Outside Counsel

I like the Erie County Bar Association-- I've belonged to a lot of local bar groups over the years, and the ECBA gives pretty good value. One of the things that it does is put out a monthly Bulletin. The Bulletin has gossipy stuff about who is giving panel presentations, and notes on recent decisions, and a message from the association's president that is usually chatty and usually an interesting meditation on the state of our glamour profession as practiced here in the Eighth Judicial District. Last month we had an essay on the state of the relationship between doctors and lawyers(pdf)that also appeared in the Erie County Medical Society's journal. This month the president of the Medical Society has his say, and its lack of any sort of intellectual rigor is matched only by its self-centered shortsightedness.

Dr. Vienne's points can be summarized as follows: (a)Doctors don't make enough money; (b) It is inconvenient to be sued-- why can't you just take our word for it when we tell you we weren't negligent; (c) malpractice should mean "negligent conduct that causes damages, not bad outcomes; and (d)if you keep suing us, we will stop being doctors, and then where will you be? Along the way Doc Vienne trots out the McDonald's coffee case, getting it wrong, because that's traditional.

It is troubling to see scientists lose all pretense of objectivity like this, and it is all the more troubling when they make their invalid arguments secure in the belief that we should accept what they say on the basis of their status as doctors. (See Point (b) of Doctor Vienne's assertions.) One more time then: (a) nobody makes enough money. Everybody has overhead. Get over it; (b) You seem to misunderstand the process-- we are engaged in dispute resolution, and if you are really not at fault, the odds that you will be exonerated are overwhelmingly in your favor. Sorry for the inconvenience, but nobody ever asks to be sued, and everybody else manages to cope with it without turning it into a social crisis. To put it terms you might better relate to, the lawyer who includes you in a suit when your involvement with the patient was de minimus is just trying to protect herself from a malpractice claim. Think of it as being like an MRI when the clinical signs leave you 98% sure of your diagnosis; (c)that is what malpractice means; and (d) people become doctors for the same reason people join any other profession-- because they feel a calling to it. The studies I have seen are pretty ambiguous about whether the prospect of being sued is actually driving doctors out of practice. It seems just as likely that a 50 year old OBGYN might be thinking, "I've worked hard, I've made my pile, now I'm going to golf."

Seriously, being a doctor is hard work, and everybody knows it. But it is not the fault of the legal profession that your training is rigorous, your hours long, and that the complicated system for your being paid that we have in the US is a headache. The myth of the malpractice crisis that has been perpetuated over the course of the past 25 or so years obscures the fact that malpractice does occur, and that in our society risk is allotted to negligent wrongdoers, rather than over society as a whole. Personally, I'd be fine with a no-fault system for med mal-- if we got universal health care in exchange. Somehow I don't see that happening. Doctors aren't interested in capping out their income upside in exchange for greater security. It's a capitalist system-- big upside always means some risk, and I'd expect scientists to recognize that.

Now, if you'll excuse me, I've got a trial to get ready for.