Walking the Tightrope – Thoughts on Law and Medical Practice in Barbados

By Christopher Birch

The Honourable John Boyce, Minister of Health; Professor Joseph Branday, Dean of the Faculty of Medicine; Dr Carlos Chase, President of the Barbados Association of Medical Practitioners; Distinguished Graduates of the Faculty of Medicine, parents, spouses and families, specially invited guests, ladies and gentlemen.
It is a special privilege and pleasure to congratulate the newest members of the medical profession this evening, and to join in the celebration of their achievement. There is little need to remind all present of the sacrifices and extreme hard work that all of you have undertaken to arrive at this moment, or of the challenges that lie ahead as you all join in the ongoing task of healing the sick in our society and the wider world. Nor need you be in any doubt as to the overwhelming pride each of you must feel, along with that of your families, spouses and well-wishers, at having survived what must have appeared to be an endless, arduous journey. You have all endured to the end, and for that, you have our boundless admiration.
While you now take your places in the roll of registered medical practitioners here and in your home countries, it may be salutary for all to reflect on precisely why a lawyer has come here to celebrate your success. The answer is simple: like the poor, the law and lawyers will be with you, always. While all of you may represent the epitome of medical, ethical and scientific skill and the state of the art, the fact remains that you will still require guidance as you embark on your profession. While your professors and supervisory physicians and nursing staff will be there to cheer you on, steer you straight, and sometimes save you from yourselves, the lawyers and the courts may sometimes have to ride to your rescue for those moments where your professional prognosis is extremely guarded.
Let us be honest with you: you are joining a profession that, unlike many others we can think of, enjoys a level of public and personal trust that exists nowhere else. After all, who but doctors can perform the miracle of assisting with every medical condition from birth to death? Which other profession makes the extraordinary seem commonplace, and uncommon skill seem effortless? There will be moments where all appears to be lost – and the medical health professional, by dint of calm, careful, relentless skill, dedication, research and teamwork, will snatch the dying from extremis. You will earn the gratitude of the individual and the countries you serve every day, every night, and it will go to your youthful heads! And rightly so!
However, in reaping those plaudits and saving lives, you are walking a tightrope, and a single personal or professional misstep may be disastrous, for you, and worse, for the patient. The price you pay for being at the pinnacle of national esteem is going to astound you if you are not watchful from tonight.

The ethical side of your profession has been hammered into you and it would be a waste of time turning these remarks into a reiteration of what you already know. However, lawyers are duty bound to do so anyway.
First and foremost, you must ensure that your every move is legally defensible. Note well that the phrase is “defensible” and not “defensive”. No doubt you are extremely aware that malpractice costs are skyrocketing worldwide and as a result, the premiums on your malpractice insurance are affected as a result of the actions of your less careful counterparts elsewhere. This is a necessary evil and simply cannot be avoided, even with the duty of care being exercised to the utmost. There have been calls for legislation to be brought to bear in order to cap the liability of medical practitioners to a particular level.
While this is far from new and may have some merit, the fact is that the tortious liability of the profession is such that such a limitation exercise must, sadly, be considered in the light of just how egregious was the level of behaviour that led to the litigation. The standard you must bring to bear is that of the profession as a whole. Once you step beyond that line, not even the most talented – nor ruthless – attorney may save you.
The reality you must face once you don your coat and place your stethoscope around your neck is that you must balance the need to take risks to save lives against your confidence in being au fait with the best practices of your profession. While the fictional House M.D. and other television doctors delight in bucking the system and gambling with fate, you have to live in a world where you have to walk that tightrope between calculated risk, and the opportunity to rise above the overly cautious defensive medicine that might actually make the patient worse. It is your judgment and that of your peers that will dictate just how far the standards of the profession may be stretched – or adhered to – in order to achieve the desired result.
Professor Glenn O. Robinson of the University of Virginia made the point as long ago as 1986 that defensive medicine; that is, the excessively cautious care taken by doctors with a view to limiting their exposure to lawsuits, carried an annual cost at the time of US$15 billion. Contemplate, just for a moment, that that was nearly 30 years ago, and correct that figure for inflation. It may be safely said that, even if scaled down to our own modern economy, that is a rate of expenditure and loss that cannot be sustainable by our populace, nor you.
This leads to the next point of the tightrope you are on: the prevalence and availability of medical knowledge to the layman on a scale previously unthinkable only 10 years ago. With the best will in the world, and armed with the latest expertise, you are ready to provide the very best of care. The problem is, your patients, equally armed with resources like the online Merck’s Manual, WebMD, and wrongdiagnosis.com, not to speak of what they watched on Grey’s Anatomy, are quite willing to debate your findings and tell YOU what is wrong with them. They also have the expectation that you will happily order a CVC, CHEM-7, and tell you that they need the most expensive, unnecessary, and laborious tests, for free and on demand.
At this point, you are forgiven for thinking that you ought to have been a lawyer, engineer, or almost anything else. However, you are ethically and legally mandated and entitled to tell them, nicely, of course, that you are the expert and that what you prescribe and advise is actually in line with standard medical practice; and keep telling them until they recover or go to one of your colleagues for the inevitable second opinion.
The other side of the coin of knowledge is that, as the newest members of the medical fraternity, you have the advantage of knowing the very latest in the state of the art. Be fearless, yet tactful in dispensing that knowledge to patients and peers alike, remembering always to be humble enough to know that you do not and never will stop learning.
Now, for the not so nice part of this trip along the tightrope: the relations between the medical and legal professions. Unlike you heroic, extremely intelligent men and women, lawyers are the pantomime villains of society. If there is any doubt, go to a cocktail party and in the course of conversation, mention that you are a doctor. Instant admiration. Not so for the lawyers, which can be quite unfair, oftentimes.
When it comes to the face to face interaction between the professions, it can become even worse, since the doctor has to interrupt the saving of lives to provide the courts with medical evidence and expertise. Not content with dragging the doctor away from patients, the lawyer then proceeds to ask all sorts of questions that either insult the intelligence or are frankly irrelevant to the findings as presented.
That is perception. The reality is very different.
More often than not, the doctor has to be summoned repeatedly by the Judge or Magistrate, not out of wilful contempt, but out of sheer press of the medical workload. Sometimes the file isn’t available from the Records section, or the patient is still under care and the file is simply incomplete. Lawyers rarely cross-examine doctors, since the evidence and the findings are simply scientific facts that do not lend themselves to misinterpretation or contention. Doctors are given priority before the courts precisely because it is known that every minute in court is a minute better spent saving lives.
So, why does the perception persist?
With the greatest of respect, it persists because of the negative experiences and lack of mutual familiarity with each other’s way of life. In some ways, lawyers understand doctors more than vice versa, because as part of the legal education curriculum, students must successfully pass a module optimistically entitled “Forensics”, which is taught by doctors at each law school. Medical students, on the other hand, rarely appear in courts as part of their training, clearly because there is no time for that level of exposure.
As a result, the extent to which a doctor is comfortable with providing evidence in court depends on their social skill and ability to deliver sometimes-complicated information in a clear, concise manner. In the rare event of cross-examination, the doctor also has to bring the cool detachment and confidence in his or her ability in order to explain deeper medical aspects without becoming argumentative or arrogant. Not all can or do achieve that Olympian restraint. The good thing, however, is that the judicial officer is always ready to interject should either party become carried away with their self-belief and vaunted expertise.
To negotiate that obstacle, it is suggested that in the rare event that any doctor finds time in their schedule, a familiarization visit to the courts would be a good thing. Not only would many mutual misunderstandings of the respective roles of lawyers and medical practitioners be cleared up, but the doctor would also gain even more insight as to the traditions and workings of the court system. Sure, it is well known that you need to sleep after your 22 hour days. Try to visit the courts anyway, and snatch your sleep there. Rest assured that it is highly unlikely that you will wake up in prison for having done so.
Now, the end of the tightrope is in sight. Here’s some supporting words that will help you balance your way across those last few feet. Be meticulous in your record keeping. Keep track of your patients even after they have been cured. Stay up to date with the latest knowledge, without being trendy. Not every miracle cure is, and not every piece of apparent quackery is useless. Sleep when you can. Don’t obsess about the title you hold, but instead about the power and responsibility you wield, and the wisdom required to use them properly.
Support your peers when they adhere to accepted medical practice, and steer them back on track when they deviate. Pitch in and take leadership in your Association and your communities. Above all, maintain, at all costs, your integrity and your moral compass. In this way, you shall not fail your patients nor yourselves, and best of all, you will stay well away from your lawyers and insurers.
Perhaps no better advice can be given to you than that from Professor Dr Atul Gawande of Harvard Medical School, who said to another graduating class of doctors:
“As you head into training and then further onward into practice, you will be allowed into people’s lives in a way that no one else in society is permitted. You will see amazing things. And you will develop extraordinary abilities.
Along the way, you will sometimes feel worn down and your cynicism taking over. But resist. Look for those in your community who are making healthcare better, safer, and less costly. Pay attention to them. Learn how they do it. And join with them.”
I close by reminding you of the true difference between the medical and legal professions. The lawyer who represents himself has a fool for a client. The doctor, on the other hand, is exhorted thus: “Physician, heal thyself”. How very fortunate you are to be joining a profession that is so noble, honoured and valued, that you are trusted to take care of yourselves! Thank you.

(Christopher Birch is a Magistrate in the island of Barbados and a Major of the Barbados Defence Force)

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