Doctors and Lawyers; The MacNeil/Lehrer Report

JIM LEHRER: Good evening. President Carter has triggered a real brouhaha among the lawyers and doctors in this country. During his recent trip West the President went after the lawyers one day, and then followed up the next with a swat at the doctors. He had several specific indictments for each, but in general terms he accused both professions of being more interested in their own skins and their own pocketbooks than in the public good. Doctors and lawyers have been responding and fighting among themselves ever since. Tonight, two doctors and two lawyers square off on the simple question, is the President right? Robert MacNeil is off; Charlayne Hunter- Gault is in New York. Charlayne?

CHARLAYNE HUNTER-GAULT: Jim, the President`s overall complaint before the Los Angeles Bar Association was that the legal profession had failed to serve the cause of social justice. Ninety percent of our lawyers serve ten percent of our people, he charged, and then detailed a laundry list of criticism against lawyers that included unnecessary litigation, excessive costs, and legal featherbedding. The President also chided the lawyers for opposing innovation and reform, and argued that some had led the fight against civil rights and economic justice.

A lawyer who isn`t happy with all that is Adrian DeWind, president of the Association of the Bar of the City of New York and a partner in the law firm of Paul, Weiss, Rifkind, Wharton & Garrison. Mr. DeWind, tell me, what is your unhappiness with the President? Is it total disagreement, or what?

ADRIAN DeWIND: No, my unhappiness is not with the laundry list you referred to. Indeed, I think on almost every subject on the list there is something that deserves discussion and analysis. What I object to, what I think is really counterproductive, is the blistering denunciation across the board of the entire legal profession. We`re going to have to all work together, and working together includes working with the federal government and the administration, and I must say, the federal government is not only part of the problem, it may become part of the answer; but it is part of the problem.

HUNTER-GAULT: All right, let`s talk about some of the specific problems once we get beyond your overall unhappiness. You say there are some problems. Let`s talk about the argument of lawyers favoring the rich over the poor. How bad a problem is that, as you see it?

DeWIND: Well, there`s a real problem. Legal services for the poor are not adequate, and they have to be more adequate. The goal of providing legal services for the poor is a very real one, and the President is right that it ought to be done. But to say the bar has not responded to that I think is inaccurate; the bar has responded.

HUNTER-GAULT: In what way?

DeWIND: Well, let us take New York City, where I am most familiar with it. An organization here in New York, the CLO, Community Law Offices, now has 400 lawyers from large New York law firms providing free services worth more than a million dollars a year to the poor. And those same law firms are contributing hundreds of thousands of dollars to the Legal Aid Society. And the same kind of thing is happening all across the country.

HUNTER-GAULT: Is that right? I think I read somewhere -- it may have been in the Times -- that that`s the only service of its kind in the country. There are others?

DeWIND: Yes. I visited recently with the Los Angeles Bar Association, and they are having similar activities and similar interests out there. This is a growing movement. And the American Bar Association has asked all of the law associations across the country to define the contributions that lawyers ought to make. Our association has a committee that has quantified and defined what each lawyer owes to the public obligation.

HUNTER-GAULT: And that`s specifically to poor people.

DeWIND: Specifically to poor people.

HUNTER-GAULT: All right, how about middle-class people, because I think the President also said that lawyers were overcharging just about everybody.

DeWIND: Yes, well, affordable services for middle-income people is something of a problem, and I think the answers there lie in the proliferation of prepaid legal service plans, which I think can provide a regulated source of paying for legal services, particularly unanticipated legal services; and that has to come, too.

HUNTER-GAULT: And the bar is backing that.

DeWIND: The bar is backing that very actively. Our association has worked very hard to establish prepaid legal service plans here in New York City, and it`s working. But you know, what is really needed here, what is really needed, is an influx of a great deal more federal money to provide legal services for the poor. The Legal Services Corporation, a federal corporation which distributes money across the country for legal services for the poor, should have double the level of support that it`s getting from the federal government. And I`m not aware that this administration has made a high priority of seeing to it that the level of support from the Legal Services Corporation is very greatly increased. And thousands of us who are working this would welcome the administration`s support and would welcome the support of the President in seeing to it that the Legal Services Corporation is much better funded than it is.

HUNTER-GAULT: All right, we`ll get to some more of those points in a minute. Jim?

LEHRER: Not all lawyers think the President was off base in his criticisms, and one who doesn`t is John Kramer, associate dean and professor of constitutional law at the Georgetown University Law Center here in Washington. Mr. Kramer, was the President right in what he said about lawyers?

JOHN KRAMER: I think the President`s basic indictment was right, perhaps even understated. I think sometimes to get the attention of the mule you`ve got to hit him on the head, and he did so pretty crisply. I hope he`s got the profession`s attention. I think the profession`s problem is the word "profession." We think we are high and mighty; we forget that we are producing a product, just like an automobile or shaving cream or cereal, and the consumer has a perspective and a right to demand quality of justice, right to demand speed in the product`s delivery, and a right to demand as low an expense, a cost, as possible. And the profession does not respond to those demands.

LEHRER: Well, the President in fact was implying, I think, Mr. Kramer, that that`s exactly what the lawyers do; they do respond as a product, and they`re interested more in fees than they are in public service.

KRAMER: The fee problem is very serious. I just got on my desk this morning -- rather opportunely -- a new magazine called Federal Attorney Fee Awards Reporter, which for $120 a year will tell you all you need to know about how to get money out of the federal government to pay your fee, for Uncle Sam to do it instead of an individual to do it. Yes, I think the question of fee is more important; that is the producer`s perspective. The consumer`s perspective is a minimum fee or no fee at all. Now, Mr. DeWind is correct: the profession is considering imposing some sort of responsibility on every member, all 450-460,000 lawyers, to produce at least five or ten percent of their time, or the equivalent in money, to deliver to the public interest.

LEHRER: What about the basic point that the President made, that the organized bar only responds to the public interest when they`re forced to?

KRAMER: I think you have to distinguish among organized bars. The major city organized bars, whether it be New York or Washington or Los Angeles, have for ten or fifteen years now been responding meaningfully, been doing -- sometimes on a very private basis, sometimes on a bar-wide basis -- providing legal services for the poor; not very much in the middle-class area, though. But in the rural areas and the other vast tracts of the United States nothing is going on, and that`s what the President may spark.

LEHRER: Does the legal profession basically fight innovation, as the President charged?

KRAMER: Well, in some areas. For instance, an example, advertising. Again, we view ourselves as a profession; professionals don`t advertise. And so the ABA and state after state the bar associations have been fighting advertising, unlike the way you would fight the advertising of a product.

LEHRER: What about this basic thing that this land is overlawyered and underrepresented, the statistic that Charlayne quoted the President saying, that ninety percent of the lawyers represent ten percent of the people? How do you correct that?

KRAMER: Well, it`s a marvelous ambiguity. We have too many lawyers in one place and too few in the other. We have about 3,700 lawyers now formally serving the Legal Services Corporation on behalf of the poor.

That`s about one for every 8,000 poor persons. On the other hand, we have 450,000 lawyers serving everybody else, and that everybody else rarely includes the middle class. And the middle class is not some easily segmented group; that`s probably another 190 million Americans who really can`t afford lawyers.

LEHRER: Is the argument, then -- you often hear this -- that the very rich are very well represented because they can afford to buy, or afford to hire, the best legal minds in the country; the very poor are very well represented because there are legal services and other avenues through government available; and it`s the middle class that can`t go either way that is not represented.

KRAMER: I think that`s entirely correct, and in part that`s a function of cost and the way the system works. For example, divorce. There is no reason. There used to be minimum fees for divorce cases running from $250 to $500. First of all, divorces probably ought not to be in the courts; and if they are, like a product, they could be assembly-line produced at twenty-five or thirty dollars a person.

LEHRER: All right, thank you. Charlayne?

HUNTER-GAULT: Okay. Mr. DeWind, Mr. Kramer says that lawyers had to be hit over the head, that that was the only way they were going to get a response.

DeWIND: Well, that`s not true, and there is a response. I don`t mind lawyers being hit over the head, but an across-the-board attack without recognizing what has been done I think is very counterproductive, and particularly for those who are unconcerned about their obligations, that kind of attack simply confirms them in their lack of concern.

HUNTER-GAULT: You don`t think it moves them to action, particularly.

DeWIND: I do not. I think it moves them to resistance and to anger, and those of us who are very concerned about the obligations of the bar simply have a harder job rather than an easier one. But I think we really must work together on this whole thing. The President said, for example, that the Southern lawyers resisted racial integration. And of course it`s true, most of the South and a great deal of the North, the population has resisted racial integration. But he did not point out that in 1963 200 lawyers met in the White House, representing leadership of the American bar, former presidents of the American Bar Association, presidents of our city bar association, president of the Philadelphia Bar Association, and those lawyers formed the Lawyers` Committee for Civil Rights Under Law. That organization joined with others, like the Legal Defense Fund, and it is those lawyers, representing the organized bar, who all across the country have made racial integration a reality in this country. That should not be ignored; it`s a very significant -- without the courts and the lawyers, racial integration would be nowhere today.

HUNTER-GAULT: Okay, let`s pursue your point with Mr. Kramer on the matter of the federal government being the problem.

KRAMER: Well, the federal government is a problem in the sense that it requires too many lawyers and keeps too many of that ninety percent working on behalf of corporations. I think Mr. DeWind and I would agree that we are an over regulated society with respect to businesses and corporations in a way that unprofitably uses lawyers` time. And I think the President himself cited the example of the IBM case, which is now in its, I don`t know what, eighth or ninth year with no end in sight and millions of lawyers` dollars, in the U.S. side and on the IBM side, probably going down the drain with no meaningful result five or six years from now.

HUNTER-GAULT: Okay. Mr. DeWind, how about the consumer demands? Mr. Kramer says that the bar doesn`t respond as it should to consumer demands.

DeWIND: Let me say for a moment, if I may, about Mr. Kramer`s remark, we are the most over regulated free society in the world, and there are government lawyers by the thousands and public interest law groups that are continually bringing litigation. I`m not saying it`s bad litigation, but it`s continual litigation. There has to be a response; there have to be trials, there has to be litigation. So far as abuses are concerned, with the appointment of the best possible judges and with the judges exercising their control on the courts, abuses can be eliminated and dealt with by the courts. But you cannot have as much regulation as we have -- and perhaps we should have less regulation, or different regulation -- but you can`t have it the way it is without expecting a good deal of litigation on both sides, government and private litigation.

HUNTER-GAULT: Mr. Kramer?

KRAMER: I think what we need to do is to do two things: perhaps deregulate a little bit more the corporations and the business, and yet make more accountable and more responsible many institutions that govern most of our daily lives, whether it be schools or hospitals -- force them to confront the people whom they serve, through the use of lawyers advocating the rights of the people whom they serve. In addition -- and the President did mention this -- there are a whole raft of problems that should have nothing to do with lawyers, be they traffic accidents, divorce cases, wills, evictions -- these are the things that clog up our nation`s courts and really have no business being there.

HUNTER-GAULT: Do you agree with that, Mr. DeWind?

DeWIND: Yes, I agree with most of what Mr. Kramer is saying. So far as legal services for middle-income groups are concerned, the prepaid legal service movement, which is just getting started in this country, has so far been mostly successful where labor unions have adopted prepaid legal service plans and provide the services to their members. When you come to private groups and you try to get private groups to join prepaid plans on a voluntary basis where they will pay the cost of those plans, then you find that the middle-income groups express a very small degree of interest in legal services, and there`s a real selling job to be done there to persuade most middle-income people that lawyers can really be of benefit to them.

HUNTER-GAULT: Thank you. Jim?

LEHRER: Now to the doctors. The President didn`t say as much about them as he did the lawyers, but the thrust was just as stinging. He accused the medical profession of being a major obstacle to having a better health care system in this country, and said, "I know that doctors care very seriously about their patients, but when doctors organize into the American Medical Association their interest is in protecting the interests not of the patients but of the doctors." As could be expected, the major reaction to Mr. Carter`s words have come from the American Medical Association. Dr. C.H. William Ruhe is the AMA`s senior vice president. Doctor, the President says you doctors are all right until you organize. Is he right about that?

Dr. C.H. WILLIAM RUNE: Well, of course we don`t agree with him. I guess our chief reaction was a combination of distress and resentment. Distress that the President appears to know so little about what the AMA does and has done; and resentment because of the 200,000 physician and medical student members of the association which we feel are discredited by this remark. The AMA has been in existence since 1847; it was established for the major purpose of promoting the art and science of medicine or the betterment of public health, and that has remained the basic tenet to which the organization has held in the 131 years of its organization and existence. We have a long list of accomplishments over the years that the AMA has been responsible for or involved in, and we believe that most of these have been in the public interest and public service.

LEHRER: Would you say, then, that all of the activities of the AMA have the patient`s interest number one?

RUNE: Well, there are some things that we do as a professional organization for our members. I think any organization would do that, and since we are a membership organization we do have to pay some attention to our membership and to the structure. But we are primarily a professional organization, and the majority of our resources are put behind professional, educational and scientific activities.

LEHRER: Aimed at helping the patient rather than the doctor.

RUHE: Aimed at helping the quality of medical care, the betterment of public health, the improvement of the practice of medicine in this country. And while the immediate influence may be, to improve the performance of the physician, the ultimate goal and the ultimate effect is improvement in the health of the public.

LEHRER: Now, the other major part of the President`s attack on youall was that he says you fight innovation and you hold back progress, in terms of improving the medical care system in this country.

RUHE: Well, we don`t agree with that at all, because we again can point to many things that we`ve done in the past that were well ahead of any public interest in the subject. When we started in with the reform of medical education, it was long before the government took any interest in it. When we got into things like water pollution and the establishment of state boards of health and licensure of physicians and creation of the Food and Drug Administration, all those things were triggered by, initiated by the AMA as an organization. We were into seat belts for automobiles long before they became law in some states and recommendations by the government, and there`s just a great many things like that in which we have been in the forefront. I think what happens is that sometimes when new proposals are made which we do not agree with and we oppose those proposals for good reasons, then we are viewed by some people as being opposed to progress.

LEHRER: In a word, Doctor -- you heard what Mr. DeWind and Mr. Kramer said about their profession, that there was some validity to the criticisms by the President of their profession -- are you saying that there is none at all in terms of the criticism he leveled against yours?

RUHE: Well, the criticism, of course, was much more specific that he levied against us, and when he says that the AMA has been the major obstacle to the progress in our country to having a better health care system, I can`t agree with any of that.

LEHRER: All right, thank you. Charlayne?

HUNTER-GAULT: One doctor who`s been a long-time critic of the health care system is John Knowles, now president of the Rockefeller Foundation. Dr. Knowles is also author of the book, Doing Better and Feeling Worse, an appraisal of the health care system in the Unite States. Dr. Knowles, you disagree with Dr. Ruhe, you agree with the President: organized medicine a major obstacle?

Dr. JOHN KNOWLES: Well, first of all, I`ll tell you where I agree. I think the President was intemperate in his remarks; I think he dealt in a sweeping absolute, and I don`t think that was quite right because it dispirits the good members of any organization who want to get on with the Lord`s work. Now, having said that, the shopping list that Dr. Ruhe gave us about the great advances fostered by the American Medical Association, every one that he listed except seat belts was before 1920. And I agree with him: between 1847 and 1920 the American Medical Association was the progressive force in medicine and public health in the United States. From about 1928 on, that all changed and it became the arch conservative organization that it is today. It opposed essentially every major public health program in the United States since 1930, whether it was the establishment of venereal disease clinics; whether, more recently, it was their thirty-year fight against the inclusion of medical services within the Social Security Act, which finally culminated in Medicaid and Medicare. So you`ve got a pretty good shopping list. May I say, right there in the shadow of Mr. Carter`s White House the Group Health Association of Washington, which was fostering prepaid group practices, which have been shown to reduce cost, increase quality and comprehensiveness, were unalterably opposed by organized medicine, the AMA and the District County Medical Society, which was finally taken to the Supreme Court and they were told by the Supreme Court that they were in violation of the law, they were acting like a monopoly, and that they should act more in the public interest rather than the interest of their own purse.

Having said all that, when we get on to the subject of what`s been advanced in recent times, practically none of it has come from the AMA.

I agree with Dr. Ruhe that they`ve done a lot in medical education, standardization, licensure and so on. They have done, practically speaking, nothing until they were dragged into it on the subject of unnecessary surgery, uneven quality of care, and so on. And as far as the costs of medical care go, I will say emphatically and unequivocally that the AMA has resisted most attempts and has offered no resolution of the problem.

HUNTER-GAULT: All right, well, let me just ask you this question...

KNOWLES: Now, I`ll just make one final...

HUNTER-GAULT: Well, let me just ask you, and we can get to that in a minute. Why do you think the American Medical Association exists?

KNOWLES: I think it exists, like any organized profession, be they newscasters or be they plumbers or be they doctors or lawyers, that one of their prime functions is to foster the interests of their membership. Those very frequently are economic, those very frequently assume some territorial impulse. The better organizations will also serve the public interest, which they should, as a group. And you`ve heard Dr. DeWind mention what the law profession in the City of New York is doing, and you`ve heard Dr. Ruhe mention some of them -- most of them, unfortunately, prior to 1930.

HUNTER-GAULT: All right. Well, let`s hear Dr. Ruhe respond to ...

KNOWLES: And before anybody thinks I`m trying to hand it all over to government, I am not. The reason I have browbeat and whacked at the AMA for the last twenty-five years is that they are the ones handing us over to the federal government.

HUNTER-GAULT: Dr. Ruhe, is that true?

RUNE: Well, of course I completely disagree with my old friend John Knowles. He`s the master of the provocative statement, and he loves to deal in hyperbole, which I think is perhaps not too useful at this time.

HUNTER-GAULT: Well, he says you haven`t made any progress since 1920.

RUHE: Well, of course that`s nonsense. There are a great many things going on right now; if he isn`t aware of them, then he doesn`t know any more about what the AMA is doing than President Carter does.

KNOWLES: I said your shopping list was all before 1930, except for seat belts. Now, you rebut me on Medicare, Medicaid, recent public health programs, costs and so on.

RUHE: Well, let me talk first of all about things that are going on right now that you ought to know about. You said we`ve done nothing about the cost of medical care; we`ve had a commission on the cost of medical care which worked for two years and has just published a report on the subject which contains forty-eight recommendations. It`s a broadly constituted commission of twenty-seven persons, only eleven of whom are physicians.

HUNTER-GAULT: Okay, let`s just take that point right there. How about that, Doctor, does that satisfy you?

KNOWLES: I have not seen the report, and just having a commission publish a report doesn`t do anything, as far as I`m concerned. What does it recommend that organized medicine do and its membership, for example -- specifically?

RUHE: Well, it has a great many recommendations in it, and if you haven`t seen...

KNOWLES: Name one in the public interest. Just give us one.

RUHE: Well, I think they`re all in the public interest.

KNOWLES: Well, name one of them.

RUHE: Well, take one of the controversial ones, the certificate of need area, where it recommends that there be a very careful evaluation of the certificate of need and its impact upon the cost of care, and if it proves to be cost-effective, that the same certificate of need be applied to doctors` offices and other extra-hospital activities.

KNOWLES: Well, that`s something. Of course, the state certificates of needs were not generated by organized medicine`s activities, those have been legislated in the major states over the last four or five or six years. What`s new there is that you suggest that it be applied to doctors offices, and you know as well as I do that the government or anybody else cannot review 350,000 doctors` offices about how they spend their money.

HUNTER-GAULT: Okay, thank you, Doctor. Jim?

RUHE: Well, let me talk about some of the other things.

LEHRER: Doctor, obviously we`re not going to resolve that shopping list tonight. In the few minutes we have left I want to go to the question that you raised and also that Dr. Knowles did, and that is the basic purpose of a professional organization like the ABA or the AMA or, as Dr. Knowles said, those of us who do this kind of thing for a living also have our organizations. Mr. DeWind, what do you see as the basic, number one priority of the ABA, to represent its membership as a professional organization, much like a labor union, or how would you see it?

DeWIND: Well, I think any bar association -- the ABA or our city bar association -- has twin responsibilities. It is an organization representing the bar, and as such has very useful things it can do for the proper and appropriate interests of the bar. It also represents the bar to the public, and has public obligations which the profession ought to discharge. And the best way for the profession to discharge those public obligations is to do it through its own organizations, which can define and quantify them and see that they`re discharged, and support the appropriate legislation and get the proper help from the federal government and the President of the United States to see these things happen.

LEHRER: Mr. Kramer, let me ask you, is it unrealistic to think that an organization, of lawyers in your case, will ever support any new plan or idea if it will hurt them financially?

KRAMER: I think if you can show that it will directly hurt them financially the answer is clearly they will not. For instance, the American Trial Lawyers Association is the number one opponent of no-fault auto insurance, and they`ll give you a lot of great consumer reasons but the bottom level is they`ll have to do something else, like helping old ladies who trip on banana peels in grocery stores. And there are not enough of those, as there are a million auto crashers.

LEHRER: Is that true in the medical profession?

DeWIND: Sure, but Mr. Kramer, where has the federal government stood on no- fault insurance? What`s it done to promote the cause?

KRAMER: I don`t think the federal government`s done very much there. What we need is a competitive model. I don`t think any professional organization will do it without a gadfly. I don`t think Mr. Carter is a very effective or long-lasting one, but you need a competitive model.

LEHRER: Is that true in the medical profession?

RUHE: No, I don`t think it is true. I think that there are many individuals, of course, who would oppose anything which they would feel might hurt their pocketbook, but this is by and large not a major problem be cause most doctors do make an adequate income, and I don`t think it`s a matter of dealing with issues on the strict basis of whether they`re going to bring more dollars in or fewer dollars in. I think that by and large these things are dealt with on their merit. And generally speaking, the reason that the medical profession opposes many of the proposals which are made is that in its judgment it will interfere with good medical care being delivered. More and more the proposals that are being made are ones which would, by regulation or by restriction, tie the physician`s hands and feet so that he cannot really deal with patient care the way it ought to be done.

LEHRER: Do you agree with that, Dr. Knowles?

KNOWLES: Yeah, well, I don`t want the doctor`s hands and feet to be tied any more than Dr. Ruhe does, so I`m with him on that. I would not be quite as sanguine and avuncular about the whole thing as he is as far as being hit in the pocketbook. There`s an old saying: when a man says it`s the principle, not the money, it`s the money. And I will say also that the fight on either Medicare or the group health insurance plans in the United States, which are now called euphemistically the HMOs, that doctors and their organizations have unalterably opposed largely not because of interference with the doctor-patient relationship, paperwork or anything else, but largely because of constraints on their income and supervision of their quality.

RUNE: But Medicare greatly increased the income of doctors.

KNOWLES: It sure...

RUNE: And it was clear from the beginning that it would, because it provided them payment for the care of patients which before that they cared for without...

KNOWLES: That`s right, Dr. Ruhe, and when that came out I made that speech myself and said, Now that you fellows have been giving all of this wonderful free care, and I admire you for it and I`ve been party to it myself, now that this has been taken away and you`re being paid for essentially everything you do by Medicare or Medicaid and your incomes are going up at fifteen percent a year, then you`d better figure out some other way to maintain that image of a humanitarian organization -- I`m not saying that the individual doctors aren`t -- and nothing much has happened on that score.

DeWIND: As a lawyer...

LEHRER: Excuse me, I`m sorry, Mr. DeWind...

KNOWLES: Except that fees have continued to go up and the incomes have exceeded any other group in the country. And that dispirits me a little...

LEHRER: Excuse me, Doctor, our time is about to exceed our limits. I`m glad we could resolve all of this tonight.

(General laughter.)

LEHRER: Gentlemen in New York, thank you. Good night, Charlayne. Gentlemen here, thank you very much. We`ll be back tomorrow night. I`m Jim Lehrer. Thank you and good night.