Maybe doctors can do this, but it’s risky for employers
Paul Scott writes for Findlaw: “Can Doctors Resort to Self Help to Screen Out the Litigious? Why Websites Offering Exactly This Service Are Entirely Legal”
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.
[T]he site was taken down permanently in reaction to the negative press it received. . . .
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. . . .
The company refers to this . . . as “risk management.” . . . 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? . . .
The article goes on to argue that such a site would be neither a blacklist prohibited by antitrust law, nor an unlawful denial of medical treatment.
Does this translate into the employment arena? Could such data on applicants for employment who are “frequent filers” be legitimately used as a screening device in the hiring process?
I think not, though it would certainly be tempting. Refusing to hire someone because they filed employment charges or lawsuits against prior employers would likely be found to be unlawful retaliation, prohibited under the employment discrimination laws.
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