Law & Medicine Clinical Sidebar

Being like Michael Jordan is indeed a dream. The reality is that few people have any hope of duplicating his feats on the basketball court. The rest of us are better served by watching from a safe distance, well aware that our attempts to "be like Mike" would surely result in failure. We would be wise to heed the same approach when it comes to many medical-legal issues.

Because of their prominence in the medical community, we regularly hear reports of the manner in which university hospitals and other large medical centers are addressing various medical-legal issues. For example, a certain academic medical center adopts a unique approach to informed consent; another decides to disclose every medical error to affected patients; and, a third determines that it will no longer seek pre-authorizations from HMOs. The reports are often accompanied by a brief comment about the success of the particular strategy.

These approaches can look appealing and may have even worked. But, we must resist the temptation to imitate them. To a clinician, this advice is counterintuitive. After all, we are taught to follow the practices of academic centers and large institutions. If a diabetic patient is treated in a certain manner at the Joslin Clinic, then the same approach can be attempted by a family physician in the Midwest. By emulating the practices of the experts, we can offer our patients the best opportunity for a good result. And, it is often desirable to do so.

This approach is based on the principle that medicine is science, and science is the same everywhere. Diabetes is the same disorder in the Midwest as it is in Boston. And, it responds to insulin in the same manner whether the prescription was written by an endocrinologist or a family physician.

But, the principles of science do not uniformly apply in the medical-legal system. While the general principles of law are consistent across this country, the specifics often vary from state to state. This means that a novel approach to informed consent may be legally acceptable in Ohio, but not in Colorado. And, it would thus be a mistake for a physician in Colorado to simply copy an approach that worked in Ohio, even if it had been pioneered by a University Hospital.

Further, even when the underlying laws are the same, our ability to copy an approach can be attenuated by differences in the legal climate from one state to another. Depending on the degree of tort reform, focus of the plaintiff bar, and expertise of available defense counsel, a medical-legal maneuver may pose much more risk in one location than in another - even when the underlying laws are identical.

Finally, even if all of this is the same, the importance of courtroom dynamics cannot be overlooked. In a medical malpractice lawsuit, the patient's attorney must convince the jury that the involved physicians performed in a substandard manner. In other words, the attorney must make the doctors "look bad." To this end, the facts of the case, medical record, and expert testimony are certainly important. But, so is the relative stature of the accused physician.

Is the physician a general practitioner in a small town or one of the world's experts at a University Hospital? For an attorney who must convince a jury that mistakes were made, there is a difference. From a practical perspective, the greater the expert, the more daring he can be when it comes to medical-legal issues. And, the same is true for the institutions themselves. This means that the experts at major institutions can sometimes approach medical-legal issues in bold ways, simply because their image is much more difficult to discredit. But, we should not mistake their success as an assurance that we will fare similarly.

The science of medicine transcends our profession, but the dynamics of the medical-legal system do not. This means that there is a time to be like Mike, and a time to simply watch Mike. We must be careful to always discern the difference.