I have this crazy theory that one key difference between the way doctors and lawyers think involves the way each assesses status conditions. I don't want to fully expound my idea at this time, because I think it will be more valuable to first test it by asking the following question:If a condition is defined as "X," and an individual or entity would (seemingly) satisfy this condition without taking affirmative steps to avoid being classified as such, can they appropriately be defined as "X?"I know this is kind of abstract, so I'll break it down into two more practical (medical) examples:
1. Assume arguendo the status of hypertension (i.e. continual high blood pressure) is defined by having a blood pressure in excess of 160/100 on four occasions during the course of a year. A patient so qualifies, and is put on an exercise/medical regime to lower said blood pressure. Subsequently, in the following year, there are no blood pressure readings in excess of the qualifying minimum for the status classification. Can this patient be said to be suffering from hypertension?
2. Assume, similarly, the status of Diabetes is defined by having a single blood glucose level in excess of 250 mg/dL within the past year. After being diagnosed as such, said patient takes insulin shots and controls his or her glucose level for several years, during which the patient's blood glucose level does not exceed the qualifying minimum for the status classification. Can this patient be said to be suffering from Diabetes?
To an extent, my question is (and my examples are) philosophical; more importantly, however, I think the answers obtained here will highlight an interesting disparity between the way the legal mind operates vis-a-vis the doctor's mind. Maybe there's a gap to be bridged that extends beyond adopting a "Medical Based Approach" to legal education?
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UPDATE (6:35 PM): Responding to my initial post, a commenter asked for more information:
The real question is this. Who is paying me? Viable arguments can be made on both sides. It would really benefit this conversation to know where you are going with this. Better yet, a more detailed abstract explanation will not be as distracting.I wanted to see some more responses before fully articulating my hunch, but now's as good a time as any--particularly since many commenters have highlighted the very point I was trying to drive at. Let me work through the two practical examples I use (to expand on the more general proposition).
Although the definitions for "diabetes" and "hypertension" differ from the descriptions I provided, I believe that almost every physician would describe the patient in example #1 to be suffering from "hypertension" and the patient in example #2 to be a diabetic if these were the correct clinical definitions. Lawyers, on the other hand, would (I think) use the approach Nima and our commenter employed--namely that the "real question is . . . [w]ho is paying me . . . ." because "[v]iable arguments can be made on both sides."
It's an interesting divergence in views, and I think it's fair to (as a commenter did) characterize this latter type of analysis as "rote application of rule to fact." That's really kind of the point--the mechanical way in which we are trained to apply law to fact, and argue both sides affects the way we analyze a problem as compared to physicians.
More succinctly, I would posit that doctors make determinations as to status based on the totality of the circumstances and background, while attorneys are often blinded away from doing so in pursuit of a (perhaps erroneous) perception of an even-handed argument. So, whether an individual does not--strictly speaking--meet the criterion for a particular ailment would not prevent physicians from characterizing the individual as such where they would meet the definition if not for their actions. But it may well prevent attorneys from reaching the same conclusion.
I think this question really breaks down a dichotomy between how physicians are trained to think and how lawyers are trained to think. (Note at the outset that I still think law school could benefit from a more practical-based approach as I mentioned in my post on the "Medical Based Approach" to legal education).
ReplyDeleteThis question compels an LSAT-type analysis to explain this difference. Here we go....I take your proposition to mean that it is a necessary condition, for example, for a diabetic--in order to be classified as such--to have a single blood glucose level in excess of 250 mg/dL within the past year. Thus, to state the obvious corollary, if a person does NOT have a single blood glucose level measurement in excess of 250 mg/dL within the past year, he cannot be a diabetic. This is how the reasoning should go--at least from a lawyer's perspective. Lawyers are trained to apply facts to a stated condition, and for purposes of this thought experiment, should keep the inquiry to the underlying facts.
A doctor, on the other hand, could classify the condition according to the underlying condition, regardless of whether it is mitigated for any specific amount of time.
This is really the only difference I see in how there would be a divergence in the characterization. I think it is certainly the case that this question would never be answered in a vacuum, but it is useful for purposes of distinguishing the way different professionals think.
I don't understand
ReplyDeleteThe cases are moot... although they seem capable of repetition yet evading review (given the overbooking of Doctor's offices)...
ReplyDeleteOh, wait...Sorry. Fed Cts review-based seizure.
Maybe I'll get it checked out.
Actually, I disagree w/ you Nima (and maybe Craig):
ReplyDeleteIt's not about necessary and sufficient conditions at all. The diabetic is a diabetic, and the guy with hypertension has hypertension. Why? Because, as you say "this question would never be answered in a vacuum." How could it be? If we used rote application of rule to fact in the way you propose, we'd have to just change the rules to be broad enough to avoid manipulation to aviod falling within a group.
I think the two examples stand in contrast. We know one to be a condition that you cannot physically control (diabetes). You can control the consequences (with insulin), but not the fact you are a diabetic. If you aren't diabetic, then you do not need insulin.
ReplyDeleteI know that is not the intention, but it is a fact.
I agree with much of which Nima says above, but she is not right to say that is how reasoning should go (at least not always). The real question is this. Who is paying me? Viable arguments can be made on both sides. It would really benefit this conversation to know where you are going with this. Better yet, a more detailed abstract explanation will not be as distracting.
@ 5:27 --
ReplyDeleteThanks. The analysis was for the purpose of the thought experiment; necessary and sufficient conditions explain what *could* be the distinction between the lawyer's thought process and the doctor's. It obviously does not mean there is no deviation, and I don't for that matter believe that most lawyers would argue that, because a person has been successful in keeping his glucose level down for more than a year, it means that he suddenly is cured of diabetes. To the contrary, the condition still affects him. But, again, this reverts to how we define diabetes in the first instance.
Like I said, it would not be answered in a vacuum.
@ 5:37--
ReplyDeleteYou said: "I think the two examples stand in contrast. We know one to be a condition that you cannot physically control (diabetes). You can control the consequences (with insulin), but not the fact you are a diabetic. If you aren't diabetic, then you do not need insulin."
For the record, although it's irrelevant to the purposes of the discussion, I don't believe this to be true.* The same logic you use with respect to diabetes would apply with respect to hypertension, too--both are conditions that one cannot, as you put it, "physically control," but could "control the consequences [of]."
*I note, again, that I did not bother to obtain the correct clinical definitions of the respective medical ailments as it was irrelevant for the purposes of my thought experiment. Assuming for the sake of argument is good enough.
With respect to your request for more information as to where I'm going with this, I'm happy to oblige; I'll do so in the main body of the post, and will address your substantive comment further there.
Interesting read
ReplyDeleteI'll assume this is all correct, but why does it matter? What do you propose be done?
ReplyDelete@ 12:23--
ReplyDeleteI don't know that I'd propose anything be done. I posted this mostly because it's a distinction in thinking that I've personally observed, and find interesting. To me, it matters for that reason. For the profession as a whole? Perhaps, if correct, it demonstrates that sometimes we need to step back from the methodical, analytical framework we're taught to apply in law school and consider different factors when approaching a problem.
In seems to me that the question is one of definitions. It reminds me of a DE Corps case where the Chancellor makes a broad statement of the usual rule, and then contradicts himself in the next paragraph. While my prof. pointed to this as an inherent difficulty in reading Delaware court cases, I had no problem (or not enough problem, as the case may be) of reading the contradiction as an exception to the general rule.
ReplyDeleteI think the issue is one of definitions, and the way you've posed the question, Craig. You begin by posing the diagnosing criteria for a disease, and then move into treatment without discussing the terms doctors use to discuss successful treatment, namely "remission" and "cured."
For those who are in treatment whose symptoms have subsided, I believe the correct term would be "remission" which includes the possibility of relapse. This relapse may be natural (as in cancer) or as a result of a failure to take affirmatives steps (as with diabetes).
I don't believe that legal thinking need be any less nuanced than medical thinking in capturing these distinctions. In fact, I believe the ability to split hairs and to "correctly define things" is of critical importance to an actual lawyer when we won't be handed artificial answerable problems by our professors.
I do think "law students" may have trouble with this disticntion, as studying for finals lends itself some to highly discrete shortcuts and heuristics. However, you have to walk before you run, and to the sense that legal thinking is a process of logical definition, I see no reason why the ultimate comprehension of this issue wouldn't come out to the same view as the doctor's.
While Nima's response, who is paying me, is both accurate and humorous, the fact that a lawyer needs to sometimes be able to make a "less good argument" does not obviate the need to properly define things.
This example: Lawyer 1 takes the situation above and says the individual has cancer and is entitled to benefits. Lawyer 2 has to argue that the individual is not entitled to benefits because his symptoms do not meet the definition of cancer. Lawyer 2 could either argue that A) individual does not have cancer or B) individual's cancer is in remission. Either argument would work for Lawyer 2, but B is superior in that it forestalls Lawyer 1 from saying "he does have diabetes, but it's in remission."
Ultimately, the decision will (ideally, if the two lawyers play their game correctly) turn on whether precedent and policy support the right of an individual in this particular situation to receive benefits.
My argument is that with a well-trained opponent, factual definitions will converge and drop out, and decisions will turn on policy considerations applied to a "true" or "consensus" view of the facts.
These examples are without a clear knowledge of medicine. In both, changes were made to alter the outcome-be it better BP control or glycemic control-without which neither would have normalized. Both patients still have their underlying diseases, but they are under control.
ReplyDelete@ Josh--
ReplyDeleteThanks for your thoughtful reply. You're correct that I wasn't being completely forthcoming with my example, but if I'd provided more definitions it would have ruined my efforts. I think we do agree that, based on what I provided, there may be a divergence in views in terms of how the respective professionals would approach the problem. Be sure to let me know if I'm misunderstanding your argument.
@ 4:24--
That's a similar point to the one Josh makes, and I agree with you that the patients have the underlying diseases...the question of control is a new definition I did not introduce into the original thought experiment.