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July 26, 2006
Online Blacklisting of Medical Malpractice Plaintiffs
In a disturbing development, websites are emerging to create blacklists of individuals who file medical malpractice claims. According to an article at Law.com:
In 2004, a group of Texas physicians launched DoctorsKnowUs.com. The site listed the names of plaintiffs, attorneys and expert witnesses in medical malpractice cases. That site did not make any distinction between cases that ended in plaintiff verdicts and those that ended in defense verdicts or settlements.According to the New York Times, a North Texas man had trouble finding a physician for his 18-year old son after his name was posted on the site. He had filed a medical malpractice suit after his wife died from a missed brain tumor, and had won an undisclosed settlement.
DoctorsKnowUs.com was shut down four days after the Times article was published.
A new website to blacklist medical malpractice plaintiffs has emerged, called LitiPages.com. According to the Law.com article:
In the latest effort to enable doctors to shun patients who sue, an offshore company has launched an Internet site that lists the names of plaintiffs who have filed medical malpractice cases in Florida and their attorneys.The site, LitiPages.com, encourages doctors to consider avoiding patients who are listed in the database, and it strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney. . . .
Unlike the Texas site, LitiPages.com plans to list only plaintiffs who filed cases that ended in a defense verdict, a settlement, or a plaintiff verdict on only one count while other counts were dismissed.
The overwhelming majority of med-mal cases that go to trial result in defense verdicts. A large percentage of claims never go to trial, and many of those result in settlements. Some experts say that it's not possible to say that cases are "frivolous" just because they don't result in a plaintiff verdict.
The article also discusses an interesting study about medical malpractice lawsuits:
A study released in May by researchers at the Harvard University School of Public Health concluded that claims that the U.S. medical malpractice system is riddled with frivolous lawsuits are overblown.The researchers found clear-cut evidence of medical error in two-thirds of malpractice cases that are filed around the country. In those cases that involved a medical error, 73 percent of the plaintiffs received some sort of compensation. Of the one-third that did not involve a medical error, 72 percent of the plaintiffs did not receive compensation.
I find the LitiPages website very troubling. But what about the reverse -- a website listing doctors who have been sued for malpractice or who have lost malpractice cases? I feel somewhat differently about such a website because the vast majority of malpractice claims are for a few bad apples, and having information about them would be helpful to patients to prevent injury. Of course, I'm assuming a professional website that is accurate and helpful, but this may be in doubt because many cases settle, and a settlement can represent an egregious case as much as it can a rather minor case without a lot of merit that the doctor's insurance company just wants to go away. But assuming such a website can be fairly designed, is it consistent to reject the website for malpractice plaintiffs but to approve of a website for malpractice physicians?
I believe a distinction can be made. Physicians are professionals, and they have higher duties and responsibilities than the patients they treat. Indeed, one of the duties of the profession is to police itself, to weed out the bad apples. Sadly, I'm not sure that the medical profession does a good enough job of this (lawyers aren't much better at policing their own profession). In distinction, a blacklist of malpractice plaintiffs discourages them from exercising their legal rights and inhibits the legal system from redressing wrongs by errant physicians. Moreover, even to the extent to which plaintiffs bring frivolous suits, these are often the fault of the lawyers, not the plaintiffs.
Posted by Daniel J. Solove at July 26, 2006 04:44 PM
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Comments
Interesting! Two thoughts:
(1) How consistent is it with medical ethics for doctors to refuse to treat a pateint because that patient once filed one lawsuit against another doctor under completely unknown circumstances? I actually know zero about med ethics; I'm just musing out loud and would love to hear from someone who knows something about this.
(2) Dependong on how strongly LitPages "strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney," LitPages could be liable for tortious interference. "Strongly encouraging" Client to sue Pltf's Atty B when you know absolutely nothing about what Pltf's Atty did... well, that sounds like a completely unfounded action undertaken just to interfere with Pltf's Atty's business.
Posted by: Scott Moss at July 26, 2006 09:51 PM
In response to Scott's first comment:
A. There is typically no legal obligation for physicians to enter into a treatment relationship with a patient. The physician can refuse to treat for any reason (including because the prospective patient is litigious)so long as it is neither (i) discriminatory nor (ii) violative of EMTALA.
B. In terms of professional ethics, you have to consult the various codes. The AMA only forbids refusals to treat in emergency reasons and on the basis of gender, race, HIV status. However, when a proposal was made in 2004 to make it "not unethical" to refuse to treat plaintiff's attorneys and their families. www.ama-assn.org/meetings/public/annual04/202a04.rtf The draft resolution was met with strong opposition and withdrawn, suggesting that it is unethical to refuse to treat for such a reason. The same reasoning would seem to apply to plaintiffs themselves.
Posted by: Thaddeus Pope at July 27, 2006 12:03 PM
why is this "disturbing" and "troubling"...the NY Times publishing state secrets - that's disturbing (to put it mildly) but this? the collection of names of people who utilize our court systems to go after doctors is probably of relevant interest to the medical profession - I would think you would be all in favor of Doctors having all the information they can gather to best assess the proper utilization of their time; esp. ob-gyns...and if this leads to less med-mal suits and less costs to doctors, we all benefit..well, all except the med-mal practioners
Posted by: Maryland Conservatarian at July 27, 2006 03:30 PM
Massachusetts provides profiles of its licensed physicians on a website. In addition to basic information about education and training, the profiles include information on malpractice payments (both settlements and judgments). They list the # of payments the physician has made, the payment "category" (e.g., "Above Average"). For physicians who have made malpractice payments, the profiles also list the number of physicians in the physician's specialty and the percentage of those physicians who have made malpractice payments. For a description of profile content, see:
http://profiles.massmedboard.org/Profiles/MA-Physician-Profile-FAQ.asp.
Posted by: Anon at July 27, 2006 03:56 PM
How easy is it for doctors to obtain liability waivers from a patient seeking a risky operation? If it is fairly easy, and the courts are willing to enforce them, it seems like doctors would be more likely to require these waivers instead of turning patients away altogether; after all, they have every incentive to increase the number of patients they treat.
On the other hand, if these waivers are routinely ignored in civil litigation, this new database would cause more doctors to reject previous plaintiffs. In the latter case, it seems the better solution would be to enforce liability waivers and make them easier to obtain, rather than criticize the website for providing the doctors with a legal and reasonable service.
Posted by: Ray Seilie at July 28, 2006 10:53 AM
You can take this for what it is worth since I am a physician, but the article indicates 66% "medical error" and 73% compensation in those cases while a quarter of the plaintiffs received compensation when no error was present. If you assume that in order to find for the plaintiff that the tenets of negligence should be present (and in the case of OB/GYNs there is often no science to prove such, but "bad babies" need to be compensated and the deepest pockets are the doctors) if there no provable medical error you still have a 25% chance of having a malpractice suit on your record by not meeting those criteria if you are sued.
Being sued is probably the worst experience psychologically that any physician can have. I know many physicians who have altered their practices or stopped practicing due to suits and I have never met a physician who has been sued that was not traumatized in some way, including that large percentage who were exonerated.
Physicians know this and will try to avoid the experience. My wife left her practice because of such fears (OB/GYN doctors are sued an average of three times in their careers) even though there were no suits or hints of one.
So it is not surprising that these lists would occur and that the AMA (an organization I am not a member of) would consider changing the ethics code to exclude lawyers who sue them. This is not an apology for such sites, it is not that hard to find this information in many states, but lawsuits, even the ones that are settled or won, basically ruin part of your career (just try to get on insurance panels or hospital staffs with a recent suit) and the fear of lawsuits has modified many physician's practices to the point that some patients cannot get care in some states.
Posted by: mikeyes at July 31, 2006 03:25 PM
Blacklisting happens all the time. It doesn't have to be on a computer. It can happen through medical records, medical gossip, and it's quite common.
Posted by: Cocoa at August 22, 2006 03:03 AM
Ooops. here's my website about blacklisting:
http://www.patientblacklisting.org
Posted by: Cocoa at August 22, 2006 03:05 AM
