Anything You Say (or write or post or comment) Can be Used Against You

Anything You Say (or write or post or comment) Can be Used Against You

The Dangers Social Media and Blogging Pose to Your Medical Malpractice Suit

By Benjamin J. Howard

In May 2007, a Massachusetts pediatrician named Robert Lindeman, M.D., was in trial as a defendant in a wrongful death medical malpractice suit. The plaintiff’s attorney called him to the stand, and on the second day of questioning, the attorney asked the following questions: “Did Dr. Lindeman maintain a blog?” “Yes.” “Was Dr. Lindeman ‘Flea’?” “Yes.” When trial resumed the following day, Dr. Lindeman had settled with the plaintiff for an undisclosed but “substantial” sum.[1]

This did not make sense to many observers in the courtroom and may not make sense to you. But supplied with a bit of context, it becomes clear. Dr. Lindeman authored an (assumed) anonymous medical blog, where he posted under the pseudonym of “Dr. Flea.”   In this blog, he identified a pediatric treatise as the “bible” of the specialty but then denied it at trial. In addition, Dr. Lindeman also blogged about the trial itself, to include its preparation, the defense strategy, and even “ridiculed the plaintiff's case and the plaintiff's lawyer…[and] accused members of the jury of dozing.” Id. Not only was the case quickly settled, but the blog was immediately taken down. [2]
           
Social media has long been a boon to defense attorneys. Posts to public MySpace, Facebook, and Twitter accounts sometimes undermine a plaintiff’s claims for emotional distress, identify pre-existing conditions, and even show a lack of injury. All the defendant physician had to worry about was past scholarly journal articles and, if they had testified previously, their depositions and trial testimony. As more and more physicians generate an online history, they are open to the same investigation as potential plaintiffs. If you do maintain an online presence, the following recommendations may be helpful:
 
1. Keep your social networking profiles to “private” or “invite-only.” If you don’t socialize with the potential reader, why make your private life available to them?  
2. Write any online postings regarding medicine as if they were potential journal articles. Follow the same privacy guidelines.
3. If you choose to blog, do not write anonymously. If you choose to post online anonymously, never assume you will remain anonymous.   
4. If you have posted online regarding medicine and these writings are not identified on your C.V., let your defense attorney know.
5. Lastly, in Dr. Lindeman’s own words: “To medical bloggers my advice is the following: Every time you post, recite the following to yourself as though it were a mantra: ‘I am cutting rope with which to hang myself’…Don’t blog anonymously.”[3]


[1] Jonathan Salzman, Blogger Unmasked, Court Case Upended, The Boston Globe, May 31, 2007, at http://www.boston.com/news/local/articles/2007/05/31/blogger_unmasked_court_case_ upended/, last accessed on December 28, 2010.

[2] Dolan PL. Blog at your own risk. Am Med News. July 2, 2007: 14-15.

[3] Eric Turkewitz, My Interview with Robert (Dr. "Flea") Lindeman, at http://www.newyorkpersonalinjuryattorneyblog.com/2008/01/my-interview-with-robert-dr-flea-lindeman.html, last accessed on December 28, 2010.


Benjamin Howard is an associate at Neil Dymott. He concentrates his practice on professional liability and general civil litigation. For further information, Mr. Howard can be reached at bhoward@neildymott.com.

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