doubt Flea’s non-trial posts would have made much, if any, difference in his case, were they to be revealed to the jury.
Rather, it was the way Flea blogged about the legal proceedings and pre-trial preparation themselves as they were going on. Even though his posts about the case led me to want to cry out, “Preach it, Brother Flea!” (particularly the post where he pointed out how he was told by a jury consultant that juries decide cases more on their perception of the doctor’s character rather than the facts of the case), at the same time I wanted to grab him by the collar and shake some sense into him for being so dangerously open about his lawyers’ defense strategy and his jury preparation before the trial was settled. Clearly, Flea’s faith in his continued anonymity was seriously misplaced. As I’ve learned, having been “outed” many times, a pseudonym does not in any way guarantee anonymity. You can bet that if I were ever sued, there would not be a peep from me on this blog about it while the legal proceedings–or maybe never at all. (Although no doubt the trolls who “outted” me would try to embarrass me with the information.) By posting this, Flea apparently destroyed any claims to attorney-client privilege about his defense strategy, as Turkewitz points out:
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.
Worse, apparently, Flea never told his own defense team about his blog. It’s not a matter of not being “compelled to renounce anonymity.” That’s a moot point, because anonymity is almost impossible to maintain, particularly if someone is persistent enough or willing to throw some resources at the question. It’s a matter of not telegraphing your defense strategy for all to see.
My bottom line on this is simple. The case of Flea is not the dire signal about the demise of the medical blogosphere that some have been making it into and that I briefly fell for. Rather, it’s a wake-up call about reality. The First Amendment guarantees us freedom of speech and allows us to speak with anonymity. However, just as it does not insulate us from being offended by other people’s speech, it also does not insulate us from the consequences of what we say publicly. Flea was not forced to settle based on the facts of the case; the jury never got to hear most of the facts of the case. Nor did Flea lose because the jury found that he had failed to live up to the standard of care and thus committed malpractice. He lost because he had publicly undermined his own case by writing about it before it was over. I suspect that, in the future, any physician blogger sued for malpractice will be wise enough to save the blog posts about it until after the final verdict is rendered (and there will be another case; most doctors are sued at least once in their career these days, and there’s no reason to suspect that physician-bloggers are in any way immune). It may not seem right; it may be a detestable situation, but it’s the way things are.
Flea, I hope you don’t think I’m being too hard on you. I loved your blog, which suggested to me that you’re a great guy and talented and caring pediatrician who didn’t really deserve to be the next scalp to be added to the plaintiffs’ law firm’s disgusting trophy page. I hate to see this nastiness befall you. However, you really have no one to blame but yourself for the outcome of your case. If it weren’t for your blogging about your pre-trial preparation while the case was being litigated, you might well have been vindicated. Now, we’ll never know. Rants throughout the medical blogosphere about the plaintiffs’ attorneys using your blog against you do not change this. As slimy as their tactics may seem to non-lawyers at times (and, yes, I do have a little sympathy for the view that their “outing” of Flea was blackmail, pure and simple) attorneys do have a duty to do their utmost within the law to win their clients’ case. Once the plaintiffs’ attorneys discovered Flea’s blog, they would have been failing in that duty if they didn’t use that information. You gave the plaintiffs’ attorneys the weapon with which to destroy your case–handed it to them on a silver platter, actually–by making your blogging relevant to your case an opening up a strategy for them to exploit that would not otherwise have existed.
I really hate to say it, but, sadly, it’s true. The only good thing that will come of this is that physician-bloggers now have an example of what can happen and are not likely to make the same mistake again. Here’s hoping Flea can pick himself up, dust himself off, and continue to provide quality care to his patients.