David B. Wilkins, faculty director at the Harvard Law School Center on the Legal Profession, spoke with Dr. Rochelle Walensky, who served as the 19th director of the U.S. Centers for Disease Control and Prevention (CDC) from 2021 to 2023, about crossing disciplinary boundaries and how she factored legal into her public health decision-making.
David B. Wilkins: The scope of this issue is around the intersection between medicine and law. You’ve had a fascinating career between medicine, public health, and increasingly law. Did you ever imagine that you’d have so much interaction with lawyers and law in terms of the work that you did?
Dr. Rochelle Walensky: When you train as a doctor, your deepest wish is that you never have any interaction with lawyers because that usually means you have been accused of malpractice, or that some patient perceived that you did something medically wrong. Through my clinical training, the whole goal was to stay as far away from lawyers as possible. Part of that was just making sure you were clinically doing the right thing. I vividly remember when I went from a fellow to an attending—when the signature goes after, rather than before, the line, meaning ultimately you’re responsible. And when you’re responsible, that means that’s where the lawyers go. You don’t go through a 30-year medical career without knowing somebody who’s been sued. These might be incredible doctors who had a bad outcome, because bad outcomes do happen. That was my first impression: do whatever you can to not interact with lawyers.
My research career was mostly in HIV and HIV policy, and I first started interacting with lawyers in a different capacity in the HIV informed-consent-for-testing policy. I had been doing a lot of work to try to eliminate the need for written informed consent for HIV testing—not the informed consent, but the written informed consent—because it exceptionalized HIV and it made it hard to diagnose by adding this extra barrier. That’s where I met Ben Klein at GLAD Law and started talking to lawyers, asking: What does the law say about this? What can we legally do? I realized I could partner with lawyers and that perspective would be really helpful as we’re trying to navigate some of these policy spaces.
Wilkins: You became the director of the Centers for Disease Control and Prevention in 2021. Suddenly, now you’re in the midst not just of the policy world but obviously one of the most contentious times to be in that policy world. How did you interact with lawyers, and what did you learn from that experience?
Dr. Walensky: It was gobsmacking—there would be times that I would be in a meeting with six people on Zoom, and I would’ve thought they’d be infectious disease docs, epidemiologists, policy people. But it was me and lawyers: one from HHS and one from White House counsel and one from Justice and one from the CDC and one from the FDA and so on. I was like, How did I end up on a call with six lawyers as we’re trying to make these decisions? And in fact, some of my most public policy decisions were very much swayed by the impact of the law.
Through my clinical training, the whole goal was to stay as far away from lawyers as possible.
Dr. Rochelle Walensky, former director, CDC
One of the things I learned, somewhat the hard way but very early on, was to ask: What can’t I see? What don’t I know? What don’t I understand about the implications of this policy?
I’ll give you one example: in 2021, the Advisory Committee on Immunization Practices (ACIP) voted nine to six against including frontline workers in their recommendations for who would receive COVID boosters. I overturned that vote largely because of the legal implications—otherwise doctors would be held at risk and liable if they provided vaccines to such otherwise healthy health care workers, teachers, and others. While some of my clinical colleagues and the press might not understand the motivation for that decision, I could not put doctors who are using this vaccine at medical risk or at risk of liability. So many of the decisions that I made were not only about what is the right thing to do for public health, what is the right thing to do for the people, but what are the implications, legally, as we make those decisions?
Wilkins: How did you think about weighing or evaluating or resolving these competing worldviews?
Dr. Walensky: Not only were they competing, but they often didn’t talk to one another. We in medicine say you’ve had a multidisciplinary conference when you invite cardiology and GI. That is not really a multidisciplinary conference. It is when you really hear all of these different perspectives. I very much said, “What can’t I see?” “What don’t I know?” “What are the downstream implications of this?”
Wilkins: Did that experience have anything to do with you making this interesting decision to spend time as a fellow at the Petrie-Flom Center on Health Law Policy, Biotechnology, and Bioethics, after you stepped down from the CDC? What did you learn from that experience?
Dr. Walensky: First, I will say it’s really intimidating to be a doctor and walk into a law school. I had spent 30 years in Boston and had never been inside the law school. How is it that one finds themselves in a job where I’m surrounded by six lawyers and I had never walked into the law school? Because of that, and because I like to do hard things and learn, I went to Professor Glenn Cohen and I said, “I really want to spend some time with you, learn what you’re teaching your students, understand how you teach your students, and then maybe do some teaching myself. I can’t teach them law, but what I can teach them is the practical implications of how that law plays out as we’re making health policy.”
So many of the decisions that I made were not only about what is the right thing to do for public health, what is the right thing to do for the people, but what are the implications, legally, as we make those decisions?
Dr. Walensky
I taught a seminar at the law school called At the Intersection: Health, Public Health Policy, and the Law, and what I tried to say was, “You’re taught about data privacy. Let me tell you how your strict rules on data privacy might ram up against what I’m trying to do in public health, or unionization and how that rams up in what we’re trying to do about the unionization of nurses and doctors.” That was really about opening up the dialogue. I think we were able to do that. We were able to shine a light in areas of darkness. It was so much fun to see their reactions to how some laws constrain doing the “right” thing.
Wilkins: On the flip side of that, what do you think lawyers need to know about the world of medicine and health policy?
Dr. Walensky: I’m a decision scientist by training, and one of the things we are always taught is to ask about the next step. Once you’ve made this decision, what happens next? Not enough of us are thinking about, after this decision, what happens next? In order to do that, we really have to understand each other’s perspective, and doctors are not doing enough of that on the legal side, and lawyers are not doing enough of that on the medical side.
I’ll give you the perfect example that we’re dealing with right now: shared clinical decision-making in vaccination. I believe in talking to your patients and having a shared decision and understanding their values and making decisions clinically based on those values. But if we require everything to be shared in clinical decision-making, nobody’s going to get anything done, ever, in a patient encounter.
Doctors have 15 minutes. If every patient walks in and before they get their flu vaccine we need to have an eight-minute conversation about the efficacy and safety and long-term manifestations and flu rates of this season, you can forget about my controlling your hypertension and the necessary screenings that need to happen. At what extreme do we have shared clinical decision-making? When somebody comes in with heart failure, do I need to talk to them about how much Lasix I’m giving them? When somebody comes in with a rash, do I need to ask for their consent for a syphilis test?
I think that doctors and lawyers don’t know how to talk to one another.
Dr. Walensky
I do think lawyers have to understand the constraints of a doctor’s life. Every doctor knows what an RVU is, and probably many lawyers do not. It’s a relative value unit. It is how we bill, and it is how we get compensated, and it’s the widgets in which we operate. If I spend 20 minutes with you talking about the value of this vaccine, I can bill almost nothing, and I can’t do the things that I otherwise might do and that you otherwise need. But in fairness, I have not walked a day in your shoes to know the constraints that you’re under and why there is legal precedent for the 17 reasons that we need to actually do this!
Wilkins: I’ll close with this: How can we open up better lines of communication and prepare young people to better collaborate across these fields?
Dr. Walensky: I think that we don’t know how to talk to one another. When I’m on clinical service, the ICU is my office. I can walk into an ICU and continue a casual conversation because it feels so normal to me in an otherwise serious, sad, hard place. And yet, I get nervous to walk into the classroom of a very formal wood-panel building at the law school. And I’m guessing vice versa for your law students in our space. I do think just entering the buildings and overcoming this discomfort makes a big difference. That means finding the right time to do it and making it easy.
We need to talk to the chair of medicine at the hospital and say, “I want to have some of your residents come over and talk to some of our 3Ls.” What will be the incredible science and scholarly work that can emerge from that dialogue and those relationships? I just wrote a piece with a law professor saying, “I think doctors are going to be scared. If they’re providing certain vaccines, they might be about to do something that the ACIP does not recommend. What does this mean for our doctors legally?” And so, I reached out to someone I knew and said, “Can we write something about how our doctors should actually be or not be at risk legally?” But I have that relationship, so I could make that happen.
When I was a medical resident, we had a patient who left against medical advice with her central line. We had this whole conversation that could have really benefited from legal expertise, asking, “Who owns the line?” As a resident, I would have not known who to call at the law school to have that conversation (we ultimately called a hospital ethics consult to help). These cases come up every single day, and they raise really important questions.
We do need to figure out how to cross those bridges so that we have more potential people to call when those decisions come up. That’s hard. It’s logistically hard. But I think it would be worth the lift.
Dr. Rochelle Walensky served as the 19th director of the U.S. Centers for Disease Control and Prevention from 2021 to 2023. She is currently a professor of medicine at Harvard Medical School, an executive fellow at Harvard Business School, a Hauser Leader at Harvard Kennedy School, and a Menschel Fellow at the Harvard T.H. Chan School of Public Health.
David B. Wilkins is the faculty director of the Harvard Law School Center on the Legal Profession.
