How Medicine Learns About the Law

By Nadia N. Sawicki

Many medical providers learn about the law the way kids learn about sex – whispers with friends, internet message boards, and media depictions of the most dramatic and unrealistic kind. And while both medical schools and junior high schools offer some type of formal education, it is quite limited, especially as compared to the information these students collect through other, less reputable, sources. As a result, many medical providers go into practice with a dark cloud over their heads – the “scared straight” model of legal education, if you will.

We’ve heard a lot about the practice of defensive medicine – ordering more tests and procedures than are medically necessary in an effort to protect oneself from potential liability. But fear of liability manifests itself in other, less dramatic, ways as well – for example, in overly-restrictive interpretations of HIPAA requirements that make it difficult for patients and their care providers to access needed medical information. In reality, however, much of the fear of liability experienced by medical professionals is unfounded.

Every physician is afraid of being sued, and rightly so. According to a 2011 study in the New England Journal of Medicine, between 75% and 99% of physicians had faced a malpractice claim by the time they reached the age of 65. With rates like these, physicians must accept the fact that under our current system of litigation, someday, somehow, they are likely to be on the receiving end of lawsuit. Other professions, like engineering and architecture, face this problem as well. And without diminishing the incredible inconvenience, expense, and (perhaps most significantly) stress and mental anguish that result from being named in a lawsuit, I think it’s important that medical providers have a more realistic perspective of how likely lawsuits against them are to succeed.

In the end-of-life care context, for example, physicians often feel pressure from families to overtreat a no-longer-competent patient, even in the face of an advance directive requesting non-treatment, because they fear being sued for wrongful death. I am currently conducting research with a student assistant, and have not yet found a successful suit by a family against a physician for non-treatment in compliance with a patient’s prior wishes (if anyone has, I’d love any leads). Another example – though this one was driven by a health care institution rather than an individual provider – is the recent case of Marlise Munoz, in which John Peter Smith Hospital refused to withdraw a ventilator from a deceased pregnant patient. The hospital claimed that it was constrained by a Texas advance directive law prohibiting withdrawal of life-sustaining treatment from pregnant women, but a court held that the hospital’s reading of the statute was wrong in light of Texas’ clear definition of death. Most attorneys agree that this was in fact the only reasonable reading of the statute; nevertheless, the risk-averse health care institution proceeded with its claim.

So often, the “right” result medically is also the “right” result legally. Few patients file lawsuits, and even fewer succeed; most medical malpractice plaintiffs ultimately lose at trial. The end result is that medical providers acting in accordance with the standard of care will, in most cases, prevail. They may prevail only after protracted litigation, but litigation may be unavoidable. Unfortunately, few providers are given the tools to understand this. Educating physicians about the realities of the legal system, both in medical school and in practice, will ultimately serve them and their patients better.

Cross-posted at HealthLawProf Blog

Nadia Sawicki

Nadia N. Sawicki is a Georgia Reithal Professor of Law at Loyola University Chicago, and Academic Director of Loyola’s Beazley Institute for Health Law and Policy. Her research focuses on patient decision-making and the informed consent process, particularly in the areas of end-of-life and reproductive care. Her work has been published in a variety of peer-reviewed journals - including the New England Journal of Medicine; Law & Policy; the Journal of Law, Medicine & Ethics; the American Medical Association Journal of Ethics; the Journal of Clinical Ethics; the American Journal of Bioethics; and the Journal of Legal Medicine – as well as in many academic legal journals. She has previously served as a member of the American Bar Association’s Special Committee on Bioethics and the Law, and was the co-chair of the American Society for Bioethics and the Humanities’ Law Affinity Group. Prof. Sawicki received her J.D. from University of Pennsylvania Law School, and her Masters in Bioethics from University of Pennsylvania School of Medicine. She is a graduate of Brown University, with a concentration in biomedical ethics. Prior to joining the Loyola faculty, Prof. Sawicki held the inaugural George Sharswood Fellowship at the University of Pennsylvania Law School, served as a lecturer in History and Sociology of Science at the University of Pennsylvania's School of Arts and Sciences, practiced law with Wolf, Block, Schorr & Solis-Cohen, and clerked for the Honorable J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania.

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