What Lawyers Can Teach Doctors About Ethics

So THAT'S why they wear masks!

So THAT’S why they wear masks!

Sandeep Jauhar is a cardiologist, the author of “Doctored: The Disillusionment of an American Physician” and “Intern: A Doctor’s Initiation.”and a contributing op-ed writer for the New York Times. He recently penned a column for the paper that raised concerns about threats to doctor-patient confidentiality, specifically from the case, in Washington state, of Volk v. DeMeerleer.

Howard Ashby, a psychiatrist, was sued after his patient, Jan DeMeerleer, shot and killed an ex-girlfriend and her 9-year-old son before shooting himself.  The estate of the victims, Rebecca and Phillip Schiering sued Dr. Ashby, alleging that he breached a duty to warn DeMeerleer’s victims even though the killer had made no specific threats toward the Schierings during his treatment.  Last year, however,  that judgment was reversed by an appeals court, which held that doctors could be required to warn “all foreseeable victims” of their potentially dangerous patients in their care.

It’s a terrible decision, and Jauhar does a good job explaining why. Unfortunately, he also writes this..

“I once took care of a business executive in the emergency room who had hired call girls during a weekend drug binge. When he saw a police officer outside his room, he quietly handed me an envelope containing a large amount of white powder. I wasn’t sure what to do with it, so I discarded it. For the next several hours the patient eyed me suspiciously, probably wondering whether I had ratted him out. But it never occurred to me to do so.”

Well, it should have. Confidentiality is one thing, assisting in a crime is another. The Hippocratic Oath says“What I may see or hear in the course of treatment, I will keep to myself.” That only means, however, that doctors who learn about criminal activity a patient may be involved in is bound not to report it (lawyers have the same obligation).  Jauhar did more than not report criminal activity; he participated in it. He crossed the line by disposing of contraband.

Renowned Georgetown Law Center legal ethicist Steve Lubet neatly explained where the doctor went astray in his letter to the Times;

To the Editor:

Dr. Sandeep Jauhar undermines his argument for physician-patient confidentiality by referring to an instance in which he accepted an envelope of white powder, presumably drugs, from a patient and “discarded” it to avoid discovery by the police.

Hiding evidence of a crime isn’t confidentiality; it’s obstruction of justice. There is nothing about one’s status as a physician — or a lawyer, for that matter — that requires or excuses the possession or concealment of contraband.



Source: Legal Ethics Forum

22 thoughts on “What Lawyers Can Teach Doctors About Ethics

  1. I guess he didn’t want to “get involved”. Sorry Doc, but when you accepted that envelope in the first place, you became ethically involved. What did you think was in it? Money? Tickets to a Broadway show? And, after discovering what was likely illegal drugs, just HOW did you “discard” it?

  2. “doctors could be required to warn “all foreseeable victims” of their potentially dangerous patients in their care”

    Despite the protestations, I’m not sure this is that bad of a ruling. As pointed out in this article “The protective privilege ends where the public peril begins”, but this concept was abandoned in this case. The psychiatrist knew the patient was dangerous, but not to a specific person, so nothing was done. As stated, physicians only feel they should so something if a specific person is targeted. If the patient is only likely to attack people at random…well, that’s OK. I’m sorry, that is ignoring their duty to the public. Physicians have a state-sanctioned monopoly on medical care. As such, they are the only ones allowed to order someone to be involuntarily committed when they pose a danger to the public. They have kept the privilege, but rejected the duty. We see a prime example of this in the Aurora, CO shooter who was banned from the medical complex by his psychiatrist for being too dangerous to be around her to the staff, but the psychiatrist refused a police request to have him involuntarily committed. I feel the court is right. As a holder of the monopoly right on protecting the public from the violent, mentally ill, they have a responsibility to warn all foreseeable victims (the public) when their patient seems dangerous. In other words, the court is ordering them to do their job. I don’t see what is unethical about that.

    If they don’t want to be the ones responsible for protecting the public from the dangerous mentally ill, if they feel it conflicts with their role as a caregiver, then they need to give up that right and give it to someone else. Who do we want to do this, the police? This is a jobs that cannot be left undone, somebody has to do it. If physicians won’t do it, then someone else must be allowed to.

        • I wasn’t seriously suggesting we give such power to the police. They are not trained nor qualified to evaluate people for such a purpose. My point was, if the medical community won’t do it, who will?

            • My fear is that if the physicians don’t start doing their job about this, someone might give it to the police. There is a guy who hangs out across from my office. His brain is fried from drug use in college and now he hangs out on the street. He killed a man in the fast food restaurant on the corner years ago. He didn’t mean to, he just lashes out sometimes. He has written threatening letters to officials in Washington DC. Sometimes he walks around with chainsaws or axes. No one can do anything about it. He is mentally ill. What happens the next time he hurts or kills someone? There needs to be a better answer than ‘Oh well’.

  3. “The Hippocratic Oath says“What I may see or hear in the course of treatment, I will keep to myself.””

    Maybe that component of the Oath, though maintained in a general form for certain circumstances, needs to be caveats for other circumstances…

    I don’t think the profession can be analogized to the service lawyers perform.

        • Licensing isn’t the definition of “profession.” True/traditional professions are dedicated to the public good—the clergy, physicians, lawyers, and maybe accountants. Personal trainers are licensed.

          • What exactly is “public good”? A personal trainer, ULTIMATELY, is just a subset of the Industry aimed at people’s health and well-being…which Doctors fall into as well.

            The reason lawyers ARE a special category is because their profession is aimed DIRECTLY at the Originating Foundation of our civilization: the Rule of Law.

            All other professions are ultimately a function of the Marketplace and what the community, by mass movement, considers to be a “public good” – that is to say, something we value. And even though, in the end, arguments could be made that our belief in rule of law is also just a marketplace construct, it still has the privilege of being the foundation for all the rest.

            Another special category of professional – the soldier, cleaves out for itself certain ethical constraints, but even then, at the end of the day, that’s a market-driven profession as well.

            • (And to be clear, the key part of the Rule of Law, that gives lawyers this Duty of Confidentiality is entirely based on our notion of “innocent until proven guilty” and protections from self-incrimination when one is facing State accusations and charges…)

              • Uh-uh. It’s based on loyalty and trust. The duty for transactional lawyers and real estate lawyers and domestic lawyers are the same: the client must be able to trust the lawyer with everything the lawyer learns. The duty is especially important for criminal lawyers, in the possible consequences of breach, but no more absolute.

                • Come on!

                  “It’s based on loyalty and trust.” is the basis of EVERY market transaction to some degree – regardless of how much we seem divorced from it by large retail and faceless corporations.

            • Ultimately, the ethos is that professionals are trusted and worthy of trust, because they are in the profession for the good, not for the money. The clergy is the ultimate profession, ideally.

              • Still none of that is good enough to show that the inhibition on Lawyers can be analogized to any other profession. The inhibition on Lawyers exists EXACTLY because what is inhibited has to do with the Law and their ability to perform their role as it related between the Law and those not educated in the Law.

          • … True/traditional professions are dedicated to the public good—the clergy, physicians, lawyers, and maybe accountants. …

            No, the essential characteristic is that the professional has brought within himself the key aspects of working in a field, i.e. there is no dependence on key aspects srawn from other resources. These days, teaching does not qualify, though it still gets the courtesy title from when it once did. Architects and accountants do qualify, yet their work only incidentally serves the public weal if it does at all. And so on.

            It should be no surprise, though, if professions often work towards a wider good; many things do – even the butcher who, as Adam Smith noted, was actuated by interest rather than charity. But it is still incidental rather than of the essence.

      • I believe that that “duty of confidentiality” varies between the professions. The medical profession, for instance, specifically as regards mental health, has another construct (with differing state requirements under mandates and Tarasoff-like principles) which may confound if not conflict with the duties of the law.

        For instance, regarding the clinician’s or physician’s duty to warn of a recognized danger: (1) after appraising the risk to be serious and probable; or (2) warning of the threat of violence based only on the threat itself; or (3) by a victim’s right to be warned based on a concern‐arousing event; or — and here medicine and the law are in agreement — (4) “a required criminal victim warning mandated by statute when requested by a person who had already been criminally victimized by the offender in question. . .” (In many cases police are informed of any of these, sometimes without notifying the victim. Family members or others likely to convey the warning to the identified victims may be warned, depending on the circumstances).

        “These warning practices are distinguished by what occasions or justifies the warning. The “reason” for the warning, at least in practice if not in law or ethics, results in this exceptional violation to confidentiality, a tenet so important to both practitioners and their clients or patients….” It’s not so much a case-by-case as a state-by-state situation. In the case of the latter, it’s the lawyers who need to know the principles as well as the laws for both.

        Quote source: the abstract of Warning a Potential Victim of a Person’s Dangerousness: Clinician’s Duty or Victim’s Right? presented at the 35th Annual Meeting of the American Academy of Psychiatry and the Law: http://www.jaapl.org/content/34/3/338.full

  4. Many years ago, I had an attack of acute pancreatitis, for which I was given a prescription for Percocet. A couple days later, I was talking to a physician who was following up with me. I happened to have the pills with me at the time. He asked me if I was still in terrible pain, to which I replied that it was still there, but not quite as bad, and that the pills helped. He said, “aw, you don’t need those things; why don’t you give them to me?”. I did, not thinking anything of it. It wasn’t until years later that I realized that this isn’t SOP, and that he more than likely ate those pills.

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