There are some reasons why people have lost faith in the competence of physicians. They don’t have all the answers. They can often be smug and dismissive toward patients. Medical malpractice has been a far greater problem than docs care to admit, with medical errors costing about 250,000 patients their lives per year according to a Johns Hopkins study. Then there’s the internet, where anybody can google their diagnosis and treatment with neither the benefit of a medical education nor the experience of treating ailments.
That occasionally ends with doctors being told by patients and their families that they want to be treated in a way that conflicts with the doctors’ advice. What’s a doc to do?
I braced myself. My patient had been intubated with Covid-19 for weeks, her lungs growing stiffer each day. Her sons held vigil at the bedside, pausing only to critique the nurses and health care team. They didn’t like the way the nurse turned their mother. They demanded yet another course of antiviral treatment for Covid-19. As their mother’s health worsened, their frustration escalated — and so did my unease.
The son pulled a pill bottle from his backpack. It was a mixture of herbs that he had ordered off the internet. He wanted me give the supplement to his mother through her feeding tube, along with her other medications. I looked it up online. There was no evidence that it would help his mother — in fact it was on a list of medications deemed useless for the virus. At the same time, I suspected that my patient would not live through this hospitalization, and I wanted to heal the relationship between the hospital staff and her family.
The herbs wouldn’t help, but they wouldn’t hurt either. And they offered the benefit of “healing” the relationship between family and hospital, which may have made life a little easier for staff even though staff relations might not be a primary consideration in treatment protocols. But was it ethical for the physician to feed into what she believed to be a misguided treatment, to enable the family to believe that whatever nonsense they read on the internet offered any hope?
That moment with my patient’s son felt particularly fraught, but these sorts of requests are common and fall along a spectrum. Doctors may agree to give their patients probiotics because they are harmless, even though the evidence for their effectiveness is weak in most cases. They might prescribe an unnecessary antibiotic. They might even agree to spread out the timing of pediatric vaccinations at a family’s insistence.
The argument in favor of accommodating the desires of patients and families is grounded in establishing a trusting relationship.
“There are patients and families I knew I was never going to be able to treat if I wouldn’t at least compromise,” he said. Distrust in the health system was rampant. He could justify prescribing the drug to build rapport. After all, even though the medication had no medical purpose, it was fairly harmless.
But what about treatments that aren’t “fairly harmless”? What about treatments that are used as substitutes for treatments that work, that could save lives, but are refused or replaced by useless or dangerous alternatives?
When doctors prescribe medications that they don’t believe in, even ones that pose little risk to the patient, it can cost them the trust of their colleagues. Families might question why their doctors give in to some requests and not others. She believes that what patients and their families really need is honest and open communication surrounding doctors’ decisions and the time to build confidence in their providers.
But then, we’re lawyers here, not physicians. While their concerns might be remotely interesting, does it have anything to do with us? It does. While the analogy is imperfect, distrust of lawyers and the law is rampant, and to a great extent with good reason. Whether it’s because many lawyers believe their duty is to a cause rather than a client, too many just aren’t very good at their job, or, as with medicine, google searches on the internet, clients demand that lawyers incorporate into their representation their arguments and beliefs, even if they conflict with what the lawyer believes is the appropriate course of representation.
While some choices in the course of representation belong to the client, such as the right to testify in one’s own defense, tactical decisions are exclusively the province of the lawyer. To the extent we heed the client’s wishes in how we approach our case, it’s a matter of courtesy and not obligation. Like docs, we need the clients’ cooperation and trust in order to fashion our approach.
We need to know the facts in order to be prepared to address them or, if the facts are not favorable to the client, avoid or circumvent them. If the client refuses to give us the information needed due to lack of trust, the likelihood of our stepping on a landmine increases exponentially.
I remember trying a case I thought was a winner when a prosecution witness testified that the defendant said something to him that blew up the defense. I turned to my client and asked if he really said that, and with that sheepish look we all know too well, he admitted he did. “Why didn’t you tell me?” “I wanted you to think I was innocent so you would fight harder for me.” Oy.
But while the ambush can’t be helped, what can be prevented is the client who insists on the lawyer making a frivolous or flagrantly dishonest argument that would not only fail in court, but almost certainly bring the judge down on his head like a ton of bricks. Not SovCit type crazy, perhaps, but some childish argument that somebody on reddit insisted would work despite overwhelming evidence to the contrary that will almost certainly end whatever chance of prevailing existed. It’s the legal equivalent of giving ivermectin to a person with Covid. I won’t do it, but that’s just me.
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Scott,
Wow. I want to thank you for sharing your authentic self with your readers. Absolutely agree with the medical analogy. Bad medicine doesn’t help the condition being treated but is a short cut on integrity and accountability.
This is easily both the worst and most irresponsible post I’ve ever seen you write. Not only rhetorically lazy but somehow inept at the same time…. I mean, no one would ever confuse you for Popehat, but you leap right past “making people stupider” all the way to causing actual harm.
in the first paragraph alone, did you really claim that over 8% of all deaths in the US per year are due to ‘malpractice’? Yes, yes you did. As for malpractice, you’re an actual defense attorney, and somehow manage to elide the difference between medical error and malpractice? (Not that it matters much, as medical errors don’t cause 8% of yearly deaths either)
Oh, but an uncited study claims it… Hint: if there is no possible study design that could either prove or disprove a particular statement, that study doesn’t exist. Whomever advised you otherwise wouldn’t know the difference between a longitudinal and a retrospective study without Googling it first (Um, retrospective studies are about the past? No.) and would likely provide a blank stare if asked about matching disparate cohort endpoints, much less how many patients would be needed to power such a study (Power? I remember that! if the p-value is 0.05 it’s true, right?)
Nevermind, I forgot you name-dropped Johns Hopkins. That’s actually a good sign — as Johns Hopkins hasn’t been worth name-dropping academically for almost for almost 20 years, hopefully whomever you consulted is no longer practicing medicine.
After all, if they were still practicing one would hope they’d have been able to point out that the tragic story about the intubated patient and their family was almost certainly fabricated or at least embellished into meaninglessness. That’s neither how the physiology of intubation causes problems ( stiff lungs? really?) nor reflective of the underlying etiology of COVID respiratory distress.
Then again, they might be the sort who thinks a study claimed 8% of all yearly deaths are due to medical malpractice. (Hey, undocumented does not mean illegal — there’s been no judicial determination! Not like malpractice, which everyone knows whenever it’s useul to scare folks)
As for the putative ethical delimma, any second year medical student can set you straight on this. What’s a doctor to do when faced with a ridiculous family request? Hmm, there’s some oath that goes along with that, and it literally begins with ‘first, do no harm’. And the ones who were paying attention in their clinical practice observation sessions might even remember that the physician’s obligation is to inform patients of their options, and provide their opinions, but that’s where their duty (ethical or otherwise) ends.
Oh, and I’m right legally, too. Some guy named Larry told me that, and he’s from *Harvard*.
I’ve always assumed the ‘Dr. SJ’ you mention was a medical doctor. If so, next time you want to write about anything even vaguely related to medicine, she needs to hit you on the nose with a rolled-up newspaper.
For whatever little it’s worth, I suggest you just memory-hole this entire post.
[Ed. Note: I meant to include a link to the study and have now added it, along with adding “medical errors” since you are correct that it’s not all malpractice, even though this was orthogonal to the point. As for memory-holing the post, shan’t.]
I didn’t know it was humanly possible to miss the point of a post by that much.
Hit the pink button on the right, Austin. Catharsis awaits.
Looks like somebody has had way too much to drink in the hotel bar before commenting. The point of the post, which completely eluded you, is the ethics of doing what a patient/client demands when its contrary to your professional belief, and whether it’s different when its wrong but harmless v. wrong but toxic.
It’s okay that you got your panties in a twist for the wrong reason. Drunks do that a lot. Hopefully, they sober up eventually and realize what an ass they made of themselves. Then again, some are still asses when they’re sober, so who knows?
I applaud you on this tour de farts, Austin.
In the context of medical negligence cases, no one makes the pedantic distinction between “medical errors” and “malpractice.” It’s a largely semantic distinction that no one argues in this context.
Nevertheless , regarding your post as a whole, I suggest you stick to posting on Reddit. In particular, the subreddit called r/confidentlyincorrect. You’ll find common ground with your peers there.
Austin, We are in broad agreement regarding the actual versus a claimed number of medical errors. However, the perception still exists, which was our host’s point.
We can say “The herbs wouldn’t help, but they wouldn’t hurt either” about the Washington Post story, because the Doctor writing the story said the same thing. They would probably have awareness of how the supplements would interact with the patient’s health.
But it’s important to note that it’s not universally true that herbs do nothing:
Some herbs do have medicinal value, and there are prescribed medicines which are derived from plants.
But on the other hand, some herbs can have negative affects or undesired interactions with medicines a person is taking. Even some ordinary foods, like Grapefruit, can interfere with certain types of pharmaceuticals, like some which are used to treat high blood pressure.
A patient’s relative wants the doctor to administer some herbs ordered from the Internet. The doctor can research what the patient’s relative thinks they are, but are they what the patient’s relative thinks they are? What may be mixed with them? Is that turmeric just turmeric, or is it laced with lead chromate or metanil yellow? The reality is, the cautious doctor is going to realize that he or she doesn’t know, and the patient’s relative also doesn’t know. There is an absence of foundation to conclude that the preferred herbal blend would not be harmful, as it has not arrived via regulated pharmaceutical channels. I have my doubts that many doctors would go along.
Tangential but timely: Vitamin A does not prevent measles. Yet people are attempting to use it as a prophylactic, and some are taking it at toxic levels. Therefore, your point about treatments (harmless or not) is not just a hypothetical. Cod liver oil does not have enough vitamin A to do either much harm or much good, but I have heard you can rub it onto a tattoo to remove it.
First, Austin, please tell us you’re not a physician.
Second, and to the point, I don’t do criminal work. But I spend a couple dozen days a year in criminal courtrooms. I’m rarely smarter for the effort. An agency hires me to keep lawyers from convincing a judge to issue an order without any sort of jurisdiction. Usually, it has something to do with medical care, and a Swamp court judge has no power to direct how that is carried out. After doing this stuff for a couple decades, it’s sort of rote. Often, the judge will listen to the pitch, point to me and say, “Mr. Skink will tell me I can’t do that.” Easy-peasy.
So it was a couple weeks ago. A woman was held on a minor charge of the type that rarely gets to judgment because the victim doesn’t cooperate with the state. She’s floridly psychotic; she refuses to eat or accept medical care. After about a week, she’s off to the hospital. More of the same. After about a week, the hospital approves her for hospice. She will die in a hospital with no one but a CO at her side because she’s held on a charge that will not be prosecuted–because of both the nature of the crime and psychosis.
I call the lawyers. I explain the medicine. I invite them to the hospital, where they can see the very image of Karen Ann Quinlan. They decline and tell me to get out of their case. How does this apply to the topic? Well, part of the conversation went something like this:
PD–I don’t think you understand our mission.
Me–That’s a good bet.
PD–Acting in the client’s best interest isn’t our mission. That would create a conflict because our mission is to do what our clients want.
That’s about the time half my brain cells rushed to my feet.