It’s not exactly the newest game in town, as the cognoscenti have long appreciated the fact that lawyers are subject to professional oversight and discipline, and there is no downside to making a complaint against a lawyer. Any flaming asshole can do it. The worst that happens is you get a nice lawyerly letter telling you that you’re a moron.
But a doc who does medical exams for insurance companies, which are humorously called “I.M.E.s,” for “independent” medical exams because insurance companies have better lobbies than plaintiff’s lawyers, has decided to use the grievance process to go after Michigan lawyer Steven Gursten for outing her. Via Turk:
Now comes before us today one Dr. Rosalind Griffin, a Michigan psychiatrist, with a different tactic: Filing a grievance against lawyer Steven Gursten for blogging about a medical-legal exam that she did on one of his clients.
Gursten was so ticked off at Dr. Griffin, that he wrote about her.
And what did Griffin do that so offended Gursten? Glad you asked.
He presented evidence that Dr. Griffin — who he said is “a rather notorious IME doctor here in Michigan” — was less than candid in her assessment.
Gursten asserts that this evidence disproves the doctor’s claim that the client said during the exam that his condition was improving, that the client had minor medical conditions, and despite “a closed-head injury, traumatic brain injury, abnormal memory and concentration, PTSD and a badly fractured and collapsed T12 vertebral body, as well as fractures to his mouth, shoulder and knee” that the client’s chronic pain actually came from a 30-year-old whiplash that had been asymptomatic.
Just a disagreement? Just the defendant’s view (because it’s anything but independent) versus the plaintiff’s?
|WHAT DR. GRIFFIN CLAIMS JAMES FAIRLEY SAID.||WHAT JAMES FAIRLEY ACTUALLY SAID.|
|“[A]ccording to his own statement he feels less depressed and is making progress.” (IME Report, Page 8)||“Q. What’s a good day for you? A. I don’t know. I haven’t had one lately. … I just have a profound sadness … Q. Do you think you’re depressed, sir? A. I do. … Q. Have you been tearful? A. Oh, yeah. I cry at the drop of a hat sometimes.” (Fairley Dep., Page 58 (lines 1-2, 7), Page 61 (lines 13-14), Page 62 (lines 4-5))|
That doesn’t look particularly kosher. As Paul Alan Levy at Public Citizen suggests, it really wouldn’t make for a good defamation suit under the circumstances.
Griffin’s complaint amounts to a lightweight defamation claim (lightweight because most of the quoted words are either not actually about Griffin or are opinion rather than facts, because Griffin does not spell out any other allegedly defamatory words as Michigan law would require, and because she says nothing about knowledge of falsity or reckless disregard of probable falsity).
It is therefore not surprising that Griffin did not file a defamation claim within the one-year statute of limitations. Instead, six days after the statute expired, she chose to file this bare-bones grievance complaint, hoping that paid grievance staff will conduct an investigation for her, and force Gursten to spend his time and money responding to questions from public officials about his opinions about whether and how justice is afforded to accident victims and specifically how Griffin has or has not testified unfairly or unjustly.
If you can’t prevail in a defamation claim because it’s, well, true, there is always the backdoor of trying to make it too much of a hassle for a lawyer to out someone by filing a grievance instead. See how that works? And it’s a thing now.
But if the lawyer disciplinary process seems like easy pickin’s to silence blawgers, the flip side is that we’re not particularly inclined to run scared, and we have this tendency not to take kindly to being extorted through the use of the grievance procedure to shut us up.
Has Dr. Rosalind Griffin ever heard of Barbra Streisand? If she thought she had something to twist her face into a frown before, she’s really gonna hate what happens when her effort to use the disciplinary procedure to silence Gursten not only fails, but backfires big time.