Working With Lawyers
Medical care practitioners have many legal relationships.
The attorney–client relationship is fundamentally different from the physician–patient relationship.
Few attorneys are experts in all aspects of medical care law.
Medical care practitioners must learn to be active participants in managing their own legal problems.
Legal clients must request preventive law if they want more than symptomatic treatment for their legal problems.
Medicine and law are uncomfortable bedfellows. Traditionally, it was the acrimonious nature of medical malpractice litigation that shaped the views of medical care practitioners toward law and lawyers. Now this is mixed with the hostility they feel toward government agency regulators who are often seen as making reimbursement and facility management overly complex. More fundamentally, the professions are similar in that both deal with intensely personal and life-affecting matters, but very different in their professional paradigms. This leads to tension whenever they come into conflict, and requires considerable effort for medical care practitioners and attorneys to work together. The result of this uneasy relationship is that medical care practitioners do not make effective use of legal services and take unnecessary legal risks. On the legal side, attorneys often give advice that does not properly address the special nature of medical practice.
Medical care practitioners must understand the basics of the law if they are to avoid legal problems. They do not need to become lawyers, or to understand the law in the same way that lawyers understand the law. In some narrow areas, such as Medicare reimbursement, they must know more law than all but the most specialized medical care lawyers do. In most areas, medical care practitioners just need a well- informed layperson’s knowledge of the law as it regards medical practice in general and their practice area in specific. The goal is not to have medical care practitioners act as lawyers. They should be able to recognize when there is a potential legal problem and whether they need expert legal advice to manage the problem.
This section introduces the basic legal relationships involved with providing medical care services. These are important to understanding the subsequent materials because legal rights and duties depend on the context of the legal relationship between the parties. For example, the legal relationship between a physician and a nurse depends on whether the physician employs the nurse, whether the physician and the nurse are employed by the same corporation, whether they have separate employers, and, if so, on the legal relationships between their employers.
Medical care practitioners must also understand how to work with lawyers. As professions, law and medicine share many characteristics: the expectation of confidentiality; a fiduciary duty to put the client/patient’s interests first; and a concern with matters of great personal and societal importance. The professional norms of law and medicine are very different, however, and health care practitioners must understand this difference if they are to work successfully with lawyers.