Managing Legal
THE POINT
It’s been governors and other government executives who’ve responded to COVID-19 — over protests from physicians and their medical societies — by removing the red tape of doctors’ protectionist rules to speed healthcare to those who urgently need it.
DISCUSSION
In the midst of a pandemic, we need physicians’ medical knowledge and clinical skills to get the best care to those infected or at risk of being infected. But we don’t need their insular, self-interested approaches to the way such medical knowledge and clinical skills are delivered to those who need them.
It’s worth noting that important parts of the red tape impeding health care responses to COVID-19 were created — and defended by — the medical profession and institutions promoting its interests.
And it took people outside of the medical profession — specifically, governors and other officials focused on the larger picture (i.e., public health) — to get us past those barriers that organized medicine had placed in the way of those results:
- New York Gov. Andrew Cuomo by executive order allowed medical professionals licensed outside NY to practice in NY without a NY license, and allowed nurse practitioners, physician assistants, and nurse anesthetists “to perform jobs they’ve been trained to do without supervision from a higher-trained professional”.
- Florida Gov. Ron DeSantis signed a law that allowed, “qualified nurse practitioners … to independently operate primary care practices without an attending doctor’s supervision”, and signed another law that allowed, “qualified pharmacists who enter into agreements with doctors to treat chronic conditions like asthma, arthritis and obesity, as well as test for and treat ailments like the flu, strep throat, lice and skin conditions like ringworm and athlete’s foot.”
- California Gov. Gavin Newsom by executive order broadened scope-of-practice rules similar to the changes in New York and Florida.
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Medical societies’ opposition to scope-of-practice expansion has long been a staple of their lobbying and other public advocacy. And in response to California Gov. Newsom’s executive order, Dr. Richard Pan, a state representative in California’s legislature, expressed his protest against using the COVID-19 experience to promote later reforms: “That would be an extremely divisive thing to do.”
Another red tape break-through — the emergency suspension of certain limits on telemedicine — similarly has attracted self-interested opposition from physicians. As Bloomberg News put it:
“Until recently, telemedicine seemed like one of those technological promises that was always in the future. While it sounded good in theory, it confronted economic barriers, regulatory hurdles and resistance from doctors and patients.
“Covid-19 has radically changed the environment. For all its horrors, the pandemic provides an opportunity to cut through some of the red tape that stymies medical progress …
” … Many primary-care physicians have resisted telemedicine, supporting state restrictions that limit its scope. They justifiably feared that virtual consultations could skim off their profitable cases and put them out of business ….”
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What lessons can we learn from this about managing a company’s legal risk?
Both medicine and law require professionals — technicians — who have been highly trained, vetted for professional practice, and then have accumulated a wealth of experience in the application of their knowledge and skills to specific kinds of need.
What we’ve seen in the COVID-19 pandemic is that the professionals — technicians — needed to respond to the virus don’t necessarily have the best ideas on how to deliver their services. Indeed, some of their protocols smack of rank self-interest rather than genuine clinical concerns.
The same is true of business lawyers. No company can effectively manage legal risk without access to these technicians’ specialized knowledge and skills.
But business attorneys are not the best people to decide how to deliver that specialized technical knowledge and skills.
Consider lawyers’ preference for firefighting and their aversion to systematic prevention efforts. And consider the fact that they base their business model on maximizing hours billed to the client.
This pandemic highlights our need for physicians’ clinical skills and knowledge, while also revealing dysfunction and self-interest in the way doctors apply clinical skills and knowledge to our needs. The same is true of our need for business lawyers. As with all other company functions — other than Legal — executive management needs to forcefully step in and make their in-house and law firm lawyers accountable to basic cost and workflow disciplines.