Be Wary of What You Write: The Internet Lasts Forever

It started so simply.  The pediatrician wanted an outlet to vent  and express his ideas so he started a blog.  Blogging under the name “Flea,” he had a fairly popular blog with intellectually stimulating posts.   But Flea was sued for malpractice after he allegedly failed to diagnose that one of his patients was diabetic, and the child later died.  As the litigation progressed, Flea started blogging about the case, his preparation, and eventually, the trial.  His observations included his thoughts on the opposing attorney, the plaintiff parents, the judge, and even the jury.  And it all seemed to be harmless until Flea was being cross-examined on the stand.  After the plaintiffs’ attorney asked the witness if he blogged, and if he blogged under the name Flea, the court granted a requested recess.  Knowing that the contents of the blog  (including thoughts on his preparation for the trial and testimony and discussions about which jurors were paying attention or nodding off) were about to be exposed to the jury, the defendant’s insurance company settled the case during the break.  A summary of the case was set out in the Boston Globe.

But Flea isn’t the only “victim” of the internet.  In the old days, when investigating opponents or even witnesses, attorneys didn’t have many tools unless they wanted to hire private detectives.  A few years ago, internet based databases started showing up that allowed us to investigate criminal backgrounds and other basic information.  And in the last couple of years, we’ve hit the jackpot.  People’s willingness to make public their most personal information is almost amazing.  We’re often shocked what we find in people’s blogs, their facebook or my space pages or elsewhere.  It’s not uncommon to find admissions of guilt, admissions of drug or alcohol abuse, or at a minimum, admission of other conduct that can cast a negative light on the person.

And from now on, learn from Flea. Pay attention to what you write, and make sure you don’t say anything that comes back to haunt you later.

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Doctors Requiring “No Sue” Agreements

A recent issue of Lawyers’ Weekly has an article that discusses the trend of some doctors requiring patients to contractually limit their rights to bring medical malpractice claims before the doctors will provide medical service.  The agreements at issue would require patients to agree to arbitrate their claims and agree to limit their claims to $250,000.00.

Aside from our general opposition to pre-claim arbitration clauses, we have several concerns about such agreements.  First, this experiment has been tried and failed.  In 1999, the Utah legislature passed a law allowing doctors to use arbitration agreements; it was amended in 2003 to let doctors turn away patients who refused to sign them, although it made an exception for emergency treatment. That law was repealed in 2004; now, health care providers can use these agreements, but they can’t deny treatment because the patient won’t sign.

Moreover, such agreements promote secrecy.  Unlike lawsuits, records of when an arbitration was filed and the eventual results are not public records.  It is important to potential patients and to state regulatory bodies that they know which doctors are “repeat offenders” in the medical malpractice arena.

Finally, we question whether this is the proper way to start a doctor-patient relationship.  Study after study finds that the most important factor in whether a patient asserts a medical malpractice claim is how the patient and his or her family is treated by the provider.  Even when things go bad, a patient is hesitant to sue a doctor he or she likes.  It seems that starting a relationship off on this foot (or worse, having a patient get extremely upset after the fact when they first realize they signed the agreement) might lead to an increase in claims.

While the trend is interesting, we’re not aware of any Austin physicians yet requiring such agreements, and we have real questions about whether they could be valid under Texas law.

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Medical Malpractice After Dark

In the June 1, 2007 issue of Reader’s Digest, Night Shift Nightmare discusses the well known phenomenon that more hospital medical malpractice occurs over night and on the weekends.  From the article:

There are many reasons to feel anxious when entering a hospital. In April, a HealthGrades study showed that some 248,000 patient deaths over a three-year period were preventable. What’s less widely known, at least to the general public, is that mistakes tend to multiply on the night shift. You won’t find it in any hospital brochure, but within the medical world, the dangers after dark are well known.

And the article notes that no one is immune from problems:

“To succeed, they have to know what the other people on the team are doing, and how to communicate,” says Dr. Carol Ley, chairman of the University of Minnesota Medical Center’s board and director of occupational medicine at 3M Company. Dr. Ley has firsthand experience with medical error: Her seven-year-old daughter, Jacquelyn, could have died after a morphine pump was mistakenly set too high. It happened during the night shift, following surgery for a shattered elbow; fortunately, Dr. Ley, spending the night in her daughter’s room, noticed Jacquelyn was barely breathing. She puts it bluntly: “The night shift, with its hand-offs and staffing issues, is prime time for medical error.”

The stories and studies cited in the article are frightening.  Fortunately, the article states that the medical community, in particular medical schools, are taking notice.   Many schools are developing computer models to help properly allocate nurses and staff; many schools are trying to foster a bigger sense of teamwork between different levels of staff and between different shifts; many schools are hospitals are starting to train staff to better handle crises.

Of particular interest to us was that one of the case studies in the article was from a Texas hospital (though not one from Austin).

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Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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