Our Hands Are Tied: Legal Tensions and Medical Ethics

By Marshall B. Kapp | Go to book overview

2
The Lawyer Made Me Do It: From Legal Perception to Medical Practice

As Chapter 1 makes clear, there is a crisis mentality regarding medical malpractice among American physicians at the close of the twentieth century. As attorney Mark Hall ( 1991, p. 119) has noted, "Although this crisis mentality may result in part from uncritical acceptance of interest group dogma, to the extent that a crisis is in fact widely perceived, it has the quality of a self-fulfilling prophesy: if doctors believe, rightly or wrongly, that malpractice suits are out of control, they will practice more defensively." (The defensive practice virus has recently begun to infect the practice of law, too [ Jacobs, 1995], but that is a topic deserving its own volume.)

Physicians almost uniformly perceive the behavior caused by their legal apprehensions as negative on the quality of patient care. Frequent phrases expressing these sentiments are to the effect, "If only I were free to practice medicine without fear of possible litigation, I could do things very differently [i.e., better for my patients]," and "I would treat my spouse differently [i.e., better] than the rest of my patients, because [s]he wouldn't sue me if luck brought a bad result." 1

Pediatrician Catherine DeAngelis ( 1987) sentiments are typical:

Liability insurance to provide recompense to patients and to protect clinicians is both fair and good. However, the reimbursement mechanism must

-27-

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Our Hands Are Tied: Legal Tensions and Medical Ethics
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • References xiv
  • Acknowledgments xv
  • 1 - Losing at the Lottery: Physician Perceptions of the Legal Environment 1
  • Notes 22
  • Notes 23
  • 2 - The Lawyer Made Me Do It: from Legal Perception to Medical Practice 27
  • Note 46
  • References 46
  • 3 - Risk Managers and Legal Counsel: Ethical Enablers or Paid Paranoids? 53
  • References 64
  • 4 - Doing Everything: Treating Legal Fears near the End of Life 65
  • Note 87
  • References 88
  • 5 - Who Is Responsible for This? Everyday Patient Intrusions to Protect the Provider 97
  • Note 118
  • References 118
  • 6 - A Dispirited Lot: Malpractice and What Else? 123
  • 7 - Reconciling Risk Management and Medical Ethics: Opportunities and Obstacles 141
  • References 164
  • Index 171
  • Bout the Author 177
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