The Wisconsin Syndrome

The beef aside, public employees in Wisconsin (as elsewhere) are not allowed to strike.  That means that all those protesting around the capital rotunda are AWOL, unless they happen to be sufficiently ill to take a sick day.  And so they are, as shown in a slew of videos embedded in an  Atlantic post by Ford Vox.

No doubt many members of the University of Wisconsin’s Department of Family Medicine share the teachers’ concerns. Public employees are joining a struggle already familiar to most patients. Family doctors work the front lines advocating for our interests amidst a disintegrating health care system, summoning the will to keep battling with insurers and administrators all while trying to hold on to their belief that they can change human behavior. Family doctors feel your pain and have the battle scars to prove it.

But last week some of these weary warriors carried their patient advocacy too far. In videos breathlessly presented throughout the conservative mediasphere this weekend, doctor after doctor is videotaped writing patently fraudulent sick notes so that the protesting teachers (whose contracts specify that missing work without an excuse can result in dismissal) can keep marching on against the state’s union-busting Republican government.

This raises the question of ethics; whether it’s acceptable for physicians to lie for the greater good.  While Vox appears to side against the “union-busting Republican government,” he didn’t find it all that easy to put aside bioethics whenever it was convenient.

[The note writing doctors have] managed to belittle a public trust between physicians, employers and patients. A doctor’s sick note is a serious document. It represents an employer’s desire to verify through a respected, independent, medically qualified third party the fact of an illness and the true need for convalescence. In the videos now circulating online, we witness multiple members of a noted family medicine department trash one of the well-recognized rights and privileges of their profession, with little forethought as to the consequences.

The question remains whether this is just a “white lie” type of ethical breach, one that would garner the doc a wrist-slap at worst and, given the bigger stakes at issue and the inability of teachers to demonstrate on their own behalf but for a get-out-of-school free card, politically justifiable?

The answer likely falls along the spectrum of where one values the relative importance of honesty and political belief.  The more strongly one supports the teachers and other public employees, the less concerned one is that physicians are complicit in a scam to cover their disappearance from the classroom.  The end justifies the means.

The problem, of course, is that whenever integrity is weighed on a relativity scale, it ceases to be integrity.  As criminal defense lawyers, we confront his issue all the time, with clients and witnesses who want to give false testimony in order to beat the rap.  Our ethical obligation is clear, that we can neither present nor permit a witness to knowingly lie on the witness stand. 

Before some wag argues the obvious, that prosecutors do this all the time, allowing cops to testily in order to make sure the bad guy gets convicted, this isn’t intended as an opportunity to whip out our cynical cries of cheater.  No doubt there are some who do this, though my experience suggests that most of the time the cops lie to prosecutors as well, having too little trust in the righteous boys and girls to let them in on their dirty little secret.  Either way, the fact that there might be unethical prosecutors doesn’t excuse anyone else’s ethical lapse.

Our duty doesn’t change whether we believe our client to be innocent or guilty.  Our ethical obligations aren’t that flexible, allowing us to mold them to fit whatever we believe to be the “just” outcome.  It’s a terrible moral dilemma, particularly when we clearly believe another witness to be lying through his teeth and see the potential for an off-setting lie to do the trick.  Still, it’s unethical.  Still, we can’t do it.

The Wisconsin physicians writing fake notes rationalize their conduct.

When they did stay on it message, it wasn’t much to behold. One of the unidentified young physicians tells an inquisitive local libertarian organization called the MacIver Institute, “We are here writing doctor’s notes to support our public employees who have been mentally anguished and distressed this last week and needed to be out here for their mental health.” Medically speaking, that’s comedy.

Elsewhere in the tape UW faculty member Dr. James Shropshire signs a fake sick note for the MacIver videographer, who tells him he’s from California and isn’t tolerating the cold Wisconsin weather so well. Dr. Shropshire responds flatly, “So I’m concerned about that. I’d like you to take the rest of the day off today, get some rest, and try to stay healthy,” and signs his excuse note.

There’s little doubt that they believed in their cause, the righteousness of providing a note for the teachers, and manufacturing strained justifications to give it the appearance of pseudo-justification.  It’s equally clear that the rationalizations are nonsensical, a sham to excuse what they are doing.

Vox contends that this conduct will cause “lasting damage [by] tarnishing medicine’s public image.”  I’m not entirely sure he’s right, given that much of the public sees little problem with what’s perceived to be “white lies,” harmless falsehood justified by serving a greater good.  To many, as long as the physicians believed in the cause and the cause was, at least arguably, worthy, this fake notes are trivial.

However, the damage this does internally to a profession is not so easily dismissed.  Regardless of how the public perceives it, the breach of the bright ethical line opens the door to a future of facile ethical lapses whenever a doctor believes his cause is proper and, on balance, it serves a greater good,.  The problem, of course, is that once the constraints of ethics no longer apply, then anything goes.  Each of us is free to decide for ourselves when we can toss ethics out the window, and still feel good about it.

There may well be life and death situations where we are prepared to put ethics aside because the harm done could be irreparable.  And should that happen, we should be prepared to face the consequences of our lapse, realizing that there is a price that must be paid for our choice.  But this was hardly so extreme a situation that it justifies physicians indulging their politics and flagrantly ignoring their ethical obligations. 

And once a person gives up his integrity, it’s gone.  Even physicians in Wisconsin.

H/T Jonathan Adler at Volokh Conspiracy

7 thoughts on “The Wisconsin Syndrome

  1. R Keith

    As a defense attorney, I am frequently accused of situational ethics, twisting the facts, and every other form of evil defense attorneys do on television dramas, so it was refreshing to read your post. Most of the defense attorneys I know would echo your sentiments on integrity and credibility, which makes the slimy lawyer stereotype so puzzling.
    There are certainly defense attorneys guided by ambiguous morals and shifting ethics, but as a group, they seem to be oppose the ends/means malaise afflicting our justice system more than any other group. Law enforcement, prosecutors and judges regularly stretch the truth, undermine their own credibility, and subvert the constitution because they “know” they got the bad guy. Certain of the Bad Guy’s guilt, allows them to tell a white lie or twist a legal principle to receive inadmissible evidence or create exceptions to settled law to prevent a “guilty man from going free.” to them it is a GOOD thing to do since they are on the side of angels.
    I don’t want guilty men to go free any more than they, but I couldn’t justify telling a lie to spare an innocent man an unjust verdict. An extreme position, I know, but for me any moral equivocation subverts the system.

  2. John Burgess

    Just from a liability standpoint, these doctors present a huge problem for their employers, past, present, and future. Having demonstrated–and having their demonstrations caught on video–that they’re ‘flexible’ when it comes to ethics, it would seem that they’re just ripe plums sitting their for the adventurous litigator. Their testimony, whatever it may be, is eminently impeachable.

    Were I a hospital administrator, I wouldn’t want them anywhere near my operations. Were I a patient, I’d always have to be second guessing whether my ailment met with the doctors’ political views.

  3. SHG

    As I wrote this post, I struggled with a phrase that I just couldn’t seem to find anywhere in my head: situational ethics.  Thanks for reminding me.  It’s my experience as well that criminal defense lawyers are the most ethical of the lot.  Sure, we have some scoundrel among us, as does any group, but on the whole we’re a pretty darn ethical bunch, no matter what our detractors think.

  4. Shawn McManus

    From the other side, i.e. the teachers getting the bogus notes, what does one of those “ill” teachers/administrators do when a student hands in a similar note when he wanted to skip school?

    They can either call little Johnny on it and be a hypocrite or let it slide and abrogate their duty.

  5. John

    According to some Reps this governor tried to ram this bill through in a 20 min session…seems like they set the “rules” as far as ethics.

    And if you try to fight someone and keep your “ethics”, while they let theirs slide, it would be a very severe disadvantage…

    So what’s the answer?

  6. Shiek of Araby

    Getting a note for the boss is more a bureaucratic exercise than a medical one. “I felt ill, I missed X days of work, I’m feeling better now, the boss says I need a note” and the patient gets the note. The doctor isn’t an officer of the court. Besides, employers demanding the note is just a way to up the ante on employees going on benders and whatnot, and rarely has any real medical meaning.

  7. Mark Bennett

    This is a dumb question. If you let your ethics slide to the level of your opponents’, you’ve already lost.

    But maybe “ethics” in doubt quotes are very different from ethics.

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