Blogging Defendant Blows Defense:
A Massachusetts pediatrician pseudonymously blogged a malpractice trial, spicing up his commentary with jabs at the plaintiff, plaintiff's attorney, and even the jury. The problem? It was his own trial. After he was forced to admit his authorship of the blog on the stand, the case promptly settled. The Boston Globe covers the story here. (LvHB)
Moral of the story: wait until after your trial to blog about it.
Bigger moral: if you're a doctor, you could probably expect to get sued for malpractice again in a few years, and previous blog entries will be used against you. So don't blog about trials or the judicial system.
Of course, that would also require having the balls to deny it as well.
Rule 801(d)(1) (Prior statement of witness) and 801(d)(2) (Admission by party opponent) — this would go to any statements the doctor made about his involvement in the plaintiff's care or any statements the doctor made about his impressions of the strength of the case;
Fed. R. Evid. 607 (permitting impeachment of witnesses) — this would go to any statements he made that are fair grounds for impeachment, including credibility and bias. Certainly a good plaintiff's attorney would inquire into the doctor's statements about what the jury consultant told him to do. I could imagine a nice colloquy as follows: "Doctor, I see you're sitting with your hands folded in your lap and you're slightly facing the jury. Did the jury consultant tell you to do that? Why did the jury consultant tell you to do that?"
That said, you would have to balance those statements against Fed. R. Evid. 403 (excluding relevant information that is prejudicial). I bet there's case law out there talking about whether a party's out-of-court statements during a trial that are disparaging to the judge, jury, and opposing counsel are excludable under this rule. Sadly, I don't know any of that case law off the top of my head because I've not personally encountered this issue.
If you fail to ask whether your client blogs, or fail to tell him to stop blogging during his trial, you are guilty of malpractice.
Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court
--ET
It seems the P attorney may have saved this bomb until the end of the day, when the court was about to recess, rather than exploding it earlier. I suppose she calculated that there was nothing the D doctor could do to prepare himself for the whithering cross she had prepared for him, and she saw advantage to letting the D team realize the hold they were in.
Yeah, there is something of a "game" to it, and one can lament it, but that is the reality. Another reality is that there are not too many frivolous med mal claims, and still fewer that go to trial, notwithstanding what the tort deform crowd maintains. (BTW, I am very familiar with both the P and D sides of med mal, and I am not in full accord with either. IMO, both the P bar and the D bar with its claque are wrong in a number of ways.)
(The doctor has taken down his blogsite. Does tech type know how his posts about the case might be found nonetheless?)
As for admissibility of the evidence - I suppose there might have been an assertion of privilege as to what the jury consultant advised the doctor if it was with the D attorney there, but the doctor blew that protection by disclosing it on his blog, even if it was "fictionalized" there. Had the cross-exam gone forward, I think the D's attorneys might have objected repeatedly to no avail and only made matters worse for themselves, if it would have been possible to make them any worse at that point.
Also, I wonder how much of a risk the insurance carrier thought they faced before the blog business came out and how much the value of the case spike up with just that "innocuous" question by the P attorney before adjournment. The medical facts were no different, and hence damages should have been no different, but when the blog was revealed, Ds knew they couldn't risk letting it go to the jury to decide it.
No "sin" for him to express his opinions in any way he wished to. Just incredibly stupid under the circumstances. After the trial, he might have gone on catharsing himself for ever without consequence. (BTW, it turned out his blogging was not done "anonymously.")
(PS "pseudonymity")
801(d)(1)(A)requires the prior inconsistent statement by the witness to be given under oath at a previous trial or other proceeding, so that won't work. But you don't want to make substantive use of the statements anyway, you just want to impeach the guy. (I don't see how the truth of the blog statements are relevant to any of the elements of a malpractice claim; it's not as if he admitted negligence on the blog.)
But what's the impeachment theory here? If anything in the blog is inconsistent with his testimony, that's admissible under 613, but I'm not sure there's any inconsistency. The best argument seems to be that they show that the witness is biased because he has a generally disrespectful attitude toward the justice system. This seems pretty weak though, and if this is the best argument I agree that they should have been excluded under 403.
I see no reason to doubt that the doctor is an excellent one. I know the "facts" of the case, though, so can't judge for myself how much/little merit there was to the claim that in this instance he was negligent in his failure to diagnose and treat diabetes, with negligence the proximate cause of death.
True. I found them to be really interesting and was disappointed to see them go, though for reasons I wrote about, they really shouldn't have been made in real-time.
It really shows why doctors and everyone else involved in these contests (e.g., P attorneys) are so biased as observers of medical malpractice cases
Actually, a plaintiff's attorney has to be objective, or we get stuck with a bad case. I wrote about this recently in describing how I reject over 95% of the inquiries, in Medical Malpractice - Vetting The Case
And thanks for the P.S., I've fixed the error.
--ET
In fact, the doctor is wrong. I seldom handle med mal anymore but when I did, it was not uncommon for clients to be furious because their doctors refused to explain to them why there was a particular outcome. I had one case in which the patient died on the table and the surgeon refused to say anything to the family other than "We did everything we could, but he expired during the procedure." He even repeated that word for word again and then walked away.
I guess doctors must be counseled to behave this way by their malpractice carriers, but patients and their families surely don't understand this and really fuels their anger.
These are from last year, so they give a flavor of what the blog looked like before the
Insurers are aware of the importance many patients and/or their families attach to apologies and forthright explanations. Several have set up pilot programs in which they encourage doctors to give those, and are studying whether that reduces total settlement payouts. From my limited experience litigating med-mal, I suspect it'll work pretty well.
One reason alternative dispute resolution techniques like nonbinding mediations are so successful is that they tend to address those needs without the litigants having to go through a full-scale public trial in a real courtroom, and when those needs have been addressed, unsettleable cases suddenly become "settleable."
Maybe that's the plaintiff's motive for seeking out an attorney, but its NEVER the reason a contingency-fee attorney agrees to pursue a case.
A plaintiff attorney's primary concerns are almost always the extent of the injury and the attorney's perception of the probability that an uneducated jury composed of laypeople can be convinced the outcome was the fault of the physician.
Why is this relevant to Flea's case? Eric Turkewitz is absolutely correct that Flea's public discussion of his conversations with his attorney and jury consultants ran a high risk of waiving his attorney-client and work product privileges. The truth is, no attorney in their right mind is willing to try a case where her conversations with the client become a subject for cross examination.
This is the only sound strategic decision. Imagine if you gleefully locate the defendant's pseudonymous blog, and you launch into a line of questioning about an embarassing post, only to have the judge sustain a defense objection on the grounds of relevance. Suddenly, you have nothing at all. Far better to leave the defense thinking "do we settle this case, or do we bank everything on a gamble that the judge will sustain our relevance objection tomorrow?"
Eric: Actually, a plaintiff's attorney has to be objective, or we get stuck with a bad case. I wrote about this recently in describing how I reject over 95% of the inquiries, in Medical Malpractice - Vetting The Case
True, unlike D attorneys, most P attorneys all "eat what they kill," funding substantial expenses themselves because they expect to prevail in the end, earning a substantial contingency fee for undertaking the risk and getting the ball across the goal line. (They don't take cases no matter how meritorious if they don't expect a big recovery, because that would be one path among several leading ultimately to ruin.) While D attorneys defend whatever the insurance carrier wants them to defend, no matter how indefensible it may be, P attorneys must choose the ones they take carefully, or as you put it they must "be objective." But only "objective" as to the likelihood they will prevail in the end, not "objective" in viewing our tort system without the bias that would deny that there are any truths to the criticisms of that tort system by its critics, including doctors, D attorneys, and a great many other, including opportunistic and non-opportunistic politicians.
The public at large has no reason to be concerned about certain notoriously pro-P venues, where the big shark P attorneys go to file their class action suits? They have no reason to be concerned about punitive damages award, alike the millions awarded to the poor dentist whose BMW was retouched before it was sold to him and they didn't tell him? No reason for dismay over whore experts and junk science served up by BOTH Ps and Ds (I have personally seen a good deal of that from both sides). Etc.
I have listened to P attorneys go on about how righteous their brotherhood (and sisterhood) is and how evil are D attorneys generally, to say nothing of insurance companies, large corporations, etc. And while I see some truth to what they say, I see some truth to what the other side says of them and their cases too. I have had experience of one well-meaning tort reform measure and no what good and bad it has done. I am opposed to many tort reform proposals that would greatly tip the scales even more than they already are toward Ds generally, but I don't believe that all is well with our tort system as it now exists. (Start by reforming the abuses by P attorneys in class action suits and punitive damage provisions, then give some attention to med mal. Ds already enjoy great advantages in med mal cases, and are only gaining more as jury pools are poisoned. But I'm sure that more could be done about junk science and whore experts, just don't ask me to be too specific about what it would be.)
BTW, Eric, pretty whacked approach to discovery you have there in NY, isn't it? "Back engineering" to try to figure out who the D is going to present as experts so you can prepare yourself for what they may say. Now that's too pro-D.
"Doctor, I notice that you have turned your jury toward the jury box and kept your hands folded in your lap. Did someone advise you that this was the way to make a favorable impression on the jury. Was that a jury consultant who so advised you? Did you rehearse your testimony before today? Were you videotaped in the course of one of those rehearsals and critiqued on your performance?..."
The P attorney would not be allowed to ask such questions because of the attorney-client privilege that the doctor already breached with his blogging? Because such questions would have no bearing on his credibility as a witness? Because such questions would be going after evidence more prejudicial than probative?
Yes, I can certainly imagine that the D attorney would be objecting loudly and repeatedly, but I expect to no avail. And if the doctor gave answers inconsistent with what he posted to his blog when he thought his identity would never be discovered, then I think the blog entries themselves would be admitted.
If Ds were confident that the P attorney could do no more with this than initially surprise and rattle the doctor, that the judge wouldn't let her go anywhere with it, and they could prepare the doctor to deal with whatever would be allowed in by the judge, then why did they fold their cards? That they did fold when they had been prepared to let the jury decide it must say something, and I think it says that they thought they were dead meat and feared leaving it to the jury to decide how much to assess them for a 12-year-old who died from an eminently treatable disease. (Note, I don't know the medical facts of the case, and lacking them am not presuming to judge the merits of either the P or D case. Again, I think it probable that this is a highly competent physician, I don't know if he was negligent in this particular case and whether negligence was the proximate cause of the child's death.)
If experienced trial lawyers, either P or D types (the hermaphroditics too), have different thoughts about what would and wouldn't be allowed in, how it would have played out if it hadn't settled, etc., I'd love to hear from them.
Still, this was a case where the threat almost certainly had more power than the execution. It's quite possible that the defense attorney felt blindsided, had never read the blog (almost certainly true, since if the defense attorney had read the blog, he would've told Flea to take it down), and, out of risk-aversion, got authority to settle within policy limits rather than risk something really bad coming out the next day and getting blamed for failing to anticipate this problem.
If the plaintiffs' attorney had shot the gun rather than just brandished it, the defense attorney might be annoyed and embarrassed, but have decided that the disclosures didn't really hurt the substance of the case once a variety of evidentiary objections came into play.
Of course, since we don't know what the case settled for, there's some guesswork at play.
It wasn't in the article, but the reporter told me during the interview the day before publication that, in fact, the defense attorneys were unaware of the blog when the issue came up.
From Neurodoc:
I have listened to P attorneys go on about how righteous their brotherhood (and sisterhood) is
Some are and some not, pretty much like every other group of people you can find.
and how evil are D attorneys generally,
Some are and some not, pretty much like every other group of people you can find.
--ET