Author: ainar

Professional Perspectives: Interview with a Personal Injury Trial Attorney

In Professional Perspectives, we invite professionals of all stripes to tell us about ethics as it is relevant to their professional life. Today we present an interview with Mario Palermo, a personal injury trial attorney who practices law in Chicago. Mario is passionate about ethical practice, and has also written a piece on advice he has for attorneys who wish to avoid the common ethical pitfalls of the trade, which you can find below the interview.

Tell us a bit about your profession. What do you do?

I am a personal injury trial attorney. I help injured people and their families.

Do you find ethical reflection and decision-making to be a significant part of your work?

Yes. My job is to put the interests of my injured clients above all others, including my own. I am always mindful of this mantra. I have to balance my role as my client’s representative with the rules of ethics and evidence. I have to zealously advocate for my client while adhering to the rules.

The hardest challenge is when the best interests of my client are not consistent with my client’s desires. This comes up when deciding on how or whether to use a piece of evidence or in settlement negotiations.

What types of ethical situations do you encounter in your work?

I have to mindful of conflicts of interest. For example, if a family comes to me for help after a car crash, it may not be appropriate to represent the driver and the passengers if the driver may be found to be partially responsible for causing the crash. I have to make decisions at trial regarding how to use evidence or how to frame an argument. If you go too far, it can result in a mistrial.

Can you describe a case that was, ethically, particularly interesting or difficult for you?

A took on a case where a mother and her children were seriously injured in a car wreck. I liked them all. They are a beautiful family. I agreed to represent them all because it appeared that the defendant, a young, inexperienced driver, was the sole cause of the violent wreck. The defendant turned in front of the family at an intersection where the family had the right of way. The defendant admitted to the police at the scene that she did not know what color the traffic light was before the collision. Meanwhile, the mother was 100% sure she had a green light.

Unfortunately, the defendant changed her story when I questioned her under oath. Her new story was that she was sure the mother ran a red light and that she had a green arrow. I did not believe her. Despite the obvious issues with the defendant’s credibility, I was placed in a position where I had to decide whether to represent the children OR the mother. Why? Because the children, as passengers, could not be to blame and it could diminish the children’s recovery if the jury somehow believed the defendant’s new story.

This was difficult because I did not want to disappoint or divide the family who trusted me and wanted me to represent all of them. I decided it was best to continue to represent the children and withdraw as the mother’s attorney. What’s worse is that not only could I no longer ethically represent the mother, but I was duty-bound to name the mother as a defendant as well. I did not want to do this. I risked losing the whole family as clients and was giving up significant legal fees because the mother was seriously injured. It was not pleasant explaining to the family what I had to do but it was the right thing to do. In the end, it worked out great for all concerned.

What are some significant factors in your ethical reflections and decisions in professional life, and why?

Ethical codes are the starting point and compass. They must be adhered to. They often provide guidance, even when a situation is not directly governed by them. However, the codes cannot cover every situation. When there is truly a grey area, I rely on open communication and full disclosure to the client. The best course is to let the client decide after being fully and fairly informed. I work hard to earn my client’s trust. In the end, if there is a difficult decision, I advise them what I would do if I was representing my mother in a similar situation and I explain why.

How do you go about making ethical judgments and decisions in your professional life?

I start with the rules. Mantra one is that I place my client’s interests above all others, including my own. Mantra two is I explain to my client what I would do if I was advising my mother in a similar situation. If my client insists on steering into disaster, I patiently but persistently educate them. There have only been a couple of occasions in 21 years of practice where I had to withdraw from representing someone that insisted on steering into an iceberg.

 

A big thanks to Mario for contributing to Professional Perspectives! Would you like to contribute? We want to hear from all kinds of professionals. Send me an email at ainar@oslomet.no and mark it with Professional Perspectives if you want to contribute.

Below you can find Mario’s list of Ethical pitfalls for personal injury attorneys:

5 Ethical Pitfalls Attorneys Must Avoid in Personal Injury Cases

By Mario Palermo

Attorneys play a crucial role in society as they are responsible for upholding the law and protecting individuals’ rights against abuse and crime. The profession’s combined reputation is critical to the trust it inspires amongst the general public. In other words, if lawyers do not adhere to and promote the ethics and principles of fairness and equality, the public’s confidence in law will be undermined, hindering their access to justice. Consequently, as the guardians of law, attorneys are expected to practice certain professional ethics such as placing the interests of their clients above their own and striving to obtain respect for the court of law.

An attorney representing personal injury cases often faces several pitfalls that can lead to unethical conduct. In this era of suspicion against personal injury lawyers, even the most straightforward personal injury case can trigger a variety of ethical dilemmas. Furthermore, the motives of the individuals making the personal injury claims are not always clear. On several other occasions, owing to poor legal outcomes, lack of trust, and increased frustration, clients resort to filing disciplinary complaints or suing the attorneys and the law firms for unprofessional conduct.

Here are five commonly-encountered ethical pitfalls that attorneys must avoid in order to uphold the dignity of the judicial office and build a trustworthy relationship with their clients.

1. Lack of Communication

Poor communication with clients can cause a serious rift in a personal injury case, making it challenging for the attorney to get the client’s support and information required with regards to the incident.

A personal injury attorney is required to listen to his/her clients’ grievances, address their concerns, and ensure that they have had a realistic understanding of what to expect from the case.

The rule 1.3 of the D.C. Rules of Professional Conduct states that –

  • (i) a lawyer shall represent his/her client zealously and diligently within the bounds of the law and
  • (ii) a lawyer shall act with reasonable promptness in representing his/her client

In order to be ethically compliant with the professional ethics, a lawyer must make an effort to effectively communicate with the client, analyze the legal issue, and inform the client regarding the changing laws and the prevailing circumstances.

2. Conflict of Interest and Lack of Confidentiality

Conflict-of-interest situations often raise complicated ethical dilemmas. For instance, it is against the professional ethics of an attorney to represent both parties in the same or related personal injury litigation.

The lawyer-client relationship is based on trust and confidence. Hence, it is crucial to run conflict checks early in order to determine the general nature of the personal injury case and the names of the parties involved. Conflict checks ensure that a lawyer’s commitment to his/her client isn’t disturbed by his/her commitment to another party.

Similarly, it is unethical for a lawyer to share his/her client’s confidential information even when the case has been resolved. The rule states that ‘a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.’ Therefore, lawyers are required to fulfill a duty of confidentiality towards their clients, encompassing all the aspects of the representation.

3. Placing a Monetary Figure without Thorough Case Examination

It is an extremely poor ethical conduct for a lawyer to guarantee the client of the legal outcome of the court proceedings. Moreover, an ethical personal injury lawyer will never tell a client what his/her case is worth without sifting through the medical records, the case papers, the insurance documents, and other evidence pertaining to the case.

4. Failure to Correct False Testimony or Evidence

One of the trickiest situations faced by attorneys is when the client hides facts or gives false testimony or provides false evidence. A lawyer has a duty to prevent the court from being misled by false statements and evidence.

When faced with such a situation, an attorney should talk to his/her client and ask him/her to retract the false evidence or testimony in the presence of the court. In case the client refuses to comply, the lawyer may withdraw from the case after informing the client. However, the lawyer’s duty of confidentiality still remains after withdrawing from the case.

5. Indulging in Unethical Advertising

Advertising about the services of a law firm or an attorney has constitutional protection under the Rules of Professional Conduct provided the statements and claims in the advertisements are ‘truthful and not misleading.’ For instance, statements such as ‘We win 99 percent of personal injury claims in Chicago’ or ‘We are Chicago’s most preferred personal injury attorneys’ must be avoided unless these statements are absolutely true.

With the advent of new technology and new ways of communication, namely the social media and mobile marketing it is crucial for lawyers to be aware of the legal marketing ethics of each state. A few state bar associations, namely New York and Florida have specific social media guidelines for lawyers and require them to adhere to the states’ guidelines as well as the federal online marketing laws under the Federal Trade Commission (FTC).

Since practicing law is associated with a high level of social responsibility and maintaining the dignity of the legal profession, there are certain duties, codes of rules, and principles of behavior that a lawyer is expected to adhere to. Attorneys, especially those who are new to practicing law, often find themselves in situations that are at with these.

A personal injury attorney owes it to the law profession, the society, and his/her clients to uphold the honor and integrity of the profession. The above-mentioned points can be of help in understanding the most common ethical pitfalls in personal injury cases.

 

Contributions wanted: Professional perspectives

A new series!

Professional ethics is launching a new series of posts called Professional perspectives. The point of this series is to get a glimpse of professional ethics as it looks through the eyes of practitioners. As a complement to our regular philosophical posts, Professional perspectives will show the thoughts and reflections that regular doctors, lawyers, engineers, etc. have about professional ethics.

But to make this series live up to its potential, I need your contributions! If you are a practicing professional (doctor, lawyer, engineer, nurse, teacher, researcher, etc.) and you are reading this blog, then you are probably a perfect candidate for contributing to this series.

How do I contribute?

The simplest way of doing this is to send me a mail at ainar@oslomet.no and tell me who you are, what your profession is and that you want to contribute. I will then send you a document with some interview questions that you can answer and send back to me. This need not take more than 30 minutes of your time, so why not do it today?

All best,
Ainar Miyata-Sturm

When Doctors Are Wrong, and Patients Are Right

Medical Mistakes

Doctors are not infallible.

They often make diagnostic errors. Though the incidence of such errors can be hard to measure, autopsy studies provide one metric that is hard to dispute: “major diagnostic discrepancies” were identified in 10–20% of cases (Graber 2013). Other types of studies find similar results (see Graber 2013).

In some cases, doctors are systematically mistaken about important medical facts. In one study, gynecologists were asked about the likelihood that a woman who has tested positive on a mammogram actually has breast cancer. They were presented with four alternative answers, one of which was correct, and they were given the statistical facts needed to calculate their way to the correct answer, so the task should have been easy.

Only 21% chose the correct answer, which means that the doctors did slightly worse than we would expect them to do if they chose the answer at random (Gigerenzer et al. 2008).

Should We Be Worried?

These facts are troubling. When doctors are wrong, the consequences may be severe. It is tempting, therefore, to react with a scathing criticism of doctors and medical education.

In part, this is warranted. The human tendency to crash and burn when faced with problems that require Bayesian reasoning, which is what foiled the gynecologists in the study above, can be corrected with proper teaching (Gigerenzer et al. 2008). Diagnostic errors that result from cognitive biases could be removed using formalized procedures such as checklists (Ely et al. 2011).

However, as long as doctors remain human, errors will occur. Moreover, since medicine is a field characterized by risk and uncertainty, focusing on individual blame for mistakes runs the risk of focusing on outcomes rather than the procedure leading to those outcomes.

Malpractice

Malpractice suits, which are the legal manifestation of such a focus on individual blame, are more likely to be filed when outcomes are bad, such as when someone dies because of a delayed diagnosis of cancer. The likelihood of the filing (in the case of diagnostic errors) increases with the severity of the outcome (Tehrani 2013). But a bad outcome does not automatically entail any error of medical judgment.

Any positive diagnosis involves a risk of overdiagnosing a healthy patient. Any negative diagnosis involves a risk of underdiagnosing a patient with a serious ailment. As both overdiagnosis and underdiagnosis can lead to serious harm, the trick is to balance the risks according to their costs and benefits, but there is no way to completely avoid the risk.

The Costs of Blame

One serious cost of blaming doctors for mistakes is the phenomenon known as defensive medicine. The harms resulting from underdiagnosis and undertreatment are usually much more spectacular and easy to understand than the harms resulting from overdiagnosis and overtreatment. This means that doctors can minimize the risk of being sued for malpractice by erring on the side of the latter. According to one estimate, defensive medicine costs the US between $650 billion and $850 billion annually (jacksonhealthcare.com).

Another significant cost of the focus on blame is the harm that befalls doctors. Being a physician is stressful. Depression and burnout are common, and the suicide rate among doctors is frighteningly high—41% higher than average for men and 127% higher than average for women (Schernhammer 2004). A likely contributor to this is the blame and guilt associated with making mistakes, or even with making completely justified decisions that, because they involve risk, happen to result in bad outcomes.

Less obviously, focusing too much on the responsibility of the physician obscures the fact that the institution of modern medicine tends to marginalize and overlook a significant healthcare resource: the patient.

The Doctor as Authority

Modern healthcare is still very much an authoritarian institution, where patients come in and are told what to do by the Olympians in white coats. Even title of “patient”, which you automatically gain once you enter the system, denotes passivity, someone “to which something is done” (oed.com). Doctors have access to a special set of skills and knowledge, which is demarcated by high social status and pay and often romanticized in popular culture. To a patient, the doctor is an unapproachable expert, one to which you listen, sometimes literally, on pain of death.

It is no wonder, then, that most of us are afflicted by what Wegwarth and Gigerenzer call the trust-your-doctor heuristic, which is the decision-making rule most of us follow in matters regarding our medical needs: consult your doctor and simply follow her commands (2013).

Because the gap in relevant knowledge between physician and patient is assumed to be astronomical, the responsibility for arriving at the right conclusions is placed squarely on the shoulders of the physician. Though the 20th century has given us the doctrine of informed consent, an institution intended to protect patient autonomy; the underlying picture is still that of a commanding doctor and consenting patient. By being bound by this framework, we risk losing out on the resources patients could bring to bear on solving their own medical problems.

Bridging The Gap With Google

As Andreas Eriksen discussed in his excellent post a couple of months ago, the advent of the internet and Google has increased the information easily available to the average person by several orders of magnitude. This means that the knowledge-gap between doctor and patient is less absolute.

No doubt it’s true that a doctor with Google is better suited to diagnose and propose treatments than most patients with Google. However, it is also true that most patients spend a lot more time thinking about their medical condition, their symptoms and how it affects their life than their doctors do. A doctor can’t spend hours researching on Google every consultation, and they cannot routinely monitor their patients as they go about their daily lives.

Every patient should be considered an expert on her circumstances of life. More and more, the medical knowledge they can muster through the use of Google and other resources should be taken seriously. When combined, these two insights make a good argument that a healthcare model based on the idea that responsibility and authority in medical matters should belong solely to the physician is obsolete.

Taking The Patient Seriously

The involvement of patients in medical decisions should not be regarded merely as matters concerning the protection of their autonomy but as an important part of improving the medical decisions themselves. Through the last couple of centuries, medicine has seen a gradual shift towards a focus on the patient in several ways, through informed consent and, more recently, the ideal of shared decision-making. This is a trend that should continue.

Doctors are sometimes wrong. Patients are sometimes right. On an authoritarian model, the instances where these situations overlap will result in doctors overriding their patients’ correct judgments with their own mistaken ones. In an ideal situation, a patient’s correct judgment should correct the doctor’s mistake. Taking the patient’s resources to make medical decisions seriously should be a step towards achieving this ideal.

Litterature

Ely, John W., Graber, Mark L. & Croskerry, Pat. 2011. “Checklists to Reduce Diagnostic Errors”. Academic Medicine. 86 (3).

Gigerenzer, Gerd, Gaissmaier, Wolfgang, Kurz-Milcke, Elke, Schwartz, Lisa M. & Woloshin, Steven. 2008. “Helping Doctors and Patients Make Sense of Health Statistics”. Psychological Science in the Public Interest. 8 (2). 53–96.

Graber, Mark L. 2013. “The incidence of diagnostic error in medicine”. BMJ Quality & Safety. Online First.

Schernhammer, Eva S. & Colditz, Graham A. 2004. “Suicide Rates Among Physicians: A Quantitative and Gender Assessment (Meta-Analysis)”. The American Journal of Psychiatry. 161. 2295–2302.

Tehrani, Ali S. Saber, Lee, Hee Won, Mathews, Simon C. Shore, Andrew, Makary, Martin A., Pronovost, Peter J. & Newman-Toker, David E. 2013 “25-year summary of US malpractice claims for diagnostic errors 1986–2010: An analysis from the National Practitioner Data Bank.” BMJ Quality & Safety. 22. 672–680.

Wegwarth, Odette & Gigerenzer, Gerd. 2013. “Trust Your Doctor: A Simple Heuristic in Need of a Proper Social Environment”. In Simple Heuristics in the Social World. Hertwig, Ralph, Hoffrage, Ulrich & The ABC Research Group. Oxford University Press.

Authors comment: This post was written after binging a season of “Doctors vs. Google” (originally: “Hva feiler det deg”) the Norwegian TV series that pits a team of people without medical education, but with access to google, against a team of doctors without google. The task: to correctly guess the diagnosis of people based on a brief anamnesis and some rounds of questioning. Andreas mentions the show in his post, which is where I found out about it, and it is worth watching, as it’s both entertaining and a fair showcase of the potential (and the limits) of what patients can achieve with the help of google. Though the doctors often come out on top, this is probably in part because in the weightiest task point-wise, a time constraint means that there is almost no time to use google.

Ainar Miyata-Sturm is a PhD student at the Centre for the Study of Professions (SPS), and part of the project Autonomy and Manipulation: Enhancing Consent in the Health Care Context. He is also the editor of Professional Ethics.

Photo: Sonja Balci

Conference on the Theory and Practice of Informed Consent

Hi all,

Here comes some exciting news:

Next month (June 8th and 9th) there will be a conference on the Theory and Practice of Informed Consent at Oslo and Akershus University College of Applied Sciences.

Many international researchers will hold talks, and judging by the abstracts they have sent in it looks like we are set for a stimulating and perhaps provocative couple of days.

If you are impatient and want to see the whole program for the conference, full abstracts etc. you can click here. Otherwise, read on for a brief digest of what we have in store.

Medical ethics

The medical context is often central when talking about informed consent. Since this one of my main research interests, I am happy to say that this will be the case at the conference as well.

Louis Charland (University of Western Ontario) will talk about how the psychological disorder Anorexia Nervosa could show us how too much concern for autonomy could be dangerous to certain vulnerable subjects.

Then Hallvard Lillehammer (Birkbeck, University of London) will perhaps strike a similar note when he asks whether the legitimizing power of consent always should be traced back to respect for autonomy.

Approaching the topic from a legal perspective, Henriette Sindig Aasen (University of Bergen) will look at the challenging case of childrens’ right to participate in medical decisions.

Research ethics

The first area where informed consent became a formal standard is research ethics following the Nuremberg Code, which was established as part of the judgment in the trial of the Nazi doctors in 1948.

In this light, Steven Edwards (Swansea University) will talk about how a weak version of the Humanity Formula of Kant’s Categorical Imperative (roughly: “don’t use people merely as means, but always also as ends in themselves”) is useful for thinking about consent in research ethics.

From the home field, Edmund Henden (Oslo and Akershus University College) and Kristine Bærøe (University of Bergen) will talk about whether addicts can give valid informed consent to participating in trials were they will be offered the drugs they are addicted to.

Neil Manson (Lancaster University) considers the proposal that biobanks should offer participants the opportunity to chose their own consent frameworks, and promises to argue against a practice of such “meta-consent”.

Professions and proffesional codes

The conferencewill not only be about informed consent: the second day will focus more on professional ethics in general.

Tor Halvorsen (University of Bergen) will  give a talk on the new ethical Challenges facing professionals given the new set of goals set by the UN to end poverty, protect the planet and ensure prosperity for all within a sustainable development agenda.

Finally, there will be a number of parallell sessions arranged by Profesjonsetisk nettverk (Network for Professional Ethics). The topic for these sessions will be Profession, Professionalization and Codes of Ethics, and there is an open call for papers which you might be interested in responding to, thought the deadline for submitting an abstract is Wednesday next week.

What’s not to like?

The conference is a part of the research project Autonomy and Manipulation: Enhancing Consent in the Health Care Context at SPS and is arranged in cooperation with Profesjonsetisk Nettverk. Here is the link to the full program again. If you have any questions, feel free to send me an email.

Oh, and you can let us know you’re coming by clicking attend on the facebook event we have created.

Or not—you’re welcome anyway.

 

I hope to see you there!

Best,

Ainar

Welcome to Professional Ethics!

Welcome to Professional Ethics, a blog about just that: professional ethics. The blog will be dedicated to exploring  this relatively undeveloped  area of philosophy, and a long term goal is for the site to be a resource for professionals who want to know more about the ethical side of their craft. If you are interested in professional ethics, this is your site!

For now, the site is quite sparse, but rest assured—more is coming.  In the meantime you can check out our About page, the Guidelines or the Events calendar. If you would like to keep up to date with the blog, you can Subscribe (scroll to bottom of page) to never miss a post.

Our plan:

The aim of the site is to be a friendly and accessible place to present and discuss interesting philosophical problems and ideas within the topic of professional ethics. We want the bar for participation to be low so that ideas that are not yet fully developed can be discussed.

The main content of the blog  is intended to be short texts by philosophers, professionals and researchers from other disciplines working in the field of professional ethics.

Are you a philosopher, a researcher or a professional and would like to contribute to the blog? Check out the Write for Us! page and send me an email!

Who are we?

Professional Ethics is affiliated with the Centre for the Study of Professions (SPS) at Oslo and Akershus University College of Applied Sciences. SPS is a multidisciplinary research center where researchers from a wide variety of fields  study questions relating to the professions.

The site is edited by me, Ainar Petersen Miyata, a PhD Candidate at SPS and part of the research project Autonomy and Manipulation: Enhancing Consent in the Health Care Context. My main research interest is nudging and its relationship to autonomy and informed consent.

 

I hope you will find the blog both useful and enjoyable! If you have any sort of feedback, let me know.

All best,

Ainar

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