Monday, September 25, 2006

Lawyers and doctors

Dr. Anonymous’ remark the other day, “Imagine that, a lawyer and a doctor agreeing on something – call the papers,” made me chuckle – but it made me think, too.

There is a palpable tension that exists between the learned professions – but I don’t think it can all be explained by malpractice cases. And it certainly does not arise from any natural antipathy between lawyers and doctors: Actually, lawyers need doctors, like fish need water – and, no, not just as targets.

Just two examples: How can a plaintiff’s lawyer prove up a personal injury case without the testimony of the treating doctor? How will defense counsel refute the injury claim without the testimony of the expert doctor who reviews the records and maybe examines the plaintiff?

I’ve got a hypothesis that may provide a better explanation of why doctors and lawyers so often come into conflict. My belief is that many doctors and lawyers have fundamental communications problems. Let me illustrate this theory by telling a true story, from my own experience.

Janice Goodheart (not her real name) was a dentist, not an M.D., but then I wasn’t doing medical malpractice defense work at the time. There are few plaintiff’s lawyers who can properly evaluate and handle a medical malpractice case; the medical malpractice defense bar is also very, very small – even in a state like ours with 80,000 attorneys. Dr. Goodheart was young, attractive, whip smart, and perfectly at ease in ordinary conversation. She is the hero of this story, and not just because she was my client.

Dr. Goodheart had a patient, a teenage girl, who – Dr. Goodheart noticed – had worn braces for what seemed to her to be too long a long time. Dr. Goodheart didn’t want to interpose herself in the patient’s relationship with the orthodontist – but appointments came and went with no change in the status of the braces. When one wears braces for too long a time, there is a risk of “root resorption” – the roots of the teeth may actually die back because they’re not performing their assigned function of holding the teeth in the head.

So Dr. Goodheart became curious as to whether this risk was being appropriately monitored. She asked her patient to have the orthodontist call her. But the message was either not delivered or the orthodontist chose not to respond.

Really concerned now, Dr. Goodheart started calling the orthodontist herself. She couldn’t get a return call for some time, and when she finally did, she got a patronizing, don’t-you-worry-your-pretty-little-head-about-this-specialist-stuff response.

It wasn’t just the orthodontist’s patronizing manner that moved Dr. Goodheart to really assert herself, but it may have been the final straw. She persuaded her patient and the girl’s parents to see another orthodontist – Dr. Goodheart recommended him – and the new orthodontist immediately took steps to remove the braces and set the girl up with an endodontist in the hopes of saving as many of her teeth as possible. The new doctor also steered the girl and her family to a lawyer. The lawyer was himself a dentist; he knew who the good guys and the bad guys were in this scenario.

But he was trying to push this case to an early conclusion. So, rather than wait for discovery to take its leisurely course, he came up with a procedural accelerator: He named Dr. Goodheart as a ‘respondent in discovery’ so he could get her deposition at an early date. She wasn’t a defendant in the case, not at that point, but the procedure is designed to allow a plaintiff to explore whether anyone else (besides the original orthodontist, of course) should be named. Dr. Goodheart contacted her malpractice carrier when she got the court papers; I was brought in to represent her for the deposition.

I knew I was in trouble almost immediately: I haven’t exaggerated the favorable impression Dr. Goodheart made in normal conversation, but as soon as the talk drifted anywhere close to the facts of the case, Dr. Goodheart became evasive and inarticulate. If you were talking to her in your kitchen, you’d start counting the silverware. You’d figure she had either stolen some already or that she was going to. I told you she was the hero of the piece – but if you could see her stumbling and stammering in response to the gentlest questions about the case and what she’d done you’d think she must be the villain.

Still, I had to produce her for deposition. I worked with her as much as I could. I prepped her several times – or I tried to. But she wasn’t getting better; if anything, she was getting worse. So I tried prepping the plaintiff’s attorney: As a dentist himself, he was particularly sympathetic. He’d seen the records. He expected Dr. Goodheart to put the final nail in the orthodontist’s coffin; he wanted her to come across well. He promised to be gentle.

And he was. And she still stunk. And the dentist-lawyer joined Dr. Goodheart as a defendant. “I don’t have a choice,” he told me, and I think his apologetic manner was sincere. “The orthodontist will turn this into a case against her if I don’t. And he’ll win that case. A jury is going to hate this woman.”

I’m certain that Dr. Goodheart is no fan of our tort law system. And I’ll bet she does not grasp that all her wounds were self-inflicted. You might call it a blind spot in her intellectual make-up. But that’s unfair: I think it’s just a different kind of intelligence. It doesn’t afflict all doctors – the expert witnesses for example, or researchers – but then I’m equally certain that most lawyers would make poor doctors.

You don’t have to be brilliant to be a good lawyer; you have to be determined. Focused. Patient. You have to be able to explain what you eventually figure out. Like the math teachers always wanted in high school, we must show our work. If lawyers were doctors, while we were busy explaining everything we’d considered and rejected, and why we chose each path in the first place, our patients would die in droves.

A doctor just has to figure it out; explaining how he or she captured that lightning in the bottle is not really important. Do you think the parents care how the doc figured out what was wrong with junior? As long as junior gets better, that’s all that matters. Doctors may not have to be brilliant either, but it sure helps, especially because doctors are far less likely than lawyers to have the luxury of time.

Once that flash of insight occurs, and the proper treatment or medication is prescribed, the doctor is ready to move onto the next challenge. Retracing one’s steps is difficult, and describing the ‘process’ by which the doctor figured out the diagnosis may be impossible. But lawyers are, of necessity, required to explain the steps and the process, whether to the judge, or the jury, or the client, or the insurance claim handler. So we lawyers ask questions that doctors (a) have a hard time answering and (b) don’t think are all that important. We might as well be speaking different languages – and conflict is inevitable.

That’s the hypothesis. Antithesis anyone?


Jean-Luc Picard said...

Lawyers and doctors both consider themselves highly learned, although both can be annoying to us all.

Empress Bee (of the high sea) said...

naw, they're not annoying, they just think outside the box. me, i live IN the box, see???

oh, and thanks for stopping by today, i did get the story written and it is a true one. stay tuned on oct. 6th! bee

cmhl said...

sawbones vs. jawbones-- the age old struggle for superiority. hahah.