The Legality of Web "Blacklists": Should It Be Against the Law to List Malpracticing Doctors and Litigation-Happy Patients on the Internet?

By JULIE HILDEN
julhil@aol.com
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Tuesday, Aug. 01, 2006

The controversial website LitiPages.com has created a list of patients who have filed medical malpractice cases, and of those patients' attorneys. Litipages.com encourages physicians to avoid treating listed patients - at least when it comes to "elective" procedures. It also encourages patients who've lost their cases to sue their attorneys.

In short, the site is an all-out assault on all but one subset of malpractice plaintiffs (those who won all their claims in court) and on their attorneys. And while the cases featured on the site are currently limited to Florida, the site's goal is to cover cases nationwide.

Some plaintiffs' attorneys are angered by the site: They believe it's an attempt to intimidate patients from suing - based on the fear that if they sue and get listed, doctors will refuse to treat them. Such a refusal may well conflict with professional medical ethics - though possibly not when it comes to truly elective procedures. Moreover, these ethics rules may not be enforceable if the only people who know LitiPages is being used are the doctor and his or her staff, and if patients are simply (and falsely) told that there are no free appointments in the near future.

There are a number of problems with sites like Litipages.com, as I will explain. (I'll focus on Litipages.com mainly as an illustration of this kind of site, and the problems this kind of site can raise: Litipages itself may be a special case. As of this writing, the site was not functional, though it had been previously. Also, because Litipages is sited offshore, it might possibly escape jurisdiction when it comes to certain kinds of suits.)

However, I will argue that most of these problems could be cured by adding more information, and disclaimers. Making such sites illegal, as some have suggested, is not the answer.

In addition, I'll argue that the medical and legal professions are ripe for more sites that make information regarding the competence of doctors and lawyers available to the general public - but that such sites should also be legally required to offer a right to respond.

The Internet's Effect: Making Public-Record Information Easily Accessible

In many respects, the Internet has created public access to information that was previously -- while technically public, or even a matter of public record -- effectively available only to certain, often elite groups. Not only that, the Internet has also made that information easily searchable by anyone who cares to search.

For example, any papers filed in a courthouse that aren't filed "under seal" - a designation that restricts access to court documents to certain parties, usually those involved in a sensitive pending case - are available to the public, and always have been. That includes judgments representing criminal convictions, and orders memorializing jury or judge verdicts of damages in civil cases.

Accordingly, while States have taken the initiative in compiling "Megan's Law" databases, there is no reason why a private company could not have done the same. (Indeed, in the handful of states in which Megan's Law records still are not - or are not fully - Internet-accessible, a private company could step in and fill the gap.)

Most of the effects of having public-record information easily accessible have, I believe, been good. But there have been some notable injustices - such as Megan's Law databases that list middle-aged child predators; lump them together with statutory-rape offenders who are usually only a few years older than their partners; list the names of crimes without revealing the underlying, and sometimes less disturbing, facts; and fail to offer those listed a right to respond.

Interestingly, though, most of these injustices don't have to do with the posting of the information, but rather with the risk that the information will be misinterpreted by the casual reader, and with the related failure to include complete information. For example, putting a photo of an offender who, when 54, molested a four-year-old next to one of an offender who, at 18, had consensual sex with a younger partner, invites the searcher to unfairly equate the two. But this problem could easily be solved by altering search functions; adding a summary of the facts underlying a particular offense; or using a simple color-coded system to alert readers regarding who is a repeat offender, who is a violent offender, and the like.

The core idea of Megan's Law - to create easy access to public-record information to protect children and others who may be victims - remains a good one. The problems are in the implementation - in the failure to give enough information.

The Real Problem: Not the Information, But the Chance It Will Be Misinterpreted

LitiPages' practice of listing patients who received settlements next to those who received jury verdicts saying that no malpractice occurred, invites the searcher to equate the two. But in fact, they're quite different: It's possible to infer at least something from a jury verdict for the defense in a malpractice case, giving $0 to the plaintiff. But it's hard to infer anything at all from a confidential settlement that could be for anything from a token $1 and an admission of fault, to amounts exceeding six figures. .

Similarly, it's hard to infer anything at all from the fact that a victorious plaintiff did not win on every single claim that went to the jury - so LitiPages' practice of only exempting total winners from its listing makes little sense. This is especially true since split juries often compromise, giving a plaintiff a judgment on one claim, but not another, and adjusting the verdict accordingly -- even if a number of jurors thought the plaintiff should win on all claims. Finally, when attorneys' obligation of zealousness arguably requires pleading all the claims that may pass muster (unless there are strategic reasons not to), penalizing attorneys who take that obligation seriously, and their clients, seems wrong.

In sum, sites like LitiPages would be better served by exempting from the listing plaintiffs that win on at least one claim, and leaving settlements out entirely - except perhaps in cases where the same plaintiff received a series of unrelated settlements. Such a pattern may well suggest that it's more likely the plaintiff was repeatedly extorting money, than that he or she was repeatedly the victim of malpractice. Someone who has been in twenty car accidents and settled every time is either a very poor driver, extremely unlucky, or running a bump-and-collect scam.

Notably though, when it comes to settlements, it's secrecy, not openness, that's pernicious here. If the law required that the amounts of settlements in lawsuits be made public, just as jury verdicts are, then information about settlements would be very revealing. (We'd also get a much better sense of whether we truly have a problem in medical malpractice litigation in this country.)

Granted, the promise of confidentiality for settlements can often make settling more alluring than litigating - thus somewhat reducing the burden on the courts. But it's an ugly truth that when settlements occur, the parties (especially the defendant, but sometimes also the plaintiff if the amount is low) may be paying a premium for the confidentiality itself.

It would be speculation to guess how high the premium for confidentiality might be, but given my general observation of litigation in a variety of contexts, I'd think it could be very sizable. Plaintiffs want to avoid massive trial expenses, and possibly embarrassing disclosures of personal medical information. Defendants would rather not see their companies' or professionals' names appear in a trial-verdict newsletter alongside a high dollar amount - an amount that may signal to plaintiffs' lawyers that this company is an easy target.

Yet it's in society's interest to know what torts are costing, and to know how many meritless (and hence very low-settling) suits are being filed.

Without this confidentiality, in addition, the situation would be much more fair: Just as doctors could know which patients were litigious, yet settled low (suggesting their cases were largely meritless), patients could know - if the site were to offer this information, as well -- which doctors have had to pay high malpractice settlements again and again.

Of course, there can be misinterpretation of data here, too,: Some medical specialties, notoriously that of obstetrics, tend to lead to lawsuits, and settlements, regardless of the doctor's ability. A disabled baby is going to tug on a jury's heartstrings; and juries may understandably be tempted to award money even in the absence of evidence of medical fault, in order to help the disabled child who will need special tutors and aides, and for whom life may always be difficult. And because defense lawyers know that, settlements are high.

Cases where a terminal patient lives long enough to appear (and tug at heartstrings) in court, with his or her children sitting in the audience, are similarly a medical malpractice defense attorney's nightmare: Juries want desperately - and, again, understandably -- to give that plaintiff money to make his or her last days comfortable, and to leave something to his or her children. And again, defense lawyers know that - and settle high.

A Key First Amendment Principle: No "Listener Veto"

With the chance of misinterpreting information considerable, why not regulate - or even ban - sites like Litipages? And why not keep settlements confidential, as is the current practice - rather than making them open, as I have suggested?

The answer is that there's a cure for misinterpretation - and it's more information, not government censorship. It's condescending to suggest that Internet readers "can't handle the truth" and will inevitably misinterpret it. And it's anti-free-speech, as well: A key First Amendment principle is that there's no "listener's veto." Just because a listener may misunderstand, or be offended by, speech, is no reason to censor it. If it were, the marketplace of ideas would be both dumbed down, and made bland.

If need be, regulators may require more information to be provided: We don't stop selling food because some may be allergic to it; we put its contents on the label instead. But they should not outlaw such sites entirely.

There's Too Little Information About Doctors and Lawyers Out There - Not Too Much

In general, I believe information about doctors and lawyers is in too short supply. We should be able to access full (and, ideally, free) dossiers of information about all the professionals in whose hands we put our lives and affairs - including information about others' prior experience with them.

Given the statutory immunity from defamation claims that those who run message board sites enjoy, and the possibility of anonymous posting, it's amazing that we don't have a widely-used site that is, in effect, an Epinions for doctors and lawyers. (Completedentist.com does show promise when it comes to dentistry; it needs more reviews to be written, but could prove to be a terrific resource.)

Incompetent doctors and lawyers ought to go out of business; very good ones ought to have more business than they can handle. Person-to-person referrals -- advice that could have been given in the Eighteenth Century just as it is today - surely can be improved upon. And the Internet is the way to do it. Making this market more effective may literally be able to prevent deaths, cure illnesses that otherwise would have lingered, and stop bankruptcies that never should have occurred. While we're so busy figuring out the absolutely optimal way to choose among music or television options, how about figuring out how we can best stay alive, stay healthy, and prosper, for a change?

If such sites do become popular, then we may well wonder if a bit of turnabout is fair play. Obviously, confidential medical information and attorney-client privileged information is off limits. But what about patients and clients who are verbally abusive, don't pay their bills, or make a practice of suing competent doctors or lawyers?

Lawyers are often reminded that "an attorney is not a bus" - in the sense that lawyers need not take on every potential client who walks in the door. Medical ethics apparently are somewhat different, but elective procedures may be an exception.

Could the Government Promote Fairness By Requiring Sites to Offer a Right to Respond?

Any such site, ideally, ought to have a right-to-respond option, for fairness's sake. People can lie, and litigation summaries can be slanted or deceiving. But could the government impose a right-to-respond requirement, consistent with the First Amendment?

In 1974, in Miami Herald v. Tornillo, the Court invalidated, as a First Amendment violation, a right-of-reply requirement for a newspaper. In 1986, in Pacific Gas & Electric v. Public Utilities Commission, the Supreme Court held that a utilities commission couldn't, consistent with the First Amendment, require a utility to include in its envelope, along with its own newsletter, a public interest group's rebuttal. And in Wooley v. Maynard, the Court held that the First Amendment protected a car owner from being forced to host and display even a license plate motto with which he or she disagreed.

However, as Vikram Amar and Alan Brownstein discussed in an earlier column, the Court may be giving short shrift to Wooley lately. And perhaps Pacific Gas & Electric and Tornillo could be distinguished: There, very limited resources - newspaper page space, and envelope space - were at issue. On the Internet, space is cheaper (though not free) and the cost of subsidizing one more message board may be quite low. No wonder that Slate voluntarily hosts the unlimited "Fray" section to encompass reader response. Finally, if the alternative to right-to-reply for certain kinds of sites is outright censorship, right-to-reply may comparatively pose less of a First Amendment threat.

In the end, the precept that "more information is better" is nowhere more true than on the Internet. Calls to ban sites like LitiPages ought to be replaced by calls to reform them, or to convince them to include a right-of-reply - or calls to let them be free, and trust that other sites will arise to correct any misinterpretations they may foster.


Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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