By Deborah Cho
[See Part I here]
Last week, I wrote the first of a two-part series on tips that may be helpful for law students and lawyers interested in or working in health/medical law. I continue with Tip #4 here.
4. If you need to learn about a disease, procedure, or drug that you know nothing about, your best starting point is probably Wikipedia. Google will lead you to some incorrect answers, and diagnose-yourself websites will give you answers that are much too broad to use practically in legal practice. Once you have familiarized yourself with the general topic on Wikipedia, you can then go back to your search engine of choice for more specific terms and weed out the wrong information. Starting on PubMed or GoogleScholar probably isn’t the best idea either because most of what you’re reading will be highly technical and the articles you find will likely be about novel uses or instances of whatever you’re searching. Another fantastic source is UpToDate, an evidence-based Wikipedia-like source for healthcare providers, but many people may not have access to all the information on this site.
5. Physicians don’t know as much as you’d expect them to about the health insurance system. (Note: I have only the utmost respect for healthcare providers and understand that the quantity of information they are expected to retain is nothing short of ridiculous. See Atul Gawande’s Complications for an interesting perspective on society’s unrealistic and unattainable expectations of modern medicine.) They receive almost no formal training on health insurance and, realistically, don’t need to know much about it on a day-to-day basis. Little to none of their day is spent looking through the details of coverage or payments. I write this only to emphasize that talking to a physician about your client’s insurance is likely not the best use of anyone’s time. Unless your client has particular conditions that would make the provider aware of his insurance, such as an inability to pay for necessary medications, the client’s health insurance probably has never crossed the provider’s mind. This is most applicable to providers in academic and public institutions. Providers in private practice may handle more of their billing and insurance work.
To give a more concrete example of medical education on medical malpractice, an exam question on the topic would look something like this:
A scenario of possible medical malpractice is described. What is the patient’s burden of proof?
(A) Preponderance of the evidence
(B) Beyond reasonable doubt
(D) None of the above
What medical student has any idea what the above actually means in practice? (What law student does?) The student will memorize the phrase preponderance of the evidence and possibly understand, incorrectly, that patients have a very low burden to bear based on the explanation “more likely than not,” and then move on. What all this does is leave physicians with the idea that suing doctors is an easy, get-rich-quick pastime of lawyers. In fact, when I told my physician husband that I was writing a blog post on lawyers and medicine, his response was, “Are you writing about how you’re all out to get us?”
My take-home message on the point is this: As a lawyer, when speaking with physicians, be upfront about what information you need and why you need it. After introducing yourself as a law student, lawyer, or as part of a law firm, be quick to note why you are calling. If you need information about your client, make sure to send your HIPAA release form first and note that you are representing the client. The physician may worry you are trying to sneak one past her and get information about an opposing party. If you forget to send your release form and the physician accidentally gives you information, send the release immediately afterward and be by your phone for when she calls to confirm that you have clearance. If you think you and the physician are on the same advocate-wavelength and that a release form is not necessary, you are mistaken. The physician will spend the rest of her afternoon imagining you smugly sitting in your office, pleased with yourself that you tricked a doctor into divulging confidential information and surrounded by the briefs that will eventually be used in suing her. I have seen this happen.
These are all my tips for now, but I will be sure to update this list if I come across anything else that I find may be helpful as the semester progresses. As always, I would love to hear any feedback or thoughts in the comments section below.