Can Doctors Resort to Self Help to Screen Out the Litigious?
Why Websites Offering Exactly This Service Are Entirely Legal

By PAUL SCOTT

Thursday, Mar. 11, 2004

Recently, a Texas business captured the attention of the national media. The business is Doctorsknow.us -- a web service created by physicians. The site acted as a central repository of medical malpractice plaintiffs and the attorneys and expert witnesses that act on their behalf.

That repository, moreover, was easily searchable. Its slogan was -- prior to this last week's national coverage -- "they can sue, but they can't hide." As of today, Thursday, March 11, 2004, the site was taken down permanently in reaction to the negative press it received last week.

Sites Like This Are An Alternative to Medical Malpractice Reform

To understand why a site like this would exist in the first place, some background is necessary. For decades, medical malpractice reform has been a matter of national importance. Typically, the medical profession's strategy for accomplishing reform has been to propose and support legislation.

The result however, was a clash of lobbyists. On the side of reform, were the AMA and insurance companies. Against reform was the Trial Lawyer's Guild. All of these, of course, are large, well funded, politically powerful organizations.

This clash, in turn, has led to a partial deadlock. Some medical malpractice reform has been enacted on a state level -- such as caps on certain types of damages. But much has not.

Now, with sites like Doctorsknow.us, the medical profession has apparently stopped seeking aid solely from the government, and started applying a little self-help. This is in my opinion, a good solution -- and one that is better tailored to the problem than any legislation could be.

How Doctorsknow.us and Similar Sites Would Work

Here's how such sites would work. First, the company collects, and posts online, a database of public records of litigation. (Later, the company adds additional public records provided by its physician subscriber base.)

Second, the company makes these records easily searchable. As a result, subscribing medical providers can quickly ascertain whether a potential patient has been involved in medical malpractice actions in the past.

A Legitimate Means of Risk Management

The company refers to this latter function as "risk management." To some extent, that is accurate. Suppose a patient comes into a doctor's office asking for non-emergency services. The office could then use the software to determine if this potential patient is either a very frequent filer of medical malpractice claims (suggesting such claims are probably bogus), or a filer of non-meritorious malpractice claims that judges have dismissed, or that have settled for low amounts.

In such a case, the doctor's office could deny those patients care, as a legitimate form of risk management. Treating these patients means the doctor is more likely to face a baseless suit; after all, the evidence shows they likely filed such suits before, and they may well do so again.

What if, rather than turning away litigious plaintiffs, the office chooses, instead to turn away their lawyers -- or expert witnesses? That isn't really a risk management decision, for it's not obvious that malpractice lawyers or expert witnesses would be more likely to bring baseless malpractice claims.

A Businessperson's Defensible Choice of Who Will Receive His Services

Nonetheless, the doctor's decision not to treat a malpractice lawyer or expert witness is still a defensible decision, in my view. It is an instance of one businessperson (in this case, a doctor) choosing not to offer his or her services to another businessperson (in this case an attorney or expert witness) -- a decision that is generally the businessperson's to make.

Moreover, it is a decision that is based on a legitimate reason that has nothing to do with any prohibited form of discrimination: The patient is being refused not because of sex, race, religion, sexual orientation, or HIV status -- but rather because he or she has chosen to devote his or her professional life to increasing the cost of practicing medicine.

Suppose, similarly, that the proprietor of an ice-cream shop refused to sell a chocolate sundae to someone whose profession consisted entirely of lobbying Congress for a nationwide ice-cream tax. It seems likely that no one would be surprised or offended.

Such Sites Do Not Necessarily Raise Antitrust Issues

Remember, Doctorsknow.us did not appear to be a blacklist of patients. It provided a database, it did not offer any agreement among competitors, in fact or implied -- and such an agreement is a necessary element of the type of antitrust violation that might be alleged.

Suppose, contrary to these facts, that the site did induce competitors (the doctors) to agree among themselves to refuse to provide services to a listed group of potential customers (the patients). Such an agreement would be a boycott and thus a per se violation of Section 1 of the Sherman Act -- a federal antitrust statute.

A patient blacklist of that sort would present facts nearly identical to those in Federal Trade Commission v. Superior Court Trial Lawyers Association. There, a group of lawyers who regularly acted as court-appointed counsel in District of Columbia criminal cases agreed among themselves to stop providing such representation until the District increased group members' compensation.

The Site Is Neither A Blacklist, Nor a Denial of Medical Treatment to the Ill

The Doctorsknow.us website, however, is not a blacklist, and the site clearly so states. Furthermore, no one has brought forth facts indicating it is a blacklist. For instance, there is no evidence that anyone has been denied medical treatment as a result of being in the database.

Granted, the database does include even those who have brought apparently meritorious suits -- but it is sensible that it does so; a string of court wins and high settlements may be innocent, or may indicate something is wrong, and not all the cases actually may be as meritorious as they seemed. The site makes no attempt to independently evaluate each case, nor should it. It provides the physician with the information he or she needs to reach his or her own conclusion.

Why Websites Such as Doctorsknow.us are Not Only Legal, But A Good Thing

For all these reasons, Doctorsknow.us is completely legal. It is also good policy, both from the doctors' perspective and from the perspective of those not making a living suing them.

For decades, doctors have suffered from the ever-increasing costs of doing business brought upon them by trial lawyers. And they have largely failed in their attempts at getting legislative relief. It makes sense that doctors are starting to take matters into their own hands.

Rather than ban these sites, we ought to consider why they exist: Because meaningful medical malpractice tort reform has yet to be enacted. Don't blame the doctors or the site; blame Congress.


Paul Scott is an attorney specializing in Antitrust and Intellectual Property law in New York City. He is a registered Patent attorney with degrees in Chemistry and Biology. After graduating law school, Mr. Scott clerked in the Appellate Division in New Jersey before entering private practice. He was most recently an associate at Sidley Austin Brown and Wood in New York. He has taught Antitrust and Corporate Internet Law at Rutgers Law School in Newark. Mr. Scott now has his own practice in New York and New Jersey. His email address is [email protected]

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