Johns Hopkins Magazine -- September 1998
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The Verdict on Lawyers in Medicine
By James M. Kramon (MLA '76)
Illustration by Kim Barnes

My stepfather returned from running a battlefield hospital in World War II to do thoracic and later open-heart surgery at Mt. Sinai Medical Center in New York City. My family's apartment, two blocks from Mt. Sinai, often felt like an annex to the hospital's surgical floors. There were times when aortic graft sections and heart pacemakers were on our dinner table, next to which sat a red telephone for surgical business only. As a teenager, I saw and talked to physicians daily, even making grand rounds on occasion with my stepfather and scrubbing to watch surgery from the observation platform in the operating room.

Unless memory is fooling me, the adversities physicians contend with today did not exist in the 1950s and 1960s. When things began to change for medicine (and everything else) in the late '60s, physicians of my stepfather's generation were taken aback.

Today, physicians are not the only ones contending with forces that are diverting the medical profession's attention from providing the best possible medical care to patients. Attorneys who represent physicians--particularly attorneys like myself, who knew the medical profession when its concerns were different, not many years ago--are very aware of what is happening. We recognize how deeply the legal profession is inculpated in the difficulties today's physicians are facing in the form of business arrangements, compensation denials, and malpractice suits.

For me, one of the most troubling aspects of the present health care situation is the legal profession's willingness to place physicians in positions that would be ethically unacceptable to attorneys. Take the "gatekeeper" concept, used by health maintenance organizations. HMOs rely on gatekeepers to provide primary care to insured patients, and also to determine when patients are eligible for specialty referrals, testing, hospitalization, physical therapy, and other medical services. But in many HMOs, "gatekeepers" are given incentives (ranging from outright cash payment to continued employment) for abstaining from recommending these other medical services.

Such incentives run afoul of precisely the ethical stricture that attorneys face in their own rules against conflicts of interest. Yet attorneys who prepare gatekeeper contracts for HMOs do not seem troubled by this.

Particularly distressing for me are situations in which third-party payors decline to authorize recommended medical treatment. I am regularly confronted by physician clients who sincerely believe that particular medical steps are needed but not approved for payment. In such instances, I find myself torn between my wish never to tell a physician to act at variance with a patient's best medical interest, and my duty to advise my client of the consequences of taking steps that will almost surely cut his or her economic throat.

Perhaps the most flagrant such affront to physicians is the "gag rule," which numerous third-party payors impose. It requires physicians not to disclose to patients the availability of particular treatments. To comply, a physician must withhold from a patient pertinent information concerning curative or remedial possibilities--a willful deviation from their most basic of obligations. There is no conceivable way a physician who withholds such information from a patient can be deemed to be proceeding with the patient's informed consent.

I have never been asked straight out by a physician client whether she or he must comply with the gag rule in a particular instance; the answer to that question is so painfully obvious that it need not be asked. What occurs, instead, is a series of colloquies respecting how a physician may walk the treacherous line between wrongfully withholding information from a patient and losing his or her status as a provider for a particular third-party payor. There is only one appropriate resolution of the gag rule dilemma, and it is for state legislatures to prohibit this most odious requirement.

For most physicians practicing today, the relentless economic and business encroachments upon their practices are punctuated with increasing regularity by the physician's bte noire, malpractice claims. For attorneys who represent physicians, the specter of malpractice claims is a virtual nightmare.

These cases, which usually turn out to be marathons of unpleasantness, exact a high emotional toll on physicians. My colleagues and I regularly encounter cases that never should have been brought in the first place. Whom do we have to thank for the proliferation of unnecessary suits? One obvious culprit is our very own brethren, who shamelessly pitch their services on TV and radio, and in magazines and telephone books.

I am particularly distressed by the number of my clients who inquire about practicing "defensive medicine." Numerous clients have told me that many of the tests they order are undertaken solely for malpractice-protective reasons. I've also been told by some clients that they ignore code calls (broadcast throughout hospitals when emergency assistance is required), fearing that if the situation does not go well, a malpractice attorney may sue them. Although some of my colleagues contend otherwise, I am convinced that defensive medicine is bad medicine. I have not seen good medical judgments made by physicians with guns at their heads.

The most difficult situation for an attorney who represents physicians is to be told after the conclusion of a long and unpleasant malpractice case that a client has decided to stop practicing medicine. I have faced this more than once in my practice. When it occurs, as it did one day in my office when a superbly trained double-boarded chief of surgery haltingly told me of his decision, it is absolutely clear to me that the amount of legal adversity physicians experience today is beyond what many can tolerate.

Restrictive covenants represent another new--and often onerous-- business imposition on doctors. When many physicians sign on with various practices today, including many of those that provide services at hospitals, their employment contracts often include provisions that limit how and where they practice medicine when their contract terminates. As a lawyer, I must advise my clients to comply with restrictive covenants--or face the possibility of costly and uncertain litigation. I do this fully knowing how greatly these covenants can undermine physician/patient and peer relationships, and continuity of care.

Let me give you an example. Recently, a client was negotiating to join a radiology group that served the hospital where he had practiced for many years. The radiology group insisted that he sign an employment contract containing a restrictive covenant that would require him to resign his medical staff membership and annual privileges at his hospital, for a period of two years, should he ever depart from the radiology group. Since my client had built his medical relationships around the hospital where he was working, this would effectively terminate his practice. In addition, if my client's hospital elected in the future to procure radiology services elsewhere, he would be precluded from practicing at his hospital even if he were hired by its new radiology group. By insisting upon such a provision, the radiology group could tell the hospital that if it changed radiology services, every radiologist currently working there would be precluded from further services. There is no way an attorney in my position could agree to such a provision. I advised my client not to enter the contract, even though it would otherwise have been advantageous to do so.

My stepfather would have been surprised indeed to see how the practice of law and the practice of medicine have become so entwined. I can remember him pausing at length on one occasion after I explained to him the sorts of matters I was handling for physician clients. After a while, he looked up and said: "If things had been like that during my active years, we never would have developed chest surgery and we never would have repaired heart walls and valves."

My stepfather was correct. Advances in medicine have never taken place in courtrooms or lawyers' offices.

James M. Kramon (MLA'76), a partner in the law offices of Kramon & Graham, P.A., in Baltimore, is a frequent contributor to The Sun.