John Roberts - Chief Justice of the United States said, “I find that when I tell lawyer jokes to a mixed audience, the lawyers don't think they're funny and the non-lawyers don't think they're jokes.” With this in mind and consumed with awareness there is an inherent conflict in asking a lawyer why health professionals need a lawyer, I have accepted the task, as one of the lawyers on the Medicus panel, of answering the question posed of me by board members of Medicus.
I answer this question in three parts. The first, understanding the environment in which an iatrogenic injury and complaints are investigated. The second, summarizing the reactions of health professionals that I have assisted over my 30 years working in this area. The third, and I hope with humbleness, giving some insights as to why a lawyer may be able to add some value when preparing a response.
The environment. Much more so than when I first started acting in this field, the processes of inquiry into health practitioner conduct are legal- rather than profession-led. Health practitioners are relegated to being advisors rather than decision makers and the decisions are written up often by quite junior lawyers who have no experience of the world and realities of the day of the health professional whose conduct is at issue. The health professional’s world of a stream of patients from heart sink to delightful; terminally sick or disabled to the worried well; posing a risk to those who seek to give assistance or posing a risk to themselves; trying to manipulate an outcome such as drugs to sell or genuinely needing medication; and on it goes. We lawyers scrutinize your conduct spending upwards of a ratio of 5 hours for every 10 minutes of your time that is being investigated, in isolation of all the other pressures of the day. Then we pass judgment. In short, the health professional must move from the medical to the legal world when a process of inquiry is initiated.
The reaction. I have yet to act for a health professional whose reaction on getting a complaint was “good, I was wondering what to think about when lying in bed at night”. For the vast majority the reaction is one of stress and distress. For many there is the genuine sorrow and regret that a patient has been let down. For the minority and for some with justification, indignation that a professional body is pursuing an obviously unjustified complaint or one already the subject of a concluded investigation by the Health and Disability Commissioner. Sadly, this has led to suicide for some as a consequence of the process and we have lost good people from the profession. Fear is also common along with dread each time there is a communication on the matter.
This is why Medicus cases are responded to by both a doctor and lawyer. In this way we can address both the health professional’s reaction to the matter and ensure that the response is comprehensive for both the legal and medical advisor lens that will be applied to it.
What’s the point of a lawyer? This is a good question. I can’t change the facts or what has happened. I can’t change the processes to which you are subject.
What I can do is guide you, so that your response when read by lawyers, conveys what you mean it to say. As one doctor once said to me “I never realized how differently lawyers think”
I often ask the questions about further information that should be added for context, so that it is included. I can with the assistance of the Medicus health practitioners go through the notes and pick matters that are better addressed early rather than through subsequent questions. I can advise on order and expression to better ensure your letter is understandable to medical advisors and to lay people reading it and the lawyers who make the decision.
Where appropriate, through me, experts can be engaged to provide an opinion that may be sent in with or subsequent to your response.
I can assist with knowing the processes and road testing your response against possible cross- examination based on the knowledge of hundreds of cases I have been involved in over the years and I can give you guidance on your worst- and best-case outcome.
I can do a better job for you if involved early rather than your being on the back foot explaining a rushed response that has not conveyed your true intent.
I can’t change your reaction to the event in question but can advise on the importance of a professional rather than emotional response.
So, do you need a lawyer? Well, I will let you be the judge, as I stand by ready to assist if engaged.
An article written by Gaeline Phipps