Marcus to Malpractice to Montaigne by Mary Braun

A car crosses the midline and kills one of my patients. Perhaps it is the elderly diabetic who I’ve been telling for years to move to assisted living. I’m so sure she’s going to fall and break a hip, living at home alone at 95. I was wrong. I should have warned her against going grocery shopping. It might be the forty year old woman with the weight loss and stomach pain that we never could pin down. She was worried she would die a slow, painful death of pancreatic cancer, which is notoriously difficult to find until it’s quite large. Neither of us need worry. It seems she barely saw her actual death coming. Perhaps it was the mid-twenty year old who finally accepted treatment for his anxiety, the one who now had his first girlfriend, his first job, and would never see further firsts. He was so worried about side effects of the medication that he spent years in his parent’s basement, watching youtube. The med did not affect the other driver’s ability to stay awake. 

Thus, the lesson of memento mori (that one may be plucked from the living without warning at any moment) is daily presented to the primary care doctor. Patients come in with symptoms that I think will kill them that turn out to be minor ailments and no symptoms at all that turn out to be the first warning of their terminal diagnosis. 

Stoicism is rife with reminders of the shortness of life. Epictetus encourages us to remember how transient are those we love (From now on, whenever you take delight in anything, call to mind the opposite impression; what harm is there is saying beneath your breath as you’re kissing your child, ‘Tomorrow you’ll die’?” Discourses, 3.24, 88). Would my elderly diabetic have had a different phone conversation with her grandson on Friday afternoon if she knew she was going to die Saturday morning?

Marcus encouraged us to meditate frequently on our death (And thou wilt give thyself relief, if thou doest every act of thy life as if it were the last Meditations 2.5). Marcus was encouraging himself to think about his death as a way to focus himself on what is important. If she realized that it would be be the last time she sat at her writing desk, my forty year old with belly pain may have been a little more focussed than if she thought she had an endless stream of mornings stretched out in front of her.

In letter 101, Seneca encourages Lucilius to focus on his death as a way to focus on what’s important and reduce his anxiety (Let us prepare our minds as if we’d come to the very end of life. One who daily puts the finishing touches to his life is never in want of time. And yet, from this want arise fear and a craving for the future which eats away the mind.) My poor, young anxious man may have enjoyed his life more if he had recognized its potential brevity.

The exercise of reminding myself how close at hand death is works well for me when I consider my personal life, but the result from a professional point of view is opposing. I find Stoicism helps to a point, and then reach to another of the Hellenistic philosophies, Pyrrhonism, for help with the rest.

Personally, when I imagine myself near to death, I am able to see what I really value. Providing high quality, individualized care to complicated, medically fragile people is such a thing. It’s important work, it is a job that suits my particular skills and there is a need for it now. I practice in a way that I am proud of. I treat my patients with dignity, encourage autonomy, independence, and help them make decisions that support their particular values, goals and preferences. I help patients get what they consider good outcomes. When I think about nearing death, the way I have taken care of my patients is one of the things I take comfort in personally.  For my personal goals, I would not change the way I practice if I knew I was near death.

Primary care offers opportunities for courage: I am often forced to tell people things they really don’t want to hear; equanimity: I can remain calm when these patients become angry; wisdom: I can respond wisely to these patients even when it would be easier to respond to their demands. I feel I’m up to the task most days and when I’m not, considering that this may be the last opportunity I have to interact with this particular patient, due to the fleeting nature of both of our lives (or possibly due to their insurance changing) does help me find wisdom I might otherwise not be able to. The memento mori practice helps.

When I consider my practice habits from a professional point of view, however, and recall that I am dying soon, I am tempted to practice differently. In particular, if I knew that I was going to die after a short retirement or, worse yet, in the saddle, I might concentrate on making what seemed to me to be  defensible decisions, rather than decisions that seem best for the particular patient in front of me.

They teach us in med school that the most common time for a doctor to be sued is in the three years after their death. The lawsuit doesn’t matter to the dead doctor, of course, because they’re dead, but it can massively inconvenience their families if their estate gets tied up in court.

They tell us that people who might have been on the fence about suing me while I was alive will sue me after I die. They might think my care was less than ideal, but like me so they didn’t want to hurt my feelings by suing me. Once I’m dead, however, I won’t have any feelings to hurt and they can feel free to sue me. 

Dead doctors are relatively easy marks because not only are we unable to defend ourselves from the grave, but the usual impediments to settling a case are removed. Being dead, I will not care about my reputation. Perhaps there are relevant details that died with me: my medical reasoning or delicate, personal revelations from the patient. I can’t be summoned to present this information. My kind personality will not help me here; the judge will never meet me. They will not be able to see how devoted I was to my patients or get a sense of how hard I tried to do what was best for them.

The lawyer will recommend that my estate settle especially if it’s not a large amount.

When I think about dying soon from this perspective, it makes me feel scattered and causes me to second guess every decision. I worry that each decision is not defensible and will lead to huge inconvenience for my family. 

If I get too far into second guessing, it hampers my ability to make good decisions in the present. Remembering that any of my patients (or even worse, their heirs after they die) may sue me at any moment for any reason distracts me from the important work at hand. The decision that is most defensible is not always the decision that is best for the patient and if I am maximizing my care for being defensible, I am not maximizing my care for my patients’ best interest. Practicing medicine in any way that is not in my patients’ best interest pricks my conscience. Am I acting wisely if I am prioritizing the minimization of my legal exposure down the road? My equanimity is seriously disturbed at this point. Consideration of the proximity of my death has encouraged less, not more, virtuous action, simply as a practical matter. 

Then I return to the personal view. When I consider the fact that I am dying and perhaps sooner than I might think, I want to feel like I’m using my time well. Why am I wasting my precious time being a doctor who practices like there is something more important than individualized, patient centered, exquisitely tailored care? I am distressed. Perhaps I had better retire now. How do I ever make any medical decisions? My worry can get out of control pretty quickly here and I can find myself concentrating on the effect of our medical decisions on me rather than their effects on the patient. Now, I have become the very opposite of the kind of doctor I want to be. 

Once again, Epictetus has some help to offer me: “some things are in our control and some things, not.” The next sentence points out that my actions are under my control. So far, so good. The next: other people’s actions are not under my control. Whether my patient chooses to sue my estate is not under my control. I can act in ways to decrease the chances of it, but if I fail at what I can control in an attempt to control something I cannot control, why exactly would I even be a doctor. 

There are things I can do now to minimize my risk of a future lawsuit, but after I am dead, I cannot control anything. Control of other people after I’m dead is what I’m trying to do. I cannot control other people while I am alive. I doubt I’ll be more effective when I’m dead! Research says that by providing my patients with careful care and making sure they feel heard, I can minimize my risk of lawsuits in the future. This might be considered as the “partially out of my control” arm of the trichotomy of control that Bill Irvine proposes. However, the decisions a patient’s family members might make after my patient’s death are completely out of my control. There is nothing I can do to develop a relationship with someone I have not met. 

To recap, at this point, I am concerned about an outcome that is only partially, if at all, under my control. The ways I can control my behavior to minimize the chances of this outcome are clear. Some of them are acceptable, or even laudable, such as working to develop a good relationship with my patients. Some of them are objectionable, such as ordering test I don’t really think the patient needs in order to protect myself from a potential lawsuit. I can consider how I will feel about my honor and professional judgment if I practice in this way and that helps restrain my actions, but sometimes it is not enough. I may still feel some temptation to practice unwisely.

I think about my death and its consequences for my daughter who is currently a college freshman. I imagine a lawsuit. If my estate were tied up in court, would she have to sit out until it was sorted out? What a disaster for her! This thought leads me away from practicing in the best interest of my patient again. 

Another Hellenistic philosophy, Pyrrhonism, can come to my assistance here. Pyrrhonism asks me to consider what I really know. Do I really know it’s a bad thing for my daughter to have to wait a year or two out of college while my estate gets settled? Do I really know it would be a bad thing for her to have to support herself for a couple of years without the benefit of a college degree or my financial help? Judging the goodness or badness of things that have not come to pass seems quite foolish. 

Montaigne summarized this line of reasoning as a maxim: “What do I know?” In other words, perhaps a lawsuit and inability to pay her college tuition would be difficult for my daughter, but perhaps she would find a scholarship or perhaps she would do something else with the time that would provide her with a better life course. I can’t know ahead of time. I am considering acting today in a way that is against my professional vow of fiduciary beneficence in order to minimize the impact of an outcome that might or might not ever come to pass, which is out of my control and might not even be a bad thing. This seems foolish. 

Stoicism has helped me be a better doctor, but has uncovered, and only partially abated, other areas of anxiety. Pyrrhonism has helped out here. My patients, if they only knew, would thank the ancients for their contribution to their doctor’s equanimity.

Mary Braun, MD is a primary care physician in rural New Hampshire specializing in internal medicine and palliative care. In childhood, Mary began practicing an intuitive form of Stoicism to cope with being orphaned. She discovered Stoic philosophy in middle age. She applies ideas from Stoicism not only for her own life but also to help her patients.