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Journal of Health Politics, Policy and Law 26.5 (2001) 1179-1195
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The Lawyerization of Medicine
William M. Sage
Columbia University School of Law
By my rough estimate, nearly as many Americans possess both medical and law degrees as there are practicing attorneys in Japan. To be sure, this artfully phrased factoid omits important context about the relationship between professional education and professional practice in the two countries. The comparison still reveals more than it conceals. First, there are a lot of lawyers in the United States. Second, a lot of work done elsewhere by nonlawyers is performed here by lawyers. Third, the formal fusion of legal and medical expertise in the United States, while a small percentage of either profession, is in absolute terms quite substantial.
Step back forty years. In 1963, Nobel Prize-winning economist Kenneth Arrow published the first theoretical analysis of health care markets. Arrow concluded that failures of information, which he termed uncertainty, render health care and health insurance largely unmarketable. Moreover, Arrow looked to some rather uneconomical constructs, such as physician-patient trust and physicians' professional code of ethics, as substitutes for direct government regulation in response to uncertainty.
What do M.D.-J.D.s have to do with the current relevance of Arrow's thesis? Quite a bit, I believe. When Arrow examined the medical marketplace, physicians had been little exposed to lawyers. Although forensic medicine dates from the early nineteenth century, professional associations for lawyers with practices devoted to the health care industry were not founded until 1968 (the American Academy of Hospital Attorneys) [End Page 1179] and 1971 (the National Health Lawyers Association). The first legal treatise and law school casebook with "health care law" in the title did not arrive until the mid-1980s (Macdonald, Meyer, and Essig 1985; Furrow 1987).
Today, lawyers are familiar faces in health care. In 1960, there were approximately 285,000 lawyers in America (one for every 627 people); by 1990, there were approximately 775,000 (one for every 320 people) (American Bar Association 1992). There are now over a million lawyers in the United States. A smaller percentage of modern lawyers are solo practitioners serving individual clients; a greater percentage do corporate and government work in law firms. Many lawyers spend significant portions of their time on medical matters: the American Health Lawyers Association currently has 10,000 members.
More surprising than increased contact per se is the degree to which American medicine has embraced the mode of reasoning, style of discourse, and professional role of the lawyer. This phenomenon is distinct from, though clearly related to, the dramatic expansion since 1963 of legal rights and obligations affecting the health care system. Arrow prefaced his article with the disclaimer that he was analyzing medical care rather than health. Echoing Arrow, my subject is health care lawyers not substantive health law. In other words, I intend to discuss the "lawyerization" of medicine rather than its "legalization." My thesis is that health lawyering has changed the nature and extent of uncertainty in medicine and has altered the way in which both market and nonmarket institutions respond to it.
I begin with M.D.-J.D.s not because they serve in practice as the principal mediators between law and medicine--they most assuredly do not --but because the way they perceive themselves and are perceived by others is a useful bellwether for the influence of lawyering on doctoring. In the popular imagination, physician and attorney traditionally brought to mind very different personalities. Countless anecdotes contrast the two professions ("a doctor, a lawyer, and a ___ were stranded on a desert island . . ."). And though a counterculture comic strip of the 1970s called "Doctor-Lawyer" seems prescient today, its humor lay primarily in the absurdity of its premise: a Harvard student who mistakes law school for medical school ends up completing both and emerges "[able to] destroy human lives in two entirely different ways" (Subitzky 1990). Real people who held both medical and law degrees were seen by and large as either lost souls or disenchanted refugees...