The Gavel and the Stethoscope: Law and Medicine, in Study and Practice

Author: 
Meredith Heagney

Over the course of ten months, 340 people filed into a University of Chicago lab so a research technician could puncture their forearms with a small dose of histamine. The skin’s inflammatory (allergic) reaction to the injection was measured, and then each subject was given a Claritin. Then they watched Shakespeare in Love, spliced with commercials for Claritin and Zyrtec. Their allergic reactions were measured again.

The goal of the clinical trial was to see if the ads affected the effectiveness of the drugs. For example: does watching a Zyrtec ad keep your Claritin from working? (It could— more on that later.)

It may not sound like the work of a law professor, but it is. Professor Anup Malani and two colleagues, a surgeon and an economist, designed the experiment, which led to a paper published in the Proceedings of the National Academy of Sciences.

What does it have to do with law? Well, the way drugs work has many implications for law and policy, Malani explained. This is what he does: study topics at the fertile intersection of law and medicine, from policy and markets to behavior and economics. And he’s not alone in the Chicago Law community when it comes to thinking about the many things that the law has to say about medicine. Several graduates of the Law School are also MDs who work in both worlds daily.

Kameron Matthews, ’06, graduated from the Johns Hopkins University School of Medicine in 2007. Today, she is Chief Medical Officer at Mile Square Health Center, a University of Illinois–run series of clinics that serve about 18,000 low­income patients a year. Matthews is responsible for overseeing 12 clinics, and she has found that it’s a good fit for a doctor who is also a lawyer. Part of her job is to ensure that the clinics are compliant with laws and regulations governing health care institutions.

“I wanted to create policy so I could impact more than one patient at a time,” Matthews said. To do that, she felt she needed both her JD and MD. “It’s two different languages, and often those with both degrees are able to bridge the divide.”

Nirav Shah, ’07, is an associate at Sidley Austin and doesn’t consider himself a doctor, because he never practiced medicine. He does have an MD (2008) from Pritzker, however, which he uses every day in his law practice, which focuses on health care law and policy, as well as fraud and abuse.

The MD is a big help, Shah said. “Nowadays, health care is such a technical, highly regulated field. The medical degree allows me to get in there with a client on day one and quickly get a handle on not just the legal issues but also the scientific and technical issues.”

Rebecca Weintraub Brendel, ’99, earned her MD at the University’s Pritzker School of Medicine in 2000. She is a psychiatrist at Massachusetts General Hospital, where she is also the Director of Law and Ethics for the Center for Law, Brain, and Behavior. She is an Assistant Professor of Psychiatry at Harvard Medical School and Clinical Director of a program funded by the Red Sox Foundation to address veterans’ psychological war wounds.

Much of Brendel’s work, in both her scholarship and her daily job, involves the thorny medical and legal questions around competency, or the ability of severely mentally ill patients to make decisions for themselves. She oversees all legal guardianships of patients treated by Massachusetts General; her goal is to achieve the least­ restrictive guardianship agreements possible for the patient’s well­being. To this end, she works closely with the courts, lawyers, and judges, as well as fellow physicians. The law also affects her broader practice in numerous and ever­changing ways, she added.

“For medicine in general, we’re in an area of increasing regulation and change in practice delivery and also an economic climate where we have to make decisions about resources,” she said. “As physicians, we have to make decisions about how those laws affect process and our patients.”

That link—between policy and patient—is where Malani, Lee and Brena Freeman Professor of Law, is often focused. His most recent work has examined the Affordable Care Act (ACA) and insurance markets in the United States and abroad. For example, he’s written about the effect of the ACA on medical innovation, such as new drugs and devices. Last year, he participated in a summit of eight health economists put together by the American Enterprise Institute with the goal of crafting an “ideal” health care reform package, one that would be as progressive as the ACA but no more costly. Their plan, titled, “The Best of Both Worlds: Uniting Universal Coverage and Personal Choice in Health Care,” is published on the AEI website.

Malani also studies health economics and policy in developing countries, especially India. His topics are sometimes unique to the developing world and sometimes parallel to U.S. realities. For example: he wrote a paper on whether farmers in developing countries should be compensated if the government kills their chickens to fight avian flu—thankfully, not a domestic problem. But he’s also investigating India’s national public health insurance program, which could hold lessons for our own health care market.

He’s part of an interdisciplinary team doing a multiyear study of the program Rashtriya Swasthya Bima Yojana, or RSBY. Since its start in 2008, RSBY has covered 150 million people, but Indian officials are still trying to decide whether to expand it, discard it, or change it. To help figure that out, Malani is conducting a field experiment comparing the health and financial outcomes of those with RSBY to those without. The experiment will involve enrolling 60,000 people in RSBY and will be complete in two years.

Malani’s work often involves clinical trials, such as the allergy experiment described in the opening of this story. Malani and his fellow researchers found that Claritin was more effective among subjects who watched ads favorable to it and less effective for those who watched ads for Zyrtec, which said Claritin didn’t work as well. However, the effect was present only for subjects without preexisting allergies. It’s still relevant, Malani said, because people develop new allergies throughout life, and the experiment implied drugs work through both physiological and psychological channels. That knowledge, Malani said, could impact the regulation of drug advertisements via law or FDA rules.

Malani came to the field of law and medicine when he realized, in pursuit of his JD and a PhD in Economics from the University, that he could carve a niche in health economics and policy. He doesn’t have an MD, but said there are benefits to being a JD/MD. “When you’re a doctor, the knowledge you have about physiology and medical treatment gives you an added credibility when you’re talking about regulation of medical treatment,” he said.

JD/MDs are somewhat rare; just five people have earned both degrees from the University of Chicago since Pritzker started keeping track around 1997, said Dr. Jim Woodruff, Pritzker’s Associate Dean of Students. Pritzker and the Law School offer interested students a plan to complete both degrees, but it isn’t truly a joint program. There are separate application processes, and doing both doesn’t reduce the student’s time in either program. Oftentimes, JD/MDs start medical school and then decide to take a break for law school. Brendel, the Massachusetts General Hospital psychiatrist, started medical school at New York University but left after two years to attend the Law School. It was the early 1990s, and the Clinton administration’s plan for health care reform was at the forefront of the news. “I was interested in medicine but also was very interested in a lot of the health care policy changes happening,” Brendel said. She thought law school would be a good way to explore that.

While a law student, she worked in the Mental Health Project clinic under Professor Mark Heyrman. It turned out to be a formative experience for the future psychiatrist. Brendel and Heyrman worked on several legislative initiatives; in one, they wrote a statute related to competence, an issue that now factors heavily into her work.

These days, Brendel is the educator. At Harvard, she has taught joint classes of law and medical students on the subject of ethics and professionalism. That’s an interesting course, she said, because law and medicine both inspire many difficult ethical questions. In her field, for example: Do patients have the right to refuse medication? When must the state step in to protect people who cannot protect themselves?

Brendel has participated in a workgroup of experts organized by the Financial Industry Regulatory Authority, a nonprofit that regulates the securities industry, to talk about the risks of financial exploitation of the elderly. It is a particularly relevant issue considering America’s large aging population, Brendel said. It’s also an issue that touches on both legal and medical questions.

Matthews, the Chicago doctor, didn’t even consider law school until her third year of medical school at Johns Hopkins. She planned to work in health policy but originally thought a Master of Public Health would be a better route. In the summer of 2001, she was Senator Orrin Hatch’s health policy fellow, working with him on issues such as the patients’ bill of rights and stem­cell research. After that experience, Matthews decided that law school was a better bet for policy. (“Everybody on the Hill has a JD,” she said.) So she took a break from medical school to start her law education. After earning both degrees, she completed a residency in family medicine at the University of Illinois at Chicago and worked two years as the staff physician at the Cook County Jail, where she chaired an interagency committee on transgender inmates. From there, she went on to become site medical director for Erie Family Health Center.

Like Matthews, Shah, the Sidley associate, started medical school before realizing he wanted to look at the big picture. “I was less interested in the immediate patient in front of me and a lot more interested in the tens of thousands of patients out there. I was interested in the public health, in the policy issues.” To that end, he traveled to Cambodia on a Luce Scholarship to work as an economist for the government, where he worked to identify and eradicate corruption in the health care system. That experience cemented that he didn’t want to be a clinician, but rather preferred to “think about big problems in health care.”

Today, his day­to­day work might include writing a position paper on behalf of a client—often pharmaceutical and device manufacturers—or advising the client on new regulations. Shah also represents clients who are being investigated by the government for health care fraud. The Sidley partner he most often works alongside is also an MD.

“What we’ve found is that a lot of time with these issues, the ultimate advocacy is about the clinical facts,” Shah said. “What does the data show about these drugs? How are they used in everyday practice? Our backgrounds allow us to ask the right questions.” That skill—of how to ask the right question—is certainly taught to everyone who attends the Law School. Alumni doctors who don’t practice law anymore still say they James Padgett, ’82 value the lessons learned here.

Timothy Craig Allen, ’98, earned his medical degree in 1984 from the Baylor College of Medicine in Houston. He was practicing as a pathologist in the 1990s when he was inspired to attend law school, like Brendel, by the talk of health care reform. He practiced at large firms in Houston and then completed a fellowship in pulmonary pathology. He returned to full­time medicine, and now he is Professor of Pathology at the University of Texas Medical Branch (UTMB) in Galveston.

Now, he feels he’s found a “sweet spot” between his interests. He spends most of his time in his specialty, pulmonary pathology, but he gets to tinker with the law too. He is an associate member of UTMB’s David Zwerdling, ’69 Institute for Medical Humanities, and he works on a variety of research projects related to legal and ethics issues in medicine. Allen recently wrote about legal issues related to telemedicine, which allows physicians to practice across state lines, and about FDA regulations over pharmaceutical sales. Allen frequently educates his fellow physicians and medical students about medical malpractice laws and other legal concerns.

“Things like the elements of negligence, which attorneys would totally take for granted, is a foreign concept to physicians,” he said.

Another pathologist, James Padgett, ’82, said he is the go­to guy to peruse regulatory documents in the pathology department at NorthShore University HealthSystem, in the northern suburbs of Chicago. Padgett, who is Medical Director for the Highland Park Hospital laboratory, practiced tax law for a short time in the 1980s before deciding he didn’t like it; he earned his MD at the University of Illinois College of Medicine in 1990. Now, he practices anatomic pathology, making diagnoses on surgical specimens. He also holds an appointment as Clinical Assistant Professor in the Department of Pathology at Pritzker.

David Zwerdling, a psychiatrist in Silver Spring, Maryland, graduated from the Law School in 1969 and the Yale School of Medicine in 1975. He went to law school in the hopes of doing civil rights or human rights work; ultimately, he didn’t like the law very much. But he stayed, both because he wasn’t sure what else to do and because he didn’t want to be drafted into the Vietnam War. While in law school, he worked at what is now the Sonia Shankman Orthogenic School, serving children with severe emotional problems. That experience propelled him into psychiatry, he said.

Zwerdling spends half his time in private practice and the other half as Medical Director of Montgomery County (Maryland) Child and Adolescent Outpatient Mental Health Services. He has to consider legal issues in his practice, especially when his clients face custody or immigration cases. But mostly, his legal education is with him in how he thinks, he said.

“I’m very open to understanding that there’s more than one point of view and that one way to arrive at a good understanding when there’s a conflict is to make as strong a case as possible on both sides,” he said. “My legal education helped me learn that.”

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