Wednesday, September 10, 2008

Doctors as Conformists

I started thinking about this topic last summer, when I spent a good deal of time defending doctors who had been sued by their patients. Then, this summer, while studying torts for the bar exam, some of my thoughts crystallized somewhat, so I decided it merited a post when I got the time.

For starters, doctors generally owe their patients a duty of care. In other words, they have to be good doctors. What it means to be a good doctor is defined by the “standard of care.” Generally speaking, and this varies from state to state, a doctor owes his or her patient the standard of care which is used by an average doctor practicing medicine in a similar community. As my bar review torts professor succinctly put it, “It is a command to be a conformist. The custom of the profession sets the standard of care.”

The last two lines of that quote are what got me thinking more about this. Essentially, doctors are expected to be conformists. They have to be sheep if they don't want to be sued. If they are sued, they will most likely lose if they deviated from the standard of care used by the “average doctor practicing medicine in a similar community.” This can lead to interesting results; a cardiologist practicing in Manhattan is likely to be held to a higher standard of care than a cardiologist of the same educational background practicing in upstate New York, a few miles from the Canadian border. But I digress.

This treatment of doctors differs from that of other professionals. Lawyers don't have to be conformists like doctors do. This is because a lawyer doesn’t lose a malpractice suit unless the client can show that he would have won if the lawyer hadn’t been negligent. In other words, the case is decided based on the merits of underlying lawsuit. A lawyer could have screwed up a trial in all sorts of ways, but unless what he actually did caused the client to lose, he will not be liable to the client. The client might have been harmed in other ways – the trial was more costly than it should have been, his reputation was unnecessarily harmed, etc. – but unless the lawyer’s negligence, as opposed to his use of novel legal theories or other forms of what we in the profession label as “zealous advocacy” caused the client to lose a case, the lawyer will not be found liable.

It is a bit different for doctors. If a doctor deviated from the standard of care common in his community, and that deviation caused harm to the patient, then the jury will likely find the doctor liable. I think this is because when doctors do screw up, it more often hurts people in very tangible, painful ways. It is simply the nature of the job. Medical care is really more of a process, whereas lawyers are generally working towards one goal: winning for their client. Also, because of the roles of the judge and jury, the lawyer has less control over the outcome of the case, and so it is harder to prove liability. On the other hand, doctors control more of their patient’s treatment, it's more one-on-one, and so, when things go wrong, there is often no one else to blame.

Doctors, therefore, are often reluctant to try novel or generally unaccepted forms of treatment, often because of the risks associated with them, but just as importantly, because they know that, should the treatment fail, the patient will likely sue. The patient’s lawyers will hire experts who will testify, quite truthfully, that the doctor’s novel or generally unaccepted course of treatment fell outside what is generally accepted the standard of care expected of an average doctor practicing medicine in a similar community. Whether the patient would have been worse off had the doctor conformed is not very important. What is the operative fact (pun intended) is whether the doctor deviated from the standard of care, and whether that deviation caused the patient to suffer.

But suppose the doctor hadn’t used this novel treatment, and the patient still suffered the same or even worse harms. Well, if the doctor can prove this at trial, he will likely prevail. But the problem is, if he is outside the norm, he won’t find any credible doctor, as an expert witness, to back him up on this. Thus the jury will be left with the plaintiff’s expert doctor’s entirely truthful and learned testimony regarding the generic standards of care, and will most likely decide for the patient. Note that, even if the patient consented to the risks of the novel procedure, the patient can still successfully sue the doctor if the patient can show that his consent was not adequately informed. The problem of consent is another issue for another post. I just wanted to mention it because you are probably thinking about it at this point, if you read this far.

A few concluding thoughts:

The history of medical profession has been characterized by inertia and skepticism of change. For example, Louis Pasteur faced hostility to his discoveries. I think that doctors are often hostile to innovation, and this can be traced to their fear of being non-conformist. Lawyers are freer to be non-conformists. They attempt novel legal theories all the time, and if they lose, well, they tried their best for their client. When doctors try and fail, their patients sue them. Because of our current legal system, doctors are much more likely to lose such lawsuits than lawyers. Therefore, doctors are hesitant to attempt novel yet perhaps beneficial treatments for fear of liability. That’s probably not something we want to promote, but that’s the way things are.


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