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.

Why Not Diesel?

This article about the new European Ford Fiesta ECOnetic, which gets 65 mpg, got me thinking about diesel powered cars, and why they are not more popular in the US. At first glance, it is pretty simple. Diesel is more expensive (the government's fault - it is taxed more), harder to find (only 42% of stations sell it - both industry's and the government's fault), and people (ignorantly) think that diesel cars are inferior to gasoline cars.

In Europe, half of passenger cars run on diesel. I have ridden in and driven many of them - Fords, BMWs, etc. - and they are indistinguishable from gasoline cars from a performance perspective. Moreover, in Europe, diesel is cheaper (by 10 Euro cents per liter) than gasoline. Furthermore, diesel cars in Europe get, on average, 60 mpg. A limited number of diesel cars are available in the US.

Hybrid cars are, for the most part, more popular among environmentally conscious people than are diesel cars. This seems a bit mistaken; hybrid cars, while they admittedly save gasoline, require expensive and environmentally taxing (toxic and expensive to recycle) battery systems. Moreover, while the government provides a tax break to hybrid buyers (up to $3k), hybrids often cost more than conventional cars. Furthermore, hybrid cars still only get 45 mpg on average (because hybrids save the most gasoline in urban driving conditions), rendering them inferior to diesel vehicles for driving conditions that are not primarily stop-and-go.

While diesel is admittedly a dirtier fuel than gasoline, modern clean-diesel engines render this difference negligible. Moreover, when fuel efficiency is taken into account, modern diesel cars produce far fewer emissions per mile than conventional gasoline cars.

Why aren't diesel cars more popular in the US? Why does the government subsidize hybrids yet tax diesel at a higher rate than gasoline? What am I missing here?

Aleksandr Solzhenitsyn

This is a little late, but I've been busy with myriad sundry things, such as taking two bar exams and visiting the motherland for two weeks.

First, I have a (very tangential) personal connection with Aleksandr Solzhenitsyn. During the summer of 2006, I worked in the freight department of our local Home Depot. One day, a special order toilet - low water, but high power - arrived for a certain Ignat Solzhenitsyn. A few days later, a middle-aged gentleman came in to pick it up. I asked if the person who had placed the order was related to the noted Russian author. The gentleman looked at me inquisitively, and said that yes, "it was for the family." For those who don't know, the Solzhenitsyn family made their home in Cavendish, Vermont, mere miles from the N.H. Home Depot I was working at.

I respect Aleksandr Solzhenitsyn and his work. Ten years ago, I read the Gulag Archipelago, and it made quite an impression on me. I do, however, disagree with much of what he stood for, apart from our mutual distaste for Communism.

For example, as some have noted, Solzhenitsyn was more anti-communist than pro-democracy.

Solzhenitsyn was a Russian nationalist, not a liberal democrat. As such, he was suspicious of Western-style democracy and individual rights. While he was not as much of a chauvinist as some other Russian nationalists, his writings defending czarist Russia and Russian culture sometimes verged into anti-Semitism.

But, I agree with Ilya Somin's conclusion in his blog post I quoted above:

Overall, I believe that the good Solzhenitsyn did greatly outweighs his misguided statements on some issues. Solzhenitsyn deserves to be remembered for the fortitude he showed during his years in the Gulag and for his courage in resisting and exposing the crimes of a brutal totalitarian regime.

More controversially, perhaps, I agree with many of the sentiments Solzhenitsyn expressed in his notable speech, A World Split Apart at Harvard University's Class Day Exercises in 1978. In that speech, he severely, and in some cases, I believe, unfairly, criticized Western/American culture. But some of his criticisms were and remain valid, especially his critique of what he termed our "spiritual exhaustion." Essentially, although he did not use these precise words, he thought the West had arrived at a post-Enlightenment stage that was destructive to the very ideals that had made the West great in the first place.

Western society has given itself the organization best suited to its purposes, based, I would say, on the letter of the law. The limits of human rights and righteousness are determined by a system of laws; such limits are very broad. People in the West have acquired considerable skill in using, interpreting and manipulating law, even though laws tend to be too complicated for an average person to understand without the help of an expert.
[. . .]
I have spent all my life under a communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale but the legal one is not quite worthy of man either. A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man's noblest impulses.

I disagree with his critique of our legalistic society, and would, rather agree with Robert Bolt's Thomas Moore, in his Man For All Seasons:

ROPER: So now you'd give the devil the benefit of law?

MORE: Yes. What would you do? Cut a great road through the law to get after the devil?

ROPER: I'd cut down every tree in England to do that.

MORE: Oh, and when the last law was down and the devil turned on you where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man's laws not God's, and if you cut them down - and you're just the man to do it - do you really think that you could stand upright in the winds that would blow then? Yes, I'd give the devil the benefit of the law, for my own safety's sake.

I maintain that the rule of law, tempered with humanity, is best, because, to paraphrase Justice John Marshall, "we must never forget that these are humans that we are governing."