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Uncertainty in Medicine - Ask Your Lawyer for Advice

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My great pal Lewis, with whom I have shared a friendship for over half a century, have much in common professionally.  Is he also a gastroenterologist?   A physician?  A nurse?  Actually, he is a tax attorney. 

So, where’s the commonality?  Could it be that my patients and his adversaries both feel that they are being ‘instrumented’?   While I suspect that this may be true, it is a different aspect of our respective professions that binds us.

Lewis’s clients and my patients need to grapple with and accept uncertainty.  I find the parallels here to be striking and I’ll do my best to illustrate.
Legal Uncertainty


The client brings an issue to his attorney seeking a legal remedy or an opinion.   Let us assume a corporation wants to know if a particular expense can be legally considered a tax deduction.  The experienced tax attorney responds, after careful thought and deliberation (yes, the time clock is ticking!), that he is 75% certain that the proposed deduction is legal, but that additional legal work would be required to further reduce the risk of legal exposure   

“How much would that cost?” the trembling client queries.  

While every first-year law student has been instructed to never give a cost estimate for any proposed legal service, I will deviate from this established legal principle in order to make my point.  The lawyer responds that it will cost $100,000 of legal sweat to allow for 85% certainty that the deduction would be deemed to be kosher.

So, the client must contemplate if a modest increase in certainty is worth the cost?  What would it cost to achieve 90% certainty? 



Medical Uncertainty

A patient sees me with abdominal pain.  I do a full history and physical examination.  I review all relevant medical data.  The patient wants assurance that he does not have cancer.  My judgement and experience inform me that I am 90% certain that he has a benign process.  Let us assume that this patient does not have insurance and must pay the bills himself to make my comparison between the legal and medical professions cleaner.   I advise the patient that a $1,000 CAT scan, if negative, would make it 95% certain that he does not have cancer.  And, if I toss in a colonoscopy afterwards, I would be 97% certain that his pain is benign.

(Keep in mind that physicians or lawyers are unlikely to offer specific percentages as I have in this post, but you get my point. )

In both professions, as well as in so many other life circumstances, one cannot achieve certainty.   There is no medical test or legal advice that can reduce risk entirely.  Of course, you can better your odds with additional effort and cost.  How much is more medical or legal certainty worth?  Keep in mind that in the the medical universe, additional testing can have risks of harm and complications.

Physicians and attorneys can offer guidance and options, but patients and clients have to guide the professionals in their risk tolerance and if reducing risk is worth the cost.   

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  1. AnonymousMarch 26, 2023 at 10:26 AM

    Dr. Kirsch is, of course, spot on in his analysis though he obscures two points. First, many people are blessed with insurance (private or government sponsored). So money is no object when it comes our our health so please do put in that Rx for the CAT/PET/Dog scan and follow up intrusion with a long instrument in parts of my body that don’t get much sunshine.
    Second, if Dr. K’s statistical analysis of your health turns out to be wrong (as it must be a in a predictable percentage of cases), his patient could suffer agonizing health consequences. In contrast, if the tax attorney is wrong, his client could be subject to scrutiny by the IRS. I ask you, thoughtful readers of this blog, whether you would prefer a doctor or the IRS to be sticking a scope into your private parts?

    Of course health risks are a natural consequence of life whereas tax complexity is a self-inflicted wound we have accepted from our political class as they use the the complexity of tax laws not only to implement policy but also to favor constituents/donors without public scrutiny. Which

    Lewis

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