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Medicolegal Education and the Crisis in Interprofessional Relations

Published online by Cambridge University Press:  24 February 2021

Benjamin J. Naitove
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Abstract

An increase in malpractice claims is only one-indication of the problem physicians and attorneys have in their interprofessional relations. This Note explores the factors, such as increased specialization and social responsibility, that have given these professionals a myopic view of their respective roles.

The Note suggests that the crisis in interprofessional relations can be alleviated by interdisciplinary education in professional schools. It examines the problems inherent in current interdisciplinary programs and offers a model program jointly taught to law and medical students. The model course uses a problem solving approach that forces each student to examine the methods and limitations of both professions and to develop a concept of the professional’s role in society.

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Notes and Comments
Information
American Journal of Law & Medicine , Volume 8 , Issue 3 , Fall 1982 , pp. 293 - 320
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2020

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References

1 E. Schein, Professional Education 36 (1972).

2 Id. at 36, 39. For comments on medical and legal education in particular, see id. at 36-37, 55.

3 See Sepler, Professional Malpractice Litigation Crises: Danger or Distortion?, 15 Forum 493, 497, 506 (1980)Google Scholar, a statistical study concluding that “the acceleration in medical malpractice trials appears to be the result of general litigation proliferation.…” Id. at 506. See also Rubsamen, Doctor’s View of Medical Malpractice, in American Medical Association, 1971 National Medicolegal Symposium Proceedings 33 (1972)Google Scholar.

4 See, e.g., Fosburgh, Operations Curtailed in Strike of Northern California Doctors, N.Y. Times, May 3, 1975Google Scholar, at 40, col. 2; Lawyers Assail Striking Doctors, N.Y. Times, May 14, 1975, at 42, col. 4; McFadden, Physicians Begin Job Action Here, Impact Is Slight, N.Y. Times, June 2, 1975, at 1, col. 1; Doctors Press Slowdowns in 2 States, N.Y. Times, June 4, 1975, at 22, col. 6 (describing physician job actions in Pennsylvania and Texas, and the aversion of an impending strike in Rhode Island).

5 Somers, The Malpractice Controversy and the Quality of Patient Care, 55 Milbank Memorialq./Health & Soc’y 193, 194 (Spring. 1977)CrossRefGoogle ScholarPubMed.

6 Redden, Improving Medicolegal Relations, 10 Va. L. Weekly Dicta Comp. 1, 2 (1959).

7 Somers, supra note 5, at 194.

8 Chapman, The Relationship Between Law and Medicine, in A. James, Legal Medicine, With Special Reference to Diagnostic Imaging 11 (1980)Google Scholar.

9 American Surgical Association Statement on Professional Liability, 295 New Eng. J. Med. 1292 (1976).

10 See generally Chapman, Is Another Crisis Looming?, Nat’l L. J., Feb. 4, 1980, at 34, col. 1; Sepler, supra note 3; New York Malpractice Outlook Is Clouded, Am. Med. News, Sept. 25, 1981, at 16, col. 1.

11 Chapman, A New Malpractice Crisis? Get A Second Opinion, Legal Asp. Med. Prac., Jan. 1980, at 24, 25.

12 Gillette, Malpractice: Why Physicians and Lawyers Differ, J. Legal Med., Oct. 1976, at 9, 11.

13 See, e.g., Note, An Analysis of State Legislative Responses To the Medical Malpractice Crisis, 1975 Duke L.J. 1417, 1443 [hereinafter cited as Note, Legislative Responses].

14 Bergen, “... not a medical problem,” Trial, Feb.-Mar. 1970, at 24.

15 1 S. Pegalis & H. Wachsman, American Law of Medical Malpractice 4, 5 (1980).

16 Somers, supra note 5, at 193.

17 1 S. Pegalis & H. Wachsman, supra note 15, at 5. See Association of Trial Lawyers of America Annual Convention, 49 U.S.L.W. 2075 (1980), comments of Roberta Ritter that medical malpractice “crisis” is nonexistent, merely the result of a public opinion offensive by the medical and insurance professions.

18 A 1958 study made for the California Medical Association reported that ‘[t]he view that such suits are primarily stimulated by lawyers appears false. Most patients thought of taking action themselves. In only one-tenth of the cases did a lawyer advise suit. In just as many cases another doctor gave the advice.” Somers, supra note 5, at 214. The 1973 report by the Secretary’s Commission on Medical Malpractice (Department of Health, Education and Welfare) concluded that most malpractice claims are “actually rooted in medical injury and malpractice.” Id. at 194. That same study found that malpractice litigation comprised only a very small fraction of legal practice in this country. Curran, The Lawyers’ Role in Medical Malpractice Claims, 296 New Eng. J. Med. 24, 24-25 (1977)Google ScholarPubMed. Furthermore, the study found that “lawyers rejected 88% of all claims that they viewed.” Id. Even lawyers specializing in personal injury claims rejected 71%. Id.

19 A 1970 study by the United States Senate Subcommittee on Executive Reorganization found that 85% of all malpractice claims involved allegations of negligence. Ribicoff, Medical Malpractice: the Patient vs. the Physician, Trial, Feb.-Mar. 1970, at 10, 12. A 1976 study found that medical authorities considered at least 5% of the nation’s 320,000 doctors to be unfit to practice. However, although 16,000 physicians were considered incompetent, an average of only 66 licenses were revoked each year. 1 S. Pegalis & H. Wachsman, supra note 15, at 21.

20 See Somers, supra note 5, at 217; 1 S. Pegalis & H. Wachsman, supra note 15, at 20. As of June 1, 1979, the following states required some form of continuing medical education (CME) for reregistration of licenses to practice medicine: Arizona, California, Colorado, Hawaii, Illinois, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Mexico, Ohio, Pennsylvania, Rhode Island, Utah, Washington, and Wisconsin. Special Issue: Continuing Education Courses for Physicians, 242 J. A.M.A. 791, 792 (1979). Continuing education is a requirement for. maintaining membership in the state medical societies of Alabama, Arizona, Delaware, the District of Columbia, Florida, Hawaii, Kansas, Maine, Massachusetts, Montana, New Jersey, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, South Dakota, Vermont, and Virginia. Medical Education in the United States 1978-1979, 243 J. A.M.A. 841, 892 (1980). Also, the Joint Commission on the Accreditation of Hospitals (JCAH) requires CME programs for medical staff in approved hospitals. JCAH, Accreditation Manual for Hospitals 82 (Medical Staff, Standard V) (1981). The growing interest in CME can be measured by the increasing numbers of such courses offered. Between 1962 and 1975, the number of CME courses increased by 333%. Special Issue: Continuing Education Courses for Physicians, 242 J. A.M.A. 791, 795 (1979). Between 1975 and 1980, that number more than doubled. Id.

21 “In 1976 medical magazines increasingly featured articles which departed from the earlier mode of berating lawyers and juries and concentrated on advising doctors on elements of their own behavior. …” Somers, supra note 5, at 219.

22 Id. at 203; Chapman, supra note 10. The new physician-owned insurance companies recently have been taking more cases to trial (now 16% of all claims are taken to court, as opposed to the 5% previously), and have been winning a substantially higher percentage of them (90%, up from 80%). Id.

23 Schwartz & Gibson, Defining the Role of the Physician: Medical Education, Tradition, and the Legal Process, 18 Hous. L. Rev. 779, 781 n.4 (1981) and accompanying text. Protective state legislation has taken many different forms. Some statutes provide direct limitations of the liability of physicians and health care providers. See, e.g., Fla. Stat. Ann. § 768.54 (West Supp. 1982); Idaho Code §§ 39-4204, -4205 (1977); Ind. Code Ann. § 16-9.5-2-2 (Burns Supp. 1982); La. Rev. Stat. Ann. § 40:1299.42(B)(2) (West 1977). Other legislation has modified the statute of limitations for medical malpractice claims. See, e.g., III. Ann. Stat. ch. 83 § 22.1 (Smith-Hurd 1978); Md. Cts. & Jud. Proc. Code Ann. § 5-109 (1980); Mich. Comp. Laws Ann. §§ 600.5805, 600.5838 (Supp. 1982); N.D. Cent. Code § 28-01-18(3) (Supp. 1981). Some states have sought to protect health care providers by codifying the standards of liability. Thus, state legislation has been enacted to codify the burden of proof, e.g., Nev. Rev. Stat. § 41A.100 (1979); Tenn. Code Ann. § 29-26-115 (1980); Wash. Rev. Code ch. 4.24.290 (West Supp. 1982), and define informed consent in medical malpractice actions, e.g., Iowa Code Ann. § 147.137 (West Supp. 1982); N.Y. Pub. Health Law § 2805-d (McKinney 1977); Ohio Rev. Code Ann. §2317.54 (Page 1981). A third form of protective legislation has been directed towards regulating lawyers’ contingency fee arrangements in medical malpractice actions. See, e.g., Cal. Bus. & Prof. Code § 6146 (West Supp. 1982); Idaho Code § 39-4213 (1977); Pa. Stat. Ann. tit. 40, § 1301.604 (Purdon Supp. 1982); Wis. Stat. Ann. § 655.013 (West 1980). The implementation of screening panels is another legislative response aimed at modifying the legal system’s handling of medical malpractice claims, see, e.g., Ind. Code Ann. §§ 16-9.5-9-1 to -10 (Burns Supp. 1982); La. Rev. Stat. Ann. § 40:1299.47 (West Supp. 982); Mass. Gen. Laws Ann. ch. 231, § 60B (West Supp. 1982); N.Y. Jud. Law § 148-a (McKinney Supp. 1981); Pa. Stat. Ann. tit. 40, §§ 1301.301 to -.514 (Purdon Supp. 1982). See generally Note, Legislative Responses, supra note 13.

24 See generally Annas, Doctors Sue Lawyers: Malpractice Inside Out, Hastings Center Rep., Oct. 1977, at 15; 1 S. Pegalis & H. Wachsman, supra note 15, at 34-37; Birnbaum, Physicians Counterattack: Liability of Lawyers for Instituting Unjustified Medical Malpractice Actions, 45 Fordham L. Rev. 1003 (1977). It should be noted, however, that physicians have not prevailed on this theory, since courts have held that lawyers do not owe a duty of care to third parties, such as the physician defendants. See, e.g., Friedman v. Dozorc, 412 Mich. 1, 312 N.W.2d 585 (1981) (attorney owes no actionable duty to adverse party; citing cases from other jurisdictions with same result). Developments in ethical standards may affect future consideration of the scope of a lawyer’s duty. It is also possible that some of the 80% of all malpractice plaintiffs who lose at trial, see Somers, supra note 21 and accompanying text, may have a cause of action against their attorneys for wasting their time and money on what the attorney should have recognized as a frivolous claim. But cf. 1 S. Pegalis & H. Wachsman, supra, at 37 (insufficient evidence to infer groundless nature of a significant number of malpractice claims). In this respect, note the Kutak Commission’s Rule 3.1 lawyer’s duty not to pursue non-meritorious claims; scienter not necessary). Model Rules of Professional Conduct Rule 3.1 (Final Draft 1981). Cf. Model Code of Professional Responsibility DR 7-102(A)(1) (1980) (applying requirement of scienter).

George Annas, who teaches medicolegal subjects at Boston University’s schools of Medicine and Public Health, has condemned the lack of “experience and training in health law” among lawyers in Massachusetts. This is especially disturbing, since the Massachusetts courts have been notable for producing leading decisions in health law. Annas, Reconciling Quinlan and Saikewicz: Decision Making for the Terminally Ill Incompetent, 4 Am. J. L. & Med. 367, 387-90 nn.53-55 (1979). See Zaslow, Medical and Legal Malpractice: Professional Problems and Cooperation, J. Legal Med., Oct. 1976, at 8AA, 8CC (joinder of multiple parties in some malpractice cases may be the result of the lawyer’s incompetence).

25 137 N.J. Super. 227, 348 A.2d 801 (1975), modified, 70 N.J. 10, 355 A.2d 647 (1976) (requirement of concurrence of hospital ethics committee a sufficient safeguard of a terminally ill incompetent’s interests in treatment).

26 373 Mass. 728, 370 N.E.2d 417 (1977) (detached but passionate investigation and decision of a court necessary to protect incompetent’s right to life-saving treatment).

27 See generally The Quinlan Decision: Five Commentaries, Hastings Center Rep., Feb. 1976, at 8; Relman, The Saikewicz Decision: A Medical Viewpoint, 4 Am. J. L. & Med. 233 (1978); Baron, Medical Paternalism and the Rule of Law: A Reply to Dr. Relman, 4 Am. J. L. & Med. 337 (1979); Annas, supra note 24 (especially at 386). See also Bernzweig, Lawsuits: A Symptom Not A Cause, Trial, Feb.-Mar. 1970, at 14; Norton, Development of an Interdisciplinary Program of Instruction in Medicine and Law, 46 J. Med. Educ. 405 (1971).

28 See Gibson, & Schwartz, Physicians and Lawyers: Science, Art, and Conflict, 6 Am. J. L. & Med. 173 (1980)Google ScholarPubMed; Schwartz & Gibson, supra note 23; Gold, Wiser Than the Laws? The Legal Accountability of the Medical Profession, 7 Am. J. L. & Med. 145(1981)Google Scholar; Luby, The Physician and the Lawyer: Conflicts in Conceptual and Professional Models, in Intersections of Law and Medicine 1 (1972)Google Scholar.

29 Gibson & Schwartz, supra note 28, at 176. See Luby, supra note 28, at 8.

30 Gibson & Schwartz, supra note 28, at 177-80.

31 Id. at 176. “Science is truthful because it has practically no temptation to be anything else.” Pope, Promoting Understanding Between Science and Law, 10 Va. L. Weekly Dicta Comp. 17, 20 (1959). Legal truth, on the other hand, is seen as a mere matter of persuasion. Gillette, supra note 12, at 9.

32 Gibson & Schwartz, supra note 28, at 177.

33 Id. at 177-78 (parenthetical in original).

34 See id. at 178-79.

35 “Every advance in medical capabilities is an increase in our moral responsibility,” observes Joseph Fletcher of the University of Virginia Medical School. When Doctors Play God, Newsweek, Aug. 31, 1981, at 48. Thus, note Gibson and Schwartz, “physicians’ concept of truth, based on a scientific model that underlies their training, does not encompass the fact that what they actually do in the practice of medicine is at least as much art as it is science, that is, it incorporates relative as well as absolute truths.” Gibson & Schwartz, supra note 28, at 180. See Schwartz & Gibson, supra note 23, at 789. “In order to apply ‘purely technical knowledge’ to practical affairs, one must engage in social as well as merely technical activity. The technical activity itself becomes social in that it has social meaning, is embodied in social relationships, and has social consequences for the members of that relationship.” Gold, supra note 28, at 166 n.67. Even in “good medical practice” no decision is purely technical. Levine, Disconnection: The Clinician’s View, Hastings Center Rep., Feb. 1978, 8, 11. “Medicine is inherently moral,” and “a necessarily inherent part of it is decision-making linked to human values.” Cassel, Making and Escaping Moral Decisions, I Hastings Center Stud. 2:53-54(1973). The doctrine of informed consent demonstrates the basic fact that no medical decision is purely technical. See Gold, supra, at 173 n.88. See also Baron, supra note 27, at 340; Pauly, What Is Unnecessary Surgery?, 57 Milbank Memorial Fund Q./Health & Soc’y 95 (1979).

36 Schwartz & Gibson, supra note 23, at 782. One example of the accommodation of both claims to competence is the legal definition of death. Gold notes that while the law may determine what functions constitute life, it is left to physicians to determine if those functions are present. Gold, supra note 28, at 154-55. Cf. Kushnir, Bridging the Gap: The Discrepancy Between the Medical and Legal Definitions of Death, 34 U. Tor. Fac. L. Rev. 199 (1976); Note, Matter of Life and Death, A Definition of Death: Judicial Resolution or a Medical Responsibility?, 19 How. L. J. 138 (1976).

37 Schwartz & Gibson, supra note 23, at 784.

38 Veatch, Violate Bravely, Hospital Physician, May 1976, at 40, 41.

39 See Schwartz & Gibson, supra note 23, at 784; Veatch, Professional Ethics: New Principles for Physicians?, Hastings Center Rep., June 1980, at 16, 17, 18. See also Gold, supra note 28.

40 Gold, supra note 28, at 152.

41 Id. at 163.

42 See, e.g., Burt, The Limits of Law in Regulating Health Care Decisions, Hastings Center Rep., Dec. 1977, 29; Veatch, supra note 39; Chapman, On the Definition and Teaching of the Medical Ethic, 301 New Eng. J. Med. 630 (1979) (calling for a new look at medical ethics); Frankel, Book Review, 43 U. Chi. L. Rev. 874 (1976) (calling for a systematic examination of legal ethics in the context of modern practice). Moreover, the legal profession has officially recognized this change. “Today the lawyer plays a changing and increasingly varied role in many developing fields. The precise contribution of the legal profession is as yet undefined.” Modes Code of Professional Responsibility, Preliminary Statement n.7 (1980) (quoting 44 A.B.A. J. 1159 (1958)) [hereinafter cited as Model Code].

43 Schwartz & Gibson, supra note 28, at 790. See ABA Comm. on Evaluation of Professional Standards, Final Draft of the Model Rules of Professional Conduct, A.B.A. J., Oct. 1981, supp. [hereinafter cited as Model Rules] ; American Medical Association, Current Opinions of the Judicial Council of the American Medical Association 1981 ix( 1981) [hereinafter cited as AMA, Current Opinions]. See generally Luban, Professional Ethics: A New Code for Lawyers?, Hastings Center Rep., June 1980, at 11; Veatch, supra note 39.

44 “Taken together, the Rules provide elements of the lawyer’s professional role. The Rules are thus partly obligatory or disciplinary and partly constitutive in that they define a lawyer’s professional role.” Model Rules, supra note 43, Preamble.

The history of the American Medical Association’s (AMA) first Code of ethics can be traced back to the constitution of the Royal College of Physicians of London, drawn up in 1520. Chapman, supra note 42, at 631. These organizational statutes, originally labelled “penal,” gradually gained the less pejorative label “ethical.” Nevertheless, these rules retained their organizational purpose when they were transmitted to this country. Id.

These Codes have served to distinguish their adherents as deserving special privileges in society by guaranteeing, in return, certain standards of professional conduct. Frankel, supra note 42, at 884. See Model Code, supra note 42, Preliminary Statement, EC 1-2, 3-1, 3-3. An example of the special role in society claimed by professionals can be found in the language of EC 9-2 of the Model Code, supra note 42. This ethical consideration (i.e., non-mandatory rule of conduct) recognizes that professional behavior, considered acceptable according to professional ethics, may not appear proper to the layman. While the attorney should avoid any appearance of impropriety, EC 9-2 states that the attorney’s performance of his professional duty should not be subject to the layman’s interpretation. Thus, the language of the ABA Code suggests that professional ethics may be different from lay ethics, indicating the special social role claimed by lawyers.

45 The A.M.A. House of Delegates promulgated these, Principles in 1980.

46 Veatch, supra note 39, at 17.

47 A.M.A., Current Opinions, supra note 3, at ix.

48 Veatch, supra note 39, at 18.

49 See supra note 42.

50 Thode, The Ethical Standard for the Advocate, 39 Tex. L. Rev. 575, 578 (1961)Google Scholar, cited in Model Code, supra note 42, at EC 7-3 n.9.

51 Model Rules, supra note 43, Chairman’s Introduction, at 4.

52 See id.; id. a t Rul e 1.4.

53 Compare Model Code, supra note 42, at EC 7-12 with Model Rules, supra note 43, at Rule 1.14.

54 Model Rules, supra note 43, Preamble, at 5. See id. at Rules 3.4, 4.1, 4.4, & 8.4. Cf. Model Code, supra note 42, at D R 7-109(A) & (B), 7-106(C)(7), 7-102(A)(5) (lawyer’s duty to refrain from suppressing evidence, making false statements, or violating rules of the court).

55 Model Rules, supra note 43, Preamble, at 5.

56 Schwartz & Gibson, supra note 23, at 797.

57 373 Mass. 728, 370 N.E.2d 417 (1977).

58 80 Mass. Adv. Sh. 1209, 405 N.E.2d 115 (1980) (committee review of physician’s decision not disapproved, but ultimate responsibility for such decisions must remain in the courts).

59 Schwartz & Gibson, supra note 23, at 797. See id., at 796-97. One commentator has suggested that the rationale behind the appeals court’s decision in In re Dinnerstein, 6 Mass. App. Ct. 466, 380 N.E.2d 134 (1978) (prior court approval not necessary for “no Code” order on a terminally ill patient), was the result of the threat that physicians would ignore the law if it purported to control therapeutic decisions. Baron, supra note 27, at 361 n.65. Cf. supra note 38 and accompanying text (physicians saw their role as beyond the law).

60 Burt, supra note 42, at 29. At the same time, however, the courts have been reluctant to relinquish any authority over final determination of medicolegal issues. See, e.g., Common-wealth v. Sheehan, 376 Mass. 765, 383 N.E.2d 1115 (1978) (medical definition of drug addiction as a mental disease is not sufficient to determine criminal responsibility).

61 Schwartz & Gibson, supra note 23, at 798.

62 Id. at 798-99.

63 The DCE project involved the development of a list of adverse medical events which are statistically avoidable in good quality health care. Initially, a list of events was compiled from available data on closed claims. This list was then reviewed and modified by teams of clinicians who practice in the appropriate medical specialities. See Chittenden, The Designated Compensable Event in Medical Malpractice, 12 Forum 919 (1977); ABA Comm. on Medical Professional Liability, Designated Compensable Event System: a Feasibility Study (1979).

64 See supra note 23. See also Note, Legislative Responses, supra note 13, at 1456-67. Cf. Margolick, Mediation Isn’t Cure for Patients’ Claims, Nat’l L. J., Feb. 4, 1980Google Scholar, at 1, col. 1, noting criticism of the effectiveness of arbitration panels.

65 In 1952, the AMA Committee on Medico-Legal Problems concluded that “no medical student should be permitted to receive his degree without instruction in his legal duties to his patients, community and government.” Report of Committee on Medicolegal Problems, 150 J. A.M.A. 716 (1952). According to Curran and Hamlin, by 1955 courses in “medical jurisprudence” were required in most American medical schools. Curran & Hamlin, The Medico-Legal Problems Seminar at Harvard Law School, 8 J. Legal Educ. 499 (1956). Those courses dealt mostly with forensic pathology and toxicology. Recently, however, the emphasis has been on issues of physician liability and regulation of health care. A 1971 study of 96 medical schools found that 42 offered a course in “legal medicine,” and 15 schools required it. Beresford, The Teaching of Legal Medicine in Medical Schools in the United States, 46 J. Med. Educ. 401, 402 (1971)Google ScholarPubMed. Professional liability was the most common topic covered; problems of consent and medical ethics were also among the most frequently covered subjects. Id. A 1978 study of 101 medical schools found that 40 schools required their students to complete a course in “legal medicine,” while another 33 schools offered elective courses. Grumet, Legal Medicine in Medical Schools: A Survey of the State of the Art, 54 J. Med. Educ. 755, 756 (1979)Google ScholarPubMed. The most common topics were informed consent, malpractice, and the legal system. Id. at 757.

In 1958, 27 of 129 ABA accredited law schools offered medicolegal courses. Curran, Medico-Legal Instruction in Law Schools, 45 A.B.A.J. 815, 816 (1959). The most common focus of those courses was on personal injury litigation, with the primary objective being to teach students basic medical science and trial technique. See Schroeder, Jr. Teaching Medico-Legal Materials: the Experience at Western Reserve University, 8 J. Legal Educ. 503 (1956)Google Scholar; Farinholt, The Teaching of Medico-Legal Materials at the University of Maryland School of Law, 8 J. Legal Educ. 508 (1956)Google Scholar. By 1967, 40 of 109 law schools were offering medicolegal electives, with the emphasis still primarily on technical preparation for litigation in malpractice and personal injury cases. Morse, Medico-legal Education in America’s Law Schools, 99 J. A.M.A. 267, 267 (1967)Google Scholar. A 1974 study found 108 of 149 law schools had medicolegal courses. Hirsh, Educational Opportunities in “Law and Medicine” in Law Schools, 27 J. Legal Educ. 347, 347-48 (1975)Google Scholar. In 1980, 128 law schools offered from one to six health-related courses. Schramm & Hencke, The Teaching of Health Law in 1980: Results of a Survey, 6 J. Health Pol., Pol’y & L. 558 (1981). The focus of these later courses, moreover, tends away from forensics and the technical aspects of litigation, and more toward giving lawyers an understanding of the physician’s environment, the legal theories involved in medicolegal issues, and health law policy. See Hirsh, Educational Opportunities In Forensic Medicine In Medical and Law Schools, J. Legal Med., Mar.-Apr. 1974, at 41, 43; Schramm & Hencke, supra, at 559.

66 Dornette, Interdisciplinary Education in Medicine and Law in American Medical Colleges, J. Med. Educ. 389, 398 (1971). Dornette further notes that only 9 of the 22 medical schools in the 10 states with the highest malpractice insurance premiums offer courses in legal medicine, whereas 6 of the 8 schools in the 10 states with the lowest premiums offer such courses. Id.

67 See, e.g., McCoid, A Proposal for an “Ideal” Course In Law and Medicine, 16 J. Legal Educ. 433, 434 (1964)Google Scholar; DuVal, Medical Schools Not Doing a Good Job Helping Students Understand Legal Profession, 46 J. Med. Educ. 387 (1971). Not all physicians and lawyers, however, agree on the proper timing of such educational programs. See Smith, An “Ideal” Course in Law and Medicine: A Counter Proposal, 16 J. Legal Educ. 448, 455 (1964); Avoiding Malpractice: Can It Be Taught?, Contemp. Surgery, Nov. 1976, at 32, 35. See also Curran, supra note 65, at 874.

Further evidence of physicians’ and lawyers’ interest in developing interprofessional understanding are organizations such as the American Society of Law & Medicine. The Society’s membership is composed of attorneys, physicians, health care administrators, and allied health professionals. Its purpose is to serve as a catalyst for interdisciplinary discussion of current medicolegal issues.

68 Luby, supra note 28, at 13. See Norton, supra note 27; Chapman, supra note 8, at 12. See also Dornette, supra note 66, at 390.

69 Luby, supra note 28, at 9. See H. Packer & T. Ehrlich, New Directions in Legal Education 29 (1972).

70 Spies, Weiss, & Campbell, Teaching Law Students In the Medical Schools, 77 Surgery 793, 795 (1975)Google ScholarPubMed.

71 Annas, Law and Medicine: Myths and Realities in the Medical School Classroom, 1 Am. J. L. & Med. 195, 206 (1975)Google ScholarPubMed; Powers, Interprofessional Education and the Reduction of Medico-Legal Tensions, 117 J. Legal Educ. 167 (1964)Google Scholar.

72 Norton, supra note 27, at 405 (footnotes omitted).

73 Id.

74 Mazor, The Materials of Law Study: 1971, in Training for the Public Professions of the Law: 1971, 247 app. (1971).

75 Id.

76 Cockerill, A Social Worker Looks at Medical Education, in Education for Professional Responsibility 1126 (1948). This insensitive view of the patient is attributable to medical students’ pre-clinical training. The emphasis there is on basic sciences, creating a predilection in the student to look only at organic problems. “He still sees the patient as a collection of diseased organs rather than as a person in difficulty.” Means, The Clinical Training of the Medical Student, in Education for Professional Responsibility, supra, at 115. A more recent writer has noted that “[t]he clinician is more likely to look at needs rather than rights.” Levine, supra note 35, at 12. Duff and Campbell have also noted that some physicians do not know when “it’s time to turn off your curiosity so you can turn on your kindness[.]” Duff, & Campbell, Moral and Ethical Dilemmas in the Special-Care Nursery, 289 New Eng. J. Med. 890, 892 (1973)CrossRefGoogle ScholarPubMed. Drew Kershen, Professor of Law at the University of Oklahoma College of Law, has recommended broadening legal education to remind law students of the human elements of professional education. Kershen, Humanities and the First-Year Curriculum in Law School, 34 Okla. L. Rev. 90 (1981)Google Scholar. Medicolegal studies can help the students to view the legal system in the context of society and social roles.

77 Flexner, A. Medical Education in the United States and Canada, A Report to the Carnegie Foundation for the Advancement of Teaching, Bull. 4 (1910)Google Scholar. See Ebert, Medical Education in the United States, 106 Daedalus 171 (1977)Google Scholar.

78 Foster, Extra-Legal Aids to Legal Education, 10 Va. L. Weekly Dicta Comp. 37 (1959).

79 Frank, Why Not a Clinical Lawyer-School?, 81 U. Pa. L. Rev. 907, 916 (1933).

80 Id. at 921-22.

81 Curran, supra note 65, at 875.

82 Schramm & Hencke, supra note 65, at 559.

83 See Curran & Hamlin, supra note 65.

84 See Grumet, supra note 65, at 756; Hirsh, supra note 65, at 42, 43.

A different approach has been tried at the University of Cincinnati schools of law and medicine. There, “counterdisciplinary” courses were developed to teach medicolegal subjects to law and medical students in separate courses. By instructing each group using the teaching methods of the other, the developers of the course hoped to give the students a greater understanding of each other’s approach to medicolegal problems. See Linzer, Law for Them and Medicine for Us—.A “Counterdisciplinary” Approach to Learning, 55 U. Det. J. Urb. L. 113 (1977).

85 See Baram & Wilson, Final Report of Summer 1970 Pilot Project (Boston U. Center for Law & Health Sci., Oct. 1970).

86 Norton, supra note 27.

87 Annas, supra note 71, at 207.

88 Sec Luby, supra note 28, a t 13.

At the University of Arkansas, law students are exposed not only to physicians, but to the entire hospital environment. After classroom discussion of such issues as differences in methodology between law and medicine, malpractice, and hospital corporate liability, pairs of law students are assigned to a surgical resident for a 24-hour shift. They do everything the resident does, including observe surgery. This program enables the law students “to experience directly the atmosphere of the teaching hospital and the sociology of surgery practice in that environment.” Spies, et al., supra note 70, at 793.

89 See Hirsh, Educational Opportunities in Forensic Medicine, supra note 65, at 42. Indeed, the feasibility of, and interest in, interdisciplinary study may be strongly related. In a 1971 survey, the results showed “that both interdisciplinary activity and interest are low in law schools which are not affiliated with a university.” Mazor, supra note 74, at 248.

90 Hirsh, supra note 65, at 351.

91 Norton, supra note 27, at 408. Nevertheless, it is not clear that Norton’s program at Wayne State did not fall victim to that same narrow perspective.

92 Curran, supra note 65, at 875. See Spies, et al, supra note 70, at 796.

93 McCoid, supra note 67, at 436.

94 Curran & Hamlin, supra note 65, at 501. See Linzer, supra note 84, at 1.

95 Response to Survey, from Joseph G. Banks, Professor of Law, U. Cin. College of Law, and instructor in Legal Medicine, U. Cin. College of Medicine 3 (Nov. 1981) (unpublished).

96 The nature of that mutual interest was clear to the instructors of an experimental interdisciplinary seminar in Law and Medicine for Senior law and medical students at Wayne State University in 1969. “At the opening session, we asked students why they elected to take the seminar. A typical medical student’s answer was: ‘to avoid being sued for malpractice.’ A typical law student’s answer was: ‘to learn how and when to bring a malpractice suit.’“ Intersections of Law and Medicine, supra note 28, at vii.

97 Seybold, Lawyer’s View of Legal Malpractice, in 1971 National Medico-Legal Symposium Proceedings, at 31 (1972).

98 Beresford, supra note 65, at 403. Dr. Norton states that “[t]oo many courses have stressed problems in malpractice.” Norton, supra note 27, at 407. Nonetheless, he recognizes the importance of that topic in a medicolegal course, and includes it in his course outline. Properly handled in an interdisciplinary setting, teaching the subject of medical malpractice need not “generate to the legal profession the idea that medical practices are grossly negligent,” or “inflate the fear and antagonism of the physician.” Id. Indeed, if these are the impressions conveyed by traditional medicolegal courses, the best way to correct them may be through a properly structured course in the subject.

99 James G. Zimmerly, M.D., J.D., M.P.H., who teaches Medical Jurisprudence at Georgetown University Law Center, writes that his course “demonstrates that competent health law practitioners help the medical profession, the legal profession, the courts and even the patient/claimants. The course demonstrates that most cases involving health law matters are handled by health law incompetents.” Response to Survey, from James G. Zimmerly, instructor in Medical Jurisprudence, Georgetown University Law Center 5 (Nov. 1981) (unpublished). See Annas, supra note 24. Such medicolegal incompetence in the legal profession is especially worrisome in light of the increasing numbers of legal malpractice claims. See Sepler, supra note 3, at 497, noting that legal malpractice claims have been increasing almost as fast as medical malpractice. See also Seybold, supra note 97, at 27, postulating the development of legal malpractice as an element of the increasing liability of all professionals, paced by the legal profession’s treatment of medical malpractice.

100 See Norton, supra note 27, at 408.

101 Id. at 408. The discussion in this Note focuses on the classroom experience of students in law and medical schools. While laboratory experiments play a significant role in medical education, it is not feasible to transfer that kind of experience to an interdisciplinary classroom. Medicolegal courses on forensic science and evidence have used laboratory demonstrations to familiarize students with new techniques. For example, the Law-Medicine Seminar at Case Western Reserve University School of Law, which uses autopsy demonstrations to illustrate its discussion of forensic pathology. Response to Survey, from Oliver Schroeder, Director, Law-Medicine Center, Case Western Reserve University (Nov. 1981) (unpublished). Medical students in the Legal Medicine and Medical Jurisprudence course at Case Western’s School of Medicine are also invited to attend autopsies at the Coroner’s Office. Response to Survey, from Lester Adelson, Professor of Forensic Pathology, Case Western Reserve University School of Medicine (Nov. 25, 1981) (unpublished). The model course, however, discusses scientific expertise in relation to professional roles and authority. Therefore, the actual content of that technical knowledge is not an important element of the course.

102 Banks, supra note 95, at 1. George Annas, however, believes that the case method is the most successful means of presentation for a small interdisciplinary seminar. Annas, supra note 71, at 207. Curran, on the other hand, has suggested that the use of appellate court cases be kept to a minimum, even in medicolegal courses in law school. Curran, supra note 65, at 876.

103 Schroeder, Jr., supra note 65, at 506. “Students are taught rules about contracts and torts, but they find that the practice of law does not consist of applying rules but of negotiating settlements with other lawyers.” C. Argyris & D. Schön, Theory in Practice: Increasing Professional Effectiveness 142 (1980).

104 See supra note 76 and accompanying text.

105 Means, supra note 76, a t 117.

106 Frank, supra note 79, at 916. But cf. W. Johnson, Schooled Lawyers: A Study in the Clash of Professional Cultures 140 (1978) (noting criticism of law clinics as not offering the same valuable experience as medical clinics).

107 See 1982 Law School Report, Mass. Lawyers W. Supp., Feb. 23, 1982; Jenkins, Clinical Legal Education: The Book Stops Here, Student Lawyer 9, 10 (Sept. 1982).

108 See generally Stolz, Training for the Public Profession of the Law (1921): A Contemporary Review, in Training for the Public Professions of the Law 172 app. (1971); Frank, supra note 79.

109 J. Landman, the Case Method of Studying Law: A Critique 93 (1930).

110 Id. at 94-95.

111 Id. at 95.

112 Llewellyn, The Current Crisis in Legal Education, in Education for Professional Responsibility 110 (1948)Google Scholar.

113 Id. at 109-10.

114 Baram & Wilson, supra note 85, at 16. See E. Schein, supra note 1, at 116.

115 Baram and Wilson noted that students in the Boston University project “[e]ach brought the methodological approach and way of analyzing issues in which he had been trained. Other team members exposed to these varying approaches gradually absorbed an appreciation of the ways in which different disciplines attack intellectual problems.” Baram & Wilson, supra note 85, at 20.

116 Another solution is to present a special program to the medical students and law students separately to fill them in on unfamiliar subjects. See, e.g., Norton, supra note 27, at 406. This may be preferable to losing the whole class’s interest in the course by having them all sit through lectures on subjects familiar to half the class. However, this approach can have divisive results by unconsciously emphasizing the differences between the professions, rather than their need to cooperate. The natural clannishness of the groups, moreover, must be overcome from the very beginning of the interdisciplinary program.

117 Training for the Public Professions of the Law, supra note 74, at 43.

It has been asserted that the clinical phase of medical education is important for the amount of responsibility it places on the student. This responsibility provides incentive for the student to educate himself, and, as a result, he or she tends to learn more than in the passive classroom setting. Means, supra note 76, at 117.

118 Training for the Public Professions of the Law, supra note 74, at 43.

119 Id. at 39. Argyris and Schon have made the argument that the development of interpersonal skills is an essential element in redesigning professional education to develop competence within the context of the roles of the professions in modern society. Argyris & Schön, supra note 103, at 180.

120 This method of teaching law was suggested in Frank, supra note 79, at 916.

This mode of presentation of medicolegal problems is being developed at Dartmouth Medical School for a new program in Social Medicine which will be initiated during the 1982-83 academic year. Modeled after the medical program at McMaster University, see infra note 122, the Dartmouth program uses both self-teaching and peer teaching in small groups, with an emphasis on problem solving. According to Coralea Wennberg, instructor in medicolegal subjects at Dartmout h Medical School, the new 7-week “institute” replaces the 8-10 hours of socratic instruction which used to be given during a Social Medicine course, and includes issues of law, ethics, and medical decision making. One of the goals of the institute is “[t]o acquaint the student with the nature of the judicial system as a system which attempts to effectuate public policy by assessing & allocating risk via an adversary process.” Memorandum by Coralea Wennberg, instructor in medicolegal subjects, Dartmouth Medical School (Feb. 9, 1981) (unpublished). Groups of 5-6 students are assigned to a tutor, who may be a member of the regular faculty of the medical school, or may be a local practitioner. The problem materials consist of a collection of documents, such as the patient’s chart, a social worker’s consultation records, (e.g., for a problem involving an alcoholic patient), nursing are referral forms, a private letter from the physician to the patient, and other clinical records. In addition, the materials include a series of questions and a list of reference materials to help the student to explore the issues.

121 It should be noted that no issues in the problems are designated in the materials as “medical” or “legal,” but this determination is left to the students.

122 This is the approach used in the first phase of the medical program at McMaster University in Hamilton, Ontario. At McMaster, the students are divided into small groups, and a tutor is assigned to each group. Hamilton, The McMaster Curriculum: A Critique, 1976 Brit. Med. J. 1191, 1192. The students are presented with case materials outlining organic and social problems. The group identifies the relevant components of the problems, decides how to approach them, and determines what work each student must do for the group to solve the problem. Id. The objectives of the program require the students to develop “the ability to assess their own educational need and to manage their continuing education; a critical attitude towards research, medical practice, and the role of the doctor; and ability to work effectively in a group.” Id. at 1191.

123 This “digging out” process, writes Norton, is important to the learning process. Norton, supra note 27, at 407. See Smith, supra note 67, at 451; Teare, Jr., Use of Problems and Instances, in Education for Professional Responsibility 136 (1948). Norton, however, emphasizes the importance of the students learning to use the materials of the other profession. This model is less concerned with their learning to use each other’s materials than with learning to cooperate with members of the other profession in the exchange of information. This approach, moreover, is more appropriate to the reality of professional practice and consultations. While students should be encouraged to research issues outside their profession, this should not be forced, because it might enforce the instructor’s concept of the extensive limits of a profession’s competence on the students. Nevertheless, it is desirable that the students experience each other’s methods as extensively as possible. Therefore, one option in the model course is to require the groups to divide the research differently for each problem, see, e.g., infra nn.122-24 and accompanying text, and then to discuss and compare the group’s effectiveness using the different approaches. This may provide valuable insights into the issues of delegation of professional authority and the authority of technical expertise.

124 For example, is the allocation of scarce medical resources a medical issue, or a legal issue? May the practice of triage in hospital emergency rooms violate a patient’s rights, or is it a necessary medical choice? When is surgery “necessary?”

125 Argyris & Schön, supra note 103, at 149-52, 188.

126 Id. at 176.

127 Id. a t 188.

The disparities between theoretical training and real practice, and the lack of practical training has been a long-standing concern of the legal profession. See A. Reed, Training for the Public Professions of the Law ch. 24 (1921). See also King, State Grapples With Lawyer Incompetence, Boston Globe, Mar. 9, 1982, at 1, col. 1. For examples of law schools’ responses to this problem, see 1982 Law School Report, supra note 107; Jenkins, supra note 107.

128 E. Schein, supra note 1, at 111.

129 Because many of the instructors may not be regular faculty members, and may have limited knowledge of the subjects, it is important that the problem materials be carefully designed to point to specific medicolegal issues. Dartmouth Medical School, supra note 120, uses a number of outside practitioners as adjunct faculty for their program.

130 This is the role played by the tutors in the McMaster medical program. Hamilton, supra note 122, at 1192.

131 This has been true in the McMaster program. Id. at 1194.

132 See Teare, Jr., supra note 123, at 146.

133 McCoid, supra note 67, at 433.

134 Although the number of J.D.-M.D.s has been growing, there are still relatively few. See generally Curran, Cross-Professional Education in Law and Medicine: The Promise and the Conflict, 24 J. Legal Educ. 42 (1971); Schneller, Interprofessional Legal Practitioners: The Case of the M.D.-LL.B., 27 J. Legal Educ. 324 (1975).

135 The results of the Boston University Center for Law and Health Sciences 1970 Pilot Project provide an example of what can happen with too little guidance and feedback. There, four interdisciplinary groups of students were left to pursue independent projects virtually unsupervised. An interdisciplinary faculty acted only as resource persons. Two of the student groups failed even to define their goals, and a third group did not have total participation from all of its members. Baram & Wilson, supra note 85, at 13, 21. The authors of the Project’s final report noted that such a program requires some guidance to be present, but not smothering. Id. at 32.

136 Hamilton, supra note 122, at 1192.

137 Llewellyn, supra note 76, at 110.

138 For more extensive lists of topics in medicolegal education, see Model Medical-Legal Education Curriculums (Oct. 1980) (Michigan Medical Schools Council of Deans Medical Legal Project); Grumet, supra note 65, at 757; Annas, supra note 71, at 203-206; Hirsh, supra note 65, at 44, 45. See also Norton, supra note 27, at 406; McCoid, supra note 67, at 438-41; Linzer, supra note 84.

139 Professor Linzer argues that such a background requires a separate course prior to interdisciplinary studies. Linzer, supra note 84, at 1 nn.l, 2. This is the approach used at the U. Cin. schools of Law and Medicine. Id. at 2.

140 See supra note 103 and accompanying text. Note the comments of the instructors in medicolegal subjects at the University of Arkansas:

If law students usually are not trained in the arts of negotiation and compromise, they nevertheless come by them naturally, for it is the inevitable result of the system. Not every battle can or should be fought to the death. Both in class and later in the hospital, law students come to realize what too many practicing lawyers do not—that to settle a medical malpractice claim which appears to the lawyer supported only by a thread … is a matter of reason and expediency. To the physician any settlement usually is unpalatable because it is a retreat from principle. Spies, et al, supra note 70, at 794.

Note also the comments of Professor Schroeder of the Case Western Reserve University schools of Law and Medicine: “[t]he adversary trial technique has limited value as an educational tool. It is a safe assumption that nine out often human incidents with medico-legal implications are resolved by settlement procedure, not the trial procedure.” Schroeder, Jr., supra note 65, at 506.

141 Luby, supra note 28, at 13.

142 Katz, Family Law and Psychoanalysis—Some Observations on Interdisciplinary Collaboration, 20 J. Legal Educ. 571, 572 (1968)Google Scholar.