On Flea

I don’t often participate in blogosphere or Internet drama, but I do want to briefly add my comments to the general blogosphere reaction to the outcome of Flea’s trial. If for no other reason than Flea was one of my favorite blogs, and its disappearance is a loss for medbloggers and the Internet community at large. I won’t pontificate long. My thoughts boil down to this:

It saddens me when a case is settled not on the facts of the case, but rather on issues that are only tangentially related to the matter at hand, at best. That said, perhaps Flea was confident in his anonymity, but probably shouldn’t have been. Being nearby, I considered going to the courthouse in Boston and asking a court clerk where and when “the malpractice case of the pediatrician” was being heard, simply because most of my days are free, and I would have liked to observe the trial. I wouldn’t have revealed Flea’s identity.

Unfortunately, hindsight is 20-20, and things that are obvious after the fact are often not so obvious while they are occurring. We’ve all done things that were dumb in hindsight — myself especially — so I will refrain from being an armchair jackassexpert and saying that Flea should have known better.

But ultimately we have a legal outcome wasn’t about the truth. The truth — whatever it happens to be — is apparently irrelevant. Unimportant, even. I think that alone is poor commentary on our legal system.

[tags]Medical malpractice, malpractice[/tags]

10 thoughts on “On Flea

  1. Pingback: Trusted.MD Network
  2. Actually, we don’t have a legal outcome. We have a contractual outcome between two parties. The legal system did not have the opportunity to determine the outcome because of a choice the parties made.

    How can that be a commentary on the legal system, if you don’t know the evidence in the case, the terms of the parties’ agreement, or why they reached the decision they did?

  3. It’s a commentary on the legal system in that such tangential nonsense could have a very real effect on a potential outcome. So scared was the defense that it would torpedo their case that they settled.

    That, frankly, is bullshit. And is why trial by jury is one of the most overrated concepts ever.

  4. “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Thomas Jefferson
    This case was not decided on something other than the merits, it was settled. It was settled because an insurance adjuster believed that the case should be resolved. Flea’s blog may (likely) had something to do with it. Please explain to me how the jury system or the Plaintiff’s lawyer is to blame for Flea’s poor judgment and cavalier comments…
    Hans Poppe
    http://www.poppelawfirm.com/blog/index.cfm?id=711

  5. “It’s a commentary on the legal system in that such tangential nonsense could have a very real effect on a potential outcome. So scared was the defense that it would torpedo their case that they settled.”

    Why is what Flea reviewed at the advice of his attorneys to prepare for trial “tangential”? And how do you know that’s why the defense was “scared”. Ever occur to you that the case just wasn’t going well already?

  6. Hrm. I didn’t blame Flea’s lawyer? I don’t think Flea’s lawyer has anything to do with anything, really.

    “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Thomas Jefferson

    Thomas Jefferson was a great man, however you know probably better than I do that argumentum ad verecundiam is a poor way to defend an idea. Give me a judge over a jury any day of the week (assuming I’m innocent or not at fault).

    Why is what Flea reviewed at the advice of his attorneys to prepare for trial “tangential”?

    Because how one prepares for the trial (so long as you’re not coached to commit perjury) is outside the scope of the courtroom. What happens in the courtroom is the only thing that matters. Commentary on jurors and counsel has nothing to do with the facts of the case either. These observations — which we’ve all made in the privacy of our own heads — are irrelevant.

    And how do you know that’s why the defense was “scared”.

    Because they settled right after it happened?

    Ever occur to you that the case just wasn’t going well already?

    Yes.

  7. “Because how one prepares for the trial (so long as you’re not coached to commit perjury) is outside the scope of the courtroom. What happens in the courtroom is the only thing that matters.”

    This statement is incorrect. Your past statements, writings, etc. can and should be relevant. If you’ve made claims orally, or in a book, or on your blog, that contradict what you’re saying on the stand, how can you argue that doesn’t matter?

    You can have a judge if you want – but you better hope he doesn’t like your politics or you didn’t campaign for his opponent when he ran, or those who appointed him weren’t your enemies, or that he’s a sharp guy, or doesn’t have a political axe to grind, etc. But for some reason those with a little more experience with tyranny preferred their fellow citizens.

    As for when they settled, I believe the testimony was over for the day after that regardless. They could have been planning on settling anyway.

  8. This statement is incorrect. Your past statements, writings, etc. can and should be relevant. If you’ve made claims orally, or in a book, or on your blog, that contradict what you’re saying on the stand, how can you argue that doesn’t matter?

    They do matter. But Flea didn’t say anything about the trial on his blog that DID matter. That’s my whole point. He didn’t say anything worth mentioning IN the trial, therefore his having a blog shouldn’t have mattered.

  9. Simply because Thomas Jefferson made a truthful statement does not make it an argumentum ad verecundiam “From the observed agreement rates, the probability of a correct verdict by the jury is estimated at 87% for the
    NCSC cases and 89% for the Kalven-Zeisel cases. Those accuracy rates correspond toerror rates of 1 in 8 and 1 in 9, respectively.” http://www.northwestern.edu/ipr/publications/papers/2006/wp0605.pdf
    To be sure, a March 2000 survey of federal judges by the Dallas Morning News and SMU School of Law found overwhelming support of juries. Over 81 percent of respondents thought that most jurors come into a civil case favoring neither side, with nearly 77 percent believing that juries did very well in reaching a just and fair verdict. In addition, 59 percent said they would prefer the dispute to be decided by a jury if they were a litigant in a civil case, with only 21 percent preferring a judge as the decisionmaker. For an extensive list of studies demonstrating the competence of juries, see, e.g., Testimony of Neil Vidmar, Russell M. Robinson, II Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 10 (“The overwhelming number of the judges gave the civil jury high marks for competence, diligence, and seriousness, even in complex cases …Systematic studies of jury responses to experts lead to the conclusion that jurors do not automatically defer to experts and that jurors have a basic understanding of the evidence in malpractice and other cases. Jurors understand that the adversary system produces experts espousing opinions consistent with the side that called them to testify. Moreover, jurors carefully scrutinize and compare the testimony of opposing experts. They make their decisions through collective discussions about the evidence.… We also found that jury awards of prevailing plaintiffs in malpractice cases were correlated with the severity of the injury.”)(citations omitted); Peters Jr., Philip G., “Doctors & Juries,” U of Missouri-Columbia School of Law Legal Studies Research Paper No. 2006-33 Available at SSRN: http://ssrn.com/abstract=929474 (“Four important findings emerge from the data. First, negligence matters. Plaintiffs rarely win weak cases. They have more success in toss-up cases, and fare best in cases with strong evidence of medical negligence. Second, jury verdicts are most likely to square with the opinions of experts hired to evaluate the jury’s performance when the evidence of provider negligence is weak. This is the very set of cases that most worries critics of malpractice litigation. Juries agree with expert reviewers in 80 to 90 percent of these cases – a better agreement rate than physicians typically have with each other. Third, jury verdicts are much more likely to deviate from the opinion of an expert reviewer when there is strong evidence of negligence. Doctors consistently win about 50 percent of the cases which experts believe the plaintiffs should win. Fourth, the poor success of malpractice plaintiffs in these cases strongly suggests the presence of factors that systematically favor medical defendants in the courtroom. The most promising explanations for that advantage are the defendant’s superior resources, the social standing of physicians, social norms against ‘profiting’ from an injury, and the jury’s willingness to give physicians the “benefit of the doubt” when the evidence of negligence is conflicting.”) See also, Marc Galanter, “Real World Torts: An Antidote to Anecdote,” 55 Md. L. Rev.1093, 1109, note 45 (1996), citing Michael J. Saks, Small-Group Decision Making and Complex Information Tasks (1981); Robert MacCoun, “Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries,” in Verdict: Assessing the Civil Jury System 137 (Brookings Institution, Robert E. Litan ed., 1993); Christy A. Visher, “Juror Decision Making: The Importance of Evidence,” 11 Law & Hum. Behav. 1 (1987); Richard O. Lempert, “Civil Juries and Complex Cases: Let’s Not Rush to Judgment,” 80 Mich. L. Rev. 68 (1981).

    Hans Poppe
    http://www.PoppeLawFirm.com/Blog

  10. “They do matter. But Flea didn’t say anything about the trial on his blog that DID matter. That’s my whole point. He didn’t say anything worth mentioning IN the trial, therefore his having a blog shouldn’t have mattered.”

    It’s not having the blog that matters, it’s what he said in there. And given that he talked about how he was coached to appear, and the texts he reviewed, that IS relevant, whether you admit it or not.

    It appears the only question that was asked was “Are you Flea?” Which, before a line of questioning was started on the subject, would be the logical one.

    We have no idea what the next question was, and it might well have been objected to and sustained, and we all would have moved on. But FLEA made the choice not to find out. That’s not a failing of the system in the least.

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