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.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.
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