Being the Devil’s Advocate Ain’t Easy

October 14, 2010 at 11:33 am (Uncategorized) (, , , , , , )

Today in tort class we touched on the subject of medical malpractice suits a.k.a. the reason why my doctor back home stopped being nice to me when he found out I wasn’t actually an actor, but a future lawyer.

So we’re talking about a case where a doctor mistaken takes out two kidneys from a person instead of one. The patient’s brother donates a kidney to keep him off dialysis. The brother then sues the doctor for the cost of the surgery and subsequent pain and suffering. Question is: should the brother be able to get money because the doctor fucked up?

(Background tort law: there is something called “the rescue doctrine” where if you get injured trying to save someone’s life, in limited circumstances you can claim damages from the person who injured the person you tried to save.)

Prof opens the floor to arguments. Bear in mind two things: 1) I am a super-huge hypochondriac who has a sketchy history with doctors and I don’t want them messing up because I COULD GET EBOLA AND DIE OMFG, 2) I have family members who have worked in the dialysis field and know someone with kidney cancer, so I know how horrible dialysis is.

Everyone raises hand, says brother should be able to claim money. Prof starts looking irritated that no one is arguing the other side. To mitigate grumpiness, I fight every natural instinct in my body and raise my hand to come to the doctor’s defense.

“Well, the brother didn’t *have* to give him a kidney. He *chose* to do that. While it’s not ideal, the patient could have gone on dialysis and still survived without the kidneys. I think if the patient sued the doctor, it’d be a slam dunk case, but there aren’t enough connections between the doctor and the brother to justify a lawsuit.”

Prof gets happy, walks everyone through the doctor’s defense, we move on.

Fast-forward to after class. A friend of mine stops me in the hall.

“Hey, can I talk to you about what you said in class? Do you know how dialysis works…?”

Why yes, in fact, my…

“…because your answer seemed to betray a complete lack of understanding about the process.”

…ruh roh.

New law school rule: don’t mistake the arguments your classmates in class make with what they actually believe — at least, not until you actually know who they are. Also, don’t get pissy when someone raises an argument that goes against what you believe. If anything, embrace it, so that you know how to defeat it. Hate to quote Sun Tzu, as I don’t want to become “that guy” (especially since everyone here thinks I’m a gun-toting conservative Texas country boy (ironically)) but this quote is especially prescient to practicing law:

If you know your enemies and know yourself, you will not be imperiled in a hundred battles; if you do not know your enemies but do know yourself, you will win one and lose one; if you do not know your enemies nor yourself, you will be imperiled in every single battle. — The Art of War

Sometimes you have to fight for the devil so you can learn how he thinks.

EDIT: Juuuuust to be clear. I’m not saying doctors are the devil. And I’m not saying the doctor in this case shouldn’t pay. I’m just saying, you should know what the other side is going to do in a case so you can refute them on their own terms. So don’t hate.

3 Comments

  1. Foggy Dew said,

    Your classmate sounds like someone who can only hear the sound of their own voice. Your argument sounds logical to me but, as Sam Kinison once said, I wouldn’t want to be the deciding vote on a jury. Especially if the brother who lost both kidneys had already gotten paid.

    As a former part-time Texan, I say have a ball with your classmates and take the Devil’s side in all the arguments.

  2. magnolia said,

    welcome to law school. i’m a law-school grad, currently getting an LL.M. this will not get any better. i found that law school made me a much more logical thinker, prone to ask, “ok, you think [whatever]. why?” i’m willing to parse things out, look at all sides, etc., etc., etc. however, there were SO MANY PEOPLE in my class who just could not get out of their own way long enough to consider both sides.

    comfort yourself with the fact that your way will make you a better lawyer.

  3. Ted said,

    Hi there,

    First off, congratulations on getting Confessions of an Aztec Law Student featured on DCBlogs! I’m currently managing the editorial staffing for DC Barrister, a startup hyper-local website focused on law students in Washington, DC. The website is scheduled to launch in early 2011. Based on your writing style and experience as a 1L, I think you would be a great fit as a writer for the site.

    If you are interested, I’d love to chat more about DC Barrister and your ability to contribute.

    -Ted

    DC Barrister
    writers@dcbarrister.com

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