Thursday, October 27, 2011

Allowing Non-Doctors To Perform Surgery

When I see articles about allowing non-lawyers to practice law (like this one) it really frosts me.  The reasons that they cite for their proposition include lowering cost for "legal services" and increasing the number of jobs because more people would be "legal providers".  The article also mentions that Clarence Darrow and Abraham Lincoln did not go to law school - seeming in support of law school being irrelevant. 

It seems to me that the reasoning that the article advocates could be applied equally well to other regulated professions such as medicine and engineering.  For example, why require surgeons to have gone to medical school or be licensed doctors?  It would be cheaper if anyone could just perform surgery without going to medical school - it would also create more jobs because more people would be "medical providers", right?  Also, why require engineering school for people designing bridges?  It would be a lot cheaper if anyone was allowed to do it, right?  The medical and engineering fields have also be "operated as a monopoly" like the legal field, right?



Also, Hippocrates didn't go to a medical school, so obviously medical schools are a waste of time.  Also, Archimedes didn't go to engineering school, so obviously engineering school is also unnecessary and just a way to drive up cost.

Yikes.  I'm a big believer in lessening unnecessary regulation, but the bottom line is that for jobs that could really "mess someone up" if done wrong, society has an interest in trying to make sure that the people who will be performing the job are going to do it right.  Today, that typically involves a formalized educational process and an examination (not that that could not be adjusted to include an apprenticeship as well).  Is that a guarantee that the person will never screw up?  No, but I don't think that anyone would disagree with the proposition that education and testing decrease the number of screw-ups over not having education and testing.

We have an interest in making sure surgeons know what they are doing before they start cutting and that engineers know what they are doing before they start building.  We even license such professions as cosmetologists (before we allow them to perform acid peels on people) and morticians (perhaps because of the emotional rather than physical harm of having one's parent's corpse decompose or be treated poorly, for example.)

To take the reasoning of the article to the next stage, why not let anyone drive a car?  Who needs driver's licenses?  Who needs classes or examination?  It's a monopoly on the ability to be a driver, I tells ya!  They didn't require a driver's license in 1911, so obviously a driver's license is unnecessary!  Without the driver's license, there would be more drivers (such as those under 16) and it would lower the cost for driving school!

Obviously, that's ridiculous.  More specifically, just about everyone would agree that such a proposition appears ridiculous right away.  However, why aren't people also equally able to immediately apprehend the ridiculousness of the law school proposition? 

I think that it may stem from a basic misunderstanding of what lawyers do and an inability to see the consequences of failure.  For example, why don't we let unlicensed people perform surgery?  Because the patient is likely to get hurt. Same for engineering- because in the event of a collapse, people are likely to be hurt.  Ditto for driver's licenses - people are likely to be hurt.  In each case, the harm is physical and is capable of instant recognition - it's easy to see when someone is bleeding or dead.

However, with law the "hurt" may be less easy to see.  What if you are accused of a crime you did not commit, but your unlicensed counsel is unable to defend you adequately because they don't know what they are doing and you are convicted?   You get thrown in jail for something that you did not do, but here the jury found you "guilty" - and everyone knows guilty people should go to jail, so where is the harm?  Where is the bleeding body?  Answer - it's there, but its tougher to see due to the seperation of the process into discrete events. 

Also, I think that some people may ignore this situation becuase they feel that "the truth will come out" or that the "right thing" will just automatically happen.  However, this is just magical thinking - and we have many examples of it not being true in practice, even with the requirements of training and licensure which can reduce, but not eliminate, wrongful results.

As another example, what if your contract is drafted wrong and it leaves you on the hook for liability that you did not intend?  Magical thinkers may respond with something like "won't the court just fix it?"  Ditto if you write a will, but it is defective and your assets go to someone you did not intend.

In short, 1) the "hurt" is typically more to a person's "rights" rather than to a person's body - which is a less visible harm, 2) people assume that everything will always go completely right and thus lawyers are not necessary, and 3) there is significant misunderstanding about what lawyers actually do and how our justice/dispute resolution system works.

ATL also has a post on this -and has a killer comment: "Winston says that legal professionals are the one resisting his changes, but actually common sense is Winston’s biggest enemy." Love it!

Also some good thoughts about this on Law School Tuition Bubble.


7 comments:

  1. Clifford Winston and his colleagues rile me. It's not that he asks bad questions, e.g. "Can the cost of legal services be reduced? Can legal education be streamlined?" etc. It's that it's obvious he's replaced real research with his dogmatism, much like joke about the rational choice theorists in political science departments who became experts in various countries by flying over them at night.

    I'm glad to see experienced practitioners writing about this. Thank you.

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  2. Any chance you've read People v Smithtown, 399 NYS2d 993. It was a case where a sales rep was allowed to perform part of a hip replacement. The American College of Surgeons "...recognizes that sales representatives' presence in the OR may be appropriate." based on their expertise. What does this mean to the argument at hand? It means that sometimes people who aren't properly licensed or educated can serve in a roll successfully and do a good job.

    The side you fail to mention is the number of lawyers doing a poor job of drafting contracts. In this case all the education and certification didn't serve the client.

    Personally I wouldn't dream of having a sales rep operate on me or having a non-lawyer draft a contract, but there are instances where lay people can do a better job.

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  3. LSTB - Thanks!

    9:22 - First, let me go to your primary point - there may be other people who can do a good job at some legal skills other than those who are certified as lawyers. With that I have to agree in certain cases. For example, I have worked with CEOs who have decades of experience with contracts and have a greater understanding of at least some aspects of contract law than many first year associates.

    However, in many law firms, the work of junior associates does not go out the door without it being reviewed by someone more senior. At some point in the seniority scale, the level of expertise of the attorney typically surpasses that of the CEO.

    Here's something that I will throw out that might suit both of us. What if we keep the education and licensure, but require attorneys to apprentice with a more senior attorney for 4 years before going out on their own? It would be similar to a doctor's residency. Why do this? Well, I think one of the things that you are getting at - and I agree with - is that just going to law school and passing the bar exam does not make a competent attorney. Basically, the licensing bar has been set too low. In addition to the contrast with medicine I mention above, I note that engineers must first be an "Engineer in training" after passing a first exam and must then work under another engineer for at least 4 years before they are able to take a second exam to obtain their engineer's license (at least in my state).
    It seems strange to me that this structure that is present in medicine and engineering is absent in law. It's worth considering the pros and cons of imposing it - it would likely add cost, but it would likely make is so that people that are licensed after the 4 years have a very significant differentiation from what just about any lay person could provide with regard to legal services.

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  4. Returning to the case that you mention, here is a case that comes up when I search for the case that you mention. In this case, a surgeon performs surgery and during the surgery a flaw is repeatedly pointed out - the surgeon ignores it and the person dies. In this case, would it be fair to say that the doctor did a poor job of "doctoring" and all the education and certification of the doctor did not save the patient? (paraphrasing your statement above.) I would agree that in this specific case, it would have been better if the nurse had been in charge.

    However, the fact that a safeguard is not 100% perfect is not a justification for removing the safeguard. It does point out that we should try and improve the safeguard, though.

    With regard to the sales rep concept, I'll relate a funny event that happened years ago when my wife and I went for a pregnancy ultrasound. In my practice, I had previously happened to become very familiar with the operation of ultrasound machines - and the machine that was used on us was a brand that I was familiar with. Consequently, when the tech only performed imaging with a basic mode, I asked him to perform imaging with other modes - the machine could do it and some of the advanced modes give really great images. Unfortunately, the tech was clueless, so I had to show him how to use the other modes and what various abbreviations stood for. Now - does that make me ready for surgery? Similarly, if a surgeon is performing a procedure with a new device - say balloon angioplasty or something - I think it would be great to have a manufacturer's rep on hand in case any questions come up about the device. (Of course, I would not want to be the first patient that it was being used on, but doctors often don't disclose this it seems.) Now - does the presence of the rep as a resource mean that the rep is "performing the procedure"? I would say no. The rep is not serving in the roll of the surgeon, but may be providing tech assistance to the surgeon or serving as a resource.

    In the legal field, I would roughly equate this to an e-discovery consultant in a complex matter. Let's say that the e-discovery consultant has indexed a large number of documents and the lawyer wants to have tens or hundreds of potentially important documents ready to be pulled up instantly. The e-discovery consultant may set up an imaging system or some sort of bar-code scanning system to pull up documents and will often be in the courtroom in case something goes wrong. Does this mean that the consultant is now "performing the job of the lawyer"? I would suggest not.

    Bottom line, there may very well be an instance where a non-doctor can do the job better than a doctor - but that's most likely a low-probability, situation dependent situation and not a general rule. Consequently, it's not a reason to throw out medical school and licensure. Same for attorneys. However, the licensing of lawyers could probably be improved by borrowing a page from doctors and engineers and requiring a 4-year apprenticeship program before allowing them to practice on their own.

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  5. The problem is, when you have the majority of your recent law graduates working at places like Starbucks and Home Depot because there are no legal jobs, it cheapens the profession. Why have someone go through all that general training, the general public thinks, when the guy at Starbucks could write a will?

    When the general public sees law graduates working in retail stores for $7 an hour (and they're seeing a lot of that nowadays), it's hard for them to wrap their head around the fact that they should have to pay another legal practitioner $250 an hour. They begin to think, "how can all this be worth it, when some of those attorneys are willing to work for $7 an hour?" This is a natural consequence to the current market. I have said it before and I'll say it again: having new graduates and even well-established attorneys having to work for minimum wage because there are too many attorneys and not enough jobs doesn't just hurt those experiencing such realities. It degrades the profession as a whole, and it's just a matter of time before the public sees no reason to have bars or law school at all. Why should they, when the guy who works at Wal-Mart would be happy to write your will for $15, because he is a recent law graduate and that is the only legal job he could get?

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  6. 3:33 - I certainly agree with your thought that having the majority of recent law graduates work at non-law jobs because they can't find law jobs cheapens the profession. Absolutely.

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  7. When many schools accept over 30% of the people that apply to them, if not everyone, and 80% of people pass bar exams, you begin to see lawyers as being less special.

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