Teaching health law

Journal of Law, Medicine and Ethics

Volumn 38, Issue 4, 2010, Pages 863-870

  Kapp, Marshall B ^a  

^a Innovative Collaboration in Medicine and Law   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; HUMAN; JURISPRUDENCE; MEDICAL EDUCATION; MEDICAL SCHOOL; PROFESSIONAL STANDARD; UNITED STATES;

EDUCATION, MEDICAL; FACULTY, MEDICAL; HUMANS; JURISPRUDENCE; PROFESSIONAL ROLE; UNITED STATES;

EID: 78649624923     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2010.00539.x     Document Type: Article

References (46)

1. Exodus 2: 20-21.
2. I am purposely distinguishing in this essay between an attorney employed by a medical school as a faculty member versus one employed with the primary job description of legal counsel or advisor to the administration of the medical school or its sponsoring university. This essay is only concerned with the former role. In addition to awarding full-time academic appointments, medical schools may alternatively or additionally utilize adjunct faculty members with formal legal credentials.
3. G. C. Persad, L. Elder, and L. Sedig et al., "The Current State of Medical School Education in Bioethics, Health Law, and Health Economics, " Journal of Law, Medicine & Ethics 36, no. 1 (2008): 89-94; R. S. Olick, "It's Ethical, But Is It Legal? Teaching Ethics and Law in the Medical School Curriculum, "Anatomical Record (New Anat.) 265, no. 1 (2001): 5-9, at 6 ("In contrast to the historical trend toward a freestanding required course in ethics, legal issues have increasingly been subsumed within broader curricular offerings.").
4. P. S. Mueller, C. M. Segovis, and S. C. Litin et al., "Current Status of Medical Grand Rounds in Departments at US Medical Schools, " Mayo Clinical Proceeding 81, no. 3 (2006): 313-321; S. J. Kravet, E. Howell, and S. M. Wright, "Morbidity and Mortality Conference, Grand Rounds, and the ACGME's Core Competencies, "Journal of General Internal Medicine 21, no. 11 (2006): 1192-1194.
5. Wikipedia, s.v., "The Lone Ranger, " available at <> (visited October 7, 2010).
6. The term "attorney faculty member" is used here instead of "health law professor, " because the latter term usually is interpreted to refer to individuals who are hired specifically to teach law to law students in law schools, whereas the former term may be applied more broadly. See also, regarding the role of law professors teaching health law in the law school context, e.g., H. T. Greely, "Some Thoughts on Academic Health Law, "Wake Forest Law Review 41, no. 2 (2006): 391-410; W. Wadlington, "Some Reflections on Teaching Law and Medicine in Law School Since the 60's, "Health Matrix 14, no. 1 (2004): 231-236. Many graduate programs in public health and health policy also employ one or more attorneys as full-time faculty members. I distinguish attorney faculty members in those kinds of academic settings from attorney faculty in medical schools because the pedagogical challenges presented in these respective environments are in many dimensions distinct.
7. See S. Sanbar, ed., 7th ed., Legal Medicine ( Philadelphia Elsevier, 2007).
8. On the difference between positive and negative defensive medicine, see J. Gibson, "Doctrinal Feedback and (Un)reasonable Care, " Virginia Law Review 94, no. 7 (2008): 1641-1714.
9. See R. A. Posner, How Judges Think ( Cambridge Harvard University Press, 2010).
10. R. E. Eckles, E. M. Meslin, and M. Gaffney et al., "Medical Ethics Education: Where Are We? Where Should We Be Going? A Review, " Academic Medicine 80, no. 12 (2005): 1143-1152.
11. Association of American Medical Colleges, available at <> (last visited October 7, 2010).
12. Accreditation Council for Graduate Medical Education, available at <> (last visited October 7, 2010).
13. See B. Feuillet-Le Mintier, "Ethics Education in Medical Schools: The Role of Jurists, " Medicine & Law 19, no. 3 (2000): 403-407; B. B. Blechner, C. L. Hager, and N. R. Williams, "The Jay Healey Technique: Teaching Law and Ethics to Medical and Dental Students, "American Journal of Law & Medicine 20, no. 4 (1994): 439-455. Although this essay has a United States focus, attorney faculty members also sometimes are involved in teaching medical ethics in medical schools elsewhere. See, e.g., F. Claudot, F. Alla, and X. Ducrocq et al., "Teaching Ethics in Europe, "Journal of Medical Ethics 33, no. 8 (2007) 491-495, at 492 (regarding medical ethics education in Europe).
14. But see Persad et al., supra note 3, at 93 ("Bioethics, health law, and health economics are distinct disciplines with their own knowledge bases and extensive scholarly publications.") and compare to G. R. Scofield, "Speaking of Ethical Expertise..., "Kennedy Institute of Ethics Journal 18, no. 4 (2008): 369-384 (disparaging the very idea of professional expertise in bioethics). Cf. K. DeVille, "Lawyers and Bioethics: Balancing Being Lawyers and Conferring with Medical Ethics Advisors, " Defense Counsel Journal 68, no. 4 (2001): 466-473. There are, of course, a number of attorney faculty members teaching in medical schools who, besides law degrees, have acquired significant additional, formal education in humanities disciplines.
15. Regarding this trichotomy conceptualization, see L. O. Gostin, Public Health Law: Power, Duty, Restraint, 2nd ed. ( Berkeley University of California Press, 2008).
16. See American Bar Association, Model Rules of Professional Conduct (1983, as amended).
17. In William Shakespeare's Twelfth Night, Act II, Scene V, the character Malvolio proclaims: "Be not afraid of greatness: some are born great, some achieve greatness, and some have greatness thrust upon them." In my own case, it certainly was not greatness that was thrust upon me, but great opportunities.
18. When I was a faculty member at Wright State University School of Medicine (now the Boonshoft School of Medicine), for many years I was assigned the role of non-physician small group teaching partner in a similar course, then-entitled Introduction to Patient Care (IPC).
19. E. Mertz, The Language of Law School: Learning to Think Like a Lawyer ( New York Oxford University Press, 2007).
20. See generally C. K. Gunsalus and J. Steven Beckett, "Playing Doctor, Playing Lawyer: Interdisciplinary Simulations, " Clinical Law Review 14, no. 2 (20072008): 439-464.
21. S. Khanijou, "Rebalancing Healthcare Inequities: Language Service Reimbursement May Ensure Meaningful Access to Care for LEP Patients, " DePaul Journal of Healthcare Law 9, no. 3 (20052006): 855-884; S. D. Watson, "Reforming Civil Rights with Systems Reform: Health Care Disparities, Translation Services, and Safe Harbors, "Washington & Lee Race & Ethnic Ancestry Law Journal 9 (2003): 13-34; A. Keers-Sanchez, "Mandatory Provision of Foreign Language Interpreters in Health Care Services, "Journal of Legal Medicine 24, no. 4 (2003): 557-578.
22. Florida State University, available at <> (access limited to FSA students and faculty only; syllabus on file with author).
23. See, e.g., D. MacCourt and J. Bernstein, "Medical Error Reduction and Tort Reform Through Private, Contractually-Based Quality Medicine Societies, " American Journal of Law & Medicine 35, no. 4 (2009): 505-56; M. Wei, "Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws, "Journal of Health Law 40, no. 1 (2007): 107-159.
24. See, e.g., A. A. Bucco, "A Friendly Approach to Reducing Medical Malpractice Litigation, " Michigan State University Journal of Law & Medicine 11, no. 2 (2007): 323-336.
25. See, e.g., T. H. Gallagher, S. K. Bell, and K. M. Smith et al., "Disclosing Harmful Medical Errors to Patients: Tackling Three Tough Cases, " Chest 136, no. 3 (2009): 897-903.
26. See Feuillet-LeMintier, supra note 13, at 405.
27. R. B. Bateman, "Attorneys on Bioethics Committees: Unwelcome Menace or Valuable Asset?" Journal of Law & Health 9, no. 2 (19941995): 247-272, at 261.
28. A. L. Maguire, M. A. Majumder, and J. R. Cheney, "The Ethics of Lawyer-Ethicists, " Journal of Law, Medicine & Ethics 33, no. 3 (2005): 603-607, at 605.
29. See DeVille, supra note 14, at 467.
30. See D. A. Reed, D. M. Windish, and R. B. Levine et al., "Do Fears of Malpractice Litigation Influence Teaching Behaviors?" Teaching and Learning in Medicine 20, no. 3 (2008): 205-211 (illustrating the negative bias held by most physician faculty members regarding attorneys and the legal environment).
31. C. Scott, "Why Law Pervades Medicine: An Essay on Ethics in Health Care, " Notre Dame Journal of Law, Ethics & Public Policy 14, no. 1 (2000): 245-304, at 245.
32. See M. B. Kapp, Our Hands Are Tied: Legal Tensions and Medical Ethics ( Westport, CT Auburn House, 1998) (exploring the importance of physicians' legal perceptions in shaping their practice behavior).
33. Lee Gutkind, ed., Becoming a Doctor: From Student to Specialist, Doctor-Writers Share Their Experiences ( New York W.W. Norton & Company, 2010).
34. Cf. American Board of Legal Medicine, which requires an applicant for certification to have earned both a medical and a law degree, available at <> (visited October 8, 2010).
35. See Olick, supra note 3, at 6.
36. According to Woody Allen, "Eighty percent of success is showing up, "available at <> (visited June 29, 2010).
37. E. A. Goldstein, R. R. Maestas, and K. Fryer-Edwards et al., "Professionalism in Medical Education: An Institutional Challenge, " Academic Medicine 81, no. 10 (2006): 871-876, at 871.
38. See generally M. R. Peterson, At Personal Risk: Boundary Violations in Professional-Client Relationships ( New York W.W. Norton & Company, 1992).
39. See, e.g., M. B. Kapp, "Managed Care and Mandatory Movies, " JAMA 276, no. 13 (1996): 1023; M. B. Kapp, "Informed Consent to Defensive Medicine: Letting the Patient Decide, "Pharos 56, no. 2 (1993): 12-14; M. B. Kapp, "Withholding Pain Medication in the ED Because of Legal Fears - Bad Practice for a Bad Reason, "American Journal of Emergency Medicine 17, no. 2 (1999): 207-208 (all describing medical encounters experienced by this author and suggesting lessons for more humanistic medical practice).
40. See O. Karnieli, T. R. Vu, and M. C. Holtman et al., "Medical Students' Professionalism Narratives: A Window on the Informal and Hidden Curriculum, " Academic Medicine 85, no. 1 (2010): 124-133; D. Balmer, J. R. Serwint, and S. B. Ruzek et al., "Learning Behind the Scenes: Perceptions and Observations of Role Modeling in Pediatric Residents' Continuity Experience, "Ambulatory Pediatrics 7, no. 2 (2007): 176-181; A. H. Brainard and H. C. Brislen, "Learning Professionalism: A View from the Trenches, "Academic Medicine 82, no. 11 (2007): 1010-1014.
41. Cf. J. L. Quaintance, L. Arnold, and G. S. Thompson, "What Students Learn About Professionalism from Faculty Stories: An 'Appreciative Inquiry' Approach, " Academic Medicine 85, no. 1 (2010): 118-123.
42. See G. L. Rose, M. R. Rukstalis, and M. Schuckit, "Informal Mentoring between Faculty and Medical Students, " Academic Medicine 80, no. 4 (2005): 344-348.
43. At Florida State University College of Medicine, I am offering an elective 2-week or 4-week course for Year 4 medical students entitled Special Topics in Medicine and Law, MEL-7500, available at <> (access limited to FSA students and faculty only; syllabus on file with author).
44. F. L. Farrow, "The Anti-Patient Psychology of Health Courts: Prescriptions from a Lawyer-Physician, " American Journal of Law & Medicine 36, no. 1 (2010): 188-219, at 207-208 (internal citations omitted).
45. See "Humanizing Legal Education Symposium, " Washburn Law Journal 47, no. 2 (2008).