I periodically ran across Flea's posts over the last year and was surprised a few months ago when I started to notice his posts discussed his ongoing malpractice case, including discussions with his defense counsel. My initial reaction -- does his defense counsel know about his blogging. The answer was no. At the time, like Eric Turkewitz I concluded that there was a high risk (if uncovered by the plaintiffs attorney) that his blogging publicly would potentially waive attorney client privilege. Eric also provides some great links of previous posts about Flea.
This situation highlights the potential risk faced by medical bloggers and a reason why lawyers need to better understand the blogosphere and the impact of online social networking on themselves and their clients. The fall out from this case will be interesting to watch.
UPDATE (6/4/07): More today from Eric Turkewitz and how plaintiff's counsel uncovered that Flea was Dr. Lindeman in his post, "Deconstructing the Trial - Part 1." A comment to the post raises the most important lessons for physicians or other bloggers who find themselves facing litigation. The comment reads:
This is a great example of why it's important to tell your lawyer about things like this. If Flea's lawyers had gone through all the posts on his blog, they would undoubtedly have prepared him for this question. These kinds of prior statements are neither unusual nor damning - you just have to know how to handle them.In fact I'll say it again - TELL YOUR LAWYER ABOUT THINGS - whether you are the plaintiff or defendant. Usually its embarrassing or uncomfortable things that clients don't want to tell you and these things can significantly impact the outcome of litigation. It's these hidden facts or facts that weren't explored far enough (or understood) by defense counsel that can come back and bite. I suspect that defense counsel has a new appreciation for blog content.
Deconstructing the Trial of Flea - Part 2 is now also available where Mr. Turkewitz provides some insight into whether or not the existence of Flea's blog was a factor in settlement of the case.
Tip to Kevin M.D. for highlighting today's post by Mr. Turkewitz.