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M.D. v. J.D.: Time for Peaceful Coexistence

By Scott B. Elkind, Esq.

In order to resolve some of the apparent communication gap between the oft-rivaling medical and legal camps, I would like to offer a short series of suggestions which, if implemented, can ease tensions and promoting a better understanding among these sometimes battling professions. First, let’s examine what the professions have in common:

1. Everyone needs doctors. Everyone needs lawyers. Make no mistake about it. Lawyers do not treat illness or perform surgery. Doctors do not assist in resolving the many legal problems inherent in our complicated society. No one every woke up on a beautiful, sunny day and said “I want to see my doctor or lawyer” unless they had an important problem.

2. Our time is expensive. We do not produce commercial goods for sale. We perform services for pay. In order to be allowed to perform these services, we must go to school for many years and pass licensure examination. Specialty in our professions take even longer to develop.

3. We all practice our trade. For this reason, continuing education is required to keep our knowledge base and skills up to date.

4. We are politically active and lobby to advance our positions. To this end, we have established local, state and national organizations to serve these purposes.

5. Doctors and lawyers work under pressure and must use routinely use their judgement as part of their trade.

6. Neither profession wants to be at the mercy of the other.

Now, let’s examine where we differ:

1. In general, lawyers tend not to work on a fee for service basis, but rather bill on an hourly basis or work on a contingent basis.

2. Lawyers can bring suit and can exercise use of the court’s power as part of that privilege. Doctors have hospital privileges and have right to order prescriptions and diagnostic testing. Lawyers get sued and doctors require treatment. What goes around, comes around.

3. Lawyers are not put in the position of having to perform life-saving treatment. I routinely tell my clients who call up with an emergency to “Call 911. I’m a lawyer. I’ve never saved a life. There are not true emergencies in law.”

4. Although there are some legal services plans, few lawyers routinely participate in them and even fewer are captive employees. Nearly all lawyers work for themselves as independent contracting practitioners or with firms and are not beholden to corporations to provide them with their clientele.

5. Although in theory both professions should police themselves. Although both attempt to do so, many poor practitioners still remain. The difference is that lawyers’ mistakes do not result in physical disability or death which are far more personally devastating than a poor legal outcome. Overall, lawyers remove far more of their brethren from their ranks than do doctors. Many states have set up funds to assist victims of lawyers who commit malpractice and are not properly or insufficiently insured. The medical profession could be far more aggressive on this front and could learn something from the lawyers, especially since approximately 90% of malpractice is caused by a mere 10% of the medical profession.

6. When a poor medical outcome occurs, a lawyer may be called upon to enforce the legal rights of the injured with another lawyer called to defend the practice standard of the medical practitioner involved. Unfortunately, when a poor legal outcome occurs, doctors are not called in to question the lawyer’s judgement and practice. This would only happen in a perfect world and the underlying resentment factor would be eliminated.

Suggestions to foster better communication and interaction:

1. Both sides need to get off their respective “high horses” and take themselves less seriously. The professions are stress-laden already without additional interprofessional antagonism. Lawyer jokes pervaded in the 90’s, but doctor jokes were very much in vogue in the 70’s. Check out the latest fashions and watch out for a retro humor backlash.

2. Both sides need to be understanding of each other’s time pressures. Physicians are called upon to do more and more while being paid less and less, especially in terms of paperwork. Unfortunately, paperwork is what lawyers specialize in creating (their only true material production item). Due to HMO payment practices, doctors are required to do more with less and earn less. Depending on the lawyer, this may not be true. Some do work much harder than others and not always on an equitable rate of compensation.

3. Both sides need to make efforts to improve the service rendered by their administrative staff. Believe me, the damage done by being poorly received by an office is sometimes insurmountable. To this end, I have often said: “When you call a doctor’s office and the administrative person says the doctor this and the doctor that and the doctor the other thing, 9 out of 10 times it is the doctor’s wife working there.” Lawyers keep their wives out of the office since they do not get paid to argue with them.

4. Both sides need to get together at the bar, on the court, on the green, or otherwise socialize with each other. There are few joint events. Keeping the camps separated is not helping. This last suggestion I hope will be remembered most since it is the easiest to do.

By the way, I would love for someone to respond with other suggestions since it is my sincere hope that this article can foster some dialogue.

Scott B. Elkind is a principal at Elkind & Shea in Silver Spring, Maryland. His practice focuses on disability and medical practice issues (he is not engaged in medical malpractice cases).

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