I am a lawyer working in the legal department of a relatively small automobile insurance company.
Yesterday afternoon the vice-president in charge of claims called me in and outlined the facts of a pending case. A policy holder was responsible for an accident in which the other driver, call him Herbert, suffered extensive and serious injuries. In line with standard company procedure in personal injury cases when our policy holder is clearly at fault, we promised to work out a fair settlement when Herbert’s long-term condition became clear and meanwhile paid all his bills as they accumulated. After extensive rehabilitation, it appeared that he would suffer some permanent disability. He retained a lawyer who negotiated with our adjuster what seemed to be a reasonable settlement, assuming Herbert’s condition was accurately described by the physicians who had been caring for him. Before approving, however, my superior in the law department (who now is away on vacation) required that our own physician verify his condition. Our doctor carried out a thorough thoracic examination. Unexpectedly, it revealed an aortal aneurysm—a possibly life-threatening condition.
If Herbert were our physician’s patient, the doctor would immediately have put him back in the hospital for evaluation and care by specialists. Instead, the physician reported his condition to the adjuster, and they talked with the vice-president. The doctor’s opinion is that it can never be proved that the aneurysm resulted from the accident but that it might have. The adjuster and the vice-president are convinced that, if we tell Herbert or his physicians what our doctor found, the previous settlement agreement will not be finalized and the eventual settlement will be far larger. The vice-president said that, while inclined to tell our physician to omit the evidence of the aneurysm from his written report and to tell the adjuster to consummate the tentative settlement, he wanted me to weigh the possible legal implications and report back to him before lunch today. I responded that we should have our physician tell Herbert’s doctors about the problem at once, and, whatever the legal implications of not doing so, our moral obligation was obvious. The vice-president, calm and polite as usual, answered with a friendly smile: “Ms. Reed, please bear in mind that we do not employ you to give us medical or moral advice. I am asking you for your legal opinion, and I will appreciate having it, as I said, by noon tomorrow.”
As a lawyer, I am constrained by confidentiality, so I cannot take the matter into my own hands and talk to Herbert’s physicians. If the vice-president were a client rather than my employer, I would tell him to find himself another lawyer. As it is, I either must resign or follow orders and limit myself to giving technical legal advice, which, I am sorry to say, is likely only to confirm the vice-president in his inclination to withhold the potentially lifesaving information.
This question calls for judgment by the Golden Rule and application of the norm regarding confidentiality. As a legal adviser, the questioner can warn the vice-president that failure to inform Herbert of the life-threatening condition could lead to a lawsuit against not only the company but the vice-president himself and others involved, and that the potential defendants cannot assume they will prevail in such litigation. The questioner should recommend that the vice-president promptly send Herbert a carefully worded warning to seek medical advice regarding the potentially life-threatening condition noted by the company’s physician. If the vice-president rejects this recommendation and persists in the course of action to which he was initially inclined, applying the Golden Rule shows, in my judgment, that the questioner should take the steps necessary to ensure that Herbert receives the potentially lifesaving information.
The vice-president is asking you for legal advice about the course of action to which he is inclined: to direct the company’s physician to omit from his report the evidence of the aneurysm and to direct the adjuster to consummate the tentative settlement. But you cannot draw out the legal implications without making some assumptions about future events that are not entirely predictable. When you say that, if you were to limit yourself to technical legal advice, that probably would only confirm the vice-president in his inclination to withhold the potentially lifesaving information, you must be assuming that it will remain a secret that your company had this information and withheld it, and thus that neither Herbert nor his estate will be able to seek redress for the risk to his life thus imposed on him.
Supposing that assumption to be operative, it seems to me you should be able to deal easily and briefly with the legal implications, since there will be none. But you should base most of your advice on the opposite assumption—that the secret will not be kept—since in that case not only the company but every individual involved may well suffer very serious consequences: not only directly, by losing a suit for damages, but indirectly, through losing good reputation and other things of great value.
All physicians should be committed to helping people preserve their lives and promote their good health. No matter who employs a physician to do an examination, he or she has a moral responsibility to inform the person whose life is at stake upon discovering a life-threatening condition. Hence, as you already told the vice-president, the company’s physician should at once have told Herbert’s doctors of the examination’s unexpected finding, so that by now his condition would have been evaluated and appropriate care initiated.
Since your physician failed to fulfill this responsibility, the company’s moral position is already compromised. The company will be grossly unfair to Herbert if it now takes advantage of that failure in order to consummate the tentative settlement. If this wrong resulted in his death or serious injury, it could provoke a substantial legal claim against the company. However, the vice-president is assuming that the secret will be kept. But, as will become clear, that cannot be safely assumed.
Not as a medical or moral adviser, therefore, but as a legal adviser, you can tell the vice-president that, if he follows his inclination, the consequence might well be a lawsuit by Herbert or his survivors, and the company might well lose. You can recommend that he instead direct the company’s physician at once to prepare his written report, including the evidence of the aneurysm, and that the adjuster deliver it to Herbert together with the settlement ready for signing and a covering letter along the following lines:
We are pleased to be able to deliver the settlement previously agreed upon.
The physician’s report will warn Herbert, and such a covering letter might lead him to accept the previously negotiated settlement.
Still, we are distressed that our physician’s examination coincidentally turned up evidence of a serious medical problem of which your physicians may be unaware. We strongly urge you to ask them immediately to review the enclosed report.
Assuming the problem was previously overlooked, we are gratified to be able to help by calling it to your attention.
In presenting your recommendation, you can tell the vice-president that, by carrying it out promptly, he can protect the company from liability for withholding the vital information. You can explain, too, that, if he does not carry out your recommendation promptly, he will be risking serious harm both to the company and himself, for if the secret is exposed, he could be personally targeted by any lawsuit and undoubtedly would be held responsible by higher management. Finally, you can point out that he cannot count on the secret’s being kept, since the physician, the adjuster, and other employees privy to the secret also might be vulnerable, and so would have a motive for revealing it.
If the vice-president accepts your recommendation and carries it out, your problem is solved. But if he does not? Consider your own true interests, not least your interest in being a Christian and an upright person, and, if that is not enough to make clear what you should do, put yourself in the place of the others involved and apply the Golden Rule. If your life were at stake, as Herbert’s now is, you surely would expect a person in your place to make considerable personal sacrifices to provide you with potentially lifesaving information. Putting yourself in the place of others involved who will be hurt if the company’s handling of the matter comes to light, would you not expect a conscientious person in your place to try to save them? Therefore, in my judgment, you should take the steps necessary to protect the real interests of everyone concerned.
You might begin by taking the matter to higher management, if you can do that without delay. If that is impossible or turns out to be ineffective, present the vice-president or higher management with an ultimatum: If my recommendation is not carried out, I will take the matter into my own hands and advise the company’s physician that, for the good of the company, his own good, and for my sake too, he should at once supply Herbert’s physicians with the information about the unexpected finding. No doubt you would be violating company policy and risking your job in doing this. However, as you should explain in presenting the ultimatum, your drastic action would be warranted. In refusing to be an accomplice in injustice and resisting it, you would be acting in the company’s true interests, and your first duty as a lawyer employed by the company is to protect its interests, not simply do whatever management tells you, even when that is an injustice that risks great harm to the company.
If your first ultimatum is rejected and the company’s physician also refuses to follow your advice, present a second ultimatum: If my original recommendation is not carried out, I will inform Herbert’s lawyer about our physician’s unexpected finding and make it clear that the information should be passed on at once to Herbert’s physicians. If this second ultimatum is rejected or ignored, in my judgment you must carry it out.
The course of action I have suggested is complex, involving a series of steps, but you must proceed quickly. With Herbert’s life at stake, think in terms of hours or, at most, a day or two. At every step, stress the urgency of the situation and make it clear that you will accept no delay.
What about lawyer-client confidentiality? If withholding the information about the life-threatening condition revealed by the company physician’s examination would be criminal negligence likely to result in Herbert’s death or substantial bodily harm, for you to reveal the information would be in accord with one of the exceptions stated in the confidentiality rule.408 But even if this recognized exception does not apply, it seems to me your usual duty to preserve confidentiality is overridden by your personal responsibility toward Herbert. Withholding the information would be standing by while your client does Herbert the great injustice of seriously endangering his life for the sake of nothing more than avoiding the risk of a higher settlement.409
408. See American Bar Association, Model Rules of Professional Conduct (1993), Rule 1.6 (b) (1).
409. Considering Rule 1.6 as a whole, along with the official commentary and the corresponding material in Model Code of Professional Responsibility (1986), canon 4 and DR4–101, I think the requirement of confidentiality on the part of lawyers is more open to exceptions than might be supposed in view of considerations like those involved in the present situation.