The Most Unlucky Doctor

Recently one of my clients became frustrated with me for insisting that he take several burdensome steps to comply with federal privacy laws. He argued that my fear of being sued in connection with a wrongful disclosure was paranoid. Clearly, he’d never heard of the Shipley case.

In 2005, a New York high school student died of injuries sustained in an automobile accident. The next day, a medical examiner performed an autopsy during which he removed the boy’s brain and placed it in formalin in a jar. He labelled the jar with the teenager’s name and put it in a cabinet in the autopsy room.

About six weeks later, students from the teenager’s high school happened to take a field trip to the mortuary. During a tour of the autopsy room, some of the students saw the jar holding their friend’s brain. Horrified and upset, the students notified the boy’s family.   The family sued the medical examiner and the jury returned a $1 million verdict. After many years of legal wrangling, the appellate court threw out the verdict and the family’s complaint. Because one judge dissented from the majority ruling, the case may yet continue.

I’m not trained in the science of probability. I don’t know how many times that mortuary gives tours. I don’t know how many students participate in the tours or how many schools in the area send students on these tours. Yet, I’m pretty sure that it was extremely unlikely that a group of students from the deceased’s high school would visit the very room in the very mortuary where their friend’s brains sat in plain view in a jar on which a physician had legibly written the boy's name.

I’d bet that the doctor in this case has changed his method of storing body parts. Probably, like me, he’s become hyper-vigilant about such matters. Are we both paranoid?

A nationally known psychologist who treats attorneys recently said, “It’s not your imagination that someone is out to get you all the time.” He claims that lawyers experience “justifiable paranoia.” Is justifiable paranoia a mental illness? If the paranoia is “justifiable,” should it be treated? Does the public want lawyers who aren’t concerned about serious, but unlikely, potential problems?  

Do lawyers, like other professionals, have an obligation to warn of remote but serious risks? For example, do you want your doctor to give you a pill for a minor headache without telling you that there’s one chance in a million that it will kill you? Don’t you have the right to make an informed choice about your medications? Who is going to bear the consequences if your luck runs out the moment you take that pill? I’m sure that the doctor and the drug company will be upset, but for you it’s the end of the line.

A couple of years ago, a dentist attending one of my legal workshops spoke with me during the break. Shaking his head, he said, “I told my partners that our documentation was inadequate. I told them that if we were sued, we wouldn’t be able to defend ourselves. They told me I was stupid and that in all the years they’d been in practice they’d never been sued. They refused to change anything. Well, we were sued and we lost big time. Who’s stupid now?”

Because I hear and read about these types of experiences constantly, I will continue to warn folks of the unlikely but costly result of ignoring legal pitfalls. Am I paranoid? An alarmist? Perhaps Clint Eastwood asked the better question in Dirty Harry.  As you look down the barrel of this .44 Magnum, the most powerful handgun in the world, you've gotta ask yourself one question: “Do I feel lucky?”