Musings of a Dinosaur

A Family Doctor in solo private practice; I may be going the way of the dinosaur, but I'm not dead yet.

Thursday, May 31, 2007

"Aw Shit!": My Reaction to the Flea Debacle

As everyone and his brother now knows, our dear de-blogged Flea suffered a dramatic moment in his malpractice trial: the plaintiff's attorney asked him if he was, in fact, the anonymous blogger known as "Flea." He apparently answered in the affirmative, and then had to settle his case (for a "substantial sum") instead of continuing to fight the case on its merits.

On the Pharm is correct in this:
It saddens me when a case is settled not on the facts of the case, but rather on issues that are only tangentially related to the matter at hand, at best. That said, perhaps Flea was confident in his anonymity, but probably shouldn’t have been...

Unfortunately, hindsight is 20-20, and things that are obvious after the fact are often not so obvious while they are occurring. We’ve all done things that were dumb in hindsight — myself especially — so I will refrain from being an armchair jackassexpert and saying that Flea should have known better.

But ultimately we have a legal outcome wasn’t about the truth. The truth — whatever it happens to be — is apparently irrelevant. Unimportant, even. I think that alone is poor commentary on our legal system.

I, for one, am hopping mad!

WHERE THE HELL WAS HIS DEFENSE ATTORNEY? And why didn't said defense attorney object to the question, on the grounds of relevance?

Flea -- and all of us -- have a right to blog anonymously. This also means we should have the right not to be compelled to renounce that anonymity. Anonymous blogging didn't have anything to do with the medical case at hand. What business did the attorney have bringing it up in court at all? Answer: she didn't. So I repeat, where the HELL was Flea's lawyer when that question was asked?

(Actually, Flea should have had an arrangement with his attorneys so that he could signal when there was something dangerous about a question, letting them know to either object or call for a break. He should have told his defense team about his blog, too, so they would have been alert to the possibility of a question about it.)

That said, this whole thing sucks. It just sucks.

Addendum: I don't disagree that real-time blogging about litigation is foolish. But I still think the "punishment" (settling a defensible suit, necessitating a report to the National Data Bank which will forever tarnish one's reputation) is completely inappropriate.

It's like the line from the closing argument in A Time to Kill, where Matthew McConaughey is apologizing for putting a convicted felon on the stand, but goes on to describe that the felony was statutory rape, the girl was 17 and the witness was 23, and that they later went on to marry and raise a family, and should that affect how the jury views his testimony.

From the point of view of pure justice (which I understand has nothing to do with any of this), how does saying or blogging something now have anything to do with what was or wasn't done at the time of the alleged malpractice?

It still sucks.

16 Comments:

At Thu May 31, 05:33:00 PM, Blogger MedStudentGod (MSG) said...

This just appalls me. To no end, truly upsetting. I hope he’s doing OK after this, but I honestly have to wonder.

Personally I agree with you about his attorney, but then what transpired afterwards that we weren’t informed about? It’s sad and it’s very scary.

I’ve said it before in a post and I’ll most likely talk about it again – this is censorship of the worst kind. We’re losing freedom of speech and expression. We’re becoming a nation of litigation happy, back stabbing, fascists. And we’re all just watching it happen.

 
At Thu May 31, 06:14:00 PM, Blogger Mark Lyon said...

You can read his posts at http://www.marklyon.org/drflearss.pdf.

 
At Thu May 31, 06:41:00 PM, Blogger #1 Dinosaur said...

Mark: Thanks. I know where I can go to read him whenever I want.

MSG: Actually, we're not *just* watching it happen. We're blogging our outrage. It may not be much, but who knows; it just might help the next blogger who finds himself on the witness stand.

 
At Thu May 31, 07:39:00 PM, Anonymous Pine Baroness said...

We all have freedom of speech, however, when in the midst of the convoluted world of the legal system, (and politics) anything you say can come back to bite you.
Flea is a victim of his success. Had he not been so widely read, he might never had been found out.

That said, he is a much better looking man than I had imagined. It unusual to be handsome as well as smart and articulate. Watch for him on TV, morning network shows, Fox or CNN.

 
At Thu May 31, 08:33:00 PM, Anonymous Anonymous said...

It seems to me, that his mistake wasn't blogging -- it was blogging about the litigation before it was over. That makes it very hard for the defense attorney to make a sustainable objection.

He is perfectly free to say whatever he wants -- he has freedom of speech. No one is putting him in jail for what he is saying. The state isn't fining him. However, freedom of speech doesn't mean consequence free speech.

Unless it is part of a well-thought out strategy, you shouldn't discuss ongoing litigation in a public forum. Period. That means, no talking to reporters about it and no blogging about it. It sounds like his defense attorney was just as surprised as Flea was when he was outed.

Of course this is all conjecture. We weren't in the courtroom.

 
At Thu May 31, 08:54:00 PM, Blogger Eric Turkewitz said...

WHERE THE HELL WAS HIS DEFENSE ATTORNEY? And why didn't said defense attorney object to the question, on the grounds of relevance?

He was apparently being cross-examined on a medical text. And he had revealed in his blog that his attorneys told him to read it.

--ET

 
At Thu May 31, 09:08:00 PM, Blogger #1 Dinosaur said...

Eric: The attorney should still have been paying enough attention to catch the ominous question was it was popped.

 
At Thu May 31, 09:50:00 PM, Anonymous RJS said...

So I repeat, where the HELL was Flea's lawyer when that question was asked?

(Actually, Flea should have had an arrangement with his attorneys so that he could signal when there was something dangerous about a question, letting them know to either object or call for a break. He should have told his defense team about his blog, too, so they would have been alert to the possibility of a question about it.)


I suspect Flea didn't tell his lawyer about it. It's just a feeling I get, because as Eric has been noting all along, his attorney probably would have had him take down the relevant blog entries, or the blog entirely, until the trial was over.

Not that blogging should have to do with anything anyway.

Thanks for the quote, btw. Maybe you could link to me now? :) <3

 
At Thu May 31, 09:56:00 PM, Anonymous RJS said...

Ah, I guess I was right. I just refreshed the Kevin, MD discussion and found this:

"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."

My perception of how I read Flea is changing slowly. I'm slowly seeing him more as probably being arrogant in his personal life. Which is fine, by the way. I'm pretty arrogant myself.

Not telling his attorneys about his blog strikes me as egregiously foolish, and while it would be presumptuous of me to suggest the motives for withholding this information, arrogance certainly fits the bill.

 
At Fri Jun 01, 05:59:00 AM, Blogger #1 Dinosaur said...

RJS: And I've been linked to you for months; right between MonkeyGirl and OncRN.

 
At Fri Jun 01, 08:32:00 AM, Blogger The Independent Urologist said...

Flea made his blog the plaintiff's business when he used it to write about the trial and the defense. It then became fair game. I don't know Flea, but he strikes me as arrogant, which juries don't like. Obviously he should have told his lawyer, but he must have felt secure in his anonymity (sp?). Again, this goes to arrogance. In any case, he learned a lesson from the school of hard knocks, which we have all been to in varying degrees. I wish him luck. BTW, you happen to come across as a very caring and compassionate doctor in your blog, for what ever that is worth. Keep it up.

 
At Fri Jun 01, 10:29:00 AM, Blogger Voter Mom said...

What's that saying? "There are two people you should never lie to: your doctor and your lawyer."

It's pretty hard to be truly anonymous on the web (or in print). A motivated professional investigator can and will discover one's identity, specially if one lives in a country as documentation-happy as the USA.

 
At Fri Jun 01, 11:32:00 AM, Anonymous Anonymous said...

I feel sorry for the guy, but let's face it, he displayed either incredibly poor judgment or incredible arrogance in how he blogged about his trial. And unfortunately it was revealing, because it's hard to disguise who we are in our writing; inevitably we speak in our own voices.

If Flea had made defensive, disparaging comments in the medical record or in a letter to the editor or in a public conversation in the elevator or some other type of communication discoverable in court, the consequences would likely have been the same. The medium in this case - the Internet - may be somewhat of a new twist but there's no reason to think this is anything ground-breaking in the history of free speech... because it isn't.

Bad judgment is bad judgment regardless of the medium in which it's expressed.

FWIW, we don't know for sure that outing Flea led directly to the settling of his trial. The case may not have been going well to begin with. It's easy to make the "post hoc ergo propter hoc" logical error, but let's be careful here.

And, uh, Dino, "A Time to Kill" is a novel. Fiction. As in "made up." As in "not real life." Show me a better example and I promise to seriously consider it.

What saddens me the most, frankly, is that a child died and he and his family have become invisible in all the furor. I mean, it's all about Flea. Sad.

 
At Fri Jun 01, 12:37:00 PM, Blogger Dr. Deb said...

Oh, this is so upsetting to read!!

 
At Fri Jun 01, 04:03:00 PM, Anonymous Anonymous said...

People, this is an issue among multiple types of blogs, not just medblogs. There recently has been a crackdown on military blogs as well.

Here's an interesting tidbit:

'Washingtonienne' blogger files for bankruptcy
By MATT APUZZO
Associated Press Writer
WASHINGTON (AP) — Jessica Cutler, the former Senate aide whose online sex diary landed her a book deal and a Playboy photo spread but got her kicked off Capitol Hill, has filed for bankruptcy.
Cutler, a former aide to then-Sen. Mike DeWine, R-Ohio, created the ``Washingtonienne'' blog in 2004 and began posting racy details about her sex life with six men, including a Senate colleague and ``a few generous older gentlemen'' who she said paid many of her living expenses.
When the blog was discovered, Cutler was fired. She moved to New York, wrote a novel based on the scandal, posed naked and started a new Web site that describes herself as ``a published author who jumps out of cakes for money.''
Under the occupation heading of her Web site, it reads: ``I'm freelancing.''
Cutler has spent much of her time fending off a lawsuit by ex-boyfriend and fellow DeWine staffer Robert Steinbuch, who claims Cutler's blog publicly humiliated him. He is seeking more than $20 million in damages.
In court documents filed in the case Thursday, however, Cutler says she can't even pay her American Express bill, legal fees and student loans. She submitted to the judge a copy of a Chapter 7 bankruptcy petition filed in New York dated Wednesday.
The lawsuit is being closely watched by online privacy groups and bloggers because the case could help establish whether people who keep online diaries are obligated to protect the privacy of the people they interact with offline.
Cutler's bankruptcy filing further clouds the fate of a lawsuit already mired in contentious pretrial arguments. A federal judge has encouraged both sides to cooperate and perhaps even settle the case, but both sides are demanding personal information from the other and Steinbuch says he doesn't want to give a videotaped deposition for fear Cutler will put it in on the Internet.
Messages seeking comment were left at the office of Steinbuch's attorney and on Cutler's cell phone.


People treat the Internet as if it's some alternate, unofficial form of communication to which the rules don't apply. Well, the rules of applying good judgment don't go out the window just because we're all scribbling into the ether here. The courts might not have caught up yet, but clearly they are starting to wake up and pay attention.

 
At Fri Jun 01, 04:38:00 PM, Anonymous RJS said...

Ya I know you've got me on your sidebar (and as soon I have a sidebar -- hopefully coming soon! -- you will be there permanently as well). I just meant a link to the entry you quoted. :)

 

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