On February 20, 2019, The National Hellenic Museum hosted a mock trial/play, moderated by Andrea Darlas, WGN Radio, called The Trial Of Hippocrates at the Harris Theater for Music and Dance, 205 E. Randolph Drive, Chicago. The 6th in a well attended and highly regarded series, the event boasted some of the most renowned jurists and lawyers in Chicago, a distinguished panel of jurors, a well-respected expert witness and an attentive sold-out audience.
Presiding Judge: The Hon. Charles P. Kocoras, U.S. District Court for the Northern District of Illinois
The Hon. William J. Bauer, U.S. Court of Appeals for the Seventh Circuit
The Hon. Sharon Johnson Coleman, U.S. District Court for the Northern District of Illinois
The Hon. Anna H. Demacopoulos, Circuit Court of Cook County
Adducing testimony: Christina Faklis Adair, Cook County State’s Attorney’s Office
For Thebes: Patrick M. Collins, King and Spaulding LLP and Tinos Diamantatos, Morgan Lewis and Bockius, LLP
For Hippocrates: Robert A. Clifford, Clifford Law Offices and Dan K. Webb, Winston and Strawn, LLP
Hippocrates, Father of Medicine, was called to the bedside of the dying King of Thebes. The physician saw immediately that nothing could cure this illness, and he told that to the King.
The King then offered the physician a herd of white horses sacred to Athena to cure his fever. Hippocrates agreed to treat the fever, offering a potion that worked to reduce the fever, but caused a “side-effect” of an outbreak of boils. When the physician visited the King the following day, he repeated that he could not cure the underlying illness. The King offered 3 bags of gold to Hippocrates if he would treat the boils. Hippocrates gave him a salve; it helped the boils but caused vomiting.
The third day, Hippocrates once again advised the King of his imminent demise. Once again, the King offered vineyards and a lavish villa, this time for relief from vomiting. A potion was prescribed. The vomiting stopped.
The King became incoherent and died, and his son brought this case against the good doctor.
THE ULTIMATE ISSUE:
Did Hippocrates violate his own oath?
The Hippocratic Oath, excerpt set forth below and adapted around the world, is probably the most well known of Greek medical texts. It requires a newly trained physician to swear before various gods that he or she will uphold and adhere to professional ethical standards. The oath also also strongly binds medical student to medical teacher and to the greater community of physicians. Note the last line of the Oath which advises the Gods that the breaker of the Oath shall give up practice and even give up life!
“I swear by Apollo the physician, and Asclepius, and Hygieia and Panacea and all the gods and goddesses as my witnesses, that, according to my ability and judgement, I will keep this Oath and this contract.
In purity and according to divine law will I carry out my life and my art.
Into whatever homes I go, I will enter them for the benefit of the sick, avoiding any voluntary act of impropriety or corruption, including the seduction of women or men, whether they are free men or slaves.
So long as I maintain this Oath faithfully and without corruption, may it be granted to me to partake of life fully and the practice of my art, gaining the respect of all men for all time. However, should I transgress this Oath and violate it, may the opposite be my fate.”
Translated by Michael North, National Library of Medicine, 2002.
1) Did Hippocrates have a conflict of interest?
A conflict of interest is a situation in which a person (or organization) is involved in multiple competing enterprises, financial or otherwise, and serving one interest could involve working against another. Typically, this relates to situations in which the personal interest of the individual might adversely affect a duty that person owes to make decisions for the benefit of a third party.
It is important to note that the presence of a conflict of interest is independent of an actual occurrence of impropriety. Thus, a conflict of interest can be discovered and voluntarily defused before any corrupt act occurs. The conflict exists if, on the basis of past experience and objective evidence, the circumstances are reasonably believed to create a risk that a decision may be unduly influenced by other secondary interests.
2) Did Hippocrates accept a bribe?
Fakelaki is the phonetic transliteration of the Greek word φακελάκι. In literal translation, it means “little envelope” but the term is also used in Greek popular culture as slang or jargon. Introduced into the trial of the case by Tinos Diamantatos, counsel for Thebes, the term refers to the bribing of public servants and private companies by Greek private citizens in order to “expedite” service. In effect, sums of money are stuffed in files and passed across the desk to secure appointments, documents approval and permits.
3) How much should Hippocrates’ reputation have played a part in the jury’s consideration?
The jury instructions mandated this could be taken into consideration along with any other evidence and Robert Clifford, in particular, for the defense, made much of it.
Hippocrates was born on the Aegean island of Cos, during the end of the fifth century B.C.E. to a wealthy family of physicians; he had a wide education. Legend gives him credit for with healing many, including the king of Macedonia whom he cured of tuberculosis and he is known for having battled the plague for three years in Athens. His teaching was as renowned as his healing ability; he founded a school of medicine in Cos. A symbol of the many students he encouraged is the “Tree of Hippocrates,” which shows students sitting under a tree listening to him.
The Hippocratic Corpus is a body of writing attributed to Hippocrates. A collection of roughly seventy works, it’s the oldest surviving complete medical texts, some containing guidelines for physicians, some are directed more at the layperson. In Hippocrates’ time doctors wrote treatises for the educated public, who in turn discussed medical problems with their doctors. The aim of these books was to teach the layman how to judge a physician—not to advise on self-treatment or even first aid in order to avoid seeing a doctor.
Peter Angelos, MD, PHD, FACS, Linda Kohler Anderson Professor of Surgery; Chief, Endocrine Surgery; Associate Director, MacLean Center for Clinical Medical Ethics; The University of Chicago
PHYSICAL DEMONSTRATIVE EVIDENCE:
Carried to the podium by Robert Clifford, (and erroneously referred to as a caduceus, which is the staff carried by Hermes), the Rod of Asclepius is named for a Greek god associated with healing and medicinal arts. The snake and the staff, sometimes depicted separately in antiquity, are combined in this symbol, which has been variously interpreted. One view is that the serpent conveyed notions of resurrection and healing, another (not mentioned during the trial), is that the staff was a walking stick associated with itinerant physicians. Diamantatos, for Thebes, cautioned of the danger of slithering snakes, likening it to the dangerous use of medication.
ARGUMENTS OF COUNSEL and QUESTIONING OF WITNESS:
The trial exercise began with opening statements:
Patrick M. Collins in a simple, clear address laced with political jokes, (also referring to his colleague Diamantatos as “a descendant of Apollo”) told the jury that “This case is about right and wrong”, and stressed that “An oath is a covenant”. Collins advised that this was a clear-cut case of conflict of interest and that Thebes’ burden was to demonstrate the Doctor’s intent had been corrupted.
In response, Robert A. Clifford, in calm and measured tones, advised the jury of the legal strategem, “When the facts are against you, you argue the law; when the law is against you, you argue the facts; when both are against you, you try to malign and disparage”; thus he characterized Thebes’ arguments. He dwelt upon the sterling character and background of Hippocrates, “The Father of Medicine”, and early and effectively pointed out “There is not a shred of evidence that Hippocrates accepted the gifts”.
By way of evidence, Christina Faklis Adair skillfully and neutrally extracted facts and opinion from the highly well educated and soft-spoken Dr. Angelos. She qualified him swiftly as an expert in clinical medical ethics, brought forth what is known today about Hippocrates, and he described what occurred between the King and the physician. Angelos testified, “Hippocrates believed that illness and disease were natural conditions, not caused by the Gods. Doctors must focus on what is best for their patients. It was accepted that side effects occur. It is unknown whether Hippocrates accepted the offered gifts.”
Closing arguments commenced:
Tinos Diamantatos, in a thoroughly well developed point by point attack began with an appeal to emotion, calling forth the picture of a suffering incoherent King unable to say goodbye to his loved ones. He then spent most of his argument hammering home the conflict of interest dilemma, characterizing the gifts as fakelaki, clear-cut bribes. Hippocrates, he argued, “Should’ve called in another physician when the King wouldn’t accept his initial diagnosis that there was nothing to be done and his offering of potions and lotions infected his intent, causing a progression of harm”.
Closing for the defense, Dan K. Webb, in an impassioned, energetic argument, advised the jury, “Where, as here, there is a huge fatal flaw in my opponent’s case, I go to it right away. There is another significant oath involved in this case; the oath you took as jurors. Judge Kocoras will instruct you that Hippocrates can be found to violate his oath only by intentional wrongdoing that caused harm. Where is the intentional wrongdoing? Where is there any evidence he changed his diagnosis, accepted bribes, or tried to harm the King?”
In rebuttal, Patrick M. Collins referred to Webb’s argument as “Moving the bar. This is not a case of premeditated murder; it’s a case of violating his oath”.
THE JUDGES RULE:
Judge Demacopoulos and Judge Kocoros, both eloquent and stern, ruled against Hippocrates. While there may have been no evidence he actually accepted bribes, the offers of riches from the King created more than the appearance of impropriety. The horses, bags of gold and sumptuous villa, (all far too large to stuff into a fakelaki) created a clear conflict of interest from which Hippocrates should have recoiled and refused treatment.
Judge Johnson Coleman and Judge Bauer exonerated Hippocrates.
THE JURY VOTES:
Judge Kocoras instructed the jury; the standard of proof required was a preponderance of the evidence, based on the more convincing evidence and its truth or accuracy, not on the amount of evidence.
After Judge Bauer polled the jury members, each of whom then explained their decisions, the audience votes, symbolized by the choice of a white or blue coin collected in bags by ushers, tipped the scales of justice in favor of the Defendant.
INTERVIEWS WITH PARTICIPATING LAWYERS:
The day after the mock trial, I had the opportunity to interview two of the major players in the exercise.
Tinos Diamantatos, justly known as a “formidable” opponent, former clerk to Judge Kocoras, former Assistant United States Attorney, litigation partner at Morgan Lewis and immediate past President of the prestigious Chicago Inns of Court, is an extraordinarily affable and modest trial giant, generous with his time.
In discussing the relative strengths and weaknesses of the case, Diamantatos noted that from the States’ standpoint, the best arguments were that “First the Dr. says nothing can be done, but he lets the King persuade him into doing things which kept causing harm”. The essence of the defense strengths, said Diamantatos, were “The Doctor, with his great character, was really just trying to ease the King’s symptoms”.
He described his strategy as simple: “Begin with an attention grabber, the human element, the pathos of the family dealing with the suffering, dying King, and follow with a 3-point reasoned argument about the conflict of interest, the timeline of fakelaki corrupting intent and the incremental harm, and then defuse the overwhelming effect of Hippocrates’ great reputation; he did the wrong things here”.
Christina Faklis Adair, also formerly a clerk for Judge Kocoras, recently made the decision to leave a promising position with the Gozdecki firm to join the Civil Actions Bureau at the State’s Attorney’s Office in the Civil Rights and Torts Division. Reflecting upon the dearth of trial experience available in private practice, Adair says emphatically, “I thought about this move long and hard; I took a big pay cut in order to try cases”.
Adair described her approach to being the “universal questioner” of the sole witness at the Trial of Hippocrates. “We got a developing fact pattern; I studied it carefully and prepared several drafts. Then I worked with Judge Kocoras to make certain I was neutral and fair to both sides. I wanted to elicit as many facts as I could.” In preparation she “Sent the witness questions ahead of time and then sat down to rehearse with him before the program started. Connecting with people is one of my strengths.”
For information about all the fine exhibits and programs of the National Hellenic Helenic Museum, 333 S. Halsted St., Chicago, go to www.nationalhellenicmuseum.org
All photos by Richard Shay