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Doctor's Blog Sinks Malpractice Defense
Stacey Laskin
The National Law Journal
June 11, 2007
Law Technology News
Courts have expressed apprehension about jurors who blog during trials. Now they
may have to start worrying about defendants.
In a recent Boston malpractice suit, pediatrician Robert P. Lindeman admitted,
while on the stand, that he was the creator of "drfleablog," a Web log
detailing his disdain for malpractice litigation and revealing information
about the case his lawyers had mailed to him. Vinroy Binns and Deborah Binns v.
Robert P. Lindeman and Natick Pediatrics, No. 2003-4544 (M.A.).
Lindeman did a Web search on the plaintiff's attorney, Elizabeth N. Mulvey, and
discovered a set of Power Point slides that Mulvey had once made for a lecture.
He included a link to the Power Point presentation on his blog.
After receiving a tip about the link from another lawyer, Mulvey found the blog.
She surprised the pediatrician in court by asking him on the stand if he was Dr.
Flea. Lindeman admitted he was the site's ghostwriter. He settled out of court
the next day.
Lindeman was on trial for allegedly failing to diagnose diabetes in patient
Jaymes Binns, who died a few weeks later from a complication of the disease.
On his blog, Lindeman said his attorneys informed him that only 3 percent of a
jury's decision comes from the medical details. The rest is based on the
physician's character, as established during the trial.
"The only tack that has a prayer of prevailing is to prove to the jury that the
doctor is a drooling, blithering idiot," Lindeman wrote. "Flea's only remaining
fear is that the (female) plaintiff's attorney will be mean to him." Lindeman,
who was unavailable for comment, has recently deleted the content from the
blog. His attorney, Paul R. Greenberg of Rindler Morgan in Boston, declined
comment.
NO PRIVACY
Attorneys should make sure clients have not posted anonymous information on the
Internet that could affect their trial because it is still considered to be a
public forum, said Mulvey, of Boston's Crowe & Mulvey.
"Just like anything else a client may have written or said in a lecture, it is a
potential source of prior impeaching information." Lindeman's action "seems to
me like such an obviously stupid thing to do," said Ken Withers, the director
of judicial education and content for The Sedona Conference, an Arizona-based
nonprofit research organization, which publishes a guide to confidentiality and
public access.
"Some people live in a fantasy world," he said. "They believe what they say or
do on the Internet is somehow private. They may believe that running a blog
shields them from identity -- it does not. It would be no great effort for
anyone to discover the source of a posting or the host." A New Hampshire case
involving a juror who posted entries about court duty on his blog raised
similar concerns earlier this year, prompting legal experts to predict that
warnings on blogging may become a regular part of jury instructions and voir
dire.
Nancy Slonim, a representative from the American Bar Association's Chicago
office, said there are no specific guidelines regarding client blog use
mentioned in the ABA ethics code. She also said this seems to be the first time
a blog has affected a trial in such a way.
Still, Mulvey warns that blogs and other social networking sites such as
Facebook and MySpace can tip off opposing council.
Mulvey, who represents mostly younger individuals, said she always tells clients
to assume their mothers and attorneys working on a lawsuit might be reading
profiles or clicking through posted pictures.
