"Really, Scott?"

Doctors and Lawyers: Consumers, Patients and Clients

Q. What do Paul Krugman (Nobel-prize-winning economist) and Scott Greenfield (criminal defense attorney) have in common?

A. Both are occasionally wrong, but never in doubt.

Q. What’s the difference between Paul Krugman and Scott Greenfield?

A. In the recent case of markets and professional ethics, one of them is wrong—and it’s not Krugman.

 

Krugman recently wrote in his NY Times column a piece called Patients Are Not Consumers, about how doctors and medicine (and patients) are being degraded by a simplistic emphasis on market ideology to the exclusion of ethics. Krugman is more right than wrong in this timely piece.

Politicians and supposed reformers talk about the act of receiving care as if it were no different from a commercial transaction, like buying a car — and their only complaint is that it isn’t commercial enough.

Krugman isn’t saying health care isn’t commercial; he’s saying it’s not only commercial.

Greenfield attempts to hijack the medical metaphor on behalf of lawyers in a post called Take the Lead, saying that lawyers and the law (and legal clients) are also being degraded by a simplistic emphasis on market ideology.

But Greenfield, by contrast, is more wrong than right. He confuses professionalism with witch-doctoring, and does his cause no good.

Doctors, Patients and Consumers

Market-as-solution is increasingly being exposed as an imperfect ideology except on the political fringes. (You could say that about government-as-solution too, but it’s a straw dog with no teeth—socialists are polling badly in the US these days).

This is legislatively relevant today, as Krugman points out, in the program put forth most recently in Congressman Ryan’s economic proposal. Here’s Krugman:

The idea that all this can be reduced to money — that doctors are just people selling services to consumers of health care — is, well, sickening. And the prevalence of this kind of language is a sign that something has gone very wrong not just with this discussion, but with our society’s values.

Krugman is an economist; but one who does not believe homo sapiens is equivalent to homo economicus. He’s an economist who believes in ethics, which makes him both interesting and relevant in my book.

Of course, that’s not the whole story. There are reasonable claims to be made for consumerism in healthcare. HBS’s Regina Herzlinger has for years argued—very cogently, e.g. in Who Killed Health Care?–that the entire US system desperately needs more consumer–and market–orientation. As someone with recent experiences of loved ones in hospitals I can attest to the need for intelligent process design and change management skills.

Yet Krugman’s no absolutist. It wouldn’t surprise me a bit to find that he’s familiar with Herzlinger’s work and that he favors it. He doesn’t say that health care isn’t commercial—just that it’s not only commercial.

He’s talking about the excess that comes not from reasonable people applying reasonable market principles but from ideologues.

Lawyers, Clients and Consumers

Which brings us to Mr. Greenfield. Trying to hitch a ride on Krugman, he says, “Doctors don’t have consumers. They have patients. Lawyers don’t have consumers. We have clients.”

“All marketers lie,” according to Greenfield, “because without lies they would get no leads.” Which may be your first tip that we’re in true-believer territory.

In particular, Greenfield finds the term “leads” a morally offensive term.

“…I was offended by his characterizing clients as leads, that this was a marketing term and it fundamentally conflicted with what lawyers do. Lawyers do not seek ‘leads,’ I told him. We seek clients. I thought it was outrageous.

“We don’t sell used cars. We are responsible for people’s lives. We used to be, anyway. And people who are responsible for the lives of others don’t think of them as leads or consumers.”

Witch-Doctoring

When someone starts talking about being “responsible for the lives of others,” get your megalomania sniffer out. Greenfield’s parallel here isn’t with doctoring—it’s with witch-doctoring.

In my experience, most law firms are still a long way from being touched by market forces, much less dominated by them. The idea that marketing is in fundamental conflict with client service makes as much sense as an Ayn Rand Daycare Center.

Krugman integrates ethics and economics. Greenfield is anti-integration when it comes to law and economics—there can be no compromise with the devil. Such intolerance, I find, is closely correlated with cases of the Hammer-Nail Syndrome.

The Hammer-Nail Syndrome

All professions are prone to the hammer-nail syndrome; if I own a hammer, you must be a nail. And Greenfield is a poster child. Consider a case from his own files.

You may recall about 18 months ago Tiger woods got into major PR trouble for backing a car out of his driveway and allegedly being on the wrong end of a 3-iron from his wife? Greenfield’s advice at the time was crystal-clear (as always—sometimes wrong, never in doubt):

“Even worse than the civil lawyer is the flack, whose only concern is how things will play out in the media. ‘But it won’t look good for you if you don’t meet with the police, Tig.’ And it won’t look good if he’s arrested based on his statements to the police either, but the latter will go on much longer than the former. Flacks tend to be more concerned with appearance than reality. [italics added]”

In Greenfield’s world-view, Woods should have ignored the PR “flacks” around him and immediately gotten not just a lawyer, but a good criminal defense attorney. Because what ol’ Tiger had was not a communications problem, but a legal problem.

Really, Scott? Is that how we’ll remember the Tiger Woods fiasco—as a case in criminal law? Would you have coached him to just say, “I didn’t do anything illegal, I didn’t break any laws?”

Being blinded by antipathy to marketing means you can’t see a marketing issue when it hits you like, well, a hammer in the head.

What Real Professionalism Looks Like

This is not what real professionalism looks like. The legal profession should reject the ‘high-priest slash witch doctor’ view of the law as being apart from the rest of human commerce, just as I think Krugman does.

Professionalism must include ethics. To me, that means treating our clients and patients as intelligent equals in a joint search to make things better in their part of the world. Your expertise is not a license to bloviate, much less to be respected for doing so. Your expertise is an attribute that, if you treat clients decently, will be perceived as such and rightly so.

That means—let me spell it out—if you’re not proactively seeking opportunities to improve the world via your expertise, then you’re not behaving as a professional.

  • If you have a cure for smallpox and you just sit in your office aggressively waiting for the phone to ring from enlightened smallpox victims—you’re unprofessional. Go look for “leads,” preferably in places where you’re likely to find smallpox victims. You might save some lives.
  • If you’re a lawyer doing corporate work for a client and you see a real estate issue, but choose not to mention it because ‘you don’t sell’—you’re unprofessional. That’s a ‘lead’ and you’re not unethical for pursuing it—you’re unethical if you don’t.
  • If you refuse to treat your client or patient as an intelligent adult consumer by insisting they first respect you for your black-robed witch-doctor status—you’re unprofessional. Go look for leads, defined as people whom you can help. Don’t demand respect; earn it.

Scott says he’s responsible for his clients’ lives. I suggest that’s a bad rule for the rest of us.

We’re not responsible for our clients’ lives; they are. Our job is to help them—not live their lives for them.

5 replies
  1. Rich Sternhell
    Rich Sternhell says:

    Charlie,

    You’ve certainly covered a lot of ground in this post and I will only note one commonality between the lawyers and doctors in our environment…and for what it’s worth I think both Krugman and Greenfield are incredibly simplistic in their approaches. Both doctors and lawyers have their fees paid in large part by someone other than the person making the decision to purchase the services. For doctors it is either the government or insurers. For lawyers (at least in the plaintiffs bar), in more than a few cases it is a contingency arrangement with fees to come from the eventual settlement. I am not one to argue that all problems can be solved by the market. But in these two cases, the distance between the payer and the consumer certainly distorts the relationship….serving to create greater demand than could be economically supported. That’s not always bad…in fact in many cases it has a positive result, however it does create economic distortion and we can’t ignore it.

    Reply
  2. Charlie (Green)
    Charlie (Green) says:

    Many thanks Rich for the usual provocative insights (I find Rich is rarely wrong, and never lacking in insight).

    I take your general point to be that the world is far more complex than either author suggests, and I think that’s a great point. You could have added, as you have remarked to me in the past, that the health care market is a composite of many markets, some far more market-exposed than others.

    On the legal side, you mentioned the plaintiff bar; it’s interesting that on the defense side, economics are extremely relevant as well. There is a government-mandated requirement for representation (in the constitution, I believe) and government-set rates for defense counsels. One doesn’t have to suggest market-based pricing for court-ordered defenders to note that the decisions made by government have a profound effect on what happens. Another case of economic distortions.

    Finally, there is one business with which I’ve had some experience, which is even more removed from final-payer demand than these two. Oddly enough, it’s the brick business. You may think bricks are the ultimate commodity–made of dirt, straw and water–but it has more in common with the perfume business than with pork bellies.

    The primary specifiers of high-end residential-use bricks (at least, many years ago when I had a client in that business) turn out to be architects and (female) spouses of well-to-do (male) husbands. Both were key specifiers, and both were one step removed from the ultimate payor. As a result, such bricks were priced, designed and sold as designer items, heavily focused on aesthetics, and far-removed from mundane price competition.

    Again, a case of where, as you say, “the distance between the payer and the consumer certainly distorts the relationship.”

    Reply
  3. Nathan Burney
    Nathan Burney says:

    I think I get what you’re saying — that it’s fine to let the world know you’re there and what you can do. And if that’s all you’re saying then it’s hard to argue with that.

    But you seem to be saying more, with which I cannot agree. A lawyer is not just a service-provider. Clients entrust lawyers to make decisions and take actions on their behalf, decision and actions that can affect the client’s life, liberty and property dramatically. It’s not a lawyer’s job to treat the client as an equal partner in some search for bettering the client’s world. It’s the lawyer’s job to decide what needs to be done, and to have the knowledge and wisdom required to make the right decision.

    The law is a profession, not a business. Traditionally, there have only been three professions: medicine, the clergy, and the law. The professions are different from all other endeavors in that the professional’s duty is first and foremost to do what is best for the patient/parishioner/client. The professional’s personal goals and needs don’t take a back seat, they’re not at issue. The only time the professional’s interests come into play is if they would conflict with the interests of the client, in which case the professional must back out.

    It’s all about putting the client first. The second it becomes about putting the lawyer’s own interests first, it’s time to leave the law. The second it becomes about the lawyer’s bottom line, it’s time to find another career. Because now it’s not about the client any more.

    That’s not to say there’s anything wrong with making money as a professional. There’s nothing wrong even with making a large amount of money, if the services are worth it. But the money cannot be what it’s about, ever.

    And if a potential lawyer cannot deal with that, then it’s time for them to find something else to do.

    Reply
  4. Charlie
    Charlie says:

    I didn’t write this blogpost very well, but at least I had a good instinct for subject matter. Commenters have taken it in two directions.

    Direction 1. Rich Sternhell, above, begged to differ with both Krugman and Greenfield that health care is excessively market-based.

    To Rich’s point, there is a fascinating two-part blog from the Economist on the original Krugman piece. The first one ( http://ow.ly/4IA01 ) says Krugman is being an ideologue, rather than an economist. It’s pretty persuasive.

    The second one ( http://ow.ly/4IA2M ) says the first one is wrong; being an econo-mist shouldn’t be like being a Marx-ist; economists ought to be agnostic, as he says Krugman was. Neither sex nor religion, he suggests, is improved by exposure to market forces, and Krugman was simply raising a good question about where health care fits. This one flipped me right back again.

    A great couple of readings; I recommend them to you.

    Direction 2. Nathan Burney chooses to focus more on the issue of the relationship between the client and the professional. And thanks, Nathan, for a fine and constructive set of comments. He suggests there are really three professions (law, clergy, medicine), and that those professions are different from other businesses with ‘clients.’

    I’m not at all sure I agree, but it is a fine question, and Nathan and I have had a couple of off-line email interactions. Here are some related issues that surface based on his comments;

    What is the ‘provider-client’ relationship implied by:

    -Good samaritan laws keeping doctors lawsuit-free if the stop to give aid
    -Donor cards, giving posthumous permission to harvest one’s organs
    -The current flap about the fiduciary responsibility of financial planners

    What do you think about this?

    Reply

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