Web Site Encourages Blacklist of Med-Mal Plaintiffs

By Rebecca Riddick
Daily Business Review
07-25-2006

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.

"If your attorney proceeded with a lawsuit without warning you of the risks involved, you may be the victim of Legal Malpractice and may be entitled to compensation," the site states.

The new Web site is likely to trigger a fresh round of acrimony between doctors and plaintiffs lawyers in their long-running war over medical malpractice litigation. Plaintiffs lawyers and medical ethics experts say the LitiPages.com site is unethical.

Andrew Yaffa, a plaintiffs attorney at Grossman Roth Olin Meadow Cohen Yaffa Pennekamp & Cohen in Boca Raton , Fla. , called the site "disgusting." Yaffa said "it's a devious attempt to intimidate people from pursuing their rights."

The registered operator of the Web site, Medico-Judicial Online Media, has begun gathering data on Florida medical malpractice cases filed after July 4, said company spokesman Vishal Castun. The operators plan to make the database available for free starting next July, and eventually hope to publish a database covering medical malpractice cases across the United States .

LitiPages.com is based on the Caribbean island of Nevis . Castun said the offshore location will protect it against lawsuits. Castun declined to identify the principals behind the project. The site says it is "an information/news service written by journalists, not attorneys."

Castun said the site will list only cases that did not end in a plaintiff verdict on all counts because those cases presumably did not have merit or were frivolous. That, he said, distinguishes the site from a controversial Web site launched by Texas doctors in 2004. That site was quickly shut down following widespread criticism that it was unethical for doctors to turn away patients who have filed malpractice suits.

'REFUSE ELECTIVE CARE'

Castun said LitiPages.com is intended for use by physicians, potential plaintiffs in medical and legal malpractice cases, and legal malpractice attorneys. Revenue will come from selling advertising to legal malpractice attorneys, he said.

Castun said the site does not take any formal position on whether doctors should screen out patients based on whether they are listed in the database. The Web site will simply "report the news," he said.

But the language on the site clearly encourages doctors to avoid such patients.

"A physician may feel that a patient who has filed a medical malpractice suit and lost a trial before a jury of their peers harbors unrealistic expectations of their physician and probably of the health care system at large," the site says on a page of information for doctors. "Accordingly, a responsible physician who feels that a patient's behavior demonstrates unrealistic medical expectations has both a right (and arguably a responsibility) to refuse elective care to that patient."

The Web site suggests that doctors also should consider refusing elective care to plaintiffs attorneys who bring the medical malpractice cases that did not result in plaintiff verdicts.

Bill Allen, program director for the University of Florida medical school's bioethics, law and medical professionalism program, said the site treads on thin ethical ice.

Physicians are legally free to form their own doctor-patient relationships, Allen said. But as professionals and state licensees, they have a general obligation to provide care. Allen also warned that the site could create serious problems for patients in rural areas and those who need specialty treatment, given the shortage of medical providers in rural locations and in specialty fields.

The American Medical Association, however, defended the right of doctors to use such information to screen out patients. Dr. Cecil Wilson of Winter Park , the chairman of the AMA board of trustees, said that "in the absence of an emergency, physicians have the right ethically [to choose] who they would elect to have as a part of their practice."

Wilson said the AMA has no official policy on the creation of this type of patient database.

A spokeswoman for the Florida Medical Association said the FMA shares the AMA's views on the matter.

OUTRAGE OVER TEXAS SITE

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.

Castun argued that his LitiPages.com will avoid the Texas site's mistakes. "The Texas site was doomed to fail on a number of points," he said. "It wasn't fair because all patients were listed. Of course there was going to be outrage." He said organizers of LitiPages.com spoke with the creators of the Texas site to try to learn from their errors.

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.

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.

"Most malpractice claims involve medical error and serious injury, and claims with merit are far more likely to be paid than claims without merit," said Dr. David Studdert, one of the authors.

INACCURATE INFORMATION

Castun said LitiPages.com is being established to "even the playing field" between doctors and patients. Patients, he said, can look up doctors' malpractice histories on various Web sites. LitiPages.com will allow doctors to look up patients' histories.

But the information on the Web site about looking up doctors' histories is inaccurate. LitiPages.com points users to the National Practitioner Data Base to examine doctors' malpractice histories. But that database is not accessible to the public, only to health care organizations, and it only lists claims above a certain amount. The AMA has fought fiercely against Democratic congressional efforts to open the database to the general public.

The other database LitiPages cites is that of the Florida Office of Insurance Regulation. But that site only lists claims against doctors who have liability insurance. Florida doctors are not required to carry a professional liability policy, and it's estimated that one-third of Florida-licensed doctors do not have a policy.

Florida physicians are required to report malpractice verdicts and settlements to the state Department of Health, which posts their malpractice histories on publicly accessible physician profiles. But the Daily Business Review reported last year that the state has been lax in enforcing this reporting requirement.

There is other questionable legal information on the site as well. Among other things, the site advises potential medical malpractice plaintiffs that they can sue their lawyer for legal malpractice if the lawyer asks them to waive the strict caps on contingency fees approved by Florida voters in 2004. But many legal experts say clients have the right to waive the cap, and the Florida Supreme Court and Florida Bar have declined to prohibit this practice.

Another controversial feature of LitiPages.com is that it encourages plaintiffs who did not win a verdict to sue their attorney for legal malpractice.

But South Florida lawyers who represent plaintiffs in legal malpractice suits criticized that advice. "It is beyond ignorance to suggest that the plaintiff who loses a medical malpractice case would automatically have a claim against their lawyer for legal malpractice," said Miami attorney Warren Trazenfeld, who often represents plaintiffs in legal malpractice lawsuits.

North Miami Beach attorney Michael Lechtman agreed. He said it generally would be very difficult to successfully sue a medical malpractice lawyer for failing to win a plaintiff verdict because it would require showing that the case would have been won except for the attorney's negligence. That essentially requires retrying the med-mal case.

Lechtman said he would never advertise on a site like LitiPages.com. "Sounds like it's doctors trying to get back at the attorneys who sued them," he said.

Laurie Zoloth, a bioethics professor and director of the Center for Bioethics, Science and Society at Northwestern University medical school in Chicago , also criticized the new Web site.

"Having the right to seek legal redress when you are wronged is important in a democratic state," she said. "It surely should not result in being medically blacklisted."