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THE NATURE OF THE DIAGNOSTIC PROCESS: A COMPARISON WITHJUDICIAL DECISION MAKING IRWIN M. SIEGEL* As no two persons are exactly alike in health so neither are any two in düease; no diagnosis L· complete or exact which does not include an estimate of the personal character, or the constitution of the patient. [Sir James Paget] Clinical medicine is made up of anomalies, while nosography is the description of phenomena that occur regularly. What we lookfor in the clinics is almost always exceptional; what we study in nosography L· the rule. It is well to know that, in the practice of medicine, a nosographer is not always a clinician. [Jean Martin Charcot] How do fact finding and decision making compare in law and medicine? With increasing contact between the two professions, it is important to understand what constitutes the "truth" in each. It is possible that analytical techniques employed by one might be used to advantage by the other. Clinical problem solving may involve a scientific method which could be well enough defined to improve training programs aimed at perfecting such skill in students. To these ends, an investigation of the elements ofthe diagnostic process, comparing it with the judicial method, is worthwhile. In his classic monograph, "The Nature of the Judicial Process," the notedjurist Benjamin Cardozo refers to "Those great laboratories of the law, the courts ofjustice," where "every new case is an experiment. ..." These scientific metaphors are not out of place injudicial thought. "According to the legal philosopher Ehrlich," Cardozo continues, "in the long run, there is no guarantee ofjustice, except the personality of the judge" [1, pp. 16-17]. Indeed, a major theme of Cardozo's book is an exposition of the considerations which influence judicial decision making , namely, precedent, rule of law, sense of the social situation, and reason. ?Clinical associate professor, Department Orthopedic Surgery, Abraham Lincoln School of Medicine, University of Illinois at Chicago Circle, 1853 West Polk Street, Chicago, Illinois 60612.© 1979 by The University of Chicago. 0031-5982/79/2203-0070$01.00 410 I Irwin M. Siegel · The Diagnostic Process "The physician," wrote Thomas Addis in his text on glomerulonephritis , "will use scientific methods; he will for a time dismember his patient—isolate, for instance, his kidneys or his heart and observe their action under very specialized conditions—but in the end, he has to put these parts together again in his 'diagnosis.' " Addis then develops this concept, almost paraphrasing Cardozo: "This 'diagnosis' is his total conception of the relationships between the patient as a person, the disease as a part of the patient, and the patient as a part of the world in which he lives" [2, p. 48]. These authors acknowledge that decisions in both medicine and law must recognize a variety of factors. Although the roles of the physician and the judge are different, they are equally engaged in evaluating evidence, and they often go about it in much the same way. Evidence, however, is not examined in a vacuum, rather it is assessed under two separate classes of preexisting assumptions. In legal parlance, these are called nonnegotiable and negotiable assumptions [3]. A nonnegotiable assumption isjust that; it is not changed by the presentation ofevidence. In law, this is called a conclusive presumption and, although rare, is entertained when the court must reach a conclusion that may not really be true (and that the court may not believe) in order to render a decision fostering certain public policies. Judicial conclusive presumptions are, in some respects, analogous to scientific axioms because the practice of medicine also includes a number of firm, nonnegotiable assumptions. These, however, are not rules imposed from without but expressions of intrinsic processes, for instance, the germ theory of disease. The doctor looks to the immediate good of a single patient, the courts to the wellbeing of a larger society; hence this sometime difference in the definition of "truth." Negotiable assumptions can be changed by the presentation of evidence to the contrary. In law, such so-called rebuttable presumptions place the burden of proof on those making an accusation (e.g., the supposition of innocence in criminal trials). The medical counterpart of a legal rebuttable presumption can...


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