The Shadow Docket

The Shadow Docket

By

Leonard Zwelling

https://www.nytimes.com/2023/05/17/books/review/the-shadow-docket-stephen-vladeck.html?searchResultPosition=1

I tend not to review reviews, but one in the Sunday New York Times Book Review caught my eye.

It’s about a new book by Stephen Vladeck called The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. The review was written by Jennifer Szalai.

Apparently only 1 % of the decisions rendered by the Supreme Court are of the type we have come to expect with arguments in public, with the justices asking questions, and then with a final majority decision months later. No, most of the power of the Supreme Court is rendered using emergency decisions (e.g., appeals about death penalties). Such decisions can appear to be quite arbitrary. Because they are. As Szalai writes, these are “this is ‘because I said so’ taken to another level.”

This brings us back to what is becoming a constant theme in this blog, arbitrary decisions by people and institutions with authority. Along with the arbitrary decisions comes an overwhelming mistrust of these same institutions by the public. It has happened in juris prudence and it is happening in medicine.

Eyal Press makes that very clear in his article in The New York Times Magazine on June 18 sent to me by a blog reader.

https://www.nytimes.com/2023/06/15/magazine/doctors-moral-crises.html

This piece is called The Moral Crisis of America’s Doctors and discusses the reasons doctors are so dissatisfied with their work situations from the corporatization of medicine, to the time drain of the electronic medical record, to the long hours with ever-shrinking pay, to the feeling of injustice and unfairness of the current medical system in the United States where the insured have a chance at decent care, but the uninsured have no chance.

In both law and medicine, it seems like the practitioners who have pledged to use their skills to help others are being ground into dust by the institutionalization of corporate greed.

The same is happening in academic medicine for sure. Once altruistic bastions of scientific health care provision, academic centers are competing with the private sector for patients and insurance dollars. Most of the people I knew who cared for patients in academia were uninterested in money for themselves—or at least that used to be the case before corporate start-ups and the monetization of research discoveries became the norm in academia.

For a society to work, it is essential that there ought to be rules that apply to everyone and that decisions of leadership must be explained to the masses. This is clearly no longer the case at the level of the Supreme Court or in medicine.

If you want to burnout a work force, have them operate in a system where decisions appear arbitrary and leadership has to answer to no one.

That’s where we appear to be right now in academic medicine and medicine in general.

It’s called “moral injury” and is described in the NYT’s article as “an emotional wound sustained when, in the course of fulfilling their duties, soldiers witnessed or committed acts…that transgressed their core values.” Doctors who have to deny care because insurers won’t pay for it, who have to spend more time on the medical record than with a patient, or who see their colleagues fired for trumped up offenses are suffering moral injury.

If we as physicians sit silently and allow ourselves to be traumatized by moral injury, we have only ourselves to blame. Doctors (not providers) need to organize to resist having to do things that are not good for their patients at the behest of corporate culture and the stock price of a corporate conglomerate.

Some docs have started to unionize. That’s one solution. In academia, there’s another. Leaders have to answer to someone. Make that someone aware of the poor performance of leadership and the risk to patients that the leadership poses.

I have not understood the actions of many American presidents in my lifetime—The Bay of Pigs, Vietnam, Watergate, Iran Contra, malaise, Afghanistan, Iraq, the Muslim ban, Covid, Kamala Harris. All of these choices seem arbitrary and unwise.

We cannot do anything about the past decisions, but we can about the current ones. Hold leadership accountable and get explanations for policies. Everyone’s job depends on it. So does patient welfare.

Dr. Zwelling’s new novel, Conflict of Interest: Money Drives Medicine and People Die is available at:

barnesandnoble.com,

on amazon if you search using the title and subtitle, 

and

directly from the publisher Dorrance at: https://bookstore.dorrancepublishing.com/conflict-of-interest-money-drives-medicine-and-people-die-pb/m