When physicians think it is acceptable to withhold care from lawyers involved in malpractice suits, does it signal a breakdown of the social order?
Michael S. Victoroff, MD
The AMA House of Delegates proceedings usually make my molars ache — that's why I don't follow them — but I could not escape the news coverage this June, when a South Carolina surgeon proposed a resolution that doctors withhold medical services from lawyers involved in malpractice cases. Should we laugh or cry? Here's something we can all do this summer to improve the image of physicians. The Associated Press reported that the proposal was shouted down. That was rude — but in far better taste than debating it. Anyone can audition to star in the next Jackass movie — even a delegate to the AMA. By the time this is published, his 15 minutes of fame will probably have elapsed, but the stain he put on medicine will persist. The outrageous aspect of the news coverage was its matter-of-fact acceptance of this villainous proposition, and the absence of repudiation by medical leaders. How many county medical societies went ballistic? Not reported.
I hope some of our wiser peers spent a little time counseling our wayward colleague on his world view. (Hello? Council on Ethical and Judicial Affairs?) The reason to discuss it here is because he is not unique among physicians who are willing to betray the goals of medicine and the social covenant on which our profession depends. In the AP article, actions by a neurosurgeon in New Hampshire and by a plastic surgeon in Mississippi and incidents in New Jersey and Texas were cited as cases of lawyer lockout. I know of physicians who boast of excluding "undesirables" (lawyers, and in one case, managed care employees) from their practices.
I vote in opposition. Most people — even lawyers — realize how egregious this behavior is. Anyone so misguided as to act out such a sociopathic sentiment deserves to be smacked upside the head, and have his or her fitness to possess a medical license reviewed .
We have several guideposts for understanding what's wrong with the picture of doctors refusing to care for patients on the basis of their occupations or attitudes about social issues. Think professional standards, common decency, and, if it comes to that, simple utilitarian logic.
The AMA Code of Medical Ethics (9.12) says, "...A physician may decline to undertake the care of a patient whose medical condition is not within the physician's current competence. However, physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, sexual orientation, or any other basis that would constitute invidious discrimination...."
In the largely dysfunctional institution of private practice, we understand that we have the right to refuse service under some conditions. The financial motive is traditionally accepted. Disagreeable behavior is another one. What the AMA finds unacceptable are the standard civil rights flags (race, religion, etc.) and the final category, "invidious discrimination." Discrimination is invidious when it is not related to a legitimate purpose, and it is likely to arouse ill will. Lawyer lockout squarely meets these criteria. Nobody could mistake it for anything but arbitrary and vindictive.
Who would be a candidate for ostracism? Any lawyer who has brought a case against a doctor? What if the doctor were a fraudulent, incompetent quack? Or don't those exist? Would the shutout include lawyer spouses, parents, and children? How about their employees, friends, and neighbors? Or lawsuit plaintiffs (a class that seems to include everyone, these days)?
Most of us don't condone surgeons throwing instruments in the OR and other infantile acts. Refusing medical treatment to a human being because of his or her position on medical malpractice is on the same level. Many of our reputable colleagues treat CEO embezzlers, stock swindlers, and child murderers — even quack practitioners — because the medical ethic gives precedence to compassion over every other concern. On the other hand, I have met small-minded physicians who refuse to care for smokers, HIV carriers, and obese people.
Granted, the tort industry is a national disgrace, and reforming it is a valid cause. But would the lawyer shunners have us pretend that 0malpractice doesn't exist, or that we have adequate alternative means of policing ourselves without recourse to the tort lottery? Doctors long ago outsourced their peer review to the legal industry. And please don't forget the suits physicians regularly bring against hospitals, health plans and each other, when they become disgruntled. It's easy to see targets when you're shooting through your own glass walls.
Besides being thoughtless and vindictive, abandoning an occupational class violates the prime directive of medicine, to do no harm. It is plainly unethical for doctors to exploit the vulnerability of patients for political ends. Any honorable person recognizes this as an abuse of privilege. Turning the power of medicine against patients is too short a step from giving smallpox-infected blankets to Indian tribes. A physician who withholds services from a social class is acting against the interests of the medical profession and society in general. The moral standing of doctors resides, in part, in their not taking unfair advantage of their position of trust.
Positive behaviors invite reciprocation; negatives retaliation. Would the South Carolina surgeon relinquish his right to legal representation if he were accused of a crime, in exchange for the satisfaction of seeing a trial lawyer die of appendicitis? Does he suggest that other professions take sides in a guild war? Maybe bankers would no longer give mortgages to lawyers, and fire departments refuse calls from the homes of physicians. Does "breakdown of social order" ring a bell?
Professionals must manage substantial conflicts of interest. Like everyone in service, from the Wal-Mart greeter to the priest at mass, doctors are obliged to deal with people whom they would not choose to befriend. But while some may feign civility out of raw economic or legal self-interest, most often, the human behind the counter is acting out of human empathy. This is even true in parts of the world where hatred is embedded in daily life. It is dismaying to think of bringing the spirit of Gaza to South Carolina.
A profound cultural reformation took place in America after the European colonization, and especially since the mid 20th century. Ignoring aberrations like political correctness, language purification, anti-intellectualism, and — lately — religious fundamentalism, American social tolerance is a wonder of the world. But, civility is fragile. At every moment, somewhere, somebody is conjuring a riot against the Tutsis, Shiites, Jews, communists, capitalists, homosexuals, aborigines, rich, poor, liberals, candlestick makers, or members of the other gang. But civilization depends on our suppressing subhuman reflexes, and smothering them under sentiments that have better long-term payoffs.
One of the roles of the "exemplary professions" (including medicine, law, clergy, teaching, military, and law enforcement) is to provide models for how life can be lived better, when we clothe our coarser instincts in finer ones. Physicians — more than any other group — must suppress any discomfort we feel when "the others" in our lives come for help, and focus only on the human in front of us.
Michael S. Victoroff, MD, is a family practitioner in Denver who has also been an HMO medical director.