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.
6. This is an extremely broad generalization, but, as a whole, lawyers make physicians nervous. I’ve started to notice that lawyers and physicians may not understand the type of relationship that they have with one another. When providing an example of an authority figure in her life, my HLS professor who formerly worked at the White House named her physician. Not the President of the United States, but her personal physician.
What lawyers need to understand is that physicians have a similar (but not same!) attitude toward lawyers. When I was volunteering in a large hospital in an affluent area of Southern California known for its zip code, the surgeon I was working with gave me a memorable talk on what is flawed with our healthcare system. He explained that costs are high not because people are sick, but because there is too much waste and inefficiency, particularly in wealthy neighborhoods. Immediately after this, we went out to see his next patient. She simply said, “My neck hurts. I think I need an MRI.” The surgeon then agreed and pointed her to the front desk where she could schedule her MRI. After she left the room, he turned to me and whispered, “She doesn’t need an MRI, but she’s a lawyer so we’re not going to disagree with her.”
I heard more about being sued when I was in medical school than I have during my time in law school. Unfortunately, the training I received regarding malpractice amounted to (1) Don’t mess up, and (2) Be nice to patients and say sorry, but, actually, don’t say sorry too much.
To give a more concrete example of medical education on medical malpractice, an exam question on the topic would look something like this:
Question
A scenario of possible medical malpractice is described. What is the patient’s burden of proof?
Answer Choices
(A) Preponderance of the evidence
(B) Beyond reasonable doubt
(C) XYZ
(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.
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.
6. This is an extremely broad generalization, but, as a whole, lawyers make physicians nervous. I’ve started to notice that lawyers and physicians may not understand the type of relationship that they have with one another. When providing an example of an authority figure in her life, my HLS professor who formerly worked at the White House named her physician. Not the President of the United States, but her personal physician.
What lawyers need to understand is that physicians have a similar (but not same!) attitude toward lawyers. When I was volunteering in a large hospital in an affluent area of Southern California known for its zip code, the surgeon I was working with gave me a memorable talk on what is flawed with our healthcare system. He explained that costs are high not because people are sick, but because there is too much waste and inefficiency, particularly in wealthy neighborhoods. Immediately after this, we went out to see his next patient. She simply said, “My neck hurts. I think I need an MRI.” The surgeon then agreed and pointed her to the front desk where she could schedule her MRI. After she left the room, he turned to me and whispered, “She doesn’t need an MRI, but she’s a lawyer so we’re not going to disagree with her.”
I heard more about being sued when I was in medical school than I have during my time in law school. Unfortunately, the training I received regarding malpractice amounted to (1) Don’t mess up, and (2) Be nice to patients and say sorry, but, actually, don’t say sorry too much.
To give a more concrete example of medical education on medical malpractice, an exam question on the topic would look something like this:
Question
A scenario of possible medical malpractice is described. What is the patient’s burden of proof?
Answer Choices
(A) Preponderance of the evidence
(B) Beyond reasonable doubt
(C) XYZ
(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.
- Always refer to a physician as “Dr.” This is a really obvious one, but it has to be said, especially if you plan on working with the physician on your case. Think of an MD or DO as more like a Judge or Honorable than a JD in terms of the importance of the title. In medical school, I once saw Dr. S return an e-mail addressed to “Ms. S” saying only, “Why does it say Ms. S?” It was as if she thought the e-mail had reached her in error. Ms. S was not her name.
- As a corollary, any other health care provider with a doctorate should also be referred to as a doctor. This means those with a PhD, PsyD, DNP, DDS, OD, etc. If you don’t know if a health care provider is a nurse (non-doctorate) or a doctor, you should probably just call them doctor until they correct you.
- In law, we give medical records significant weight as evidence because we believe that people generally tell the truth to their providers since that is in their best interest. As such, you should know how to read and interpret common terms in the records as a starting point in understanding your clients and cases.
- First, as the wife of a physician, I can personally attest to the fact that writing, typing, or dictating medical charts is not a physician’s favorite activity. Because of this, you will find numerous abbreviations and acronyms littered throughout the records. While you don’t need to know or memorize what each of these mean, you may need to know how to look them up. Unfortunately, the same set of letters can often stand for many very different things, so you’re will need to do more than just search the abbreviation or acronym itself. For example, search “PE medical acronym” may not get you the correct answer. You should include the words around the term itself and what type of file it was in to get more accurate results. Searching “PE emergency room” versus “PE annual check up” will help your quickly determine whether your client had a life-threatening embolism or a routine physical exam. Sounds silly, but you might be surprised at how often one-word searches are done in this context and how unreliable they can be.
- Here are some of the basic headings that you will find in a medical chart and what they mean:
CC – chief complaint. This is the patient’s main issue.
HPI – history of present illness. This is essentially the patient’s answer to the question, “So what brings you in today?”
PMH/PSH – past medical/surgical history.
ROS – review of systems. This is when the provider asks the patient questions upon questions pertaining to how he feels generally, if he’s had any changes in weight, any coughing, any pain, etc.
PE – physical exam. This will probably be followed by several other acronyms or other half-words. If it looks like there are only acronyms, such as “HEENT PERRLA CVP RRR CTA,” then the findings were probably all normal. If there was something abnormal you should, in theory, be able to read about it in plain English. WNL means “within normal limits,” but, and this is my bioethics side kicking in here, it is sometimes disparagingly also referred to as meaning “we never looked.” Thus, it might be a good idea not to have your entire case turn on one WNL in the record. This is doubly true if the provider simply circles the entire physical exam form and writes one large WNL.
A – assessment. This is where the provider writes what she thinks is going on, including a differential diagnosis (DDx). The differential diagnosis is the list of possible causes of the patient’s symptoms (what the patient reported) and signs (what the provider noticed or measured). The patient is not necessarily being diagnosed with everything, or anything, listed.
P – plan. Here, the provider notes what she and the patient are going to do to treat the patient’s condition. The provider may note that she is recommending a certain prescription, but it does not guarantee that the patient filled or took that medication.
- One term of art that is crucial to understand is the use of the word historian. When a provider describes what type of historian a patient is, she is making a credibility assessment. For example, if your client was noted to be a poor historian, then you should take everything he reported as suspect unless corroborated elsewhere. He may be a poor historian due to age, drugs (prescription or otherwise), mental impairment, or because his story to his provider was obviously inconsistent. This term is used without any attempt to make a normative judgment on his character. It is simply a way to communicate to others reading the report the possibility that not everything the patient reported is true.
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.
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.
