The level of animosity and distrust between doctors and lawyers is unique among professionals. While no one likes the stock broker whose advice loses us money, we aren’t constantly blaming them for the unhappiness and lack of financial security in our lives. They don’t claim to live in constant fear of malpractice suits every time they recommend a buy or sell.
When it comes to professional dissatisfaction, lawyers and doctors are typically ranked first and second. Lately, I’ve sensed an increase in the chronic friction between doctors and lawyers. I can’t point to a triggering event, and I’d have trouble describing the change, or why it seems more troubling as of late. The number of medical malpractice cases filed in Maricopa County has been declining, and I can’t think of any changes in the rules, which have made it easier for plaintiffs to prevail. If anything, successful suits require more work and result in smaller recoveries than in years past.
In the 1980s, the Maricopa County Medical Society and the county bar association asked a committee of doctors and lawyers to create guidelines for cooperation between the respective professions. The guidelines were jointly adopted by the Maricopa County Medical Society and the Maricopa County Bar Association.
The result was a pamphlet of suggestions. They were helpful, but compliance was voluntary. The guidelines are mentioned as one reason for the decision in in Duquette v. Superior Court, 161 Ariz. 269, 778 P.2d 634 (App.1989). The guidelines prohibited opposing counsel from meeting with plaintiff ’s treating doctors without plaintiff ’s attorney being present. Because compliance was optional and voluntary, defense counsel wanted to meet with plaintiff ’s treating physicians without plaintiff ’s counsel or a court reporter in attendance. Despite their non-compulsory nature, the court emphasized that meetings with treating doctors were improper and inconsistent with the spirit of the guidelines. The court ruled that the interviews were improper, and contrary to the sanctity of the doctor- patient relationship. Before the case was decided in 1989, that sort of informal discovery was not that uncommon. There was no specific prohibition about it.
The guidelines had been around a few years when Duquette was decided. It seemed silly that two groups of adults needed a committee to help them get along with one another. I now realize it wasn’t silly. I don’t think it worked as well as it could have, but it was a good thought and it moved our collective mindset toward Duquette’s prohibition against informal interviews of the plaintiff ’s doctor by defense counsel.
Thirty years later, the doctor-lawyer relationship seems less cooperative than it was at the time. While I can see the different priorities, professional interests and points of view, I don’t understand the depth of the animosity or the intense dislike between doctors and lawyers. Thirty years ago, I was defending physicians, nurses, hospitals and other health care providers. For the most recent 18 years, I’ve been representing patients in the same sorts of cases.
Describing the causes of the animosity is beyond the scope of this short article. I don’t pretend to know how to make things better, either. I also recognize that this publication goes to lawyers, not to doctors.
I have one modest suggestion to improve the situation – talking about it is better than ignoring it. We all believe our own nonsense and we tend to surround ourselves with people who see things the way we do. We get the false sense that everyone agrees with us because anyone who doesn’t isn’t in our universe. We also filter out anything that doesn’t agree with what we already know to be true. Never let the facts interfere with what you know to be true. We all do it. You don’t invite your friends to watch Fox News with you if they always watch NPR. They aren’t going to ask you over to watch Fox either.
Creating a committee to write guidelines for cooperation was a productive effort between doctors and lawyers. It has been 30 years since. It might be time to have another committee with a new project. Once every 30 years shouldn’t be too much of a hardship, on either of our professions.
Professionally, lawyers and doctors have much in common. Their patients are our clients, The AMA Code of Medical Ethics is similar to the Code of Professional Conduct, which guides our professional behavior, and helps define our ethical obligations to clients, patients, the public and judicial system.
Both professions allow for professional gratification through service to others, and each allows practitioners the leeway to define satisfaction individually. Nevertheless, both professions are full of unhappy, burned out people who don’t get any genuine satisfaction from their work. Instead, both groups are full of people annoyed by endless minutiae, and meaningless rules. Both groups are leaders in their respective worlds and if we were to agree on some common goals without any hidden agendas, we could accomplish a lot. Barry E. Lewin