UP CLOSE AND PERSONAL WITH H. RICHARD BERESFORD, MD
ON COMBINING CAREERS IN NEUROLOGY AND LAW
H. Richard Beresford, MD, doesn't back down from a challenge. After graduating from Harvard Law School in 1955 and spending four years as a successful tax attorney, he returned to school to earn his MD in 1963, all the while working part time as a lawyer. He went on to start a neurology service at Denver General Hospital from 1968 to 1971 and build a neurology program at North Shore Hospital, then affiliated with Cornell University. He was Chairman of the Department of Neurology at North Shore University Hospital-Cornell University Medical College for 20 years, from 1971 to 1990, before returning to his law roots as a Visiting Professor of Law at Cornell Law School.
In a phone interview with Neurology Today, he discussed the influences that led him to earn both a medical and a law degree, and how he combines those interests in his role as a teacher and scholar.
WHAT ORIGINALLY INSPIRED YOU TO BECOME A LAWYER? A NEUROLOGIST?
I went to Yale on scholarship fully intending to become a physician. I was also a baseball player, and just good enough to indulge in the fantasy of a professional career, so I opted out of the pre-med curriculum, got seriously involved in baseball, and played pro ball for a couple of summers. I then realized that I would never be a major league player, but when this recognition came I lacked necessary pre-med courses to apply to medical school.
My friends and family suggested I go to law school, so I applied and was admitted to Harvard. At first I was poorly motivated because I was there by default, but by graduation I was doing well, and I got a job with a very good law firm in Denver, Holland & Hart. I concentrated primarily on tax law, but after a while I realized that I wasn't getting real emotional satisfaction from law.
Much to the consternation of my parents and my wife, who thought she was marrying a Harvard lawyer, I decided to go to medical school. My wife pitched in with a teaching job and medical school was all I had hoped it would be.
After medical school, I got an internship at Cornell's New York Hospital, thinking vaguely that I might go into hematology or oncology. During the internship, I rotated on the neurology service at NY hospital. The chief then was Fred Plum, a very dynamic teacher who had a way of inspiring people to think critically about the brain. Based largely on that rotation, I opted into neurology.
PLEASE DESCRIBE WHAT YOU DO IN YOUR VARIOUS PROFESSIONAL POSITIONS.
I have several professional roles now. I teach courses at Cornell Law School each year, such as basic health law, HIV disease and law, and bioethics and law. This semester I am teaching a course on bioterrorism and public health law. My contacts with the law school came about through contact with a Cornell law professor based on some testimony I gave as an expert witness in a case involving a patient in a vegetative state. He invited me to co-teach a seminar on law and medicine, which I did for a few years. When he went on sabbatical, the dean asked me to teach the seminar. This led to further teaching assignments over the years, and from 1991–1995, I was a full-time visiting professor. Since 1995 I have been an Adjunct Professor at the law school, teaching one to two courses or seminars each academic year.
While at Cornell Law School, I established contacts with the neurology program at the University of Rochester, and secured an appointment as a professor of neurology. There, I oversee the residency and medical student programs at the affiliated Canandaigua VA Medical Center, see a few patients in the faculty practice clinic, and write on medical and legal topics.
WHAT IS THE ATTRACTION OF TEACHING MEDICAL AND LAW STUDENTS?
It keeps you on your toes, always learning new things. To interact with exceedingly bright young people, which I encounter both at University of Rochester and Cornell Law, you must not only know your field, but also have a sense of where the field is going. I think that is part of the appeal for most academics, to continually learn and to share that with others.
WHAT DO YOU ENJOY ABOUT WRITING?
It's hard to say that one enjoys writing, but it is a challenge. In recent years, I've been writing about law as it applies to medicine, more specifically neurology, basically interpreting law for physicians. That involves working across disciplines, which is a tricky activity because you risk losing credibility in both places. The doctors say, “He's a lawyer so what does he know about medicine and science,” and the lawyers say, “Well, he's just writing for doctors, so his version of law is simplistic.” It is difficult to write with a degree of sophistication and accuracy for another discipline. But I keep trying.
WHY SHOULD NEUROLOGISTS BE KNOWLEDGEABLE ABOUT THE LEGAL ISSUES IN THEIR FIELD?
They need to know what legal hazards exist for them. We are in a very litigious society and there are lots of lawyers around. Many things can generate legal problems, so it is necessary to sense the legal pitfalls of what you do. People involved in clinical research need to know the NIH and FDA rules for research in human subjects. Practicing neurologists need to have some idea about malpractice risks, Medicare rules, and legal overtones of their relationships with managed care plans.
The best legal protection is being a good doctor or a rigorous investigator. There are some technical rules that can entangle good doctors and scientists. But by and large, honoring existing norms of clinical practice and science will hold them in good stead. For clinicians, having good relations with patients is particularly important. There are empirical data that indicate a poor doctor-patient relationship is a potent stimulus to filing of malpractice claims.
WHAT LEGAL DECISIONS HAVE HAD THE GREATEST IMPACT ON THE PRACTICE OF NEUROLOGY IN THE LAST FIVE YEARS?
Its difficult to point to a single decision, but there are three areas in which legal developments seem important. The arrival and development of managed care has greatly changed the practice of medicine. Legal decisions a few years ago helped managed care organizations to shift financial risk from themselves to physicians, and that has changed the whole environment of medical practice. However, there are growing chinks in the armor of managed care. Courts are beginning to rule that managed care organizations can be held legally accountable for actions that result in harm to patients, and the push for enacting more meaningful patients' “bill of rights” can amplify the effects of these rulings.
Another significant influence was the Supreme Court decision in the Cruzan case, which involved a young woman in a vegetative state. It emphasized the importance of making a reliable diagnosis of permanent unconsciousness. It also emphasized the necessity of ensuring that care decisions for patients in vegetative states are based as closely as possible on patients' discernible preferences.
The Supreme Court upheld the constitutionality of a state law requiring that there be clear and convincing evidence that unconsciousness was permanent and that a decision to stop care was based on the patient's wishes, not views of physicians or family members about what is the “right” thing to do. That ruling reminded physicians to take very seriously the matter of trying to determine patient preferences in these poignant situations.
A third influence has been a series of Supreme Court decisions on expert testimony in court, beginning with Daubert versus Merrell Dow Pharmaceuticals and culminating more recently in the Kumho case. The gist of these cases is that trial judges, at least in the federal system, have a duty to screen proposed expert testimony for reliability before allowing it to be heard in court. This can be a difficult task for judges. They are not physicians or scientists and they may feel they have inadequate knowledge to assess the reliability of what an expert proposes to say. Yet the Supreme Court has told them that they must do this. As a result, trial judges are taking a much harder look at what medical experts are proposing to say in court and excluding that which appears to fall short of existing clinical or scientific standards.
WHAT ADVICE CAN NEUROLOGISTS GIVE TOPATIENTS FACINGDISCRIMINATION AT WORK?
Anybody who cares for patients who have neurological disorders and who are also employed can encounter this. I think epilepsy is a particularly good example because there is a lot of misunderstanding – even superstition – concerning it and, historically, patients with epilepsy have been targets of workplace discrimination.
There are now many federal and state laws and court decisions that have increased the level of protection in the workplace. The Americans with Disabilities Act has been especially helpful in this regard, but there is still work to be done in this area.
The best neurologists can offer in some of these situations is to try to assure employers that patients do not represent a threat at the workplace and that they can meet job requirements. If patients don't recognize that they have been discriminated against, and the neurologist figures this out, he or she can remind them that they have various legal protections available and suggest that they explore the issues further with legal counsel.
HOW CAN NEUROLOGISTSBECOME MORE INVOLVED IN LEGAL ISSUES?
I think that the best way they can do this is to get involved with their local, state, or national organizations, such as the AAN or the AMA. They can also directly contact their representatives in Congress. Bar associations and lawyers' groups sometimes seek neurologists as speakers on issues of interest to lawyers, and neurologists can use these contacts to try to influence people who are movers and shakers with respect to lawmaking.
DR. BERESFORD'S RECOMMENDED READS
- ♦ Neurology and Law by H. Richard Beresford, MD, part of the Contemporary Neurology Series (Sid Gilman, editor) (Oxford University Press, 1998): A short book about the nuts and bolts of law as it applies to neurology.
- ♦ Ethical Issues in Neurology by James L Bernat, MD (Butterworth-Heinemann, 2001): A carefully researched and thoughtful book about the ethical issues that face neurologists, many of which have significant legal dimensions.
- ♦ Hugo Black: A Biography by Roger K. Newman (Fordham University Press, 1997): If a neurologist wants to understand the romance of law, this biography of a Supreme Court justice will be highly informative.
- ♦ Archibald Cox: Conscience of a Nation by Ken Gormley (Perseus Books Group, 1999): For neurologists with cynical view of lawyers, this book about the Watergate Special Prosecutor who had an heroic view of the law might be of some comfort.
INFORMATION ON SUPREME COURT DECISIONS
For more information about the Supreme Court legal cases discussed by Dr. Beresford, visit this URL: http://www.findlaw.com/case-code/supreme.html. In the “Search by Party” link, enter the key name for each case – Cruzan, Daubert, and Kumho – for the detailed decisions.