Peter Bach, MD, in the NYT today, writes about how, as a cancer doctor married to a woman who gets breast cancer, he sits next to her as her doctor does just what he has done so many times before, gone slowly through a narration of the long history of diagnosis and treatment.
“Now, I just want to review your history with you,’’ the young doctor began. “Last fall you felt a lump. And then in October … Dr. Cody felt it … Later the biopsy showed … and the surgery … and the pathology showed … and then chemo … And they first gave you …”
Ruth stopped him. “You don’t have to go through this all,” she said. “It’s all in the record.”
He nodded. Then he went right back to reciting her history. The dates, the events, all in a list, one by one.
When he said “October 1st,” I saw my friend and colleague, Dr. Chip Cody, touching my wife’s breast and heard him deliver the news. When he said “surgery,” I remembered Ruth waking up from anesthesia. “Feels like I just got off the overnight to London,” she had mumbled. A groggy dehydrated disorientation. Then she threw up.
By the time the young doctor was done, maybe three minutes had elapsed, and he had rattled off every white knuckle spin of the roulette wheel. The lymph node assessment, the bone scan to determine if the cancer had spread beyond the reach of the surgeon, the heart tests as part of her clinical trial, the inspection for whether the tumor was fueled by estrogen and progesterone hormones, and the tests to see if it would respond to the drug Herceptin.
Every single test and finding affected what treatment Ruth would get and what our chances were for the future. The minutes, the hours, the days, the weeks, the months that had passed since that sunny Wednesday morning when the suspicious lump was diagnosed as cancer.
The resident didn’t realize how absurd and unfeeling it was to distill the hardest year of our lives into such a condensed narrative, which to me amounted to saying, “Well Odysseus got on the boat, stopped a few places and then reunited with his wife.”
He was oblivious to the agony he was causing us as he perfunctorily rattled off the events, even though he had doubtless gone through the same routine many times with many other patients.
Many of us in the course of our legal professional training have role played talking to a client — or talked with professors and fellow students about what that felt like — for us.
How many of us have ever role played being a client, talked with real clients about what they felt about the interaction, or talked with colleagues about what it might feel like to be a client.
Please, please, please, whether law students, lawyers, advocates, court staff, let’s start thinking and talking about this.
And lets remember that it is not just OK but absolutely needed for court staff and judges as well as litigants to think about the emotional impact of the way they manage interactions with litigants. Feeling empathy is not inconsistent with being neutral and allows us to develop the words that express human sympathy without putting ourselves or the court on the side of the litigant. How about “Being here must be hard.” or “This must be a tough time for you?” (Neither assumes the accuracy of what is being said.)
More specifically, this is also making me think again about how judges can best start hearings when litigants do not have lawyers.
Without reading the full NYT article, if I had heard about what doctors do in terms of summarizing the history, I would probably have thought something like: “What a great idea, going over the history, establishing a common baseline, making sure the patient knows what is going on.” Indeed, we consider the judge summarizing the history of the case as a good way to start a hearing when the litigants do not have lawyers, and argue that it is useful to focus the hearing, make sure all are on the same page, and reassure litigants that their issues will be addressed. But I have never before thought about the possible emotional consequences for the litigants “Then I ordered you to jail,” “Then you told me about the abuse.” We do need to be at least sensitive to the possibility that recounting the history may raise the emotional level. Or maybe, well done, depending on the case and the parties, it can do the opposite — in effect “we have managed this, and we will manage what comes next.”
I’d appreciate ideas, no matter how tentative, about 1) how we can do a better job of learning to be empathetic as we think about how to handle these things, 2) about what words that can be used to reassure without conveying a sense of non-neutrality, and, 3) how judges might start cases in ways that meet the goals of making sure are all on the same page, without raising the emotional temperature. If you do not want to share your thoughts for attribution through the Comments section, feel free to email to me, richard@zorza.net, and I can post anonymously — if you do not want an idea shared at all, please say so in the e-mail.
Thanks Dr. Bach.
Richard Zorza's Access to Justice Blog 