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What If Doctors Had to Act Like Lawyers

By Armand Leone, Jr.*

Attorneys admitted to practice law in New Jersey are held to a high professional standard. Not only are attorneys required to provide competent legal services, but they are also required to advise clients if they have reason to believe that they have committed a negligent act during the representation of that client. This duty to notify a client of possible malpractice exists even while the attorney is representing a client in active litigation.

Despite protest, New Jersey’s Supreme Court has held that attorneys must advise clients of potentially negligent acts when they occur, even if they occur during the representation in an ongoing lawsuit, the outcome of which is still unknown. In such situations, the initial attorney has an ethical obligation to advise the client of the right to have a second attorney take over the case, to review the initial attorney’s actions for possible legal malpractice and to join the initial attorney as a defendant in the lawsuit.

If the client does not pursue the investigation of the legal malpractice claim in the underlying lawsuit after notice is given, the client loses the right to bring a malpractice action against the attorney subsequent to the resolution of the lawsuit. If the attorney does not advise the client of potentially negligent conduct when it occurs, the attorney may be subject to disciplinary action as drastic as disbarment.

As a physician-attorney, I find it distressful that there is a double standard for conduct as an attorney and as a physician. As an attorney, I have an affirmative obligation to advise any client whom I represent of any potentially negligent act I commit. As a physician, I have no affirmative duty whatsoever to advise a patient of a potentially negligent act.

Were it simply that physicians do not have an affirmative obligation to disclose potential negligence, the disparity between the different professional obligations might not be worthy of comment. Unfortunately, my experience in litigating medical malpractice actions is that often doctors affirmatively destroy, hide or alter medical records which are relevant to a plaintiff’s proof of malpractice. In approximately 25 percent of the medical malpractice cases I have reviewed, I have seen cases of altered and destroyed records.

Doctors should be held to the same ethical standard as attorneys and should be required to advise patients of negligent acts. It is more difficult for patients to learn what medical treatment has been rendered than it is for clients to know what legal services have been provided.

Disclosure More Important in Medicine

Accordingly, the need for doctors to affirmatively disclose negligence acts is even greater than for attorneys. At least there is a paper record of what an attorney has or has not done in representing a client: in medicine, often only the physician knows and is responsible for documenting what actually occurred in the hospital, office or operating room. The doctors have control of the medical facts. Other licensed professionals should be held to the same standard, because they have greater knowledge and control of the facts as compared to the average citizen.

Affirmative professional duties to disclose potentially negligent acts would benefit society, because it would aid the search for the truth and allow a more proper apportionment of financial responsibility for negligently caused injury. Absurd examples are conceivable, such as requiring a surgeon who makes a mistake during an operation to come out of the operating room, advise the family that a mistake has been made and suggest that another surgeon come in and finish the operation. On the other hand, requiring a doctor to disclose errors during a course of treatment over a period of months or years is neither unfair nor unrealistic.

Can one honestly expect patients to uncover negligent medical treatment before the opportunity to substantially correct the error is lost? Should society continue to allow the medical profession to take an “If they don’t know, don’t tell them” attitude toward medical negligence? I believe that the answer to both of these questions is “no.”

By holding physicians to the same standard as attorneys, the enormous costs of uncovering professional malpractice, proving it and being compensated for negligent injury would be lessened.

Physicians are too quick to disparage attorneys for their medical malpractice problems. Even the American Medical Association has recognized that the error rate in medicine is too high and often approaches 10 percent. This is simply unacceptable in the field of medicine, where negligent medical decisions can have fatal consequences. A 1 percent error rate in the aviation industry would amount to about 84 unsafe landings a day, and a 1 percent error rate in the postal service would result in 16,000 lost letters an hour. The American Medical Association estimates that 120,000 American citizens are killed each year as a result of medical negligence. Hundreds of thousands more are significantly hurt and disabled.

I think it is appropriate for attorneys, physicians and other licensed professionals to be required to affirmatively disclose knowledge of negligent conduct to clients. Since licensed professionals necessarily have training and knowledge beyond that of the average person, they should have a corresponding duty to reveal negligent acts.

Attorneys are not insensitive to the issue of professional malpractice. Instead of complaining, doctors should hold themselves to as high an ethical standard as attorneys do.

*The author is a doctor who became a lawyer. He practices law in Glen Rock

The article is reprinted with permission from the April 14, 1997 issue of the New Jersey Law Journal. ©. 1997 NLP IP Company.