Readings: David Hilfiker, Healing the Wounds: A Physician Looks at His Work 72-86 (New York: Pantheon Books, 1985); Robert Pirsig, Zen and the Art of Motorcycle Maintenance: An Inquiry Into Values 31-35 (New York: William Morrow, 1974) [on-line excerpt]; Debra E. Blum: Risk-Taking Encouraged: In ‘Failure 101,' U. Of Houston Engineering Professor Offers and Innovative and Creative Approach to Design, Chronicle of Higher Education, April 11, 1990, A15, c.2.

(2) Hilfiker says of doctors: "We are not prepared for our mistakes, and we don't know how to cope with them when they occur." [76] Is this true of lawyers as well as doctors?

(3) Dr. Hilfiker begins his discussion about failure with the story of a woman who he mistakenly concludes must have a fetus removed. After reviewing his diagnosis and discussions with other specialists, Hilfiker concludes, in much the way Seymour Wishman does, that he cannot justify the judgment he made. [77] For many readers, the immediate response is: "Don't be so hard on yourself." But isn't such a response simply the reader's effort to cut off a connection to that deeper part of the self Hilfiker finds so important?

(4) "A doctor has to confront the possibility of a mistake with every patient visit." [82]. How do doctors learn to live with this reality?

(5) Hilfiker observes that physicians are not prepared by way of training to deal with their mistakes, and indeed, a doctor is "even less prepared to deal with his mistakes than is the average person." [83]. How can physicians and lawyers be educated so they are better prepared to deal with their mistakes?

(6) Hilfiker suggests that a part of the problem is a medical school environment that is so competitive it discourages students and young doctors from sharing their feelings. In the teaching hospital where he trained, Hilfiker describes a world in which feelings play no part:

An atmosphere of precision pervaded the teaching hospital. The uncertainty that came to seem inescapable to me in northern Minnesota would shrivel away at the U as teams of specialists pronounced authoritatively upon any subject. And when a hospital physician did make a significant mistake, it was first whispered about the halls as if it were a sin. Much later a conference would be called in which experts who had had weeks to think about the case would discuss the way it should have been handled. The embarrassing mistake was frequently not even mentioned; it had evaporated. One could almost believe that the patient had been treated perfectly. More important, only the technical aspects of the case were considered relevant for discussion. It all seemed so simple, so clear. how could anyone do anything else? There was no mention of the mistake, or of the feelings of the patient or the doctor. It was hardly the sort of environment in which a doctor might feel free to talk about his mistakes or about his emotional responses to them. [83-84]

Hilfiker concludes that the basic problem is the lack of opportunity for physicians, during their training and later in practice, to discuss their mistakes. We have, I hope, attempted at least something of the kind of conversation and dialogue that Hilfiker has in mind in Practical Moral Philosophy for Lawyers.

(7) The psychological dynamic created by the situation Hilfiker describes places the physician in an "intolerable dilemma."

The drastic consequences of our mistakes, the repeated opportunities to make them, the uncertainty about our culpability, and the professional denial that mistakes happen all work together to create an intolerable dilemma for the physician. We see the horror of our mistakes, yet we cannot deal with their enormous emotional impact. [85]

The response to this situation, argues Hilfiker, is the adoption of "neurotic ways to protect ourselves from the pain we feel." [86] One neurotic response to mistakes is that physicians become "defensive" about their judgments, blame the patient or other physicians or the staff, and turn to alcohol and drug usage. [86]

(8) Professor Matson, the University of Houston engineering professor in his course on "failure" talks with students about "celebrating failure." [Debra E. Blum, Risk-Taking Encouraged: In ‘Failure 101,' U. Of Houston Engineering Professor Offers and Innovative and Creative Approach to Design, Chronicle of Higher Education, April 11, 1990, A15, c.2]. What could we study, in legal education, that would allow us to celebrate failure or is this what we do everyday when we read law cases?

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