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Patient Sues Doctor for Using Her in a Book

23 March 2012

From Courthouse News Service in Providence, Rhode Island:

A woman claims in court that a doctor who treated her for drug addiction invaded her privacy by using “her most private, embarrassing, and traumatizing memories in order to surreptitiously obtain material for the book … ‘The Addict: One Patient, One Doctor, One Year.’”

Gabrielle Lisnoff sued Dr. Michael Stein in Federal Court. Stein’s book was published by HarperCollins in 2009.

“(T)he defendant treated the plaintiff from approximately 2005 through approximately 2010,” Lisnoff says. “During the course of purporting to treat the plaintiff, the defendant elicited private facts and stories from her and probed into her personal affairs. Subsequently, without the plaintiff’s knowledge or permission, the defendant authored and caused to be published the aforementioned book about her life and history with drug addiction.”

. . . .

“To the plaintiff’s shock, surprise and dismay, many of the stories contained in the book were quoted from what she had told the defendant during her treatment sessions or were closely adapted from private facts that she had confidentially shared with him during her appointments with him for treatment.”

. . . .

She seeks punitive damages for intrusion upon seclusion, appropriation of name or likeness, unreasonable publicity to her private life, and intentional infliction of emotional distress, and a percentage of all profits from the book.

Link to the rest at Courthouse News Service and thanks to Jenny for the tip.

Passive Guy would love to know how much legal vetting of this book was conducted by HarperCollins prior to publication.

Here’s a link to The Addict: One Patient, One Doctor, One Year

And here is the Publisher’s Weekly review as shown on Amazon:

With a crisp detachment that belies his vulnerability and caring, Stein (The Lonely Patient) masterfully records the relentless pain—physical and psychological—that brings Lucy Fields, a 29-year-old Vicodin addict, to his door with a peculiarly common modern American condition. Though the literate and likable Brown University med school prof administers another drug that should block the effects of the Vicodin, he readily admits its success is far from perfect. A daunting addiction unfolds; Fields, college-educated and from an intact family, paradoxically defies yet also encompasses the stereotypical drug-user—she is both self-aware and self-destructive. It’s Lucy’s arc of illness that keeps this haunting narrative moving forward, but it’s Stein’s clear-eyed compassion that catapults her story from pathetic to sympathetic. To enjoy treating addicts… one needed a sense of irony, the belief that everyone’s life vacillated between euphoria and sorrow, Stein says. Experts might disagree on treating addiction, but Stein’s prescription is hard to dispute: first treat the illness, and then the aching soul sickness that caused it. To work with addicts is to enter the profession of possibility, he learns. In this uplifting chronicle, Stein celebrates Lucy’s victory and his own.

UPDATE

Following is the Complaint filed against the doctor in the Federal District Court in Rhode Island. As a tip for reading litigation documents, the Complaint is usually the document that commences a suit and it provides an outline of the Plaintiff’s case in the most favorable light to the Plaintiff and the least favorable light to the Defendant. The complaint includes allegations that must be proved by the Plaintiff if the lawsuit is to be successful.

 

Legal Stuff

55 Comments to “Patient Sues Doctor for Using Her in a Book”

  1. Oh, this is interesting. Very very very interesting. It seems the big six are not just cutting back on editing and marketing, but legal reviews as well. I am sure glad that I obtained an excellent legal review.

  2. Jesus, he wrote an entire book about her without her permission? Was he hoping to get sued?

  3. Interesting. The book opens with an author’s note in which Stein states he used one woman in particular, but changed her name and story details–and added other patients’ stories to hers–to protect the woman’s privacy. “If she were to ever read this book, I wanted her to remember things about herself but feel safely disguised.”

    So I guess he failed there. But I wonder what he and HarperCollins’ legal team were thinking in not contacting her. Also, even if he did seek the legal team’s counsel, surely they wouldn’t have been able to advise him, with regard to privacy, without first reading the record of the patient in question?

    • I wonder if this will bite his medical license?

    • Ah! I was posting at the same time you did, Will.

      The book itself, then, implies that he did not get her permission to write about her. (But there is still the question as to whether she actually is the woman in the book was based on.)

    • If she “ever were to read this book”? Because she’s just some worthless illiterate junkie, I suppose.

      Seriously, how is she supposed to feel “safely” anything when the doctor who she confided in for a year published a book about her without so much as a phone call? How would anyone feel safe when you spring something like that on them? Reporters do this all the time: You make clear what you intend to do with information, and you work with the source and let them know what you plan to do to protect their identity. You might be planning to do that anyway, but you walk them through it–and THEN they feel “safely disguised.”

      • Oh, I’m sorry–he treated her for FIVE years. In fact, he was treating her when he wrote the book! And he didn’t ask permission?

        • If he has obscured her identity, there is no need for him to ask permission. If he hasn’t, and she remains recognizable, even if he asks her permission he’s committed an ethical lapse.

          • Now that Lisnoff has outed herself–can HarperCollins or Dr. Stein reprint/reissue the book with her name in it?

      • I’m not so sure, Mary.

        He’s a faculty member at a university with a record of publishing case studies of his patients. I would be interested in seeing what acknowledgments/forms she signed when she started seeing him. When I see my doctors at the university I work at, I know that I have to give my consent to be a part of publication studies. [I found out by accident that one of my doctors (sports medicine surgeon) was doing one.]

        I’m interested in seeing what the defense says and what evidence they put forth.

        If I were Stein, I might be more concerned about Brown University’s IRB and ethics committee (if they have one, whatever they call it) coming after him.

        • Yes, but this is most definitely not a publication study. When a patient signs something like that they’re expecting a boring medical journal with clinical detachment and “patient a.” They are not expecting harper collins and anecdotes from their sessions. If he didn’t specifically vet this with her then it’s the height of unethical behavior. If just one other person that she knew read the book and said boy, I remember Gabby doing the same thing to me… there’s a real problem. That would mean a lack of sanitization, but then adding anecdotes from other patients and ascribing them to her? That could be a case for libel in a worst case scenario.

  4. I’m interested in hearing what the defense has to say.

    I find it incredible that any doctor would not know better than to do this. There are procedures already out there in academic publishing for “case study” publication. (Which isn’t to say the plantiff isn’t entirely correct. Idiots CAN become doctors.)

    At the same time, people often think their experience is unique, when it may not be. At this point we only have her side of the story, and her insistence that the book is about her.

  5. Actually, he did protect her privacy. Had she not come forward and filed a lawsuit, nobody would have had a clue as to her identity and what she’d confided to her physician. I am wondering how the law looks at academic publishing that provides details of a patient’s case, but does not provide the patient’s name or any accurate demographics.
    For instance, consider the book Awakenings, by Oliver Sacks, M.D. or The Man Who Mistook His Wife for a Hat, also by Oliver Sacks.
    If a physician changes essential details to protect a patient’s privacy, does he or she need permission to publish?

    • Yeah, there are all sorts of established practices on that. That’s why I want to hear from the other side.

      I mean, it’s possible that they were a bunch of ignorant yahoos who had no idea of established practice and didn’t bother to learn, because they figured she wouldn’t sue because then she’d have to admit to the contents of the book as being her life.

      But I don’t know what the established guidelines are, so I can’t speculate until we hear from the other side.

    • I am a doctor. I agree with Julia. No ethical violation has occurred, if Dr. Stein did what he claims, changing the patient’s name (obviously) but also altering other details and incorporating material from other encounters to construct a composite character.

      I’ve read physician blog posts with stories of clinical encounters that don’t mention names, but that provide enough detail that I’d certainly be nervous to post them. The last thing I would want is for a patient to read a post of mine and recognize themselves.

      There is a highly entertaining court case on this subject, dating from the 1930′s, concerning the author Betty MacDonald, her bestselling memoir “The Egg and I” and her depiction of her hillbilly neighbors, the Kettles (who later went on to have a movie franchise of their own). Ms. MacDonald’s former neighbors, the Bishop family, sued her for defamation, claiming that she had based the Kettles on their family and thus defamed their character. Her defense was based on the premise these were composite characters, and that even in a work of nonfiction (which The Egg and I purported to be) this is the prerogative of the author. The court found for Ms. MacDonald. http://www.historylink.org/index.cfm?DisplayPage=output.cfm&file_id=8271

    • I have to disagree. The issue for most people is not that the general public will recognize them, it’s that their family and friends will. Just changing a name and a few details just isn’t good enough, especially if you’re talking about a book-length work about a person–this isn’t just a short blog post about some dude who came into the ER wasted.

      The doctor is clearly identified, which certainly narrows things down. I mean, if I knew you well enough to know that you’d been getting treated by Dr. Stein, well…. Maybe you stole from me to support your habit, and you were really, really hoping I’d never find out about it. But you mentioned it to your doctor, so now I do!

      • If you’re worried that friends and relatives might find out someone wrote a book about you, then suing the author and getting your name plastered across the media might not be the best idea.

        • The trouble is your family and friends likely know you were being treated by that high profile doctor. And if say the doctor adds in a story about how you slept with your mom’s bf for cash, to feed your addiction, it doesn’t matter if its a true fact or a composite story from someone else.

          If someone says ‘oh, I saw in the bookstore there’s a book out by your doctor, I picked up a copy, you can read it when I’m done’. Then next week says ‘you bitch! you siphoned gas from my car for your addiction?’. What do you do?

          • But those things could be true, true and unrelated. More than one addict has ripped off his/her family to get cash for drugs. If that’s the identifying factor, it’s almost like saying “Your character has red hair! and so do I! I’m going to sue!”

      • I haven’t yet read the complaint, but I would bet that the case will swing on just how the patient recognized herself. If Dr. Stein gave his composite character unique identifying details– occupation, car she drives, where she lives– that the patient can identify as hers, maybe she has a case. If she says “I know that’s me because I did all those things that his patient did, and I told him all about it”– not so much. There are certain very specific behaviors which millions of addicts hold in common. (They crop up in literature as well.) If she or her family claim to identify her by her behaviors, I don’t quite buy that.

  6. I would be seriously ticked if I told my doctor (or anyone else, for that matter) something very personal about my life, and then found it published in a book, even if I’m the only one who knew it was me. And I’m fairly stable. I can only imagine how someone who was more fragile would feel.

    Yes, we can write about our neighbors, but doctors are different – we tell our doctors things in private with the understanding that it’s going to stay private.

    But, as said above, we’re not as unique as we think, and this might not be her.

  7. Guess Dr. Stein should have used a pen name too.

  8. Update for those who are following the comments. I’ve just embedded the original Complaint at the bottom of the post.

    • All I’ve read are the article and the complaint. Don’t really feel like buying the book. From those, I have a few thoughts and questions.

      1) Stein is faculty at a university, I wonder if he ever considered applying Institutional Review Boards research standards to this book.

      2) Did Stein give her any privacy form to sign and, if so, did it have any mention of using her non-identifying information in research or other publications?

      3) Are the statements in the complaint kosher? I’m looking at you, Statement of Fact #17. That seems to be more of an allegation to be proven.

      4) It even shows up as #21, under Count I.

      5) For #27, under Count II, how reasonable would a defense be if it said that the publication of this book could help other people who find themselves or their loved ones in a similar position to that which she was in?

      6) For #5, how likely is it that Stein’s made $75k off of the book?

      • I hate to burst your bubble, but an IRB wouldn’t review this sort of deal. Having worked in one for several years, I can vouch for the work they handle. IRB’s only handle research done on people, and writing a book about the journey doesn’t qualify under their purview.

        He COULD have utilized his university’s legal department, however, which would have been a very smart move indeed.

  9. To add insult to injury, she was likely charged for all those sessions, and they ain’t cheap.

    PG – what if this were a lawyer writing a book about things told by a client in confidence, even with name-changing and combining with other clients?

    • She might have had insurance–maybe Blue Cross should sue too.

    • I think the lawyer would be in hot water, Laurie.

      • PG, I’m surprised at your response. If the doctor/lawyer/writer takes pains to encrypt the identifying details, wouldn’t that provide a defense?
        I don’t mean to imply that Dr. Stein did or didn’t take such pains. As Will Entrekin pointed out, that would require one to read not only the book, but the medical chart as well. I suppose that no one but the patient (and eventually the court) can judge.

        • It depends on the kind of pains you take. If you take sufficient pains and someone figures it out anyway, you’re all right.

          But what constitutes “sufficient pains”? That’s where things like working with your source come into play–they have a better idea what’s going to allow their friends/family/spouse to identify them.

          Sometimes that doesn’t work anyway–in journalism school a media lawyer told us of one case where a TV station blurred someone’s face and distorted her voice for an interview, and the person’s mother recognized her anyway because of the sweater she was wearing. But in that case, the person wasn’t able to sue, because the TV station worked with them and did everything they were asked to do.

          That’s standard operating procedure in journalism, because guess what, when you surprise people, you get sued.

        • We haven’t heard the doctor’s side of the story yet, Barron, nor do we know how much of a composite patient is described in the book, but I would guess there are more than a few specific details that directly point to this patient.

          On a more basic level for a lawyer (DK much about doctors’ confidentiality obligations), the lawyer just can’t disclose confidential information received during the course of representing a client except for some very narrow exceptions.

  10. something to think about. thanks!

  11. I steal my wife’s stories of her family, Central Europeans all, all the time. When she castigates my dearth of originality, I raise my eyebrow and say, ‘you must write faster,’ but move them from Poland to the Ukraine. Can my beloved sue me?

  12. A doctor has a duty of care. ‘First do no harm’. I don’t think that includes using a patient’s life-story in a misery lit book to make money — without asking her first.

    I once had a beta-reader ask if he could use an early draft of mine on his writing blog as a case-study. I said no (because I actually wanted to be able to publish the story at some point) and he (as far as I know)didn’t tear the arse out of my writing for the education of his blog-fans.

    But he ‘asked’ first, and then took my no as a no, that is ethical behaviour to me. Just using ‘a patient’s’ life for the bulk of your copy ‘without asking’ is not ethical. It may prove to be legal, but it isn’t ethical in any philosophical sense. At least in my opinion anyway.

    This is the doctor using his patient’s therapy transcripts for his own purposes, and possibly doing harm in the process. Even if it turns out that this lady is not the main protagonist in the the case-study, that still means that somebody out there is the person whose life is being turned over for profit without permission.

    This isn’t, as far as I can tell, a case-study in a medical journal, where such things are needed for the advancement of the field. This is a non-fiction book aimed directly at the bestseller list, so I don’t think the rules applied to journals still apply in this case.

    The doctor should have got the permission of every single patient whose medical history he intended to use. The Sack’s cases involved somebody in a coma and somebody who was deceased at the time of publication, as far as I know, which changes things.

    If the doctor loses this case he should be struck off. If he wins the case, he should still be investigated. Doctors are held to a higher standard ‘because’ we trust them with our intimate details.

    EDITED: for a stray apostrophe that crept in :sigh:

    • Exactly. And the fact that this exploitation happened during her treatment for drug addiction means that, if she ever relapses, she is that much less likely to seek treatment.

      • Yes – that’s the whole point of the confidentiality between doctor and patient. The patient can open up freely to the doctor because they are assured that what they say will go no further.

      • The complaint alleges he exploited her during treatment to write the book, but what if he wrote the book after she was no longer a patient. Does that make a difference?

        What if some of the incidences are from her profile, but she is only a part of the composite, that is what if the real patient is based on another young woman? Does that make a difference?

    • I believe that even if a person is in a coma or is deceased, if you plan to write a detailed case study in a nonfiction book, you probably have to get permission from next of kin or a legal representative.
      If the doctor used an amalgam of patients to create one patient, well, I’m not sure this particular patient has a claim. The court would have to access her medical records in addition to all his medical records– which I imagine his other patients would not appreciate.
      If the doctor included significant, recognizable, pubic details about her person and her life, details she can corroborate, that’s a different story altogether.
      I’ve been involved in these sorts of cases so I am reluctant to jump to conclusions about either party. I will be very interested to see how the court views this – if you follow up PG.

      • I’ll check anything that’s public from time to time, Julia.

      • Will Entrekin posted, “Interesting. The book opens with an author’s note in which Stein states he used one woman in particular, but changed her name and story details–and added other patients’ stories to hers–to protect the woman’s privacy. “If she were to ever read this book, I wanted her to remember things about herself but feel safely disguised.” ”

        So the doctor substantially used a single patient for the bulk of his narrative, without asking. That shows a distinct lack of integrity.

        It may be legal, it may even be ethical — in the narrow definition of medical ethics — but I don’t actually consider it to be moral (in a philosophical not religious sense). He should have asked whichever patient he intended to ‘use’ (I chose that word deliberately)for his personal gain.

      • My understanding is that the dead don’t have a right to privacy (because if their reputation is damaged, it’s not damaging their ability to make a living or anything). That’s why a lot of celebrity tell-alls come out AFTER said celebrity is safely underground.

        I don’t know about people in comas.

  13. Look on this blog, we (well I haven’t yet, but I will if the subject comes up again)rail against the conflict of interest inherent in an agent setting themselves up as a publisher.

    Isn’t it also a conflict of interest for a therapist to be treating someone while ‘at the same time’ (as far as I can tell)using them as the basis for a book.

    At what point does therapeutic questioning become near-journalistic interrogation to fill in some detail the reader might want to know which has no actual bearing on the treatment of the patient?

    And how do you tell the difference? Because it would not be an objective assessment; it would require other professionals in the same field to give subjective assessments of whether they would have asked the same questions in the same therapeutic situation, or whether the questions asked were more to do with the book than the patient.

    I reiterate, whether it was this patient or not, somebody’s medical treatment is the basis for large parts of this book.

    I despise lack of integrity, just in case you hadn’t noticed, and I don’t really care whether the doctor is on the right side of the law and medical ethics, or not. He abused his patient’s trust for a book deal.

    Mealy mouthed legalise does not change his lack of character or, at the very least, abrogation of responsibility toward his patient. This is not some writer nicking an anecdote he heard in a bar to add colour to a character. This is not some journalist writing an expose on a public figure. This is a doctor using, substantially, the medical notes of a single patient, without asking.

    That’s just wrong, whichever way you cut it.

    • Comments are focusing a lot on the permission aspect. Forms that grant permission to share medical information are usually quite limited in scope: sharing information once, to a single entity. I question whether any form would protect any doctor/author who employed confidential information so extensively. I don’t believe that a signed one page consent form would have absolved this author of all responsibility. For those of you who say the doctor should have asked permission, I’m curious what sort of document you would consider adequate. This is why I believe that a professional who writes about his practice experience– and there is a lot of high quality work out there, not all of it flattering to patients– must first and foremost hide the identity of his/her patients. Having done so, the patient no longer has any claim upon the work.

      Read “The Doctor Stories” by William Carlos Williams. The work is by no means flattering to patients or their families. Yet Williams is the patron saint of literary medical prose. (I count myself among the faithful.)

  14. If doctors could never use their patient files to create case studies, then they wouldn’t be “case” studies, they would just be fiction. I expect that this case will hinge on informed consent–was the patient informed of how and to what extent her personal information could be used in a future publication? As others have mentioned, another key issue will be the degree to which the doctor removed identifying characteristics. Many have been quick to jump on the doctor’s back here, but I’m sure that this research was approved by Brown’s IRB for human subjects (no university would ever leave themselves open to liability by not going through the IRB process). That process would have included discussions of the nature of informed consent in this case and peer review of all the informed consent forms the patient was to sign. It is a rigorous and very professional process. Just because the patient suspects she is the subject of the case study, that does not mean that OTHERS can identify her as such, which is the key issue.

    • Quote “With a crisp detachment that belies his vulnerability and caring, Stein (The Lonely Patient) masterfully records the relentless pain—physical and psychological—that brings Lucy Fields, a 29-year-old Vicodin addict, to his door with a peculiarly common modern American condition. Though the literate and likable Brown University med school prof administers another drug that should block the effects of the Vicodin, he readily admits its success is far from perfect” unquote (from book blurb)

      A case study is for other medical professionals and should be subject to a lesser standard (though still within the bounds of anonymity and ethics) because medical professionals ‘need’ to share information.

      This however is as much about the doctor (going by the blurb) as the patient. Such works should be held to a higher standard because they are meant for a wider audience.

      I don’t see how conflating a medical case-study with a non-fiction for mass consumption is in any way desirable.

      And now I’m leaving this discussion, because I’m rapidly falling into the ‘answer every post as if it is directed at you’ trap, which never ends well :grin:

      • But what if the Stein’s work helps people understand addiction better and what addicts go through?

        • I think it’s going to teach addicts to stay the hell away from therapists, because they’re going to exploit the addicts for their own financial gain.

  15. Some of the people here saying “if she didn’t want her name revealed/her privacy violated she shouldn’t have sued the doctor and gotten her name splashed everywhere” are coming dangerously close to this other thing people say to women: “you shouldn’t have reported your rape to the police if you didn’t want people to call you a slut.”

    I mean, come on. So he “changed her name” and added “some other patients’ details.” I don’t care — her affliction was obviously harrowing and you don’t forget the details of going through something like that. She obviously recognized herself in the book, and the doctor who wrote it obviously agrees or else he wouldn’t be doing all this explaining and justifying. But the fact remains that he didn’t ask his patient if he could use her as the subject (re-named or not) of his book. You don’t do that. I don’t care how “important” you think your story is (and I don’t really think we need yet another story of a heroic male saving some woman from herself, lord knows we have enough of those in Western literature).

  16. What she says he did might have violated the law, or it might have violated his profession’s code of ethics, or it might have merely been morally wrong.

    And it will be interesting to find out if any of these are the case.

    But I don’t know if anybody has mentioned the possible issue of publishing ethics here:

    What if it’s not her? It’s not at all uncommon for people to believe that a character is based on themselves, even when it is nothing like them. But if that’s the case…..

    Maybe things will be straight-forward if it is mostly another woman from whom he got permission (but his forward implies he didn’t) OR maybe it’s actually a complete composite and isn’t anybody in particular, and therefore is less likely to be a violation of medical ethics.

    But if that’s so, what about his journalistic ethics? That book is being promoted as the story of a particular woman, just disguised here and there with details from others.

    • It does not seem appropriate to hold the author to journalistic standards which run directly counter to his professional duty of confidentiality. The patient should not be able to sue for both at once, to assert “That’s me in his book, therefore he violated my privacy” and “That’s an imperfect representation of me in his book, therefore he committed libel”.

      My previous comments might appear to be defending Dr. Stein. I’m not seeking to do that. I’m seeking to defend a doctor’s legal right, within certain firm and specific guidelines, to write writing about his/her experiences at work. It can and has been done in a moral and ethical fashion.

      I’m not sure that a book subtitled “One Patient, One Year” can ever be an ethical work. The supposed singularity of the patient raises the bar very high. He may have seen hundreds of patients just like the plaintiff, but he claims it’s largely based on one person, leading his every patient to wonder, to their distress, “is it me?” This seems like a disservice to every patient in his practice.

      I certainly have no interest to read it. Not since I read the Amazon reviews. Books like this one give me the creeps. I abhor grandiose doctor/writers whose every paragraph oozes personal pride, gently reminding the readers how privileged they are to peek into the healer’s brilliant mind and bottomless heart.

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