This WSJ editorial reprint of an earlier article by Milton Friedman describes the shift in doctor-patient relationships as a result of managed care companies hiring doctors to provide medical services.

I briefly commented on this on my Observations page in relation to a suggestion that we need to allow non-lawyer ownership of “law firms” to bring down legal costs. Separate from the misguided proposal of having non-lawyers doing legal work (which is like having lawyers doing surgery), there is a notion that third-party ownership of professionals would improve things. As I noted in that short post:

Fee-sharing: the relevant question here is how/why we accept the notion of doctors sharing medical fees with non-doctors not bound by ethical rules. It seems to me that either we lawyers follow in the footsteps of doctors, or the doctors got it wrong and should be shaking off the HMOs and insurance companies.

What struck me about the Friedman so quickly that I had to stop and write this (writing this, I still actually haven’t made it past the phrase “doctors and patients as enemies”) was the depiction of the doctor and patient as opponents in the cost containment battle rather than as a united front against disease.

A comparison is in order:

I don’t think many of my learned liberal friends (and yes, that, just like “learned conservative” isn’t always an oxymoron) would very much like the idea of a lawyer who had substantial other interests to protect. There are references to this in Guantanamo detainees distrusting the incredibly liberal and supportive lawyers trying to defend them (and perhaps breaking the law in the process): the detainees distrust the system so much that they doubt any part of it could be on their side.

In our legal system, prosecutors have a special ethical duty, singled out for them, to find truth. Their job is explicitly NOT to convict someone for a crime. Defense lawyers have no such obligation to find justice. We expect that the people working for us, particularly professionals who have these special skills, special privileges, AND special obligations to society, to be on our team 100% of the time.

If HMOs put doctors at odds with patients, what would corporate legal service providers do? Eliminate discovery? Substitute their judgment on accepting a settlement? Plaintiffs’ lawyers working on contingency already handle many of these issues when the client in charge of the litigation doesn’t bear the costs of maintaining it. In most cases, lawyers “guide” their clients in reasonable directions, and usually lawyers can withdraw if things become untenable (thus almost certainly forfeiting economic claims for whatever work is done or value created). The moral hazard of separating responsibility for payment and authority for expenses is too great for any field to bear for long (except Congress, where it can last for decades in some cases until voters wake up).

The stated rationale for no fee-sharing with non-lawyers is to preserve the lawyer’s independence in complying with ethical obligations and the representation of the client without the influence of a person who doesn’t have the same ethical obligations towards the client.

Tell me what you think: what is it about doctors?

• Why do we trust them to abide by their ethical rules and oath but not lawyers?
• Is it the underlying belief that science and test results will reveal bogus advice whereas lawyers can be more vague and un-catchable?
• Or were the lawyers simply smart enough to see what happened to doctors’ practices?
• What’s the relationship between these two professions and where did they diverge?
• Is it just that we all expect to need healthcare? Why not use vouchers like with charter schools? (Oops, didn’t mean to stir up that debate!)