Mood Swings

A psychiatrist surveys the mind and the wider world.

by Dr. Nassir Ghaemi

Shakespeare and lawyers

Why doctors and lawyers don't mix.

Published on September 12, 2008 by Dr. Nassir Ghaemi in Mood Swings

I have always been bothered by that old joke - Question: What do you call the person who graduated last in his medical school class? Answer: Doctor. I think about this joke when I am approached by lawyers asking whether I will be an expert witness. Maybe, I hope, there is some good I can do. Maybe; but experience has also taught me: maybe not. Shakespeare had a character once famously say: "First, let's kill all the lawyers." He exaggerated, but he also had an insight.

I have worked on a few legal cases (about half a dozen over a decade). I don't make a living at it (those who do receive the esteemed "hired gun" moniker), and I don't really enjoy it. I had never even really thought deeply about why I did it. My father, long ago, had admonished me to avoid testifying against my fellow physicians; it smacked of hubris, he implied, and I was no better than the worst of them. But that medical school joke still bothered me.

I know that doctors can cause harm. The Institute of Medicine estimates that at least 50,000 patients are killed yearly by medical error. And these are chance mistakes: leaving the IV in the arm too long, not wiping with alcohol before insertion, not cleaning one's hands thoroughly, mistaken dosing on a prescription. How many more deaths, I wonder, happen with systematic error, with our own blindnesses and dogmatisms? Suppose I do not believe there is such a thing as bipolar disorder; or if it exists, I might be believe it's way overblown; so I will rarely, if ever, diagnose it. If I think that way, then persons with bipolar disorder, to whom I gave the wrong treatments, do not get well, even though lithium (for instance) might have cured them.

I always wondered about how my own research, demonstrating that we psychiatrists frequently misdiagnose illnesses and that we give incorrect treatments, argued against a facile acceptance of the "standard of care."

Thus, when lawyers came to me, based on my published research, to ask my views either for or against a plaintiff or a doctor, I thought it was my responsibility to provide my knowledge, and to take what I think is correct as a matter of science and teaching, and state what it should mean as a matter of medical practice. I only took those cases in which I felt my expertise was important and where something clearly wrong had occurred. I suppose I felt a bit comfortable in the truth.

Recently, though I found myself face to face with a sneering lawyer who informed me that one of my mentors was the expert witness for the opposite side. Given that my teacher had taught me much of what I know, I wondered how it could be, in a legal setting, that two experts who share almost all the same views could end up testifying to opposite conclusions. The lawyer who hired me told me he sees this scenario all the time; even co-authors of major textbooks end up testifying to opposite judgments.

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I was perplexed. If the truth is the truth, then how can experts who have the same knowledge and even similar attitudes reach opposite conclusions?

Here is an attempt at an answer: Because, though medicine and the law share similar methods, they have different goals. Both professions deal with uncertainty: there is no definitive proof in most cases, and judgments are made based on probabilities (e.g., "the preponderance of the evidence"). But doctors are taught that there is a truth, that they need to collaborate with each other to find out the truth, and that they are responsible: patients' lives hang in the balance. Lawyers, at least in the US, are taught that they must treat others as adversaries and serve the interests of their client, irrespective of what the truth is. (Perhaps they do not even believe in truth). Shakespeare might have gone too far, but he had an insight. I am sure, in the hands of some lawyers, that the law can be, and is, approached in a more truth-seeking, less adversarial way. (I understand that Lincoln, for instance, usually managed to settle his cases because the truth was usually not clear-cut, and he would not go to court just to defend his client.) I know that many doctors are quite adversarial, caring more for justifying their opinions than finding out the truth. But the bent of the two professions go in opposite directions.

So my mentor and I, agreeing on almost everything, are pulled to two extremes when our views have to be translated to legal opinions. And one or the other side will win. In this case, which has to do with suicide, the damage has already been done. The only question is whether anyone is to blame at a legal standard of negligence. Maybe; maybe not. Most such cases settle out of court, as they should, since the truth is not in one extreme or the other. But the lawyers, in the meantime, will pretend this is the case.

I suppose the law is there for a purpose. Medicine can do harm, so doctors should be responsible, as long as patients and lawyers do not abuse the system to claim harm where it did not happen. But this is probably too much to expect of human beings. Nothing good is ever achieved without something bad being risked.

We trudge along with a bad system, since no better one has been devised. Perhaps that was the reasoning behind my father's advice; I don't know. But the more I learn about the law, the more I am inclined to listen to him.