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Physicians and Lawyers: Science, Art, and Conflict

Published online by Cambridge University Press:  29 April 2021

Joan M. Gibson  and
Robert L. Schwartz
Joan M. Gibson
Affiliation:
University of Albuquerque, Albuquerque, New Mexico
Robert L. Schwartz
Affiliation:
University of New Mexico, Albuquerque, New Mexico
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Abstract

The relations between physicians and lawyers have deteriorated rapidly over the past several decades, most particularly since the early 70s when the perception that a medical malpractice crisis existed in America became widespread. Some believe that the factors dividing the two professions are linked (1) to professional jealousy, (2) to sometimes conflicting economic interests, or (3) to difficulties in communication, since both professions use many of the same words, or terms of art, but with different intended meanings.

While the authors agree that these factors may have aggravated the problem, they believe that the conflict’s real roots are in the very different ways in which physicians and lawyers are trained and in the different epistemologies that each profession has accepted, as a result of which each reasons and solves problems in a manner that not only diverges from but sometimes contradicts the other’s. The authors conclude that only as the varying epistemologies begin to converge can physicians and lawyers begin to approach problems in more similar ways, and to discover the underlying compatibility of many of their interests and goals.

Type
Comment
Information
American Journal of Law & Medicine , Volume 6 , Issue 2 , Summer 1980 , pp. 173 - 182
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1980

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References

1 See Wecht, , The Interfaces of Law and Medicine (American Society of Law and Medicine 1974 Annual Oration), 1 Am. J. L. & Med. 89 (1975)Google Scholar. The American Society of Law and Medicine is one of the important national organizations dedicated to the development of such a dialogue. The dialogue is also heard at meetings of state bar associations (most of which now have medicine and law committees) and state medical associations (many of which have sections on legal medicine), and at medical-legal liaison committees (often joint ventures of the state legal and medical societies). Other institutions, such as the Hastings Center, Institute of Society, Ethics, and the Life Sciences, have been successful in bringing lawyers and physicians together with other professionals.

2 J. King, The Law. Of Medical Malpractice 322-24 (1977); see also Abraham, , Medical Malpractice Reform: A Preliminary Analysis, 36 Md. L. Rev. 489, 490 n.3 (1977)Google Scholar.

3 See, e.g., Rubsamen, Medical Malpractice, Scientific Am., Aug. 1976, at 18-23; see also Malpractice Nightmare, Time, Mar. 24, 1975, at 62-63. The courts too have recognized the “alleged ‘medical malpractice insurance crisis’,” Jones v. State Bd. of Medicine, 97 Idaho 59, 555 P.2d 399, cert, denied, 431 U.S. 914 (1977), and every state legislature has promulgated some statute to deal with it. See White, & McKenna, , Constitutionality of Recent Malpractice Legislation, 12 Forum 312 (1977)Google Scholar.

4 Guttmacher, M. & Weihofen, H., Psychiatry And The Law 3 (3d ed. 1952)Google Scholar.

5 See, e.g., Ind. Code Ann. § 16-9.5-5-1 (Burns Cum. Supp. 1979) (limiting contingent fees in medical malpractice actions to 15%). The contingent fee was the subject of specific consideration in the Department of Health, Education, and Welfare, Report of the Secretary’s Commission On Medical Malpractice 34 (1974).

6 Physicians remain the best paid professionals in the country, and lawyers rank close behind. In 1976, self-employed physicians had an average annual income of $62,799, roughly four times the annual average income for the profession in 1955. Information Please Almanac 87 (1979) (citing Council on Wage and Price Stability). For a comparison of lawyers’ pay with that of other professionals, see National Survey of Professional, Administrative, Technical, and Clerical Pay, Bureau of Labor Statistics Bulletin 2004 (1978).

7 The differing legal and medical definitions of that word are demonstrated in a dozen articles written on the subject. Danner, & Sagall, , Medicolegal Causation: A Source of Professional Misunderstanding, 3 Am. J.L. & Med. 303 n.l (1977)Google Scholar.

8 Id. at 304.

9 The large-class, case method of instruction, usually in a Socratic question and answer format, has dominated law teaching since it was pioneered nearly a century ago. The reasons for the longevity and popularity of the case method are several: its general pedagogical effectiveness, particularly in comparison to lecturing; its adaptability to large classes and thus its low cost; and, perhaps most important, its ability to accommodate differing intellectual currents and differing conceptions of law.

Boyer, & Crampton, , American Legal Education: An Agenda for Research and Reform, 59 Cornell L. Rev. 221, 224-25 (1974)Google Scholar (footnotes omitted).

10 Hamilton, , The McMasters Curriculum: A Critique, 1976 Brit. Med. J. 1191Google Scholar (quoting A.;Flexner, Medical Education in the United States and Canada (1910)).

11 Id.

12 Legal realism, which was very influential in legal education in the 1930s, and very popular among judges of the most prestigious courts at the same time, rejected the notion that the law was a matter of objective moral truths to be discovered by judges. Instead, legal realism defined the law as that collection of beliefs, views, and prejudices that did, in fact, exist within the society, that change from time to time and from society to society, and that lawyers and judges are obliged to discover, and to form. For a general discussion of the role of legal realism, see G. Gilmore, the Aces of American Law 77-80 (1977).

13 C., Burns, Legacies in Law and Medicine 299 (1977)Google Scholar.

14 4 Encyclopedia of Phil. 411 (1972 reprint).

15 Stevens, Two Cheers for 1870: The American Law School, in Law in American History 405, 480-81 (B. Bailyn & D. Fleming eds. 1972).

16 Polanyi, M., Personal Knowledge 279 (1962)Google Scholar.

17 Campbell, , Basic Science, Science, and Medical Education, 1976 The Lancet 134, 135Google Scholar.

18 Pellegrino, , Medicine, Science, Art: An Old Controversy Revisited, 4 L. & Med. 44 (1979)Google Scholar.

19 Id.

20 Id. at 47.

21 Indeed, there are those who believe that the century-old attempt to separate science from ethics must necessarily fail. Over the past few years the argument for the reunification of the disciplines—in one form or another—has been made very persuasively. See, e.g., Toulmin, , Can Ethics and Science Be Reconnected?, 9 The Hastings Center Report 27 (1979)Google Scholar.

22 Of course, these first principles may not be “scientific” in the traditional sense. For an interesting account grieving the apparent passing of religious principles and foundations as first principles of American legal study, and perhaps American law, see Berman, , The Secularization of American Legal Education in the Nineteenth and Twentieth Centuries, 27 J. Legal Ed. 382 (1975)Google Scholar.

23 Toulmin, , “From Form to Function,” in Studies in Contemporary Scholarship, 106 Daedalus 154 (1977)Google Scholar.