There are some reasons why people have lost faith in the competence of physicians. They don’t have all the answers. They can often be smug and dismissive toward patients. Medical malpractice has been a far greater problem than docs care to admit, with medical errors costing about 250,000 patients their lives per year according to a Johns Hopkins study. Then there’s the internet, where anybody can google their diagnosis and treatment with neither the benefit of a medical education nor the experience of treating ailments.
That occasionally ends with doctors being told by patients and their families that they want to be treated in a way that conflicts with the doctors’ advice. What’s a doc to do?
I braced myself. My patient had been intubated with Covid-19 for weeks, her lungs growing stiffer each day. Her sons held vigil at the bedside, pausing only to critique the nurses and health care team. They didn’t like the way the nurse turned their mother. They demanded yet another course of antiviral treatment for Covid-19. As their mother’s health worsened, their frustration escalated — and so did my unease.
The son pulled a pill bottle from his backpack. It was a mixture of herbs that he had ordered off the internet. He wanted me give the supplement to his mother through her feeding tube, along with her other medications. I looked it up online. There was no evidence that it would help his mother — in fact it was on a list of medications deemed useless for the virus. At the same time, I suspected that my patient would not live through this hospitalization, and I wanted to heal the relationship between the hospital staff and her family.
The herbs wouldn’t help, but they wouldn’t hurt either. And they offered the benefit of “healing” the relationship between family and hospital, which may have made life a little easier for staff even though staff relations might not be a primary consideration in treatment protocols. But was it ethical for the physician to feed into what she believed to be a misguided treatment, to enable the family to believe that whatever nonsense they read on the internet offered any hope?
That moment with my patient’s son felt particularly fraught, but these sorts of requests are common and fall along a spectrum. Doctors may agree to give their patients probiotics because they are harmless, even though the evidence for their effectiveness is weak in most cases. They might prescribe an unnecessary antibiotic. They might even agree to spread out the timing of pediatric vaccinations at a family’s insistence.
The argument in favor of accommodating the desires of patients and families is grounded in establishing a trusting relationship.
“There are patients and families I knew I was never going to be able to treat if I wouldn’t at least compromise,” he said. Distrust in the health system was rampant. He could justify prescribing the drug to build rapport. After all, even though the medication had no medical purpose, it was fairly harmless.
But what about treatments that aren’t “fairly harmless”? What about treatments that are used as substitutes for treatments that work, that could save lives, but are refused or replaced by useless or dangerous alternatives?
When doctors prescribe medications that they don’t believe in, even ones that pose little risk to the patient, it can cost them the trust of their colleagues. Families might question why their doctors give in to some requests and not others. She believes that what patients and their families really need is honest and open communication surrounding doctors’ decisions and the time to build confidence in their providers.
But then, we’re lawyers here, not physicians. While their concerns might be remotely interesting, does it have anything to do with us? It does. While the analogy is imperfect, distrust of lawyers and the law is rampant, and to a great extent with good reason. Whether it’s because many lawyers believe their duty is to a cause rather than a client, too many just aren’t very good at their job, or, as with medicine, google searches on the internet, clients demand that lawyers incorporate into their representation their arguments and beliefs, even if they conflict with what the lawyer believes is the appropriate course of representation.
While some choices in the course of representation belong to the client, such as the right to testify in one’s own defense, tactical decisions are exclusively the province of the lawyer. To the extent we heed the client’s wishes in how we approach our case, it’s a matter of courtesy and not obligation. Like docs, we need the clients’ cooperation and trust in order to fashion our approach.
We need to know the facts in order to be prepared to address them or, if the facts are not favorable to the client, avoid or circumvent them. If the client refuses to give us the information needed due to lack of trust, the likelihood of our stepping on a landmine increases exponentially.
I remember trying a case I thought was a winner when a prosecution witness testified that the defendant said something to him that blew up the defense. I turned to my client and asked if he really said that, and with that sheepish look we all know too well, he admitted he did. “Why didn’t you tell me?” “I wanted you to think I was innocent so you would fight harder for me.” Oy.
But while the ambush can’t be helped, what can be prevented is the client who insists on the lawyer making a frivolous or flagrantly dishonest argument that would not only fail in court, but almost certainly bring the judge down on his head like a ton of bricks. Not SovCit type crazy, perhaps, but some childish argument that somebody on reddit insisted would work despite overwhelming evidence to the contrary that will almost certainly end whatever chance of prevailing existed. It’s the legal equivalent of giving ivermectin to a person with Covid. I won’t do it, but that’s just me.
