Patient-Physician Relationships as Exemplars for Legal Practice

What can a surgeon teach attorneys about how to lawyer?  In his recent best seller Being Mortal: Medicine and What Matters in the End, Dr. Atul Gawande reflected on different models of physician-patient relationships as he struggled to counsel his own father.  In anticipation of Gawande’s appearance in the Twin Cities last week, I had listened to the audiobook version on my daily bike commute. 

[The sold-out event focused on living as well as we can until the end. More than a book reading, the event was a party of sorts, replete with buffet options as well as the Larry McDonough Jazz Band.  In my last blog, I featured a legal advocate/jazz musician and Larry’s appearance allows another jazz law digression.  Larry, beyond his Dave Brubeck-esque talent at the keyboard, has been a legal aid attorney and an adjunct professor teaching poverty law at University of St. Thomas and the University of Minnesota.  His current day gig is as pro bono coordinator at Dorsey and Whitney. ]

Gawande’s story telling style intersperses research and observations with patient and family stories, including the hard conversation he had with his physician doctor who faced progressive paralysis from a rare spinal cord tumor.  Gawande’s dad had two surgeons from which to choose.  His dad rejected the first: “[The surgeon] had the air of the renowned professor he was – authoritative, self-certain, and busy with things to do.” [p. 197].  On the other hand,

The Cleveland Clinic neurosurgeon, Edward Benzel, exuded no less confidence. But he recognized that my father’s questions came from fear.  So he took time to answer them, even the annoying ones.  Along the way, he probed my father, too.  He said that it sounded like he was more worried about what the operation might do to him than what the tumor would. . . . Benzel had a way of looking at people that let them know he was really looking at them.  He turned his seat away from the computer and planted himself directly in front of them. . . .  Eventually he steered the conversation back to the central issue.  The tumor was worrisome. But now he understood something about my father’s concerns.  He believed my father had time to wait and see how quickly his symptoms changed.  He could hold off on surgery until he felt he needed it. [p. 198].

Benzel’s bedside manner brought to Gawande’s mind an article he’d read in medical school in the 1990s by Ezekiel and Linda Emanuel,  the Four Models of the Physician-Patient Relationship. The four types are nicely abridged in a Cliff Notes chart fashion here.   Gawande summarizes them as follows:

• Paternalistic (“Guardian”): “[W]e are medical authorities aiming to ensure that patients receive what we believe best for them.” [p. 200]
• Informative (“Technical Expert”): “It’s the opposite of the paternalistic relationship.  We tell you the facts and figures. The rest is up to you.” [p. 200]
• Interpretive (“Counselor”): “Here the doctor’s role is to help patients determine what they want.” [p. 201].
• Deliberative (“Friend or teacher”): “Doctors sometimes have to go farther than just interpreting people’s wishes in order to serve their needs adequately. Wants are fickle.  And everyone has what philosophers call ‘second order desires’ – desires about our desires.  We may wish, for instance, to be less impulsive, more healthy, less controlled by primitive desires like fear or hunger, more faithful to larger goals. . . . We often appreciate clinicians who push us when we make short sighted choices. . . . At some point, therefore, it become not only right but also necessary for a doctor to deliberate with people on their larger goals, to even challenge them to re-think ill-considered priorities and beliefs.” [p. 202]

These models of course bring to mind similar constructs in the legal world: Lawyer-centered (i.e. paternalistic), Client-centered (i.e. informative/interpretive), and Collaborative (broadly speaking, deliberative). G. Nicholas Herman and Jean Carey provide succinct summaries of the lawyering models in A Practical Approach to Client Interviewing, Counseling, and Decision-Making (2009) [pp. 5-11].

Gawande clearly sees the deliberative approach is the gold standard for practice.  But I can think of client situations in the past year in which all four of the models were utilized defensibly.  For instance, in a situation in which a young client in the midst of family conflict expressed a desire to be deported into near certain death rather than to continue with an asylum claim, we employed an old fashioned paternalistic model until the crisis passed, going so far as to have a child advocate (in essence, a guardian ad litem) appointed.  In a very different situation, we use the deliberative friend model with a client we’ve served for years (and whose story I’ve blogged about here). She’s even been the teacher by coming to my class.

Are these models more like outfits or different kinds of surgical garb – each perhaps to be “worn” depending on the situation? Which style/model fits you most comfortably?