“Please Tell Me What I’m Missing Here”: Swalwell Appears To Embrace Medical & Legal Malpractice Over Parental Rights

Authored by Jonathan Turley,

Parental rights are becoming one of the defining issues for 2024. Building from Glenn Youngkin’s 2021 gubernatorial victory in Virginia, school boards races and educational initiatives have become some of the most fiercely contested areas on local and state ballots. Rep. Eric Swalwell (D., Cal.) weighed in this week into the area with a curious attack on parents demanding more say in the education of their children.

The California Democrat insisted that it is akin to “Putting patients in charge of their own surgeries? Clients in charge of their own trials?” These were curious analogies to draw since patients and clients are in charge of the key decisions in their surgeries and trials. What Rep. Swalwell is missing is called informed consent.

Swalwell is a lawyer with a degree from the University of Maryland Law School.

He took to Twitter to lash out against parents who dare challenge aspects of the education of their children. The tweet came in response to South Carolina GOP Sen. Tim Scott saying that Republicans intend to put “parents back in charge of their kids’ education.” Swalwell declared such a notion to be ridiculous:

“Please tell me what I’m missing here. What are we doing next? Putting patients in charge of their own surgeries? Clients in charge of their own trials? When did we stop trusting experts. … This is so stupid.”

As a threshold matter, it is important to note that parents have always had a say in the education of their children. School boards are invested with the authority to dictate changes in curriculum and teaching policies.

Indeed, in Meyer v. Nebraska (1925), the Court struck down a state law prohibiting instruction in German. In the decision, it stressed that parental roles in the education of their children was an essential part of the protections under the Constitution’s Due Process Clause: the right “to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Putting that historical and constitutional context aside, Rep. Swalwell is equally mistaken in his analogies to the medical and legal professions. In reality, patients and clients do control major decisions over their cases. Since he asked for assistance, let’s deal with each in turn.

Patients and Medical Consent

From the outset, the argument that patients do not make the key decisions on their own medical care is a bit incongruous given Swalwell’s support for abortion rights without any limits. (Swalwell was widely criticized for a campaign commercial showing a women being arrested at a restaurant by police with guns drawn under suspicion of having an abortion). While women clearly consult with doctors, the whole premise of “my body, my choice” is that these decisions are left to women, not the doctors or the state.

Parents are asking for consent in the basic goals, material, and methods used the education of their children.

American torts have long required consent in torts. Indeed, what Swalwell seemed to suggest would be battery for doctors to make the key decisions over surgical goals or purposes. Indeed, even when doctors secured consent to operate on one ear, it was still considered battery when they decided in the operation to address the other ear in the best interests of the patient. Mohr v. Williams, 104 N.W. 12 (Minn. 1905).

In Canterbury v. Spence, 464 F.2d 772, 784, the court observed:

“Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone. Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.”

Thus, doctors in the United States do have to secure the consent of patients in what they intend to do in surgeries or other medical procedures. (There are narrow exceptions such things as “substituted consent” or  emergencies that do not apply here).

Ironically, California has one of the strongest patient-based consent rules. As the California Supreme Court stated in Cobbs v. Grant, 8 Cal. 3d 229 (1972):

“Unlimited discretion in the physician is irreconcilable with the basic right of the patient to make the ultimate informed decision regarding the course of treatment to which he knowledgeably consents to be subjected.

A medical doctor, being the expert, appreciates the risks inherent in the procedure he is prescribing, the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment. But once this information has been disclosed, that aspect of the doctor’s expert function has been performed. The weighing of these risks against the individual subjective fears and hopes of the patient is not an expert skill. Such evaluation and decision is a nonmedical judgment reserved to the patient alone.”

While obviously a patient cannot direct an operation itself, the doctor is expected to explain and secure the consent of the patient in what a surgery will attempt and how it will be accomplished. That is precisely what parents are demanding in looking at the subjects and books being taught in school. Moreover, that is precisely the role of school boards, which has historically exercised concurrent authority over the schools with the teachers hired under the school board-approved budgets.

Clients and Legal Consent

Swalwell is also wrong on suggesting that clients are not in charge of their own trials. Not only must attorneys secure the consent of their clients on what will be argued in trial but they can be removed by their clients for failure to adequately represent their interests. It would be malpractice for a lawyer to tell a client, as suggested by Swalwell, that they do not control the major decisions in their own cases.

Ironically, the informed consent rule in the law has been traced to its rise in the medical profession. It was adopted by bars to give clients the right to direct their own legal affairs. MODEL RULES OF PROF’L CONDUCT r. 1.7 cmt. 18. “Informed consent” is a defined term in the Model Rules. See id. r. 1.0(e) (defining “informed consent” as the “agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct”).

Obviously, lawyers must follow their own ethical and professional judgment in trials and tactical choices are generally left up to the lawyers. However, the main arguments and objectives of the trial remain for the client to decide. As one court explained in Metrick v. Chatz, 639 N.E.2d 198, 653-54 (Ill. App. Ct. 1994):

“An attorney’s liability for failing to advise a client of the foreseeable risks attendant to a given course of legal action is not predicated upon the impropriety of the recommended course of action; rather, it is predicated upon the client’s exposure to a risk that the client did not knowingly and voluntarily assume. Consequently, to establish the element of proximate cause, it is necessary for the client to both plead and prove that had the undisclosed risk been known, he or she would not have accepted the risk and consented to the recommended course of action.”

Much like the claim of parents, clients demand the right to reject a plan for trial and the arguments or means to be used at trial. This right of consent is ongoing and can be exercised at any point in the litigation.

Informed Consent

Of course, the key to informed consent is that parents are giving the information needed to secure their consent. School districts have been resisting such disclosures and pushing back on parental opposition to major curriculum or policy decisions.

I have previously stated my opposition to micromanaging classrooms. However, in public education, citizens vote to elect board members to be accountable for educational priorities and policies. In private education, citizens vote with their tuition dollars as well as through school boards. Most of these controversies involve major educational policies ranging from transgender participation on teams to the lesson plans viewed by many as extreme or political. Those policies go to the issues of educational priorities that have historically been subject to school board authority.

In other words, “what is missing here” is that Rep. Swalwell’s interpretation could constitute both medical and legal malpractice. It may also constitute political malpractice as both parties now careen toward the 2024 elections.

Tyler Durden
Sun, 11/13/2022 – 17:00


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