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1. 

Watch two original short videos by Sandra Benson:   (1) “Basic Legal Terminology” (especially for students who have never or have not recently taken a business law course); and (2)  “Introduction to Reading Legal Opinions” (important for ALL students to watch) (see links below)

 

2.

Read Chapter 1 (p. 1 -51) and Chapter 5 (p. 139-152) from our textbook, Legal and Ethical Issues for Health Professionals by George D. Pozgar (5th Edition). 

 

3. 

Read The case S
anfiel v. Department of Health (see link below).

 

4.

Complete and upload your answers to Mod 1 Class Preparation and Participation 

https://www.youtube.com/watch?v=xuKjT75qi7Q&t=1s

https://www.youtube.com/watch?v=FqOR1ZYtOZ0

MODULE #1 WRITTEN ASSIGNMENTS FOR Class Preparation and Participation

Healthcare Legal and Ethical Foundation

INSTRUCTIONS: This written assignment will not be separately graded but is your ticket to participate in class and receive a grade for Class Preparation and Participation. Copy the questions, then type your answers below each question. Save your answers in a Word document using 12-point Times New Roman font, 1-inch margins, double-spaced. Upload your written assignment by the due date and times posted in D2L.

There is no partial credit for preparing but not attending class or vice versa. 

Name:

Date:

Part I: Sanifel v. Department of Health Ethical Dilemmas:

a. What principle(s) (described in pages 10-21 ) did each of the following demonstrate. Provide facts to explain why you picked the principles you selected:
(1) Sanfiel
(2) The State Board of Nursing

b. What virtues and values (pages 22-38) do you think each of the following held? Provide facts to explain why you picked those virtues and values.
(1) Sanfiel
(2) The State Board of Nursing
(3) Charter
(4) The news media.

Part II: Ethical Reasoning Exercise


Assume you are Sanifel and you just discovered the computer. Assume you do not know the outcome that we now know from this case. Answer questions below:


1.
As Sanfiel, what is the ethical dilemma you are facing?

2. Identify and describe the relevant facts:

3. What are at least two different ways Sanfiel could have handled this situation to solve his ethical dilemma?

A. Alternative Action 1:

B. Alternative Action 2:

4. Evaluate your Alternatives:

A. Evaluate Alternative Action 1 by answering the following questions:

1) Compliance – Do company policies, codes of ethics, societal norms and/or the law provide guidance for the issue?

2) Personal Integrity – Am I being honest, fair, and truthful if I select this alternative? Does this alternative respect others and show professionalism? Does this alternative help to build trust? How would this look to the public?

3) Individual Rights – Does this alternative adequately protect the rights of others?

4) Promotes More Good than Harm – Who is affected by the alternative? Does the alternative do more harm to those impacted than it does good? How might this alternative impact the larger community?

5) Empathy – Does this alternative allow me to treat others the way I would like to be treated?

B. Evaluate Alternative Action 2 by answering the following questions:

1) Compliance – Do company policies, codes of ethics, societal norms and/or the law provide guidance for the issue?

2) Personal Integrity – Am I being honest, fair, and truthful if I select this alternative? Does this alternative respect others and show professionalism? Does this alternative help to build trust? How would this look to the public?

3) Individual Rights – Does this alternative adequately protect the rights of others?

4) Promotes More Good than Harm – Who is affected by the alternative? Does the alternative do more harm to those impacted than it does good? How might this alternative impact the larger community?

5) Empathy – Does this alternative allow me to treat others the way I would like to be treated?

5. Identify the best decision for Sanfiel from your ethical analysis of your two alternatives. Be sure your answer is complete, clear, and realistic and supported by the complete use of the questions you considered in 4. above.

Reflect on the ethics decision outcome. What insights did you gain from using this Ethics Decision Making Process to evaluate your alternatives and for taking an active role to foster ethical conduct? Are there ways you might change your decision process to make a better decision next time?

PART III: Sanifel v. Department of Health Legal Analysis

1.
Summarize the Facts:

· Briefly summarize the key facts of the Sanfiel v. Department of Health case.

2.
Identify the Legal Issue:

· What is the legal issue (the reason the case is on appeal)?

3.
Plaintiff’s (Department of Health’s) Arguments:

· What did the Department of Health argue as to why the Department’s decision to suspend Sanfiel’s professional nursing license and to place Sanfiel on probation for five years should be upheld? (You may need to infer this from the case.)

4.
Defendant’s (Sanfiel) Arguments:

· What did Sanfiel argue in his defense? (You may need to infer this from the case).

5.
Court’s Decision and Reasoning:

· In whose favor did the District Court of Appeal of Florida decide? Briefly describe why the court ruled this way.

6.
Evaluate Your Position: Take a position for the side that you favor in this case from both an ethical standpoint and from a legal standpoint. Is there a difference in your legal opinion and your ethical opinion? Briefly explain.

Jose N. PROENZA SANFIEL, R.N., Appellant,
v.
DEPARTMENT OF HEALTH, Appellee.

No. 98-1717.

District Court of Appeal of Florida, Fifth District.

December 17, 1999.

Citation: Proenza Sanfiel
 v. Department of Health, 749 So. 2d 525 (Fla. Dist. Ct. App. 1999)

Attorneys:

Jose N. Proenza Sanfiel, St. Cloud, pro se.

Kathryn L. Kasprzak, Senior Attorney for the Agency for Health Care Administration, Tallahassee.

Opinion: The Honorable Emerson Thompson.

Jose N. Proenza Sanfiel appeals a final order issued by the State Board of Nursing following disciplinary proceedings. The order suspends Proenza Sanfiel’s psychiatric nursing license and places him on probation for five years for disclosing confidential patient information. We affirm.

Proenza Sanfiel raises several issues which have no merit. We address one issue: whether the State Board of Nursing was authorized to suspend Proenza Sanfiel’s license because of his conduct involving patients not under his care.

Proenza Sanfiel obtained a computer[1] which was previously owned by Charter Behavioral Health System(“Charter”), a psychiatric hospital in Orlando. Charter’s *526 patient records were contained in the computer. Proenza Sanfiel testified that he reviewed this information and recalled that Charter was being investigated for defrauding the government. He contacted local law enforcement and the state attorney’s office to initiate a criminal investigation. The agencies declined, telling him that the matter was outside their jurisdictions. Proenza Sanfiel then called the news media and allowed them to see the information concerning the patients. He asked that the patients’ names be blurred to protect their identity. He believed that the information on the computer should have been erased before the computer was donated as surplus. He told reporters that the hard drive contained the names of psychiatric patients, their admission dates, types of addiction, treatments and psychiatric disorders. The story was broadcast along with the patients’ names and diagnoses shown on the computer screen. One of the journalists located and interviewed a patient identified from Sanfiel’s computer. The patient was tremendously distraught over the fact that his confidential medical information was being exposed to the public. An unknown number of other patients were also contacted by the news media.

The State Agency for Health Care Administration (“AHCA”) immediately began investigating and ordered an emergency suspension of Proenza Sanfiel’s nursing license. When the representative for AHCA asked for the hard drive with the patients’ confidential information, Proenza Sanfiel refused to surrender it. When representatives from Charter asked that the computer be returned, Proenza Sanfiel again refused, but suggested he would be willing to return the computer and the information for $20,000. Charter obtained an injunction prohibiting Proenza Sanfiel from disclosing confidential patient information.

Proenza Sanfiel does not dispute that he made the disclosure or that as a psychiatric nurse he knew that the information on the computer was confidential. He admitted that he was aware that a nurse could be disciplined for disclosing confidential psychiatric information to unauthorized persons. However, he argues that he could not be punished because he was acting in a private capacity and not as a nurse to the patients whose records were contained on the computer.

The Board’s authority to discipline Proenza Sanfiel is derived from Chapters 455 and 464, Florida Statutes. Chapter 455 contains general provisions for the regulation of all professions, while Chapter 464 specifically addresses nursing. Proenza Sanfiel may not have been practicing nursing in January 1997, but he was licensed and his license was active and evidently in good standing. Therefore, the Board had jurisdiction to discipline him. 
Compare Boedy v. Dept. of Professional Regulation, Board of Medical Examiners, 
433 So. 2d 544 (Fla. 1st DCA 1983) (Board of Medical Examiners had jurisdiction to discipline physician whose license was inactive) 
with Taylor v. Dept. of Professional Regulation, Board of Medical Examiners, 
534 So. 2d 782 (Fla. 1st DCA 1988) (Board of Medical Examiners lacked jurisdiction to discipline physician for professional misconduct which occurred before he became licensed). That Proenza Sanfiel was not working as a nurse and had no professional relationship with the patients whose records were on his computer has no bearing on the Board’s jurisdiction to discipline him. Rather, those circumstances are relevant to whether he may be disciplined for his actions.

Under section 464.108(1)(
l), Florida Statutes (1997), Proenza Sanfiel could be disciplined for “[k]nowingly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding *527 or failing to comply with a lawfully issued subpoena of the department.” The Board the determined that Proenza Sanfiel violated Florida Administrative Code Rule 59S-8.005(1)(e) “by violating the confidentiality of information or knowledge concerning a patient.” An agency’s interpretation of a statute or rule it has authority to administer should receive deference from a reviewing court and should not be overturned unless it is clearly erroneous. 
Okeechobee Health Care v. Collins, 
726 So. 2d 775 (Fla. 1st DCA 1998); 
Republic Media, Inc. v. Dept. of Transp., 
714 So. 2d 1203 (Fla. 5th DCA 1998); 
Metropolitan Dade County v. State Dept. of Environmental Protection, 714 So. 2d 512 (Fla. 3d DCA 1998). So long as the agency’s interpretation “is within the range of possible and reasonable,” it should be affirmed. 
Republic Media at 1205 (citing 
Natelson v. Dept. of Insurance, 
454 So. 2d 31 (Fla. 1st DCA 1984)).

Rule 59S-8.005[2] states in part that unprofessional conduct includes violating the confidentiality of information or knowledge concerning a patient. The Board reasonably interpreted this provision to apply to the circumstances present in this case. Proenza Sanfiel testified that he knew the information he possessed was confidential patient information, and that he understood the danger in disclosing psychiatric records to unauthorized persons. He knew that a nurse could be disciplined for disclosing such information, yet he intentionally released the information to the news media. It is reasonable to characterize Proenza Sanfiel’s actions as unprofessional conduct even though Proenza Sanfiel was acting in a “private” capacity. Therefore, we do not disturb the Board’s determination.

AFFIRMED.

ANTOON, C.J., and COBB, J., concur.

NOTES

[1] Proenza Sanfiel testified that he obtained the computer from a thrift shop for $20. The executive director of the shop testified there were no records of any purchase of a computer at any time by Proenza Sanfiel. Charter maintains it did not donate the computer to the thrift shop.

[2] Rule 59S-8.005 has been renumbered and is now Rule 64B9-8.005.

FIFTH EDITION

LEGAL
AND ETHICAL ISSUES

for Health professionals

George D. Pozgar, MBA, CHE, D.Litt.
Consultant

GP Health Care Consulting

Annapolis, Maryland
 
LEGAL REVIEW
Nina M. Santucci, MSCJ, JD
 
MEDICAL REVIEW
John W. Pinnella, MD, DDS, FICS

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Legal and Ethical Issues for Health Professionals, Fifth Edition is an independent publication and has not been authorized, sponsored, or otherwise approved by the owners of the trademarks or service marks referenced in this product.

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26705-1

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VP, Product Management: Amanda Martin

Director of Product Management: Cathy L. Esperti

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Library of Congress Cataloging-in-Publication Data

Names: Pozgar, George D., author.

Title: Legal and ethical issues for health professionals / George D. Pozgar ; legal review, Nina M. Santucci ; medical review, John W. Pinnella.

Description: Fifth edition. | Burlington, Massachusetts : Jones & Bartlett Learning, [2020]

Identifiers: LCCN 2018040864 | ISBN 9781284144185 (pbk.)

Subjects: | MESH: Legislation, Medical | Ethics, Clinical | Health Personnel–ethics | Patient Rights | United States

Classification: LCC KF3821 | NLM W 33 AA1 | DDC 174.2—dc23

LC record available at
https://lccn.loc.gov/2018040864

6048

Printed in the United States of America

22 21 20 19 18 10 9 8 7 6 5 4 3 2 1

 

 

I dedicate this book to healthcare professionals who have chosen to serve in the noblest of professions, the healing ministry.

You stood by the bedsides of many patients during times of loneliness and frustration. When they wanted to give up, you gave them hope and the strength to fight on.

You watched over them while they slept, eased their pain with words of kindness, and gave them sips of water when they could not drink.

You stood by their bedside when fears arose within their souls.

Thank you, treasured caregivers, for you have been their light during the darkest of nights.

It has been my honor to have stood by your side as you provided care to so many patients as I surveyed your hospitals and ambulatory care sites.

It has been my privilege to have stood by those who I have taught, and those who have taught me.

Forever Thankful

Epigraph


He has achieved success who has lived well, laughed often, and loved much; who has gained the respect of intelligent men and the love of little children; who has filled his niche and accomplished his task; who has left the world better than he found it, whether by an improved poppy, a perfect poem, or a rescued soul; who has never lacked appreciation of earth’s beauty or failed to express it; who has always looked for the best in others and given them the best he [or she] had; whose life was an inspiration; whose memory a benediction.


Bessie Anderson Stanley


Every mistake brings a teaching moment, an opportunity to learn.


Nina Santucci


Each life is like a novel. Filled with moments of happiness, sadness, crisis, defeat, and triumph. When the last page has been written, will you be happy or saddened by what you read?


Author Unknown

Brief Contents


Epigraph


Foreword


Preface


Acknowledgments


Chapter 1
Introduction to Ethics


Chapter 2
Contemporary Ethical Dilemmas


Chapter 3
End-of-Life Dilemmas


Chapter 4
Healthcare Ethics Committee


Chapter 5
Development of Law


Chapter 6
Introduction to Law


Chapter 7
Government Ethics and the Law


Chapter 8
Organizational Ethics and the Law


Chapter 9
Healthcare Professional Legal-Ethical Issues


Chapter 10
Physicians’ Ethical and Legal Issues


Chapter 11
Employee Rights and Responsibilities


Chapter 12
Patient Consent


Chapter 13
Patient Abuse


Chapter 14
Patient Rights and Responsibilities


Chapter 15
Summary Case: Search for Truth


Glossary


Index

Contents

Epigraph

Foreword

Preface

Acknowledgments

Chapter 1 Introduction to Ethics

Learning Objectives

Introduction

Ethics

Why Study Ethics

Morality

Code of Conduct

Moral Judgments

Morality Legislated

Moral Dilemmas

Ethical Theories

Meta-Ethics

Normative Ethics

Descriptive Ethics

Applied Ethics

Consequential Ethics

Utilitarian Ethics

Deontological Ethics

Nonconsequential Ethics

Ethical Relativism

Principles of Ethics

Autonomy

Beneficence

Nonmaleficence

Justice

Virtue Ethics and Values

Courage as a Virtue

Wisdom as a Virtue

Temperance as a Virtue

Commitment

Compassion and Empathy

Conscientiousness

Discernment

Fairness

Fidelity

Freedom

Honesty/Trustworthiness/Truth Telling

Integrity

Kindness

Respect

Hopefulness

Tolerance

Cooperation and Teamwork

Forgiveness

Religious Ethics

Judaism

Hinduism

Buddhism

Taoism

Christianity

Islam

Religious Beliefs and Duty Conflict

Secular Ethics

Atheism

Situational Ethics

Reasoning and the Decision-Making Process

Absence of a Moral Compass

Creating a Culture of Ethics

Summary Thoughts

Chapter 2 Contemporary Ethical Dilemmas

Learning Objectives

Introduction

Noteworthy Historical Events

68,000–58,000 BC

AD 1932–1972

1933–1945

1946

1949

1954

1960s

1964

1968

1970


1971

1972

1973

1974

1976

1978

1980

1983

1987

1990

1993

1994

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2009

2010

2013

2017

2018

Abortion

Right to Abortion

Abortion Restrictions

Undue Burden Rule

Funding

Refusal to Fund Abortion Counseling Not Unconstitutional

Spousal Consent

Parental Consent

Informed Consent

States May Protect Fetus

State Abortion Statutes

Law and Morality of Abortion—Conflicting Beliefs

Sterilization

Elective Sterilization

Therapeutic Sterilization

Eugenic Sterilization

Wrongful Birth, Life, and Conception

Wrongful Birth

Wrongful Life

Wrongful Conception

Artificial Insemination

Consent

Confidentiality

Surrogacy

Organ Donations

Who Lives? Who Dies? Who Decides?

Uniform Anatomical Gift Act

Failure to Obtain Consent

Altruism vs. Sale of Organs

Research, Experimentation, and Clinical Trials

Right to Try Experimental Drugs

Office of Research Integrity

Food and Drug Administration

Institutional Review Board

Informed Consent

Experimental Subject’s Bill of Rights

Patient Responsibilities

The Cures Act

Human Genetics

Genetic Markers

Genetic Information Nondiscrimination Act of 2008 (HR493)

Stem Cell Research

Acquired Immune Deficiency Syndrome

Spread of AIDS

Confidentiality

The Right to Treatment

AIDS Education

Chapter 3 End-of-Life Dilemmas

Learning Objectives

Introduction

Where Do Americans Die?

Euthanasia

Active or Passive Euthanasia

Voluntary or Involuntary Euthanasia

Right to Self-Determination

Defining Death

Legislative Response

Assisted Suicide

Physician-Assisted Suicide

Assisted Suicide Versus Refusal or Withdrawal of Treatment

Oregon’s Death with Dignity Act (1994)

Patient Self-Determination Act of 1990

Advance Directives

Living Will


Right to Die Without a Living Will

Durable Power of At torney

Surrogate Decision Making

Futility of Treatment

Withholding and Withdrawal of Treatment

Patient Not in a Persistent Vegetative State

Removal of Life-Support Equipment

Feeding Tubes

Do-Not-Resuscitate Orders

Competent Patients Make Their Own Decisions

A New Beginning and a Better Ending

Chapter 4 Healthcare Ethics Committee

Learning Objectives

Introduction

Committee Structure

Committee Goals

Committee Functions

Policy and Procedure Development

Expanding Role of the Ethics Committee

Internal Ethical Issues

External Ethical Issues

Resolution of Ethical Dilemmas

Making Better Decisions

Chapter 5 Development of Law

Learning Objectives

Introduction

Public Law

Private Law

Sources of Law

Common Law

Statutory Law

Administrative Law

U.S. Government Organization

Separation of Powers

Conflict of Laws

Legislative Branch

Judicial Branch

Executive Branch

Department of Health and Human Services

Administration on Aging

Centers for Medicare and Medicaid Services

Public Health Service

Chapter 6 Introduction to Law

Learning Objectives

Introduction

Tort Law

Negligence

Intentional Torts

Assault and Battery

False Imprisonment

Defamation of Character

Invasion of Privacy

Infliction of Mental Distress

Criminal Law

Criminal Procedure

Healthcare Fraud

Manslaughter

Murder

Theft

Contracts

Elements of a Contract

Employment Contracts

Exclusive Contracts

Trial Procedure and the Courtroom

Pleadings

Discovery

Preparation of Witnesses

The Court

The Jury

Subpoenas

Opening Statements

Burden of Proof

Evidence

Examination of Witnesses

Defense of One’s Actions

Closing Statements

Judge’s Charge to the Jury

Jury Deliberation

Damages

Appeals

Chapter 7 Government Ethics and the Law

Learning Objectives

Introduction

U.S. Office of Government Ethics

House of Representatives Committee On Ethics

Senate Select Committee On Ethics

Office of Congressional Ethics


U.S. Judicial Code of Conduct

State Ethics Committees

Public Policy

Veterans Administration

Fourteenth Amendment to the Constitution

Title VI: Civil Rights Act

Sherman Antitrust Act

Privacy Act

Health Insurance Portability and Accountability Act (HIPAA)

Emergency Medical Treatment and Active Labor Act (EMTALA)

Health Care Quality Improvement Act

Agency for Healthcare Research and Quality

Ethics in Patient Referral Act

Patient Self-Determination Act

Sarbanes-Oxley Act

Patient Protection and Affordable Care Act (2010)

Political Malpractice

Oath of Office

Ethics in Public Service

Chapter 8 Organizational Ethics and the Law

Learning Objectives

Introduction

Corporate Authority

Fiduciary Responsibility

Express Corporate Authority

Implied Corporate Authority

Ultra Vires Acts

Corporate Ethics

Code of Ethics for Organizations

Corporate Compliance Program

Unprofessional Conduct

Trust and Integrity

False Advertising

Concealing Mistakes

Corporate Negligence

Doctrine of Respondeat Superior

Independent Contractor

Corporate Duties and Responsibilities

Appointment of a CEO

CEO Licensure

CEO Responsibilities and Challenges

CEO Code of Ethics

Screen Job Applicants

Credentialing, Appointment, Privileging, and Discipline

Ensure Competency

Discipline of Physicians

Provide Adequate Staff

Provide Adequate Supplies and Equipment

Allocate Scarce Resources

Provide Quality Patient Care

Comply with Rules and Regulations

Provide Timely Treatment

Avoid Conflicts of Interest

Provide a Safe Environment

Prevention of Falls

Protect Patients and Staff from Sexual Harassment and Assault

Decisions that Collide with Professional Ethics

A Life Needlessly Shortened

Financial Incentive Schemes

Restoring Trust

Effective Communication Builds Trust

Improving Organizational Performance and Ethics

Board Education

Policies and Procedures

Search for Best Practices

Reduce Variation

Assure Continuity of Care

Partner with the Community

Develop a Culture of Compassion and Kindness

Chapter 9 Healthcare Professional Legal-Ethical Issues

Learning Objectives

Introduction

Paramedics and First Responders

Emergency Medical Responder

Emergency Medical Technician

Advanced Emergency Medical Technician

Paramedic

Nurses: Ethics and Legal Issues

Registered Nurse

Advanced Practice Nurse

Nurse Practitioner

Clinical Nurse Specialist

Nurse Anesthetist


Nurse Midwife

Special Duty Nurse

Float Nurse

Agency Personnel

Nursing Assistants

Student Nurses

Negligent Acts in Nursing

Chiropractor

Dentistry

Dental Hygienist

Dietary

Incidence and Recognition of Malnutrition

Emergency Department

Timely Response May Require a Phone Call

Laboratory

Ethics and Inaccurate Lab Results

Refusal to Perform HIV Testing

Medical Assistant

Medical Records

Pharmacy

Dispensing and Administration of Drugs

Drug Substitution

Expanding Role of the Pharmacist

Duty to Monitor Patient’s Medications

Warning Patients About Potential for Overdose

Refusal to Honor a Questionable Prescription

Reducing Medication Errors

Physical Therapy

Incorrectly Interpreting Physician’s Orders

Resident Neglect

Physician Assistant

Psychology

Failure to Minimize Harm: Unethical Conduct

Sexual Harassment

Reporting Child Abuse

Radiology

Failure to Restrain Causes Patient Fall

Respiratory Care

Social Work

Certification of Healthcare Professionals

Licensing of Healthcare Professionals

Suspension and Revocation of License

Helpful Advice for Caregivers

Chapter 10 Physicians’ Ethical and Legal Issues

Learning Objectives

Introduction

The Hippocratic Oath

Code of Medical Ethics

Law and Ethics Intertwine

Morally Wrong, Legally Actionable

Hippocratic Oath and AMA Code of Ethics Violated

Principles of Medical Ethics

Compassionate Care

Responsibility to the Patient Is Paramount

Trust

Failure to Refer for Consultation

Falsification of Records

Justice

Respect for Privacy

Negligence

Patient Assessments and Diagnosis

Patient Diagnosis

Patient Treatment

Discharge and Follow-Up Care

Untimely Discharge

Failure to Provide Follow-Up Care

Failure to Follow-Up on Test Results

Physician–Patient Relationship

Personalized Treatment Versus Assembly-Line Medicine

Treat Caregivers with Respect

Chapter 11 Employee Rights and Responsibilities

Learning Objectives

Introduction

Employee Rights

Fair Treatment and Employment at Will

Refuse to Participate in Patient Care

Question Patient Care

Suggest Changing Physician

Freedom from Disruptive Behavior

Sexual Harassment

Treatment with Dignity and Respect

Freedom from Intimidation

Privacy and Confidentiality

Family Medical Leave


Whistleblowing

Safe Environment

Unemployment Compensation

Employee Responsibilities

Know Your Patient

Educate and Encourage Patients to Ask Questions

Be Compassionate

Comply with State and Federal Regulations

Comply with Hospital Policy

Comply with Assigned Duties

Honor and Respect Patient Rights

Maintain Confidentiality

Adhere to Safe Practices

Admit to Mistakes

Adhere to Professional Standards

Maintain Professional Relationships

Sexual Harassment

Report Unethical Behavior

Protect Patients from Harm

Report Patient Abuse

Stand as a Patient Advocate

Maintain Professional Competence

Encourage Teamwork

Helpful Advice

The Caregiver’s Pledge

Chapter 12 Patient Consent

Learning Objectives

Introduction

Informed Consent

Codes of Ethics

Proof of Consent

Statutory Consent

Capacity to Consent

Adequacy of Consent

Competent Patient

Spouse

Parental Consent

Consent by Minors

Incompetent Patients

Guardian

Right to Refuse Treatment

Refusal of Care Based on Religious Beliefs

Chapter 13 Patient Abuse

Learning Objectives

Introduction

Child Abuse

Reporting Abuse

Detecting Abuse

Good-Faith Reporting

Immunity and Good-Faith Reporting

Senior Abuse

Reporting Senior Abuse

Signs of Abuse

Intimidation of Abusive Resident/Disciplinary Overkill

Abusers Abused

Prevention of Senior Abuse

Look Closer, See Me

Chapter 14 Patient Rights and Responsibilities

Learning Objectives

Introduction

Patient Rights

Right to Know One’s Rights

Right to Explanation of One’s Rights

Right to Exercise Rights

Right to Ask Questions

Right to Complain

Right to Emergency Care

Right to Admission

Right to Examination and Treatment

Right to Know Caregivers

Right to Informed Consent

Right to Refuse Treatment

Right to Execute Advance Directives

Right to Have Special Needs Addressed

Right to Choose Physician(s)

Right to Trust Caregivers

Right to Patient Advocacy Services

Right to Have Spiritual Needs Assessed and Addressed

Right to Ethics Consultation

Right to Choose Treatment

Right to Try Experimental Drugs

Right to Timely Response to Care Needs

Right to Receive Quality Care

Right to Compassionate Care

Right to Respect

Right to Pain Management

Privacy and Confidentiality

Right to Freedom from Abuse and Harassment

Right to Know Hospital’s Adverse Events


Right to Discharge

Right to Transfer

Right to Access Medical Records

Right to Access Lab Reports

Right to Know Third-Party Care Relationships

Right to Know Hospital Charges

Right to Know Medical Errors

Right to a Safe Healing Environment

Right to be Free from Restraints and Seclusion

Which Right is the Greater Good?

Patient Responsibilities

Maintain a Healthy Lifestyle

Keep Appointments

Maintain Current Medication Records

Accurately Describe Symptoms

Provide Full and Honest Disclosure of Medical History

Report Sudden Changes in Health Status

Adhere to the Treatment Plan

When in Doubt, Seek a Second Opinion

Stay Informed

Ask Questions

Follow Discharge Instructions

Treat Caregivers with Respect

Respect the Rights of Other Patients

Show Compassion for Caregivers

Advisory Commission Describes Patient Responsibilities

Teamwork and Professional Relationships

Chapter 15 Summary Case: Search for Truth

Learning Objectives

Introduction

Case: Code of Silence

Characters

Settings

Background

Events of Sunday, October 2

Events of Thursday Morning, October 6

Events of Thursday Luncheon, October 6

Events of Thursday Late Afternoon, October 6

Events of Thursday Evening, October 6

Events of December 27–29 Educational Conference

Glossary

Index

Foreword

The goal of this book is to help clarify the legal and ethical issues that are essential in the delivery of health care. Health care is perhaps the most personal of services anyone will receive in their lifetime. Our society regulates it with specific criteria for its administration. Much of this foundational information is concentrated in this convenient resource for students that will also aid healthcare workers and administrators in making better decisions for patient care.

Scientific advances in such areas as genetics and stem cell biology, nanotechnology, robotic surgery, tissue transplantation, and so much more promise humanity the potential for a longer, healthier, more optimistic future. The explosion of information technology is resulting in an exponential increase of scientific knowledge. Reaping the benefits of these advances can pose complicated considerations of safety, efficacy, availability, and affordability. The challenge is to administer rapidly changing healthcare science in a legal and ethical manner.

Legal and ethical parameters are subject to change, variable interpretation, and even contradiction. Codes of ethics and regulations vary among professional organizations, hospitals, and religions. Federal, state, and local laws may not be consistent. It can get complicated. Correct choices are not always obvious. Intuition and good intentions are not enough. That is why this book presents a coherent foundation of information from which to advance into the future. Making quality decisions in the administration of health care is the ultimate goal.

Dr. Pozgar has accumulated a wealth of information in this exhaustive review. The information presented here has been laboriously extracted from multiple sources and presented in logical order. Dr. Pozgar is perhaps the most relevant source, since he has had a lifetime of actual, real-world, practical experience as chief executive officer of a large hospital in a multi-hospital system, a Joint Commission hospital surveyor in literally hundreds of hospitals and ambulatory care sites, healthcare consultant in a wide variety of hospitals and medical centers, and a malpractice case reviewer for legal counsel. The result is this comprehensive text, which is a unique contribution to the improvement of patient care and which continues to be a classical reference work on the subject.

—John W. Pinnella, MD, DDS, FICS

Preface


Man’s duty is to improve himself; to cultivate his mind; and, when he finds himself going astray, to bring the moral law to bear upon himself.

—Immanuel Kant

What’s the One Thing You Would Invent If You Could?

A “decision-making” machine. You input your life dilemmas, and just like that, the right decision is displayed on a screen. The invention would save me so much time in torment.

—Caitlin Ghilarducci,
O, The Oprah Magazine, August 2013

Legal and Ethical Issues for Health Professionals, Fifth Edition, has been designed to encourage the reader to learn the often-dreaded subject of ethics and the law while enjoying the journey from the didactics of the classroom to the practical application in the workplace. The
Fifth Edition provides the reader with a clearer understanding of how the law and ethics are interwoven as they relate to healthcare dilemmas. The practical application of ethics in the healthcare setting is accomplished by interspersing the thoughts of great minds through
Quotes; current healthcare events through
News Clippings; human behavior through
Reality Checks; and legal rulings and summaries through legal
Cases. The book concludes with a courtroom drama that illustrates the complexities of human behavior, while tying together the contents of the book in one case.

The reader will learn how to evaluate and distinguish between the rightness and wrongness of alternative courses of action when faced with complex ethical dilemmas. Ethics in the healthcare setting focuses on doing the right thing for both patients and caregivers. When caregivers consider matters of law and ethics, they often involve matters of freedom in regard to personal choices, values, judgments about human character, and obligations to others.

This book, as with the previous editions, begins and ends with the premise that to act in an ethical manner requires the reader to engage in conduct according to generally accepted principles of right and wrong. The author’s objective is therefore to provide the reader with a formidable and meaningful understanding of ethics and the law as they relate to addressing many of the more common ethical dilemmas encountered in the delivery of patient care and how to apply that knowledge in the healthcare setting. A study published in the
American Journal of Bioethics, in a July 2008 article entitled “An Urgent Call for Ethics Education,” describes the importance of ethics education and its influence on moral confidence and moral action.

To make good decisions, we must first understand that they will be only as good as our knowledge of what is right and what is wrong. There is a deluge of ethical issues in every aspect of human existence. Although cultural differences, politics, and religion influence who we are, it is all of life’s experiences that affect who we will become.

Ethics and the law are interwoven. Ethics describes our values and morality—distinguishes good from evil. The law, on the other hand, describes our commonly accepted principles of good behavior and provides punishment for those who fail to adhere to these principles.

The cases presented here are not exhaustive for any one profession but often have application across all healthcare disciplines. Caregivers who have a clear grasp of the ethical and legal concepts discussed in this book will be better prepared to make healthcare decisions that are ethically sound and legally correct. Presented here is a sampling of the wide range of questions that can be asked and discussed when analyzing ethical dilemmas.

  1. What are the relevant ethical and legal issues in the case?
  2. What could have been done to bring more clarity to the ethical dilemma?
  3. How should the legal issues of the case be addressed?
  4. How might one’s professional code of ethics be violated in the case?
  5. How might the principles of patient autonomy, beneficence, nonmaleficence, and justice affect the decision-making process when faced with an ethical dilemma with legal implications?
  6. What are the issues that could affect those involved in the resolution of an ethical dilemma (e.g., family members, physicians, and other caregivers, including nurses, chaplains, and/or ethics committee members)?
  7. If you were friendly with the patient, would it affect your ability to give an objective opinion?
  8. How can moral values, religious beliefs, education, and life experiences of both caregivers and patients complicate the resolution of healthcare dilemmas?
  9. How can financial concerns affect the decision-making process?
  10. How can corporate culture affect the decision-making process?

One of the most difficult things to come to terms within the decision-making process is to know when the endless loop of asking questions must end and a decision has to be made.

This
Fifth Edition is not an indictment of any one profession or organization. It does, however, illustrate how a minority of people can often cast a dark shadow on the good that is done by so many for so many. Ethics is good people doing good things through acts of caring, compassion, and kindness.

It is comforting to know that some universities are helping to resolve the current healthcare financial crisis for those wishing to enter the field of medicine. The New York University School of Medicine, for example, is planning to offer free tuition to all current and future medical students. Robert I. Grossman, MD, the Saul J. Farber Dean of NYU School of Medicine and CEO of NYU Langone Health, stated: “This decision recognizes a moral imperative that must be addressed, as institutions place an increasing debt burden on young people who aspire to become physicians.”

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This same financial burden also exists for others with hopes of pursuing a health career. Ultimately, the hope is that more colleges and universities will follow suit by providing financial assistance to help address the financial needs of students in other health professions.


The three hardest tasks in the world are neither physical feats nor intellectual achievements, but moral acts: to return love for hate, to include the excluded, and to say, “I was wrong.”

—Sydney J. Harris

New to the
Fifth Edition

The
Fifth Edition of
Legal and Ethical Issues for Health Professionals has been updated to expand discussion on difficult topics and includes a wide variety of current
News Clippings and
Reality Checks, which are real-life events experienced by both patients and healthcare professionals in leadership positions in the healthcare industry. These experiences include those of the author, incorporating his observations from a unique background as a hospital administrator in a multihospital system, instructor, author, consultant, and Joint Commission surveyor who conducted surveys of more than 1,000 hospitals and outpatient facilities from Alaska to Puerto Rico.

The author has made every attempt in this
Fifth Edition to provide the student with the tools necessary for applying the law and ethics in the healthcare setting with the end goal of improving the professional’s skills, performance, and decision-making processes.

The following is a summary of changes that have been made to improve the readability of the law and ethics content, which can be difficult topics for the reader to grasp owing to the need to learn new terminology, theories, and concepts that have substantial impact on each healthcare professional’s daily tasks.

Chapter-specific changes are outlined in the following pages.

Chapter 1: Introduction to Ethics

New or expanded topics include:

  • Meta-ethics
  • Tuskegee Syphilis Experiment
  • Code of Conduct
  • Morality Legislated
  • Physicians and Paternalism
  • Justice and Government Spending
  • Injustice for the Insured
  • Teaching Doctors to Care
  • Fidelity
  • Freedom
  • Honesty/Trustworthiness/Truth Telling
  • Integrity
  • Spiritual Health and Education
  • Creating a Culture of Ethics
  • Reasoning and the Decision-Making Process

The following
Reality Checks have been added or revised:

  • Paternalism and Breach of Confidentiality
  • Man of Integrity

The following
News Clippings have been added or revised:

  • Abusing Assisted Suicide Laws
  • WWII Veteran Calls for Help and Dies as Nurses Laugh, Video Shows
  • Elderly Patient Hit by Motorcycle Dies in Japan After Being Rejected by 14 Hospitals
  • Medical Errors Are Hard for Doctors to Admit

Chapter 2: Contemporary Ethical Dilemmas

  • Informed Consent
  • Unethical Experiments on Children
  • Radiation Experiments: Human Subjects Unaware
  • Hospital Allowed to Remove Life Support: Contrary to the Wishes of the Legal Guardian
  • UK Supreme Court Denies Right to Treatment
  • Texas Restrictions on Women’s Rights
  • Abortions after 20 Weeks Prohibited
  • Law and Morality of Abortion—Conflicting Beliefs
  • Surrogacy
  • Altruism vs. Sale of Organs
  • Research, Experimentation, and Clinical Trials
  • Institutional Review Board
  • The Cures Act

The following
News Clipping has been added:

  • House Passes Bill That Would Give Patients Access to Experimental Drugs

Chapter 3: End-of-Life Dilemmas

New or expanded topics include:

  • Introduction
  • Physician-Assisted Suicide
  • Living Will
  • Substituted Judgment
  • Withholding and Withdrawal of Treatment
  • A New Beginning and a Better Ending
  • Administration on Aging

The following
News Clippings have been added:

  • Mom Wanted to Live on Her Own Forever
  • Doctor Says Insurers Push Suicide Over Medical Care

Chapter 4: Healthcare Ethics Committee

New or expanded topics include:

  • Policy and Procedure Development
  • Autonomy and the Law Collide
  • A Statement Explaining a Patient’s Right to Transfer is Now Included

Chapter 5: Development of Law

New or expanded topics include:

  • Public Law
  • Administration on Aging
  • National Institutes of Health
  • Food and Drug Administration

The following
Reality Check has been added:

  • 50 and You Lived Your Life?

Chapter 6: Introduction to Law

New or expanded topics include:

  • Standard of Care Set by Statute
  • Causation/Proximate Cause
  • Assault and Battery
  • Indictment
  • Health Care Fraud
  • Medical Identity Theft
  • Contracts
  • Summons and Complaint
  • Burden of Proof
  • Closing Statements
  • Judge’s Charge to the Jury

The following
News Clipping has been added:

  • National Health Care Fraud Takedown Results in Charges Against Over 412 Individuals Responsible for $1.3 Billion in Fraud Losses

Chapter 7: Government Ethics and the Law

New or expanded topics include:

  • U.S. Office of Government Ethics
  • U.S. Judicial Code of Ethical Conduct
  • State Ethics Committees
  • Ethics in Public Service

The following
News Clipping has been added:

  • Poll: Americans Have Highest Trust in Military, While Congress and Media Fall Last

Chapter 8: Organizational Ethics and the Law

New or expanded topics include:

  • Fiduciary Responsibility
  • Corporate Ethics
  • Corporate Compliance Program
  • Appointment of a CEO
  • CEO Licensure
  • CEO Responsibilities and Challenges
  • Maintain Moral Integrity
  • Provide Adequate Staff
  • Provide Quality Patient Care
  • Comply with Accreditation Standards
  • Provide a Safe Environment
  • Improving Organizational Performance and Ethics

The following
Reality Checks have been added or revised:

  • Ensuring Board Integrity
  • Windows Wide Open

The following
News Clippings have been added:

  • Why So Many Doctors Kill Themselves
  • Video of Md. Patient Put Out in Cold Stirs Fury

Chapter 9: Healthcare Professionals Legal-Ethical Issues

New or expanded topics include:

  • Paramedics and First Responders
  • Nurse Practitioner
  • Chiropractor
  • Dietary
  • Emergency Department:
    Timely Response Required
  • Laboratory
  • Pharmacy:
    Reducing Medication Errors
  • Psychology
  • Radiology

The following
Reality Check has been added:

  • Abnormal Laboratory Results Not Addressed

The following
News Clipping has been added:

  • Short on Staff: Nursing Crisis Strains U.S. Hospitals

The following
Case has been revised:

  • Case: Poor Judgment

Chapter 10: Physician Ethical and Legal Issues

New topics include:

  • Discharge and follow-up care

The following
Reality Checks have been added or revised:

  • Staff Lacks Compassion
  • My Hopes for Help Crumble

The following
News Clippings have been added:

  • Doctors Perform Thousands of Unnecessary Surgeries
  • Your Doctor Is Here and There
  • Is U.S. Medicine Becoming Assembly Line Medicine?

Chapter 11: Employee Rights and Responsibilities

The following
Reality Checks have been added:

  • Dear Dr. XYZ
  • Multidisciplinary Approach to Patient Care

Chapter 12: Patient Consent

The following
News Clippings have been added:

  • Surgery to Ease Pain Sounded Really Simple
  • Eastern Shore Doctor Convicted of Criminal Charges in Stent Case

Chapter 13: Patient Abuse

New topics include:

  • Abusers Abused
  • Prevention of Senior Abuse

Chapter 14: Patient Rights and Responsibilities

Expanded topic:

  • Right to Try Experimental Drugs

The following
Reality Checks have been added or revised:

  • Right to Complain
  • Your Dad Is an Example of Why Healthcare Costs Are Excessively High
  • Why Must I Fear?
  • Over-Surveyed vs. Under-Surveyed

The following
News Clipping has been added:

  • Suddenly, Unexpectedly, He Grabs My Shirt. “Don’t Let Me Die!” He Says, Spraying Me with Blood.

Key Features

  • Quotes The practical application of ethics in the healthcare setting is accomplished by interspersing the thoughts of great minds through Quotes
  • News Clippings The legal and ethical issues of current healthcare events are reviewed and explored as News Clippings of actual published editorials
  • Reality Checks Patient, personal, provider, and organizational experiences are shared through Reality Checks
  • Cases Legal rulings and summaries are showcased through Case Law examples
  • Summary Case The book concludes with a closet drama that illustrates the real world of human behavior and ties together its contents in one case

Instructor Resources

Qualified Instructors will receive a full suite of Instructor Resources, including the following:

  • More than 250 Slides in PowerPoint format
  • A Test Bank with chapter-by-chapter questions alone with a midterm and a final
  • An Instructor’s Manual containing a summary, teaching tips, and suggested classroom activities


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Alicia Ault, “NYU to Offer Free Tuition to All Current, Future Med Students,” Medscape News (August 16, 2018).
https://www.medscape.com/viewarticle/900860.

Acknowledgments

I would be remiss if I failed to acknowledge my publisher, Mike Brown, who was the inspiration for this particular text. Without him, the book would never have been written. Thank you for encouragement and for believing and trusting in me over the years.

The author especially acknowledges the staff at Jones & Bartlett Learning, whose guidance and assistance were so important in making this
Fifth Edition of
Legal and Ethical Issues for Health Professionals a reality. Special thanks to Cathy Esperti during the signing stage of the
Fifth Edition; Rachael Souza, who worked tirelessly during the editorial stages; the project specialists, Nancy Hitchcock and Alex Schab; Thais Miller in Rights & Media; Shannon Sheehan, the media developer; and the all-important Michael Sullivan in marketing. As with the publication of any book, there are numerous people behind the scenes with whom I have not dealt with directly. Please know that your hard work is much appreciated. Thanks to all for allowing me to leave behind this legacy of writing.

I am grateful to the very special people in the more than 1,000 hospitals and ambulatory sites from Alaska to Puerto Rico with whom I have consulted, surveyed, and provided education over many years. Their shared experiences have served to remind me of the importance in design of this book to ensure its value in the classroom as well as its ongoing reference value for practicing healthcare professionals.

To my students in healthcare law and ethics classes at the New School for Social Research, Molloy College, Long Island University–C.W. Post Campus, Saint Francis College, and Saint Joseph’s College; my intern from Brown University; my resident in hospital administration from The George Washington University; and those I have instructed throughout the years at various seminars, I will always be indebted to you for your inspiration.

Many thanks are also extended to all those special people at the National Library of Medicine and the Library of Congress for their guidance over the years in locating research materials.


CHAPTER 1

Introduction to Ethics


I expect to pass through this world but once. Any good therefore that I can do, or any kindness I can show to any creature, let me do it now. Let me not defer it, for I shall not pass this way again.

—Stephen Grellet

INTRODUCTION


Good can triumph over evil.

—Author Unknown

This chapter provides an overview of the study of ethics as it relates to the delivery of patient care. The intent here is not to burden the reader with complex philosophical theories; however, as with the study of any new subject,
words are the tools of thought, and thus an overview and basic understanding of ethics is necessary to help the reader more effectively address many of the common ethical dilemmas that often confront caregivers in the delivery of patient care. Although ethical concepts are often thought of in daunting philosophical terms, the reader who grasps and applies the theories and principles of ethics discussed here will have the tools necessary to empathize with and guide patients, families, and caregivers through the conflicts they often encounter when making care decisions. Therefore, some new vocabulary is a necessary tool, as a building block for the reader to establish a foundation for applying the abstract theories and principles of ethics in order to put them to practical use. Just as the directions on a map are of little value until one makes the journey, so it is with ethics; caregivers must begin to make the journey by learning the thought processes that will help guide the caregiver when addressing complex ethical dilemmas. The learning process for ethics becomes a more enjoyable and rewarding journey as we grasp the ideas, build upon them, and practice all the good we learn by helping all the people we can for as long as we can.

ETHICS


How we perceive right and wrong is influenced by what we feed on.

—Author Unknown

Ethics is the branch of philosophy that seeks to understand the nature, purposes, justification, and founding principles of moral rules and the systems they comprise. Ethics and morals are derivatives from the Greek and Latin terms (roots) for
custom. The etymology of the words “ethics” and “morality” is derived from the roots
ethos and
mos, which both convey a meaning describing customs or habits. This etymology supports the claims of anthropologist Ruth Benedict that all values are rooted in customs and habits of a culture, because the words
moral and
ethics themselves were essentially created to describe these topics.

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Ethics deals with values relating to human conduct. It focuses on the rightness and wrongness of actions, as well as the goodness and badness of motives and ends. Ethics encompasses the decision-making process of determining ultimate actions—that is, answering the questions
What should I do? and
Is it the right thing to do? Ethics is an expression of how individuals decide to live with one another within accepted boundaries and how they live in harmony with the environment as well as one another. Ethics is concerned with human conduct as it ought to be, as opposed to what it actually is.

Microethics involves an individual’s view of what is right and wrong based on one’s personal life teachings, traditions, and experiences.
Macroethics involves a more global view of right and wrong. Although no person lives in a vacuum, solving ethical dilemmas involves consideration of ethical issues from both a micro and macro perspective.


Man’s duty is to improve himself; to cultivate his mind; and, when he finds himself going astray, to bring the moral law to bear upon himself.

—Immanuel Kant

The term
ethics is used in three distinct but related ways, signifying (1)
philosophical ethics, which involves inquiry about ways of life and rules of conduct; (2) a
general pattern or way of life, such as religious ethics (e.g., Judeo-Christian ethics); and (3) a
set of rules of conduct or “moral code” (e.g., professional codes for ethical behavior).

The scope of healthcare ethics encompasses numerous issues, including the right to choose or refuse treatment and the right to limit the suffering one will endure. Incredible advances in technology and the resulting capability to extend life beyond what might be considered a reasonable quality of life have complicated the process of healthcare decision making. The scope of healthcare ethics is not limited to philosophical issues but embraces economic, medical, political, social, and legal dilemmas.

Bioethics addresses a diversity of issues that include the nature of life and death, what sort of life is worth living, how we distinguish between assisted suicide and murder, how we should treat people who are especially vulnerable, and the responsibilities that we have toward other human beings. It is about making better decisions when addressing diverse complex care issues with a wide variety of circumstances.

Why Study Ethics

We study ethics to help caregivers make sound judgments, good decisions, and right choices; if not right choices, then better choices. To those in the healthcare
industry, it is about anticipating and recognizing healthcare dilemmas and making good judgments and decisions based on universal values that work in unison with the laws of the land and our Constitution. Where the law remains silent, we rely on the ability of caregivers to make sound judgments, guided by the Wisdom of Solomon to do good. Doing the right thing by applying the universal morals and values described in this text (e.g., the 10 Commandments) will help shield and protect all from harm.

MORALITY


The three hardest tasks in the world are neither physical feats nor intellectual achievements, but moral acts: to return love for hate, to include the excluded, and to say, “I was wrong.”

—Sydney J. Harris

The following
News Clippings portray how a deficiency in the morality of society can lead to a betrayal of humanity. Lawlessness and heartless actions run rampant in a land void of courage and compassion. The reader who thoroughly absorbs, understands, and practices the virtues and values discussed in the pages that follow will see hope spring forth in what often seems a desperate and hopeless world.

Vietnam—Terror of War

Fire rained down on civilians. Women and children ran screaming. Ut snapped pictures. A little girl ran toward him, arms outstretched, eyes shut in pain, clothes burned off by napalm. She said, “Too hot, please help me!”

—1973 Spot News, Newseum, Washington, DC

Ethiopian Famine (1985 Feature)

People searched everywhere for food. Some 30,000 tons of it, from the United States, had been held up by an Ethiopian government determined to starve the countryside into submission. And starve the people it did—half a million Ethiopians, many of them children so hungry their bodies actually consumed themselves.

I’ll never forget the sounds of kids dying of starvation.

—Newseum, Washington, DC

Waiting Game for Sudanese Child …

Carter’s winning photo shows a heartbreaking scene of a starving child collapsed on the ground, struggling to get to a food center during a famine in the Sudan in 1993. In the background, a vulture stalks the emaciated child.

Carter was part of a group of four fearless photojournalists known as the “Bang Bang Club” who traveled throughout South Africa capturing the atrocities committed during apartheid.

Haunted by the horrific images from Sudan, Carter committed suicide in 1994 soon after receiving the award.

—A Pulitzer-Winning Photographer’s Suicide,
National Public Radio (NPR), March 2, 2006


Trek of tears describes many horrible historic events, from broken treaties with American Indians to an African journey of horror, where people would flee together as a village to escape the barbaric slaughter of men, women, and children as the remainder of the world stood cowardly by watching the death and starvation of hundreds of thousands of people. Human atrocities committed by humans. Is it not time to stand up and be counted on to do what is right and leave all excuses behind for our complacency toward the genocide that continues throughout the world?

—GP


There are those who have been brainwashed into believing, in the name of religion, that if they blow themselves up in public places, killing innocent people, that they will be rewarded in the afterlife. This is not religion and it is not culture; it is evil people brainwashing young minds to do evil things.

—GP


Aim above morality. Be not simply good; be good for something.

—Henry David Thoreau

Morality describes a class of rules held by society to govern the conduct of its individual members. It implies the quality of being in accord with standards of right and good conduct. Morality is a code of conduct. It is a guide to behavior that all rational persons should put forward for governing their behavior. Morality requires us to reach a decision as to the rightness or wrongness of an action.
Morals are ideas about what is right and what is wrong; for example,
killing is wrong, whereas helping the poor is right, and causing pain is wrong, whereas easing pain is right. Morals are deeply ingrained in culture and religion and are often part of its identity. Morals should not be confused with religious or cultural habits or customs, such as wearing a religious garment (e.g., veil, turban). That which is considered morally right can vary from nation to nation, culture to culture, and religion to religion. In other words, there is no universal morality that is recognized by all people in all cultures at all times.

Code of Conduct

A
code of conduct generally prescribes standards of conduct, states principles expressing responsibilities, and defines the rules expressing duties of professionals to whom they apply. Wikipedia describes a
code of conduct as a “set of rules outlining the social norms, religious rules and responsibilities of, and or proper practices for, an individual, party or organization. Related concepts include ethical, honor, moral codes and religious laws.”

2
Most members of a profession subscribe to certain “values” and moral standards written into a formal document which describes the organization’s code of conduct. Codes of conduct often require interpretation by caregivers as they apply to the specific circumstances surrounding each dilemma.

Michael D. Bayles, a famous author and teacher, describes the differences between standards, principles, and rules:

  • Standards (e.g., honesty, respect for others, conscientiousness) are used to guide human conduct by stating desirable traits to be exhibited and undesirable ones (dishonesty, deceitfulness, self-interest) to be avoided.
  • Principles describe responsibilities that do not specify what the required conduct should be. Professionals need to make a judgment about what is desirable in a particular situation based on accepted principles.
  • Rules specify specific conduct; they do not allow for individual professional judgment.

Moral Judgments

Moral judgments are those judgments concerned with what an individual or group believes to be the right or proper behavior in a given situation. Making a moral judgment is being able to select an option from among choices. It involves assessing another person’s moral character based on how he or she conforms to the moral convictions established by the individual and/or group. A lack of conformity can result in moral disapproval and possibly ridicule or censure of one’s character.

Morality Legislated

When it is important that disagreements be settled, morality is often legislated. Law is distinguished from morality by having explicit rules and penalties, as well as officials who interpret the laws and apply penalties when laws are broken. There is often considerable overlap in the conduct governed by morality and that governed by law. Laws are created to set boundaries for societal behavior. They are enforced to ensure that the expected behavior happens.

“You can’t legislate morality” has become a common turn of phrase. The truth is, however, that every law and regulation that is proposed, passed, and enforced has inherent in it some idea of the good that it seeks to promote or preserve. Indeed, no governing authority can in any way be understood to be morally neutral. Those who think such a chimerical understanding is possible could hardly be more wrong. For, in fact, the opposite is true: You can’t
not legislate morality.

Moral Dilemmas

Moral dilemmas in the healthcare setting often arise when values, rights, duties, and loyalties conflict. Caregivers often find that there appears to be no right or wrong answer when faced with the daunting task of determining which decision path to follow. The best answer when attempting to resolve an ethical dilemma includes the known wishes of the patient and other pertinent information, such as a living will, that might be available when the patient is considered incompetent to make his or her own choices. The right answer is often elusive when the patient is in a coma, there are no known documents expressing a patient’s wishes, and there are no living relatives. However, an understanding of the concepts presented here will assist the caregiver in resolving complex ethical dilemmas.

ETHICAL THEORIES


Ethics, too, are nothing but reverence for life. This is what gives me the fundamental principle of morality, namely, that good consists in maintaining, promoting, and enhancing life, and that destroying, injuring, and limiting life are evil.

—Albert Schweitzer

Ethics seeks to understand and to determine how human actions can be judged as right or wrong. Ethical judgments can be made based on our own experiences or based upon the nature of or principles of reason.

The
theories and principles of ethics introduce order into the way people think about life. They are the foundations of ethical analysis that provide guidance in the decision-making process. The various theories present differing viewpoints that assist caregivers in making difficult decisions that impact the lives of others. Ethical theories help caregivers determine the outcome of alternative choices, when following their duties to others, in order to reach the best ethical decision under the circumstances. The more commonly discussed ethical theories are presented here.

Meta-Ethics

Meta-ethics is the study of the origin and meaning of ethical concepts. Meta-ethics seeks to understand ethical terms and theories and their application. “Meta-ethics explores as well the connection between values, reasons for action, and human motivation, asking how it is that moral standards might provide us with reasons to do or refrain from doing as it demands, and it addresses many of the issues commonly bound up with the nature of freedom and its significance (or not) for moral responsibility.”

3
Meta-ethics is “A classification within western philosophy that attempts to discover the origin or cause of right and wrong.”

4

An example question within meta-ethics is: “How can we know what is right and wrong?” There are almost as many different answers as there are different people answering the question. Some individuals may say that right and wrong are dictated by holy books, or philosophy books, or political books, or by popular speakers, but there is no good explanation yet within philosophy that can illustrate the origins and nature of right and wrong that are verifiable and acceptable to everyone.

5

A patient faces illness, disease, and end-of-life issues as a result of all of his life experiences. The caregiver must be committed to understanding and accepting that people have different viewpoints when facing end-of-life decisions in order to better help the patient in his journey through the fears and ups and downs of illness. “Comfort care is an essential part of medical care at the end of life. It is care that helps or soothes a person who is dying. The goals are to prevent or relieve suffering as much as possible and to improve quality of life while respecting the dying person’s wishes.”

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Normative Ethics

Normative ethics is prescriptive in that it attempts to determine what moral standards should be followed so that human behavior and conduct may be morally right. Normative ethics is primarily concerned with establishing standards or norms for conduct and is commonly associated with investigating how one ought to act. It involves the critical study of major moral precepts, such as what things are right, what things are good, and what things are genuine. One of the central questions of modern normative ethics is whether human actions are to be judged right or wrong solely according to their consequences.

The determination of a universal moral principle for all humanity is a formidable task and most likely not feasible due to the diversity of people and their cultures. However, there is a need to have a commonly held consensus about what is right and wrong in order to avoid chaos. Thus, there are generally accepted moral standards around which laws are drafted.

Normative Ethics and Assisted Suicide

Oregon’s Death with Dignity Act of 1997 allows terminally ill state residents to end their lives through the voluntary self-administration of a lethal dose of medications prescribed by a physician.

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Although this act was voted upon by the Oregon state legislature and agreed upon by referendum, there are those who disagree with the law from a religious or moral standpoint. The Oregon act is controversial at best and has placed morality and the law in conflict. In the middle of the continuing controversy is the terminally ill patient, who must make the ultimate decision of life versus death. It could be argued that it is morally wrong to take one’s own life regardless of the law, or it can be argued that ending one’s life is a morally permissible right because the law provides the opportunity for terminally ill patients to make end-of-life decisions that include the right to self-administer a lethal dose of medications.

As there is a diversity of cultures, there is diversity of opinions as to the rightness and wrongness of the Oregon act. From a microethics point of view as it relates to the Oregon law, each individual must decide what is the right thing to do.

Descriptive Ethics

Descriptive ethics, also known as comparative ethics, is the study of what people believe to be right and wrong and why they believe it. Descriptive ethics describes how people act, “and/or what sorts of moral standards
they claim to follow,”

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whereas normative ethics prescribes how people ought to act. Both normative and descriptive ethical theories have application in the Oregon act. The controversial nature of physician-assisted suicide in the various states is but one of many healthcare dilemmas caregivers will experience during their careers (e.g., abortion, euthanasia,

right to try experimental drugs
).

Applied Ethics

Applied ethics is “the philosophical search (within western philosophy) for right and wrong within controversial scenarios.”

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Applied ethics is the application of normative theories to practical moral problems, such as abortion, euthanasia, and assisted suicide.

Consequential Ethics


The end excuses any evil.

—Sophocles,
Electra (c. 409 B.C.)

The theory of consequential ethics emphasizes that the morally right action is whatever action leads to the maximum balance of good over evil. From a contemporary standpoint, theories that judge actions by their consequences have been referred to as
consequential ethics. Consequential ethical theories revolve around the premise that the rightness or wrongness of an action depends on the consequences or effects of an action. The theory of consequential ethics is based on the view that the value of an action derives solely from the value of its consequences. The consequentialist considers the morally right act or failure to act is one that will produce a good outcome. The goal of a consequentialist is to achieve the greatest good for the greatest number. It involves asking such questions as:

  • What will be the effects of each course of action?
  • Who will benefit?
  • What action will cause the least harm?
  • What action will lead to the greatest good?

These questions should be applied when answering the questions in the following
Reality Check.

No Good Deed Goes Unpunished

Matt was assigned to survey Community Medical Center (CMC) in Anytown, Minnesota, with a team of three surveyors and one observer. He related to me his experience of surveying the children’s dental clinic.

Following his tour of CMC’s dental clinic, Matt reviewed with the clinic’s staff the dental program, which served the city’s underserved children. He also reviewed the care rendered to several patients based on common and complex diagnoses, as well as the clinic’s performance improvement activities. During the survey, Dr. Seiden, the clinic director, asked, “Are surveyors trained about the importance of dental care in disease prevention? As you know, dentistry is often a stepchild when it comes to allocation of scarce resources. Departments like surgery and radiology often receive the lion’s share of funds.” Matt responded by describing a film sponsored by the American Dental Association that was shown when he was in training to become a surveyor. The film presented a man whose dental care had been sorely neglected throughout his life and not been addressed prior to replacement of a heart valve. The patient developed a systemic infection following surgery, which led to deterioration of the heart valve and the patient’s ultimate death. The film described the lessons learned and opportunities for performance improvement that included the need for a dental evaluation by a dentist prior to valve replacement. Dr. Seiden was pleased to learn that the importance of dentistry is included in surveyor training.

Following Matt’s survey of the dental clinic, the staff relayed to him their concern that the clinic was going to be closed for lack of funds. Cheryl, the clinic manager, explained, “I sometimes feel the importance of the dental clinic to the underserved population is not well-understood.” A bit emotional, Cheryl said, “Matt, have you surveyed other dental clinics?” Matt replied, “Yes, several well-funded clinics that come to mind were in Philadelphia and New York City.” Cheryl then asked, “Matt, do you have any ideas as to how we can save our clinic from closing?” Matt replied, “I have some time before lunch, and I can share a few ideas with you.” Cheryl replied, “The staff will be eager to listen.” The staff proceeded to place several chairs in a semicircle and brainstormed with Matt a variety of ideas for saving the clinic. The staff discussed several fund-raising activities including a car wash by children to bring awareness to Anytown’s dental clinic. Matt looked at his watch and said, “I need to get back to my survey team, but I want to leave you with one other thought to ponder that could be applicable to any department in the hospital. I was surveying a veteran’s hospital physical therapy department and noticed on their bulletin board the staff’s dream plan for renovation of their department. I asked the physical therapy staff about the plan. They related how their vision of a new physical therapy department had been sketched out and placed on their bulletin board. Several weeks later, a veteran who had been sitting in the waiting area became curious about their dream. After studying the board during his visits for therapy, he walked to the reception desk
on his last visit and asked about their vision for physical therapy. They explained it was a $200,000 dream. Gary looked at the staff at the reception desk and said, ‘It is no longer a dream. I don’t have much, but what I do have is enough to make your dream come true.’ And, so he did.” Matt continued, “You see, if people know your dreams, something as small as a bulletin board can make all the difference.” Dr. Seiden smiled and said, “I see where this is going: community awareness as to the need to fund the clinic. It’s really not merely about a car wash, it’s about a concept of how the hospital can save not only the dental clinic but other programs earmarked for closing.” Matt smiled, as the staff regained hope. Dr. Seiden, seeing that Matt had little time for lunch, stood up, extended his hand and said, “Matt, you gave us hope when we believed there was none. Thank you so much. I will be sure to discuss this with administration.”

Matt presented his observations the following morning to the organization’s leadership, which included his roundtable discussion with the staff. He was, however, cut short in his presentation by the surveyor team leader, Brad, who later reported to Victor, Matt’s manager, that Matt should not be discussing how to save a dental clinic by opening a car wash. Matt received a reprimand from Victor and was removed at the end of day 4 of a 5-day survey without explanation.

—Anonymous

Discussion

  1. Discuss Matt’s approach to addressing the staff’s concerns for saving the children’s dental clinic.
  2. If Matt’s roundtable session led to saving the clinic, was Matt’s reprimand worth the risk if he could have foreseen the resulting reprimand?
  3. The goal of a consequentialist is to achieve the greatest good for the greatest number. Discuss how this applies in this Reality Check.

Utilitarian Ethics


Happiness often sneaks in a door you did not think was open.

—Author Unknown

The utilitarian theory of ethics involves the concept that the moral worth of an action is determined solely by its contribution to overall usefulness. It describes doing the greatest good for the greatest number of people. It is thus a form of
consequential ethics, meaning that the moral worth of an action is determined by its outcome, and, thus, the ends justify the means. The utilitarian commonly holds that the proper course of an action is one that maximizes utility, commonly defined as maximizing happiness and reducing suffering, as noted in the following
Reality Check.

Maximizing Happiness and Reducing Suffering

Daniel was the last of five people interviewed for the CEO’s position at Anytown Medical Center. During the interview, a member of the finance committee asked, “Daniel, how would you maximize an allocation of $100,000 to spend as you wished for improving patient care, aside from capital budget and construction projects?” Bishop Paul, the board chairman, added, “Daniel, think about the question. I will give you five minutes to form an answer.” Daniel responded, “Bishop Paul, I am ready to answer your question now.” The trustees looked somewhat surprised, as Bishop Paul quickly responded with a smile, “You may proceed with your answer.” Daniel replied, “An old Chinese proverb came to mind as quickly as the question was asked: ‘Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime.’ You are interviewing me as CEO of your hospital. I see my job as assuring you that employees are thoroughly trained to care for the patients the hospital serves. I will maximize the value of each and every dollar by determining skill sets that the staff are lacking and retraining staff in the areas where deficiencies are noted.”

Bishop Paul looked around the long oval table at the trustees. “This has been a long day and a grueling interview process for Daniel. Are there any other questions you would like to ask him?” There was silence as the trustees shook their heads. Bishop Paul looked at Daniel and thanked him for his interest in becoming the hospital’s next CEO.

As Daniel began to leave the boardroom, Bishop Paul smiled and turned his swivel chair around as Daniel was walking toward the exit and asked, “Daniel, could I ask that you not leave the building just yet? If you could, just wait
outside the room and have a seat in the doctors’ lounge area.” After about 20 minutes, a trustee went into the lounge where Daniel was sitting and asked him to return to the boardroom. As he entered the room, Bishop Paul stood up and looked at Daniel straight in his eyes and said, “Daniel, you were the last to be interviewed because you were on the short list of candidates selected to be interviewed. Speaking for the board, your response to the last question was merely icing on the cake confirming our interest in you joining our staff. Both the Board of Trustees and members of the Medical Executive Committee unanimously have recommended you as our CEO, with which I unconditionally concur! Welcome to Anytown Hospital.” The trustees stood and clapped their hands. The bishop turned to the trustees and said, “Wow, that’s a first.”

—Anonymous

Discussion

  1. Discuss how Daniel’s response to the trustee’s question of how he would spend the $100,000 fits the utilitarian theory of ethics.
  2. Did Daniel, metaphorically speaking, succeed in maximizing happiness in the eyes of the board? Discuss your answer.

Deontological Ethics


Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.

—Immanuel Kant

Deontological ethics is commonly attributed to the German philosopher Immanuel Kant (1724–1804). Kant believed that although doing the right thing is good, it might not always lead to or increase the good and right thing sought after. It focuses on one’s duties to others and others’ rights. It includes telling the truth and keeping your promises. Deontology ethics is often referred to as duty-based ethics. It involves ethical analysis according to a moral code or rules, religious or secular.
Deon is derived from the Greek word meaning “duty.” Kant’s theory differs from consequentialism in that consequences are not the determinant of what is right; therefore, doing the right thing may not always lead to an increase in what is good.

Duty-based approaches are heavy on obligation, in the sense that a person who follows this ethical paradigm believes that the highest virtue comes from doing what you are supposed to do—either because you have to, for example, following the law, or because you agreed to, for example, following an employer’s policies. It matters little whether the act leads to good consequences; what matters is “doing your duty.”

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The following
Reality Check illustrates how duty-based ethics focuses on the act and not the consequences of an act.

Duty Compromises Patient Care

At 33 years of age, Daniel was the youngest administrator in New York State and was about to learn that adhering to company policy sometimes conflicts with the needs of the patient. In this case, it was a 38-year-old employee who had been diagnosed with cancer. He remembers the day well, even though it was more than 30 years ago. His secretary alerted him that Carol, a practical nurse and employee, had been admitted to the 3-North medical-surgical unit, where she worked. Without delay, he left his office and went to the nursing unit and inquired as to what room Carol was in. Beth, the unit’s nurse manager, overheard the question. She walked up and asked, “Daniel, could I please talk to you for a moment before you visit with Carol?” He looked at her and nodded yes and without thought, they both walked to her office. She closed the door and said, “As you know, we are self-insured, and the health insurance program we have does not cover Carol’s chemotherapy treatments. She cannot bear the cost. Is there anything you can do to help her?” Daniel replied that he would make an inquiry with the human resources director to see what could be done.

Beth asked, “Would you mind if I went with you to Carol’s room for a few minutes?” Daniel compassionately replied, “Of course you can.”

They walked to Carol’s room. Her husband and children had just left. Beth stayed for only a few minutes, and while Daniel remained behind, chatting with Carol for a few moments, and said he would be back to talk with her more.

Daniel went to speak with Christine, the hospital’s human resources director. There were two other hospitals in the multihospital system. He explained Carol’s financial situation and her lack of funds for chemotherapy treatment. Christine replied, “Daniel, this is corporate policy that is applicable to all three hospitals with which we must comply. We do not include chemotherapy treatment in the hospital’s self-insurance plan for employees.” Following much discussion, Daniel said, “Christine, Carol is an employee, and I realize there are conflicting duties here. One is to follow corporate policy, and the other is to choose to do, as I see it, what is right for Carol. If you prefer, I can request an exception to the rule. To me, right trumps duty.” Christine looked at Daniel and said, “Daniel, I will see what I can do. I have a good relationship with the corporate vice president for human resources. If anyone can make an exception, he can make it happen. I know you would do the same for me and any other employee.”

—Anonymous

Discussion

  1. Discuss the potential long-term effect of granting an exception for Carol.
  2. Do you believe that duty should be trumped by good? Discuss your answer.
  3. Would you describe Daniel as consequentialist because he favors evaluating the outcome of an act rather than the act itself? Discuss your answer.
  4. Discuss how deontological ethics in this case is in conflict with consequential thinking.

Nonconsequential Ethics

The
nonconsequential ethical theory denies that the consequences of an action are the only criteria for determining the morality of an action. In this theory, the rightness or wrongness of an action is based on properties intrinsic to the action, not on its consequences. In other words, the nonconsequentialist believes right or wrong depends on the intention, not the outcome.

Bad Outcome, Good Intentions

Chelsea was preparing to drape Mr. Smith’s leg in OR 6 for surgery, when she was approached by Nicole, the nurse manager, and asked, “Chelsea, please come to OR 3. We have an emergency there and urgently need your skills to assist the surgeon.” Chelsea turned to Daniel, the surgical technician, and asked him to continue prepping Mr. Smith’s leg for surgery. Daniel prepped the leg prior to the surgeon entering the room. The surgeon entered the room a few minutes later and asked, “Where is Chelsea?” Daniel replied, “She was called away for an emergency in OR 3. Karen will be in shortly to assist us.”

Following surgery, Mr. Smith was transferred to the recovery room. While he was in the recovery room, a nurse was looking at the patient’s medical record as to the notes regarding the patient’s procedure during surgery. She noticed that surgery was conducted on the wrong leg.

Although there was heated discussion between the surgeon and nursing staff, each member of the staff had good intentions, but the outcome was not so good. Nonconsequentialists believe that right or wrong depends on the intention. They generally focus more on deeds and whether those deeds are good or bad. In this case, the intentions were good, but the outcome was bad. It should be noted that nonconsequentialists do not always ignore the consequences. They accept the fact that sometimes good intentions can lead to bad outcomes. In summary, nonconsequentialists focus more on character as to whether someone is a good person or not. Nonconsequentialists believe that right or wrong depends on the intention. Generally, the consequentialist will focus more on outcomes as to whether or not they are good or bad.

Discussion

  1. Describe how the nonconsequential theory of ethics applies in this case.
  2. What questions might the consequentialist raise after reviewing the facts of this case?

Ethical Relativism

The theory of
ethical relativism holds that morality is relative to the norms of the culture where one lives. In other words, right or wrong depends on the moral norms of the society in which it is practiced. A particular action by an individual may be morally right in one society or culture and wrong in another. What is acceptable in one society may
not be considered as such in another. Slavery may be considered an acceptable practice in one society and unacceptable and unconscionable in another. The administration of blood may be acceptable as to one’s religious beliefs and not acceptable to another within the same society. The legal rights of patients vary from state to state, as is well borne out, for example, by Oregon’s Death with Dignity Act. Caregivers must be aware of cultural, religious, and legal issues that can affect the boundaries of what is acceptable and what is unacceptable practice, especially when delivering health care to persons with beliefs different from their own. As the various cultures of the world merge together in communities, the education and training of caregivers become more complex. The caregiver must not only grasp the clinical skills of his or her profession but also have a basic understanding of what is right and what is wrong from both a legal and an ethical point of view. Although decision making is not always perfect, the knowledge gained from this text will aid the reader in making better decisions.

PRINCIPLES OF ETHICS


You cannot by tying an opinion to a man’s tongue, make him the representative of that opinion; and at the close of any battle for principles, his name will be found neither among the dead, nor the wounded, but the missing.

—E. P. Whipple (1819–1886)


An army of principles can penetrate where an army of soldiers cannot.

—Thomas Jefferson

Ethical principles are universal rules of conduct, derived from ethical theories that provide a practical basis for identifying what kinds of actions, intentions, and motives are valued. Ethical principles assist caregivers in making choices based on moral principles that have been identified as standards considered meaningful when addressing health care–related ethical dilemmas. As noted by the principles discussed in the following sections, caregivers, in the study of ethics, will find that difficult decisions often involve choices between conflicting ethical principles.

Autonomy


No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestioned authority of law.


Union Pacific Ry. Co. v. Botsford [141 U.S. 250, 251 (1891)]

The principle of
autonomy involves recognizing the right of a person to make one’s own decisions. “Auto” comes from a Greek word meaning “self” or the “individual.” In this context, it means recognizing an individual’s right to make his or her own decisions about what is best for him- or herself. Autonomy is not an absolute principle. The autonomous actions of one
person must not infringe upon the rights of another. The eminent Justice Benjamin Cardozo, in
Schloendorff v. Society of New York Hospital, stated:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages, except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.

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Each person has a right to make his or her own decisions about health care. A patient has the right to refuse to receive health care even if it would be beneficial to saving his or her life. Respect for autonomy has been recognized in the Fourteenth Amendment to the Constitution of the United States. The law upholds an individual’s right to make healthcare decisions. Patients can refuse treatment, refuse to take medications, and refuse invasive procedures regardless of the benefits that may be derived from them. They have a right to have their decisions adhered to by family members who may disagree simply because they are unable to let go. Although patients have a right to make their own choices, they also have a concomitant right to know the risks, benefits, and alternatives to recommended procedures.

Autonomous decision making can be affected by one’s disabilities, mental status, maturity, or incapacity to make decisions. Although the principle of autonomy may be inapplicable in certain cases, one’s autonomous wishes may be carried out through an advance directive and/or an appointed healthcare agent in the event of one’s inability to make decisions.

What happens when the right to autonomy conflicts with other moral principles, such as beneficence and justice? Conflict can arise, for example, when a patient refuses a blood transfusion considered necessary to save his or her life whereas the caregiver’s principal obligation is to do no harm. Determining the right thing to do in any given circumstance is not always an easy decision, as noted in the following
Reality Check where the husband decides to withhold his wife’s prognosis.

Spouse’s Grief Leads to Withholding the Truth

Annie, a 27-year-old woman with one child, began experiencing severe pain in her abdomen while visiting her family in May. After describing the excruciating pain to her husband, Daniel, he scheduled Annie for an appointment with Dr. Sokol, a gastroenterologist, who ordered a series of tests. While conducting a barium scan, a radiologist at Community Hospital noted a small bowel obstruction. Dr. Sokol recommended surgery, to which both Annie and Daniel agreed.

After the surgery, on July 7, Dr. Brown, the operating surgeon, paged Daniel over the hospital intercom as he walked down a corridor on the ground floor. Daniel, hearing the page, picked up a house phone and dialed zero for an operator. The operator inquired, “May I help you?” “Yes,” Daniel replied. “I was just paged.” The operator replied, “Oh, yes. Dr. Brown would like to talk to you. I will connect you with him. Hang on. Don’t hang up.” (Daniel’s heart began to pound.) Dr. Brown asked, “Is this you, Daniel?” Daniel replied, “Yes, it is.” Dr. Brown replied, “Well, surgery is over. Your wife is recovering nicely in the recovery room.” Daniel was relieved, but only for a moment; he sensed Dr. Brown had more to say. Dr. Brown continued, “I am sorry to say that she has carcinoma of the colon.” Daniel replied, “Did you get it all?” Dr. Brown reluctantly replied, “I am sorry, but the cancer has spread to her lymph nodes and surrounding organs.” Daniel, with tears in his eyes, asked, “Can I see her?” Dr. Brown replied, “She is in the recovery room.” Before hanging up, Daniel told Dr. Brown, “Please do not tell Annie that she has cancer. I want her to always have hope.” Dr. Brown agreed, “Don’t worry, I won’t tell her. You can tell her that she had a narrowing of the colon.”

Daniel hung up the phone and proceeded to the recovery room. After entering the recovery room, he spotted his wife. His heart sank. Tubes seemed to be running out of every part of her body. He walked to her bedside. His immediate concern was to see her wake up and have the tubes pulled out so that he could take her home.

Later, in a hospital room, Annie asked Daniel, “What did the doctor find?” Daniel replied, “He found a narrowing of the colon.”

“Am I going to be okay?”

“Yes, but it will take a while to recover.”

“Oh, that’s good. I was so worried,” said Annie. “You go home and get some rest.”

Daniel said, “I’ll be back later,” as Annie fell back to sleep.

Daniel left the hospital and went to see his friends, Jerry and Helen, who had invited him for dinner. As Daniel pulled up to Jerry and Helen’s home, he got out of his car and just stood there, looking up a long stairway leading to
Jerry and Helen’s home. They were standing there looking down at Daniel. It was early evening. The sun was setting. A warm breeze was blowing, and Helen’s eyes were watering. Those few moments seemed like a lifetime. Daniel discovered a new emotion, as he stood there speechless. He knew then that he was losing a part of himself. Things would never be the same.

Annie had one more surgery 2 months later in a futile attempt to extend her life. In November 2002, Annie was admitted to the hospital for the last time. Annie was so ill that even during her last moments she was unaware that she was dying.

Dr. Brown entered the room and asked Daniel, “Can I see you for a few moments?”

“Yes,” Daniel replied. He followed Dr. Brown into the hallway.

“Daniel, I can keep Annie alive for a few more days, or we can let her go.” Daniel, not responding, went back into the room. He was now alone with Annie. Shortly thereafter, a nurse walked into the room and gave Annie an injection. Daniel asked, “What did you give her?” The nurse replied, “Something to make her more comfortable.” Annie had been asleep; she awoke, looked at Daniel, and said, “Could you please cancel my appointment to be sworn in as a citizen? I will have to reschedule. I don’t think I will be well enough to go.”

Daniel replied, “Okay, try to get some rest.” Annie closed her eyes, never to open them again.

Discussion

  1. Do you agree with Daniel’s decision not to tell Annie about the seriousness of her illness? Explain your answer.
  2. Should the physician have spoken to Annie as to the seriousness of her illness regardless of Daniel’s desire to give Annie hope and not a death sentence? Explain your answer.
  3. Describe the ethical dilemmas in this case (e.g., how Annie’s rights were violated).
  4. Place yourself in Annie’s shoes, the physician’s shoes, and Daniel’s shoes, and then discuss how the lives of each may have been different if the physician had informed Annie as to the seriousness of her illness.

This case raises numerous questions, often resulting in conflicts among ethics, the law, patient rights, and family wishes. From a professional ethics point of view, the American Medical Association provides in its
Principles of Medical Ethics that:

IV. A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.

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Legally, pursuant to the Patient Self-Determination Act of 1990, patients have a right to make their own healthcare decisions, to accept or refuse medical treatment, and to execute an advance healthcare directive. Practically speaking, as discussion of this case illustrates, one size does not fit all. Both legal and ethical edicts have often served to raise an unending stream of questions that involve both the law and ethics. Although discussed later, a case here has been made for the need of a well-balanced ethics committee to help caregivers, patients, and family come to a consensus in the decision-making process.

Life or Death: The Right to Choose

A Jehovah’s Witness in
Stamford Hospital v. Vega

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executed a release requesting that no blood or its derivatives be administered during hospitalization. The Connecticut Superior Court determined that the hospital had no common law right or obligation to thrust unwanted medical care on the patient because she had been sufficiently informed of the consequences of the refusal to accept blood transfusions. She had competently and clearly declined that care. The hospital’s interests were sufficiently protected by her informed choice, and neither it nor the trial court in this case was entitled to override that choice. “Thus, under the facts of this case, Vega’s common law right of bodily self-determination was entitled to respect and protection. The trial court, therefore, improperly issued an injunction that permitted the hospital to administer blood transfusions to Vega.”

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Beneficence

Beneficence describes the principle of doing good, demonstrating kindness, showing compassion, and helping others. In the healthcare setting, caregivers demonstrate beneficence by providing benefits and balancing benefits against risks. Beneficence requires one to do good. Doing good requires knowledge of the beliefs, culture, values, and preferences of the patient—what one person may believe to be good for a patient may in reality be harmful. For example, a caregiver
may decide to tell a patient frankly, “There is nothing else that I can do for you.” This could be injurious to the patient if the patient really wants encouragement and information about care options from the caregiver. Compassion here requires the caregiver to tell the patient, “I am not aware of new treatments for your illness; however, I have some ideas about how I can help treat your symptoms and make you more comfortable. In addition, I will keep you informed as to any significant research that may be helpful in treating your disease processes.”

Paternalism

Paternalism is a form of beneficence. People sometimes believe that they know what is best for another and make decisions that they believe are in that person’s best interests. It may involve, for example, withholding information, believing that the person would be better off that way. Paternalism can occur because of one’s age, cognitive ability, and level of dependency. A patient’s rights to self-determination are compromised when a third party imposes their wishes upon those of another person.

CPR and Paternalism in Nursing Homes

Some nursing homes have implemented no-CPR policies, as noted in the following Centers for Medicare and Medicaid Services Memorandum. Nursing home patients have a right to make their own care decisions. Having a policy of no resuscitation measures in the nursing home setting is a paternalistic approach to patient care that eliminates patients’ option to make that decision for themselves—a clear violation of patients’ rights and autonomous decision making. Such policies are unconditionally morally and legally wrong.

Memorandum Summary
  • Initiation of CPR—Prior to the arrival of emergency medical services (EMS), nursing homes must provide basic life support, including initiation of CPR, to a resident who experiences cardiac arrest (cessation of respirations and/or pulse) in accordance with that resident’s advance directives or in the absence of advance directives or a Do Not Resuscitate (DNR) order. CPR-certified staff must be available at all times.
  • Facility CPR Policy—Some nursing homes have implemented facility-wide no-CPR policies. Facilities must not establish and implement facility-wide no-CPR policies.
  • Surveyor Implications—Surveyors should ascertain that facility policies related to emergency response require staff to initiate CPR as appropriate and that records do not reflect instances where CPR was not initiated by staff even though the resident requested CPR or had not formulated advance directives.

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Physicians and Paternalism

Medical paternalism often involves physicians unwittingly making decisions for patients who are capable of making their own choices. Physicians often find themselves in situations where they can influence a patient’s healthcare decision simply by selectively telling the patient what he or she prefers based on personal beliefs. This directly violates patient autonomy. The problem of paternalism involves a conflict between the principles of autonomy and beneficence, each of which may be viewed and weighed differently, for example, by the physician and patient, physician and family member, or even the patient and a family member.

Paul Ramsey in
The Patient as Person (1970) discusses the question of paternalism. As physicians are faced with many options for saving lives, transplanting organs, and furthering research, they also must wrestle with new and troubling choices—for example, who should receive scarce resources (e.g., organ transplants), determining when life ends, and what limits should be placed on care for the dying.

Dr. David S. Brody describes in the November 1980 issue of the
Annals of Internal Medicine how physicians have traditionally played a paternalistic role in the delivery of patient care. He writes that physicians today must bear in mind the autonomous right of patients to participate in the decision-making process.

Practicing physicians must frequently make decisions about how much they wish to encourage patient participation in clinical decision-making and how to respond to rational patient demands that do not coincide with their own decisions. These are difficult ethical dilemmas with no indisputable or universal solutions. The traditional concept of the doctor-patient relationship places the patient in a passive, compliant role. The patient’s only obligation is to seek competent help and cooperate with the physician. A number of factors have contributed to the continued dominance of the traditional doctor-patient imbalance of power. Despite these factors, there seems to be a great deal of public dissatisfaction with health care delivery in the United States; demands for more patient autonomy are increasing.

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Ultimately, as determined by court decisions, it is the patient’s right to know and choose what course of treatment they wish to pursue without undue pressure from the physician.

Employment-Related Paternalism

Employment-related paternalism at its best is a shared and cooperative style of management in which the employer recognizes and considers employee rights when making decisions in the workplace. Paternalism at its worst occurs when the employer’s style of management becomes more authoritarian, sometimes arbitrary, and unpredictable, as noted in the
Reality Check presented next. In this scenario the employer has complete discretion in making workplace decisions and the individual employee’s freedom is subordinate to the employer’s authority. Here the employer requires strict obedience to follow orders without question. The supervisor in this case illustrated a lack of respect and consideration for the employee in a place remote from his office.

Paternalism and Breach of Confidentiality

Nina traveled with her husband, Dan, to his work assignment at a hospital in Michigan so that she could visit her brother, who lived nearby. While visiting with her brother, Nina believed that her potassium was low—a frequent occurrence with her for many years. Nina’s brother suggested she could have her blood tested at a local blood drawing station. Dan later learned Nina’s potassium was low; he confided this to a colleague, a nurse named Joan, who’d asked how his wife was doing.

Later that morning, while at work, Joan called Bill, Dan’s supervisor, to discuss Nina’s health. Bill, however, had overslept and had not yet arrived at work. Joan decided to speak to the supervisor on call. After that conversation, Joan tracked Dan down on several occasions that morning by asking staff members his whereabouts. On the first occasion, at approximately 10:15 AM, Dan was surveying the organization’s Oncology Infusion Center when Joan arrived. She called Dan aside, excusing the organization’s staff from the immediate area, and said with surprise, “Dan, you are working?” Dan, even more surprised at the question, “Yes, I have been working.” Joan replied, “Well, anyway, the corporate office wants to speak to you.” Dan said he would call during lunch hour. Joan, somewhat agitated, walked away.

Joan again tracked Dan down once again with the help of the organization’s staff at 11:30 AM. She located Dan while he was in the organization’s transfusion center. She entered the conference room where Dan was discussing the care being rendered to a cancer patient. She said in a stern tone of voice, “Could everyone please leave the room. I need to talk to Dan.” The organization’s staff left the room, and Joan said, “I finally reached Bill and he wants you to call him.” Dan inquired, “Is he pulling me off this assignment?” Joan replied, “Yes, he is. I spoke to Bill, and he has decided that out of concern for Nina, you should be removed from this particular assignment. He wants you to call him.” Dan replied, “I don’t understand why you did this—calling Bill, continually interrupting my work, and sharing confidential information about my wife with others. I will wrap up with the staff my review of this patient and call Bill.” As Joan left the conference room, Dan added, “I trusted you, and you shared confidential information about my wife?” Joan, realizing that she had no right to share the information, quickly walked away.

Dan called Bill during his lunch break. During that call Bill said, “I am going to remove you from your assignment because I think your wife’s health needs should be addressed, and this could be disruptive to the survey.” Dan replied, “The only disruption has been the nurse tracking me down with staff from the organization and not conducting her work activities.” Bill said, “My decision stands. You can opt to take vacation time for the remainder of the week.”

Discussion

  1. Discuss what examples of paternalism you have gleaned from this case.
  2. Discuss the issues of trust, confidentiality, and fairness as they relate to this case.

At present, the federal employment discrimination laws fail to provide uniform and consistent legal protection when an employer engages in applicant-specific paternalism—the practice of excluding an applicant merely to protect that person from job-related safety and/or health risks uniquely attributable to his or her federally protected characteristic(s). Under Title VII of the Civil Rights Act of 1964, the courts and the Equal Employment Opportunity Commission (EEOC) reject such paternalism, demanding that the applicant alone decide whether to pursue (and accept) a job that poses risks related to his or her sex, race, color, religion, or national origin.

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Case Studies

Can a Physician “Change His or Her Mind”?

Bill Walls had a condition that caused his left eye to be out of alignment with his right eye. Walls discussed with Dr. Shreck, his physician, the possibility of surgery on his left eye to bring both eyes into alignment. Walls and Shreck agreed that the best approach to treating Walls was to attempt surgery on the left eye. Before surgery, Walls signed an authorization and consent form that included the following language:

  • I hereby authorize Dr. Shreck … to perform the following procedure and/or alternative procedure necessary to treat my condition … of the left eye.
  • I understand the reason for the procedure is to straighten my left eye to keep it from going to the left.
  • It has been explained to me that conditions may arise during this procedure whereby a different procedure or an additional procedure may need to be performed, and I authorize my physician and his assistants to do what they feel is needed and necessary.

During surgery, Shreck encountered excessive scar tissue on the muscles of Walls’s left eye and elected to adjust the muscles of the right eye instead. When Walls awoke from the anesthesia, he expressed anger at the fact that both of his eyes were bandaged. The next day, Walls went to Shreck’s office for a follow-up visit and adjustment of his sutures. Walls asked Shreck why he had operated on the right eye, and Shreck responded that “he reserved the right to change his mind” during surgery.

Walls filed a lawsuit. The trial court concluded that Walls had failed to establish that Shreck had violated any standard of care. It sustained Shreck’s motion for directed verdict, and Walls appealed. The court stated that the consent form that had been signed indicated that there can be extenuating circumstances when the surgeon exceeds the scope of what was discussed presurgery. Walls claimed that it was his impression that Shreck was talking about surgeries in general.

Dr. Roussel, an ophthalmologist, had testified on behalf of Walls. Roussel stated that it was customary to discuss with patients the potential risks of a surgery, benefits, and the alternatives to surgery. Roussel testified that medical ethics requires informed consent.

Dr. Shreck claimed that he had obtained the patient’s informed consent not from the form but from what he discussed with the patient in his office. The court found that the form itself does not give or deny permission for anything. Rather, it is evidence of the discussions that occurred and during which informed consent was obtained. Shreck therefore asserted that he obtained informed consent to operate on both eyes based on his office discussions with Walls.

Ordinarily, in a medical malpractice case, the plaintiff must prove the physician’s negligence by expert testimony. One of the exceptions to the requirement of expert testimony is the situation whereby the evidence and the circumstances are such that the recognition of the alleged negligence may be presumed to be within the comprehension of laypersons. This exception is referred to as the “common knowledge exception.”

The evidence showed that Dr. Shreck did not discuss with Walls that surgery might be required on both eyes during the same operation. There was evidence that Walls specifically told Shreck he did not want surgery performed on the right eye.

Expert testimony was not required to establish that Walls did not give express or implied consent for Shreck to operate on his right eye. Absent an emergency, it is common knowledge that a reasonably prudent healthcare provider would not operate on part of a patient’s body if the patient told the healthcare provider not to do so.

On appeal, the trial court was found to have erred in directing a verdict in favor of Shreck. The evidence presented established that the standard of care in similar communities requires healthcare providers to obtain informed consent before performing surgery. In this case, the applicable standard of care required Shreck to obtain Walls’s express or implied consent to perform surgery on his right eye.

[
Walls v. Shreck, 658 N.W.2d 686 (2003)]

Ethical and Legal Issues

  1. Discuss the conflicting ethical principles in this case.
  2. Did the physician’s actions in this case involve medical paternalism? Explain your answer.

Abusing Assisted Suicide Laws

The debate surrounding legalizing assisted suicide is largely cast as one focusing on an individual who genuinely wants to end his or her life because of the pain and suffering they’re experiencing due to a terminal medical condition. But this issue is wholly different—the possible cold-blooded and brutal abuse of those laws by bureaucrats in insurance companies against patients whom they determine are too expensive to keep alive.

And then there are the doctors. Healers who pledge to do no harm are now facing a system which will eventually expect them to do just that.

—Tammy Bruce,
The Washington Times, June 7, 2017

Nonmaleficence

Nonmaleficence is an ethical principle that requires caregivers to avoid causing patients harm. It derives from the ancient maxim
primum non nocere, translated from the Latin, “first, do no harm.” Physicians today still swear by the code of Hippocrates, pledging to do no harm. Medical ethics requires healthcare providers to “first, do no harm.” A New Jersey court in
In re Conroy

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found that “the physician’s primary obligation is … First do no harm.” Telling the truth, for example, can sometimes cause harm. If there is no cure for a patient’s disease, you may have a dilemma. Do I tell the patient and possibly cause serious psychological harm, or do I give the patient what I consider to be false hopes? Is there a middle ground? If so, what is it? To avoid causing harm, alternatives may need to be considered in solving the ethical dilemma.

The caregiver, realizing that he or she cannot help a particular patient, attempts to avoid harming the patient. This is done as a caution against taking a serious risk with the patient or doing something that has no immediate or long-term benefits.

Law and Ethics Intersect

Peninsula Child Psychiatrist William Ayres Sentenced to Eight Years for Molesting Patients

REDWOOD CITY—As one victim after another testified, calling William Ayres a monster and a serial child-abuser who robbed them of their innocence, the once-renowned child psychiatrist sat stoically Monday as a judge sentenced him to eight years in prison for molesting his former patients.

Ayres used his work with boys having trouble at school, at home or with the law as a setting to abuse them, the victims said. His position of authority allowed him to deflect suspicions about his sexual interest in boys and keep parents from believing their sons’ complaints, victims said.

—Joshua Melvin,
San Jose Mercury News, August 27, 2013

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The patients described in the news clippings were harmed because the physician who was trained to do good did wrong by taking advantage of the patients’ weaknesses. The beneficent person does good and not harm (nonmaleficence). The law in the news clipping is clear. If a person with intent and action causes harm to the patient, that person will be punished.

One of the many lessons in the next
Reality Check teaches the reader that one may have good intent, but that intent can lead to a perceived wrong and thus be damaging to one’s good character and possibly one’s career path.

Patient Questions Physical Exam

Dear Sir:

I was a patient on your short-term acute-care psychiatric unit. It was a voluntary admission, as is the case with all patients on that unit. Dr. X was my psychiatrist. Although he was very good as a psychiatrist, I was somewhat disturbed in the way he conducted my physical examination. He had come to my room on the day of my admission and said that he needed to perform a physical exam. He had already conducted a thorough history of my physical ailments and thoroughly reviewed my family history as far back as I could remember.

We were in the room alone when he entered. He had a gown in his hand and asked me to put it on. He walked out of the room and said he would be back in a few minutes. When he returned, he began to conduct a physical examination. Early on in the exam, he asked when I had my last breast examination. I told him that I was 28 and never had one. He said, “Well, I’d better do one.” I thought it was a bit odd that he conducted the exam without a female nurse
present. I became more concerned when he touched my breasts in what I considered a sensual manner. It was uncanny. It seemed to be a bit more than what I would’ve expected during a breast examination. He seemed to be caressing my breasts, as opposed to examining them. I don’t know if this is a routine procedure, but I was very uncomfortable in the situation. I think it would be better if you considered having a female nurse present when conducting female examinations in a patient room on a psychiatric unit or on any other unit for that matter.

Thanks for listening to my concerns.

—Anonymous

Administrator

I called Dr. X into my office and discussed the patient’s concerns with him. He said this is what physicians are trained to do. “We are trained to conduct both history and physical examinations.” He had brought with him a letter from one of his professional associations that stated psychiatrists are permitted to perform physical examinations on their patients. I asked him why he did not have someone in the room with him when he examined the patient. He stated, “I generally do, but I was extremely busy, and the staff was swamped with other patients. It was just a hectic day.”

Discussion

Discuss how you would respond to the patient.

  1. Describe how you would resolve this issue with the physician, assuming this was the first complaint that you had received regarding his care.
  2. Explain what policy decisions you would implement.
  3. Knowing that the physician is in a position of trust with his patient, discuss what action the physician should take to prevent complaints of this nature from recurring.

The intersection of “law” and “ethics” is clear. Deviation from either can lead to unsatisfactory outcomes for both physicians and patients. Although a caregiver may be trained to conduct a physical examination, the question may not be “can I do it?” but “should I do it?”

Tuskegee Syphilis Experiment

The Tuskegee syphilis experiment, conducted by the U.S. Public Health Service between 1932 and 1972, was designed to analyze the natural progression of untreated syphilis in African American men. The participants were not warned during the study that penicillin was available as the cure for syphilis. They believed that they were receiving adequate care and unknowingly suffered unnecessarily. The Tuskegee syphilis study used disadvantaged, rural black men to investigate the untreated course of the disease, one that is by no means confined to that population. The study should have recognized from the beginning that selection of research subjects, regardless of race, must be closely monitored to ensure that specific classes of individuals (e.g., terminally ill patients, welfare patients, racial and ethnic minorities, or persons confined to institutions) are not selected for research studies based on their availability, compromised position, or manipulability. Rather, they must be selected for reasons directly related to the research being conducted. The ethical principle of
nonmaleficence requires all people to avoid causing harm. In this case, the failure to alert those involved in the research study that a cure was available was both ethically and legally wrong.

Nonmaleficence and Ending Life

The principle of nonmaleficence is defeated when a physician is placed in the position of ending life by removing respirators, giving lethal injections, or writing prescriptions for lethal doses of medication. Helping patients die violates the physician’s duty to save lives. In the final analysis, there needs to be a distinction between killing patients and letting them die. It is clear that killing a patient is never justified.

Justice

Justice is the obligation to be fair in the distribution of benefits and risks. Justice demands that persons in similar circumstances be treated similarly. A person is treated justly when he or she receives what is due, is deserved, or can legitimately be claimed. Justice involves how people are treated when their interests compete with one another.

Distributive justice is a principle requiring that all persons be treated equally and fairly. No one person, for example, should get a disproportional share of society’s resources or benefits. There are many ethical issues involved in the rationing of health care. This is often a result of limited or scarce resources,
limited access as a result of geographic remoteness, or a patient’s inability to pay for services combined with some physicians unwilling to accept patients who are perceived as “no-pays” with high risks for legal suits.

Senator Edward M. Kennedy, speaking on health care at the John F. Kennedy Presidential Library in Boston, Massachusetts, on April 28, 2002, stated:

It will be no surprise to this audience that I believe securing quality, affordable health insurance for every American is a matter of simple justice. Health care is not just another commodity. Good health is not a gift to be rationed based on ability to pay. The time is long overdue for America to join the rest of the industrialized world in recognizing this fundamental need.

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Later, speaking at the Democratic National Convention on August 25, 2008, Kennedy said:

And this is the cause of my life—new hope that we will break the old gridlock and guarantee that every American—North, South, East, West, young, old—will have decent, quality health care as a fundamental right and not a privilege.

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Although Senator Kennedy did not live to see the day his dream would come true, President Barack Obama signed into law the final piece of his administration’s historic healthcare bill on March 23, 2010. The law, however, has yet to provide the coverage as described by the late Senator Kennedy and remains a political football in Congress.

The costs of health care have bankrupted many, and research dollars have proven to be inadequate, yet many members of Congress elected to address the needs of the country have chosen to continue their bipartisan bickering while they “enjoy” the lowest acceptance ratings in the nation’s history. They have, however, ensured that their own healthcare needs are met with the best of care in the best facilities with the best doctors. They have taken care of themselves. Their pensions are intact, whereas many Americans have to face such dilemmas as which medications they will take and which they cannot afford. Many Americans often have to decide between food and medications, with life-and-death consequences. Is this justice or theft of the nation’s resources by the few incompetents who have been elected to protect the American people? Unfortunately, these problems continue to this day as Congress continues to wrangle over national health insurance.

Justice and Government Spending

He Won His Battle With Cancer. Why Are Millions of Americans Still Losing Theirs?

For an increasing number of cancer activists, researchers, and patients, there is too much death and too much waiting for new drugs and therapies. They want a greater sense of urgency, a new approach that emphasizes translational research over basic research—turning knowledge into therapies and getting them to patients pronto. The problem is, that’s not the way our sclerotic research paradigm—principally administered by the National Institutes of Health and the National Cancer Institute (NIH/NCI)— is set up. “The fact that we jump up and down when cancer deaths go from 562,000 to 561,000, that’s ridiculous. That’s not enough,” says Lance Armstrong, the cyclist and cancer survivor turned activist, through his Lance Armstrong Foundation (LAF).


Time, September 15, 2008

Limited financial resources are challenging to the principles of justice. Justice involves equality; nevertheless, equal access to health care is at best a hope, a dream, and a promise to which all are committed on both sides of the political spectrum. A pathway to achieving this goal remains controversial. With total U.S. health spending costing over $10,000 per person,

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,

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how should healthcare dollars be allocated between healthcare education, preventative care, healthcare insurance programs (e.g., Medicare, Medicaid, Indian Health Services, TRICARE, Veterans Health Administration) for curative care, rehabilitation programs, long-term care, and research. [Note: There is no accurate, foolproof way to know what people spend on health care. For example, added unknown costs include over-the-counter drugs, questionable health supplements and vitamins, among many other expenses that are difficult to track, such as travel and transportation to a practitioner or healthcare facility.] The “U.S. federal budget deficit for fiscal year 2019 is $985 billion. FY 2019 covers October 1, 2018 through September 30, 2019. The deficit occurs because the U.S. government spending of $4.407 trillion is higher than its revenue of $3.422 trillion.”

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Considering the scarcity of resources for healthcare expenditures, who and what should the parameters be as to how to allocate scarce financial resources? If the parameter sets merely short-term objectives to maximize the health
benefits for the population served, some will receive a higher quality of care while others will receive, at best, satisfactory care. With an aging population, long-term care will require more funding, thus competing for dollars with education and prevention, which are the driving forces to ensure a healthier lifestyle. It will also compete with the research funding that over the long term will lead to lower costs of care associated with debilitating diseases that accompany the aging process. Education and prevention will improve the quality of life, as well as life expectancy, thus they more effectively address the quality of life for future generations. The funding allocation challenge remains as to how this generation will prioritize the need for a healthier lifestyle and allowing for improved funding for research activities that extends the quality of life. Justice in the distribution of limited dollars often results in fewer dollars for so-called orphan diseases (e.g., scleroderma, lupus), which are underfunded because they affect fewer people. Thus, the lion’s share of dollars continues to be directed toward research on diseases that affect the greater proportion of the population, leaving less for research on less widespread conditions.

There are many variables to take into consideration when determining how to distribute limited funds that will equally benefit all when there are other variables that must be considered that affect the quality of a healthy society. The obligation to be just and fair in the distribution of scarce resources is not an easy pathway to follow when there are so many competing interests in an ever-changing world. It would be easy to allocate funds if the formula for total
unfailing quality patient care would be: a + b + c = d (where a = unlimited resources for equipment, b = unlimited number of caregivers, c = sufficient facilities, and d = unfailing quality patient care). The formula for improving the health of the people may be much more complicated and written, with tongue in cheek, as: a
x + b
y + c
z + c
z − b
y − a log a (c
z − b
y) = d. To better understand the complexity of the first formula requires understanding that the factors necessary to deliver high-quality care are ever-expanding; for example:

  • It is not enough to merely have equipment; it must be high-quality equipment that improves patient outcomes.
  • It is not enough to have merely the “right” number of persons on staff; the individual staff members must also be competent enough to perform the assigned tasks.
  • It is not enough to have health facilities; they must be high-quality facilities.

Improving the health and well-being of the people is a moral concern. The careless allocation of scarce resources that are not cost-effective produces fewer benefits than would have been possible through the thoughtful and wise distribution of scarce resources. Because resources are limited, the allocation of funding must be equitable and just. Justice requires the fair distribution of limited funds, which is associated with the moral theories of
utilitarianism and
consequentialism.

Utilitarianism’s starting point is that we all attempt to seek happiness and avoid pain, and therefore our moral focus ought to center on maximizing happiness (or, human flourishing generally) and minimizing pain for the greatest number of people. This is both about what our goals should be and how to achieve them. Consequentialism asserts that determining the greatest good for the greatest number of people (the utilitarian goal) is a matter of measuring outcome, and so decisions about what is moral should depend on the potential or realized costs and benefits of a moral belief or action. This is largely about determining how to attain our goals, which are taken to be self-evident.

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In summary, the allocation of limited resources requires the appropriate distribution of funds that address the promotion of healthy lifestyles, improvement in education and training programs, building state-of-the-art safe healthcare facilities equipped with the latest medical equipment, research, and translational medicine.

States Have Double Standards

It is no secret that states have had double standards over the years—one for healthcare organizations and one for physicians and investors, who often duplicated the financially more lucrative hospital services while referring Medicaid patients and no-pays to hospital programs for care. As administrator of one hospital, allow me to give you a few examples:

  1. A radiology group was able to purchase their own computed tomography (CT) scanner, while the hospital had to jump through hoops to be able to purchase one for the hospital.
  2. A group of surgeons and private investors established an ambulatory surgery center in direct competition with the hospital without scrutiny. At the same time, the hospital was required to justify the hospital’s proposed surgery center. The hospital was required to complete lengthy questionnaires and gather supporting documentation to justify construction and operation of an outpatient surgery center.
  3. The hospital had to justify opening an outpatient rehabilitation program within the hospital in order to provide a continuum of care for patients needing physical therapy services. While hospital staff was busy justifying the need for an outpatient rehabilitation program, orthopedic surgeons were busy setting up their own outpatient programs to compete with the hospital.

I remember walking to my car one day after work and one of my orthopedic surgeons caught up to me and said, “You know, Dan, I have made enough money in the 3 years that I have been on your staff to buy your hospital.”

Discussion

  1. Discuss the issues of justice as they apply to this scenario.
  2. Discuss the issues of fairness and how physician competition with hospitals can affect the quality of patient care.
Injustice for the Insured


Even if you’re insured, getting ill could bankrupt you. Hospitals are garnishing wages, putting liens on homes and having patients who can’t pay arrested. It’s enough to make you sick.

—Sara Austin

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Hospitals are receiving between $4 million and $60 million annually in charity funds in New York City alone, according to Elizabeth Benjamin, director of the health law unit of the Legal Aid Society of New York City; however, even the insured face injustice. In 2003, almost 1 million Americans declared bankruptcy because of medical issues, accounting for nearly half of all of the bankruptcies in the country. In 2016, a Kaiser Family Foundation poll found that nearly as many were declaring bankruptcy or struggling to pay medical bills despite expansion of affordable health insurance under the Affordable Care Act.

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When an insured patient gets ill and exhausts his or her insurance benefits, should the hospital be able to:

  • Withhold the money from the patient’s wages?
  • Place a lien on the patient’s home?
  • Arrest the patient?
  • Block the patient from applying for the hundreds of millions of dollars in government funds designated to help pay for care for those who need it?

According to an article that appeared in the
Journal of the American Medical Association entitled “Medical Bankruptcy in the United States, 2007: Results of a National Study,” “The US health care financing system is broken, and not only for the poor and uninsured. Middle-class families frequently collapse under the strain of a health care system that treats physical wounds, but often inflicts fiscal ones.”

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Not only are patients facing financial crisis and/or going bankrupt, hospitals are facing the same fate. As of September 2017, hospital bankruptcies totaled 22. Ayla Ellison, author of “22 Bankruptcies So Far in 2017,” writes in her article: “From reimbursement landscape challenges to dwindling patient volumes, many factors lead hospitals and other healthcare organizations to file for bankruptcy.”

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Age and Justice

New Kidney Transplant Rules Would Favor Younger Patients

The nation’s organ transplant network is considering giving younger, healthier people preference over older, sicker patients for the best kidneys.

Some also complain that the new system would unfairly penalize middle-aged and elderly patients at a time when the overall population is getting older.

If adopted, the approach could have implications for other decisions about how to allocate scarce resources, such as expensive cancer drugs and ventilators during hurricanes and other emergencies. …

—Rob Stein,
The Washington Post, February 24, 2011

  • Should an 89-year-old patient get a heart transplant, rather than a 10-year-old girl, just because he or she is higher on the waiting list?
  • Should a 39-year-old single patient, rather than a 10-year-old boy, get a heart transplant because he or she is higher on the waiting list?
  • Should a 29-year-old mother of three get a heart transplant, rather than a 10-year-old girl, because she is higher on the waiting list?
  • Should a 29-year-old pregnant mother with two children, rather than a 10-year-old boy, get a heart transplant because she is higher on the waiting list?

Justice and Emergency Care

When two patients arrive in the emergency department in critical condition, consider who should receive treatment first. Should the caregiver base his or her decision on the:

  • First patient who walks through the door?
  • Age of the patients?
  • Likelihood of survival?
  • Ability of the patient to pay for services rendered?
  • Condition of the patient?

Patients are to be treated justly, fairly, and equally. What happens, however, when resources are scarce and only one patient can be treated at a time? What happens if caregivers decide that age should be the determining factor as to who is treated first? One patient is saved, and another dies. What happens if the patient saved is terminal and has an advance directive in his wallet requesting no heroic measures to save his life? What are the legal issues intertwined with the ethical issues in this case?

The principle of distributive justice raises numerous issues, including how limited resources should be allocated. For example, when there is a reduction in staff in healthcare organizations, managers are generally asked to eliminate “nonessential” personnel. In the healthcare industry, this translates to those individuals not directly involved in patient care (e.g., maintenance and housekeeping employees). Is this fair? Is this just? Is this the right thing to do?

In Search of Economic Justice

In 2008, Avery Comarow, in his article “Under the Knife in Bangalore,”

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wrote that the high cost of U.S. hospital care is motivating patients to travel to places like India and Thailand for major procedures. A decade later, not much has changed: A 2016 article estimated 1.4 million Americans would travel overseas to obtain less expensive healthcare services.

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There would be no need for uninsured patients to go abroad if the prices they were quoted in the United States were more in line with what insurers and Medicare pay. The uninsured often pay full price for medical procedures in the United States. For example, a self-pay patient will pay between $70,000 and $133,000 for coronary bypass surgery, whereas Medicare will pay between $18,609 and $23,589. Commercial insurance plans often get up to a 60% discount off the list cost of medical procedures. In India, the same surgery will cost the patient $7,000, and in Thailand, it will be $22,000.

To avoid bankruptcy and loss of assets, maybe their homes, Americans risk the unknowns of going abroad for health care.

Boomer Bubble “Bioeconomics”

As baby boomers become Medicare eligible, there is likely to be a huge strain on the federal budget. Is this dramatically increased cost justified, beneficial, and necessary to the country as a whole?

The revenue from working, taxpaying baby boomers over the past four decades has fueled unprecedented prosperity. That revenue has made many entitlements possible, but it is going to diminish drastically as boomers retire and become recipients instead of contributors to the revenue base. Advances in medical technology have increased longevity dramatically, and boomers therefore are likely to be on the receiving end of entitlements for a long time. Medical advances, however, also can increase productivity as well as longevity. Boomers with a lifetime of work experience can be a valuable resource if they are kept healthy enough to remain gainfully employed at some level. Maintenance of a skilled American workforce is essential for future prosperity and economic stability. Boomers are a substantial resource of experienced skilled workers. It is a political necessity that they are encouraged to stay productive. The government’s subsidizing health care through Medicare and other programs is therefore an investment that can facilitate this worthwhile goal. Additional incentives may even be appropriate. Even on an ethical basis, boomers that fueled our economy for so long deserve to be taken care of in their later years. Hopefully, many of them will be healthy enough and willing enough to continue being productive beyond the usual retirement age. Thus, from a political perspective, the moral and ethical choice may also turn out to be the profitable choice for the people.

—Physician

VIRTUE ETHICS AND VALUES

Virtue ethics focuses on the inherent character of a person rather than on the specific actions he or she performs. A
virtue is a positive trait of moral excellence. Virtues are those characteristics that differentiate good people from bad people. Virtues such as courage, honesty, and justice are abstract moral principles. A morally virtuous person is one who does the good and right thing by habit, not merely based on a set of rules of conduct. The character of a virtuous person is naturally good, as exhibited by his or her unswerving good behavior and actions.

Resilience of the Health Caregiver Spirit

I’ve been in leadership roles for two sister hospitals in southeast Louisiana, with each experiencing the devastation of hurricane damage twice in the past 3 years. The first experience was temporarily suspending normal operations in New Orleans, and recently, history repeated itself at the sister hospital in Houma, Louisiana.

In both instances, I was stunned at the determination and strength of healthcare teams to rebuild. Both hospitals needed to resort to MASH-type tent hospitals to allow rebuilding of the hospitals. Health care for the communities was not interrupted. Back-to-basics care ensued, but not without close attention to needed regulatory compliance standards. The regulatory agencies were called and involved from the get-go, and the caregiver teams and support service staff flourished with enthusiasm to survive and care for the patients in need. Was this because of the nonprofit nature of our state-sponsored hospitals? I don’t think so. The human spirit takes over when it comes to patient care, no matter what.

I am happy to say that both New Orleans and Houma are back on track, with care being provided in top-quality hospitals. This is only due to the diligence of all, including facilities management, housekeeping, and multiple direct and indirect caregiver departments. What is the ethical issue here? There is no issue. Support for the art of caregiving will never be disappointed—at least not in southeast Louisiana. I stand in awe of what I have seen and look forward to growing with this team of devoted professionals.

—Nurse

Values are standards of conduct. They are used for judging the goodness or badness of some action. A
moral value is the relative worth placed on some virtuous behavior. Values are rooted in customs and habits of a culture because the words
moral and
ethics themselves were essentially created to describe these topics: “The acquisition of culture begins at birth and continues throughout the life span.”

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Values are the standards by which we measure the goodness in our lives.
Intrinsic value is something that has value in and of itself (e.g., happiness).
Instrumental value is something that helps to give value to something else (e.g., money is valuable for what it can buy).

Values may change as needs change. If one’s basic needs for food, water, clothing, and housing have not been met, one’s values may change such that a friendship, for example, might be sacrificed if one’s basic needs can be better met as a result of the sacrifice. As a mother nears the end of her life, a financially well-off family member may want to take more aggressive measures to keep Mom alive despite the financial drain on her estate. Another family member, who is struggling financially, may more readily see the futility of expensive medical care and find it easier to let go. Values give purpose to each life. They make up one’s moral character.

All people make value judgments and make choices among alternatives. Values are the motivating power of a person’s actions and necessary to survival, both psychologically and physically.

The relationship between abstract virtues (principles) and values (practice) is often difficult to grasp. The virtuous person is one who does good, and his or her character is known through the values he or she practices consistently by habit.

We begin our discussion here with an overview of those virtues commonly accepted as having value when addressing difficult healthcare dilemmas. The reader should not get overly caught up in the philosophical morass of how virtues and values differ but should be aware that the words “virtues” and “values” have been used interchangeably. This text is not about memorizing words; it is about applying what we learn for the good of all whose lives we touch.

Whether we call compassion a virtue or a value or both, the importance for our purposes in this text is to understand what compassion is and how it is applied in the healthcare setting.

Pillars of Moral Strength


I am part of all I have met.

—Alfred Tennyson

There is a deluge of ethical issues in every aspect of human existence. Although cultural differences, politics, and religion influence who we are, it is all of our life experiences that affect who we have become. If we have courage to do right, those who have influenced our lives were most likely courageous. If we are compassionate, it is most likely because we have been influenced by the compassionate.

The
Pillars of Moral Strength illustrated in


FIGURE 1-1

describes a virtuous person. What is it that sets each person apart? In the final analysis, it is one’s virtues and values that build moral character. Look beyond the words and ask, “Do I know their meanings?” “Do I apply their concepts?” “Do I know their value?” “Are they part of me?”

Courage as a Virtue


Courage is the greatest of all virtues, because if you haven’t courage, you may not have an opportunity to use any of the others.

—Samuel Johnson

Courage is the mental or moral strength to persevere and withstand danger. Courage can be characterized as the ladder upon which all the other virtues mount. Courage is the strength of character necessary to continue in the face of fears and the challenges in life. It involves balancing fear, self-confidence, and values. Without courage, we are unable to take the risks necessary to achieve the things most valued. A courageous person has good judgment and a clear sense of his or her strengths, correctly evaluates danger, and perseveres until a decision is made and the right goal that is being sought has been achieved. The
Reality Check below describes the courage of a young lady facing a difficult journey in her battle with cancer.

My Journey—How Lucky Am I?

No words can be scripted to say what I have been through, so I will just speak from my heart and off the cuff. From the day the doctor said to me, “Denise, you have a rare cancer and we are sorry there is nothing we can do,” I did not waver in my faith in God. He was in me, he was through me and he was around me. I just asked the doctor, “What do I do?” And yet, although he said a whole bunch of words, I wasn’t focused so much on what was being said. It’s like a calmness was over me, not much worry, just a feeling of,
I will never be alone on this new journey I’m about to experience. I felt calm. Not until I looked at my loved ones’ faces did I realize,
oh my, this can be bad. But again, a feeling came over me that I will not face this ALONE. God has plans for me and I will surrender in his grace and as time past [
sic], I realized how lucky and blessed I am, for most people who may feel that death may be close by, I didn’t feel that way. What I felt was WOW!! Everyone gets to show me their love in the NOW and not in the later when I am no longer here. How lucky am I?

—Denise

Courage, in differing degrees, helps to define one’s character (the essence of one’s being) and offers the strength to stand up for what is good and right. It crosses over and unites and affects all other values. Courage must not be exercised to an extreme, causing a person to become so foolish that his or her actions are later regretted.

When the passion to destroy another human being becomes such an obsession that one is willing to sacrifice the lives of others, that person has become a bully and a coward and not a person of courage. History is filled with men and women who have hidden their fears by inciting others to do evil. Such people are not the role models that we want our children to look to for character.

Wisdom as a Virtue


True wisdom comes to each of us when we realize how little we understand about life, ourselves, and the world around us.

—Socrates


We can learn from history how past generations thought and acted, how they responded to the demands of their time and how they solved their problems. We can learn by analogy, not by example, for our circumstances will always be different than theirs were. The main thing history can teach us is that human actions have consequences and that certain choices, once made, cannot be undone. They foreclose the possibility of making other choices and thus they determine future events.

—Gerda Lerner (pioneer of women’s history)

Wisdom is the judicious application of knowledge. Wisdom begins first by learning from the failures and successes of those who have preceded us. Marcus Tullius Cicero (106–43 BC), a Roman philosopher and politician, is reported to have said, “The function of wisdom is to discriminate between good and evil.” In the healthcare setting, when the patient’s wishes and end-of-life preferences are unknown, wisdom with good judgment without bias or prejudice springs forth more easily.

Temperance as a Virtue


Being forced to work, and forced to do your best, will breed in you temperance and self-control, diligence and strength of will, cheerfulness and content, and a hundred virtues which the idle will never know.

—Charles Kingsley

Temperance involves self-control and restraint. It embraces moderation in thoughts and actions. Temperance is evidenced by orderliness and moderation in everything one says and does. It involves the ability to control one’s actions so as not to go to extremes. The question arises, without the ability to control oneself from substance abuse, for example, how can a person possibly live the life of a virtuous person. The old adage, “the proof is in the pudding” lies in one’s actions. A virtuous person stands out from the crowd by actions and deeds.

Commitment


Unless commitment is made, there are only promises and hopes, but no plans.

—Peter F. Drucker


I know the price of success: dedication, hard work, and an unremitting devotion to the things you want to see happen.

—Frank Lloyd Wright

Commitment is the act of binding oneself intellectually and/or emotionally to a course of action (e.g., pursue a career, adhere to a religious belief) or person (e.g., marriage, family, patient care). It is an agreement or pledge to do something. It can be ongoing, such as in a marriage, or a pledge to do something in the future, such as an engagement as a commitment to marry a particular person.

Compassion and Empathy


Compassion is the basis of morality.

—Arthur Schopenhauer

Compassion is the profound awareness of and sympathy for another’s suffering. The ability to show compassion is a true mark of moral character. Compassion is a moral value expected of all caregivers. There are those who argue that compassion will blur one’s judgment. Caregivers need to show the same compassion for others as they would expect for themselves or their loved ones. A person with compassion recognizes that someone is in pain (emotional, physical, or both) and tries his best to alleviate it.

Those who lack compassion have a weakness in their moral character. In 1996, Dr. Linda Peeno, featured in Michael Moore’s 2007 film
Sicko, testified before Congress to discuss her prior work for Humana, where she worked as a claims reviewer for several health maintenance organizations (HMOs). Dr. Peeno showed compassion as she testified before the Committee on Commerce on May 30, 1996. Here is her story in part:

I wish to begin by making a public confession. In the spring of 1987, I caused the death of a man. Although this was known to many people, I have not been taken before any court of law or called to account for this in any professional or
public forum. In fact, just the opposite occurred. I was rewarded for this. It brought me an improved reputation in my job and contributed to my advancement afterwards. Not only did I demonstrate that I could do what was asked, expected of me, I exemplified the good company employee. I saved one half million dollars.

Since that day, I have lived with this act and many others eating into my heart and soul. The primary ethical norm is do no harm. I did worse, I caused death. Instead of using a clumsy bloody weapon, I used the simplest, cleanest of tools: my words. This man died because I denied him a necessary operation to save his heart. I felt little pain or remorse at the time. The man’s faceless distance soothed my conscience. Like a skilled soldier, I was trained for the moment. When any moral qualms arose, I was to remember, “I am not denying care; I am only denying payment.”

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Duty-based ethics required Dr. Peeno to follow the rules of her job. In so doing, a life was lost. Although Dr. Peeno eventually came forward with her story, the irony here lies in the fact that Dr. Peeno lacked the courage, integrity, and compassion to report her story sooner. The lack of compassion for others plagues the healthcare industry in a variety of settings.

The stream of news clippings that illustrate the ongoing need for compassionate caregivers is presented here. The first clipping describes an incident where two nurses and an aide were indicted in the death of an elderly World War II veteran in an Atlanta, Georgia, nursing home. The three staff members were caught on camera laughing as the man gasped for air and pleaded for help.

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WWII Veteran Calls for Help and Dies as Nurses Laugh, Video Shows

A hidden video from 2014 showed nurses laughing as a World War II veteran repeatedly called for help and died while in their care.

The family of James Dempsey, 89, of Woodstock, Ga., hid a camera in the late veteran’s room in the Northeast Atlanta Health and Rehabilitation Center which captured the night he died.

The video showed the decorated WWII veteran repeatedly calling for help, saying he could not breathe. It also showed the nurses failing to take life-saving measures and laughing as they tried to start an oxygen machine.

—Fox News, November 18, 2017

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Lack of compassion is illustrated in another news report where a video showed a woman dying on the floor in a psychiatric facility.

Hospital Video Shows no One Helped Dying Woman

A woman died on the floor in the psych ward at Kings County Hospital, while people around her, including a security guard, did nothing to help. After an hour, another mental patient finally got the attention of the indifferent hospital workers, according to the tape obtained by the
New York Daily News.

Worse still, the surveillance tape suggests hospital staff may have falsified medical charts to cover the utter lack of treatment provided to Esmin Green before she died.

—John Marzulli,
New York Daily News, June 30, 2008

A second egregious example that illustrates the lack of compassion was illustrated when a man expired while the ambulance crew attempted to find a hospital that would accept him for care.

Elderly Patient Hit by Motorcycle Dies in Japan After Being Rejected by 14 Hospitals

After getting struck by a motorcycle, an elderly Japanese man with head injuries waited in an ambulance as paramedics phoned 14 hospitals, each refusing to treat him.

He died 90 minutes later at the facility that finally relented—one of thousands of victims repeatedly turned away in recent years by understaffed and overcrowded hospitals in Japan.

—Maria Yamaguchi,
Associated Press, February 5, 2009

Teaching Doctors to Care

At Harvard and other medical schools across the country, educators are beginning to realize that empathy is as valuable to a doctor as any clinical skill … doctors who try to understand their patients may be the best antidote for the widespread dissatisfaction with today’s healthcare system.

—Nathan Thornburgh

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Empathy is a visceral feeling where a person sees another in pain and can place themselves in their shoes and feel that pain. According to Webster’s dictionary, empathy is “the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner.”

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Nothing is more important than empathy for another human being’s suffering.

Nothing. Not a career, not wealth, not intelligence, certainly not status.

We have to feel for one another if we’re going to survive with dignity.

—Audrey Hepburn

Jodi Halpern, in her article “Empathy and Patient–Physician Conflicts,” writes in the
Journal of General Internal Medicine how physicians can
foster empathy during conflict:

Physicians associate empathy with benevolent emotions and with developing a shared understanding with patients. While there have been many articles on managing “difficult” patients, little attention has been paid to the challenges physicians face during conflicts with patients, especially when both parties are angry and yet empathy is still needed. This topic is especially important in light of recent studies showing that practicing medicine increasingly requires physicians to manage their own feelings of anger and frustration. This article seeks to describe how physicians can learn to empathize with patients even when they are both subject to emotions that lead to interpersonal distancing. Empathy is defined as engaged curiosity about another’s particular emotional perspective. Five specific ways for physicians to foster empathy during conflict are described: recognizing one’s own emotions, attending to negative emotions over time, attuning to patients’ verbal and nonverbal emotional messages, and becoming receptive to negative feedback. Importantly, physicians who learn to empathize with patients during emotionally charged interactions can reduce anger and frustration and also increase their therapeutic impact.

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The Fear Factor and Patient Satisfaction

Nurses tend to score highly on measures of empathy, care, and compassion. … Here is some specific advice about what hospitals can do to help nurses improve at calming their patients’ fears.

  • Encourage nurses to be sensitive to the level of fear their patients experience when they’re admitted to the hospital. Empathy and communication are key …
  • Set nurses up for success through training and support. In many instances, it is easy to deal with safety concerns by providing detailed protocols, policies, and procedures …

—Rick Blizzard, D.B.A.

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Tony Padilla writes with vision in his article entitled “Kindness: At the Center of Patient Experience Strategies,” where he states:

With its vision of “healing human kind, one patient at a time, by improving health, alleviating suffering, and delivering acts of kindness,” UCLA Health has fulfilled the commitment to kindness by improving care delivery systems with patient experience and quality foremost in mind. In addition, as we have learned, when patient-centered communications become the norm, employees follow suit.

Kindness truly is the foundation of any cultural transformation aimed at improving the patient experience.

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Detachment

Detachment, or lack of concern for the patient’s needs, often translates into mistakes that result in patient injuries. Those who have excessive emotional involvement in a patient’s care may be best suited to work in those settings where patients are most likely to recover and have good outcomes (e.g., maternity units). As with all things in life, there needs to be a comfortable balance between compassion and detachment.


Never apologize for showing feeling. When you do so, you apologize for the truth.

—Benjamin Disraeli

Policy Ruled—Compassion Missing

Mr. Jones was trying to get home from a long trip to see his ailing wife. Mrs. Jones had been ill for several years, suffering a great deal of pain. His flight was to leave at 7:00 PM. Upon arrival at the airport in New York at 4:30 PM, he inquired at the ticket counter, “Is there an earlier flight that I can take to Washington?” The counter agent responded, “There is plenty of room on the 5:00 PM flight, but you will have pay a $200 change fee.” The passenger inquired, “Could you please waive the change fee? I need to get home to my ailing wife.” The ticket agent responded, “Sorry, your ticket does not allow me to make the change. You can, however, try at the gate.”

The passenger made a second attempt at the gate to get on an earlier flight, but the manager at the gate was unwilling to authorize the change, saying, “I don’t make the rules.”

Mr. Jones decided to give it one more try. He called the airline’s customer service center. The customer service agent responded to Mr. Jones’s plea: “We cannot overrule the agent at the gate. Sorry, you just got the wrong supervisor. He is going by the book.”

—Anonymous

Discussion

  1. Should rules be broken for a higher good? Discuss your answer.
  2. Do the rules seem to be consistently or inconsistently applied in this
    Reality Check? Discuss your answer.

Conscientiousness


The most infectiously joyous men and women are those who forget themselves in thinking about and serving others.

—Robert J. McCracken

A
conscientious person is one who has moral integrity and a strict regard for doing what is considered the right thing to do. A person acts conscientiously if he or she is motivated to do what is right, believing it is the right thing to do. Conscience is a form of self-reflection on and judgment about whether one’s actions are right or wrong, good or bad. It is an internal sanction that comes into play through critical reflection. This sanction often appears as a bad conscience in the form of painful feelings of remorse, guilt, shame, disunity, or disharmony as the individual recognizes that his or her acts were wrong.

Kill the Messenger

Frank, working as a hospital inspector, found a number of things wrong in his recent building inspection. At first glance the building looked clean and polished—Frank was amazed by how the floors sparkled in the old building. But then, as Frank always does, he asked to look behind a corridor door. Behind the door, Frank found a small storage closet with medical records strewn on the floor and others stored in cardboard boxes. The records had been soaked by water and floor wax that had seeped under the door when the corridors where cleaned. Entries on the records were blurred, making them difficult to read, and the records appeared to have black mold growing on them.

Behind another door was a medical equipment repair room. Dust balls floated on the floor as the door was opened. There was food on the floor, and a can of soda had been spilled and allowed to dry. Equipment parts were also scattered on the floor.

The staff complained about Frank’s findings. Before he left, the staff corrected the issues he had noted and asked, “Frank, could you remove these comments from your report. We cleaned the room and it is spotless. In addition, we stored the records in the medical records department.” Frank replied, “I could not in good conscience remove my findings. Yes, the room may be clean, but what about the information that had been recorded on the medical records that is not readable? Further, our process for inspecting your facility is a sampling process. I did not look behind every door, and I am not sure what we would find if we did. I would suggest, as we discussed earlier, that a written plan of action be prepared and implemented to address the issues I identified. More important, your action plan should be implemented facility-wide. For example, no boxes should be stored on the floors, including medical supplies, as well as medical records.”

—Anonymous

Discussion

  1. Should Frank have overlooked his findings, as the staff pressed him not to report them? Discuss your answer.
  2. Assuming you were Frank, would you have deleted the findings from your report? Explain your answer.

Discernment


Get to know two things about a man—how he earns his money and how he spends it—and you have the clue to his character, for you have a searchlight that shows up the innermost recesses of his soul. You know all you need to know about his standards, his motives, his driving desires, and his real religion.

—Robert J. McCracken

Discernment is the ability to make a good decision without personal biases, fears, and undue influences from others. A person who has discernment has the wisdom to decide the best course of action when there are many possible actions to choose from.

9/11 Value Judgment

James had been scheduled to fly Monday evening, September 10, 2001, from Ronald Reagan Washington National Airport to New York LaGuardia Airport, and then rent a car and drive to Greenwich, Connecticut, where he was assigned to inspect a hospital. As luck would have it, there was one flight cancellation after another. After the last flight to LaGuardia was canceled, he went to the ticket counter and scheduled the first flight out Tuesday morning, September 11, 2001, at 6:00 AM.

The following morning James flew into LaGuardia, picked up his car, and drove to Connecticut to work with an assigned team led by Dr. Matthews. Not long after he arrived at the hospital, the first plane hit the World Trade Center. Shortly after the second plane crashed into the World Trade Center, the corporate office called and asked if the hospital wanted to reschedule the survey. The hospital opted to continue the survey.

On Thursday, the last day of the survey, a hospital staff member approached Dr. Matthews and asked if he and his survey team would like to attend a short memorial service in the lobby at noon for the victims and workers of 9/11. Without hesitation, Dr. Matthews replied, “No, we really have to finish our reports.”

—Anonymous

Discussion

  1. Did the team leader make an appropriate decision? Discuss your answer.
  2. Describe the various virtues and values that come into play in this case.
  3. Discuss how you would have addressed the hospital’s request to attend the memorial service.
  4. Realizing that hindsight is 20/20, could you defend the decision not to attend the ceremony? Explain your answer.

Fairness


Do all the good you can, By all the means you can, In all the ways you can, In all the places you can, At all the times you can, To all the people you can, As long as you ever can.

—John Wesley

In ethics,
fairness requires each person to be objective, unbiased, dispassionate, impartial, and consistent with the principles of ethics. Fairness is the ability to make judgments free from discrimination, dishonesty, or one’s own bias. It is the ability to be objective without prejudice or bias. We often tolerate mediocrity. We sometimes forget to thank those who just do their jobs, and we often praise the extraordinary, sometimes despite questionable faults. To be fair, it is important to see the good in all and to reward that good.

Questions of fairness in the Affordable Care Act have led to lawsuits in a number of the nation’s top hospitals including the Mayo Clinic in Minnesota and Cedars-Sinai in Los Angeles because they are cut out of most insurance plans sold on the exchange.

Health Costs Cut by Limiting Choice

As Americans have begun shopping for health plans on the insurance exchanges, they are discovering that insurers are restricting their choice of doctors and hospitals in order to keep costs low, and that many of the plans exclude top-rated hospitals. … The result, some argue, is a two-tiered system of health care: Many of the people who buy health plans on the exchanges have fewer hospitals and doctors to choose from than those with coverage through their employers.

Insurers “looked at the people expected to go on the exchanges and thought: ‘these are people coming out of the ranks of the uninsured. They don’t care about the Mayo Clinic or the Cleveland Clinic. They will go to community providers,’” explained Robert Laszewski, a consultant to the health-care industry.

—Sandhya Somashekhar and Ariana Eunjung Cha,
The Washington Post

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Although care is generally cheaper at community-based hospitals than academic medical centers, the quality of that care often comes into question, as noted in the preceding
Reality Check.

Community Hospital vs. Respected Medical Center

My closest friend Nick was admitted to a small community hospital for what was described as a minor surgical procedure. During surgery, the surgeon unknowingly nicked the large bowel, which went unidentified for several days. Nick, as a result, developed a methicillin-resistant
Staphylococcus aureus (MRSA) infection. Further surgeries were conducted, complicating an already botched surgery. One evening a nurse called his family aside and said, “Although I am jeopardizing my job, I would get Nick out of here if I was you.” The family decided to move Nick to a major teaching medical center several hours away from his hometown. Following an extended stay at the medical center and discharged home under hospice care, I visited Nick at his home. He looked intensely straight at me with deep sadness and said, “They took my life from me.” He told another friend, “My life is over.”

—Anonymous

So where are we as it relates to fairness in the delivery of health care? Is it true that people coming out of the ranks of the uninsured don’t care about the Mayo Clinic, Cleveland Clinic, the Lahey Hospital and Medical Center, or the Massachusetts General Hospital, to name but a few? Or perhaps they do care, but just don’t know the quality differences from one hospital to the next? Or is it a question of accessibility in remote areas of the country? Do we need hospital selection exchanges more than we need insurance exchanges? If one has money or connections, is one more likely to get a higher quality of medical care than a poorer patient? Who determines what routine care is? Is routine care based on each patient’s needs and comorbidities? Should those who have a financial interest in where a patient is treated be excluded from the decision-making process?

Cheaper is not always better and providing “care” may not be enough. Although fairness in the delivery of health is a laudable value, it is most likely unachievable. The disparity as to who holds the nation’s wealth continues to widen, as noted in the news clippings that follow. With so much wealth in the hands of the few, fairness in the delivery of high-quality health care for all is unlikely. However, the human race must continue to strive to meet the needs of all.

Of the 1%, By the 1%, for the 1%

Americans have been watching protests against oppressive regimes that concentrate massive wealth in the hands of an elite few. Yet in our own democracy, 1 percent of the people take nearly a quarter of the nation’s income—an inequality even the wealthy will come to regret.

—Joseph E. Stiglitz,
Vanity Fair, May 2011

World’s Richest 1% Own 40% of All Wealth, UN Report Discovers

The richest 1% of adults in the world own 40% of the planet’s wealth, according to the largest study yet of wealth distribution. The report also finds that those in financial services and the internet sectors predominate among the super-rich.

Europe, the US and some Asia Pacific nations account for most of the extremely wealthy. More than a third live in the US. Japan accounts for 27% of the total, the UK for 6% and France for 5%.

—James Randerson,
The Guardian, December 2006

Fidelity


Nothing is more noble, nothing more venerable, than fidelity. Faithfulness and truth are the most sacred excellences and endowments of the human mind.

—Cicero

Fidelity is the virtue of faithfulness, being true to our commitments and obligations to others. A component of fidelity, veracity, implies that we will be truthful and honest in all our endeavors. It involves being faithful and loyal to obligations, duties, or observances. The opposite of fidelity is infidelity, meaning unfaithfulness. Caregivers must be faithful to their duties and obligations to provide quality patient care.

The Supreme Court of New Jersey in
Perna v. Pirozzi

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determined that a patient’s consent form did not apply to the partners in a group practice. The patient had specifically requested Dr. Pirozzi to perform the surgery. However, a different surgeon in the group performed the surgical procedure.
Apparently, this was a common practice in the group and the surgeon who was working in the operating room on the scheduled day of surgery performed the surgery. The patient only learned that a different surgeon had performed the surgery when he was readmitted to the hospital due to post-surgical complications.

Mr. Perna first learned of the identities of the operating surgeons when he was readmitted to the hospital on June 11 because of post-surgical complications. Subsequently, Mr. and Mrs. Perna filed suit for malpractice against all three doctors, alleging four deviations from standard medical procedure concerning the diagnosis, treatment, and surgery performed by the defendants. They further alleged that there was a failure to obtain Mr. Perna’s informed consent to the operation performed by Dr. Del Gaizo. That is, plaintiffs claimed that Mr. Perna’s consent to the operation was conditioned upon his belief that Dr. Pirozzi would be the surgeon.

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The failure of a surgeon to perform a medical procedure after soliciting a patient’s consent, like the failure to operate on the appropriate part of a patient’s body, is a deviation from standard medical care. It is malpractice whether the right surgeon operates on the wrong part or the wrong surgeon operates on the right part of the patient. In each instance, the surgeon has breached his duty to care for the patient. Where damages are the proximate result of a deviation from standard medical care, a patient has a cause of action for malpractice.

Although an alternative cause of action could be framed as a breach of the contract between the surgeon and the patient, generally the more appropriate characterization of the cause will be for breach of the duty of care owed by the doctor to the patient. The absence of damages may render any action deficient, but the doctor who, without the consent of the patient, permits another surgeon to operate violates not only a fundamental tenet of the medical profession but also a legal obligation.

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The patient was given a cause of action for battery against the surgeon who actually performed the operation. Thus, the patient could recover for all injuries resulting from the mere performance of the operation, even if the operation had been properly performed. Absent emergency, patients have the right to determine not only
whether surgery is performed but also
who performs the surgical procedure.

Few decisions bespeak greater trust and confidence than the decision of a patient to proceed with surgery. Implicit in that decision is a willingness of the patient to put his or her life in the hands of a known and trusted medical doctor. Sometimes circumstances will arise in which, because of an emergency, the limited capacity of the patient, or some other valid reason, the doctor cannot obtain the express consent of the patient to a surrogate surgeon. Other times, doctors who practice in a medical group may explain to a patient that any one of them may perform a medical procedure. In that situation, the patient may accept any or all the members of the group as his surgeon. In still other instances, the patient may consent to an operation.

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Freedom


You can only protect your liberties in this world by protecting the other man’s freedom. You can only be free if I am free.

—Dorothy Thompson

Freedom is the quality of being free to make choices for oneself within the boundaries of law (


FIGURE 1-2

). Freedoms enjoyed by citizens of the United States include the freedom of speech, freedom of religion, freedom from want, and freedom from physical aggression. In health care, the freedom to consent to a medical procedure or refuse treatment is an unequivocal right of a competent patient who is capable to choose or assign a surrogate to choose for him.

Freedom of choice is not always recognized as a given. For example, “If you can afford health insurance but choose not to buy it, you may pay a fee called
the individual shared responsibility payment. (The fee is sometimes called the ‘penalty,’ ‘fine,’ or ‘individual mandate.’).”

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The “Freedom of Choice in Health Care Act” Section 2 provides:

The people have the right to enter into private contracts with health care providers for health care services and to purchase private health care coverage. The legislature may not require any person to participate in any health care system or plan, nor may it impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan.

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And so goes the battle as it rages on, and the right to choose is not necessarily absolute.

Honesty/Trustworthiness/Truth Telling


A lie can travel halfway around the world while the truth is still putting on its shoes.

—Mark Twain (American humorist, writer, and lecturer, 1835–1910)

Honesty and trust involve confidence that a person will act with the right motives. It is the assured reliance on the character, ability, strength, or truth of someone or something. To tell the truth, to have integrity, and to be honest are most honorable virtues.
Veracity is devotion to and conformity with what is truthful. It involves an obligation to be truthful.

Truth telling involves providing enough information so that a patient can make an informed decision about his or her health care. Intentionally misleading a patient to believe something that the caregiver knows to be untrue may give the patient false hopes. There is always apprehension when one must share bad news; the temptation is to play down the truth for fear of being the bearer of bad news. To lessen the pain and the hurt is only human, but in the end, truth must win over fear.


Speaking the truth in times of universal deceit is a revolutionary act.

—George Orwell

Physicians often find it difficult to disclose medical errors to their patients. Generally, they are often fearful that errors can lead to malpractice suits. Even so, it the responsibility of physicians to disclose medical errors involving their patient’s care. The
Journal of the American Medical Association, in its February 26, 2003, issue, addresses the importance of encouraging physicians to disclose medical errors and the need to support them in their struggles to comply with policies requiring the disclosure of errors to their patients.

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By not disclosing a medical error, the doctor conspicuously places his own interests above that of the patient to the detriment of the patient, thereby violating a patient-centered ethic. Moral courage is therefore needed if doctors are to do the right thing when medical errors occur. This moral courage can be facilitated by institutions having policies and guidelines on disclosure of errors in place, training doctors and other hospital staff on how to disclose medical errors and providing emotional support for doctors who make mistakes in their efforts to treat patients and save lives.

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Physicians who fail to discuss medical errors with their patients are more likely to face lawsuits than those who disclose and discuss their errors with patients. “Disclosing medical errors respects patient autonomy and truth-telling, is desired by patients, and has been endorsed by multiple ethicists and professional organizations. In addition, hospital accreditation standards and some state laws now require that patients be informed about ‘unanticipated outcomes’ in their care.”

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Although physicians are reluctant at times to speak up and admit to medical errors, there are those who do as noted in the following news clipping.

Medical Errors Are Hard for Doctors to Admit

In 2007, I published a story in my local paper in which I confessed to having made a medical error years earlier. I’d mistakenly prescribed an antibiotic for a patient whose chart indicated an allergy to the drug.

Thankfully, the story had a happy ending. My patient recovered and took no legal action after I explained to her what had happened. I ended my article vowing to take greater care to prevent errors and urging doctors to take responsibility for their mistakes, even when a patient hasn’t been harmed.

—Manoj Jain, Health and Science,
The Washington Post, May 27, 2013

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36,000 Feet Over Texas

A few weeks before Frank was to travel to Dodge City, Texas, for a work assignment involving the survey of a hospital for accreditation purposes, he received a call from Dr. Layblame.

“Hi, Frank. This is Dr. Layblame. Can you be ready for an early afternoon departure from Dodge City on Friday?”

Frank replied, “Well, you know, we have been instructed not to leave early, and I can book a flight to leave Saturday morning.”

Dr. Layblame emphatically replied, “Well, I was assigned as the team leader on a multiple-hospital tour here in Texas, and the rest of the team and I are planning an early start, as we have to drive to our next assignment. You were an add-on for this particular survey, and it’s my decision to make. The team wants to get to the next location, settle in to our next hotel, and have time to enjoy an evening meal together. So you should be prepared for an early exit by preparing your report Thursday evening before the exit conference on Friday. You can book to fly out late Friday afternoon.”

Frank booked the last flight out of Dodge City, with a 15-minute ride from the hospital to the airport. The flight left at 4:30 PM. On hearing Frank’s schedule, Dr. Layblame observed, “Well, it’s only an hour early. If you write most of your report the night before and during lunch on Friday, we should be able to finish up work by 2:30 PM. The airport is small and close to the hospital. I am the tour leader, so it should not be a problem.”

While Frank was on a flight to Washington, DC, following his work assignment, Ronald, Frank’s supervisor, was dictating a voicemail message to him. When Frank returned home at about 10:30 that evening, he retrieved his voicemail messages. Ronald had left Frank a message at 4:30 PM earlier that day asking Frank, “Call me as soon as you get this message. I will be in my office until about 5:30 PM. If you miss me, you can reach me over the weekend. My cell phone number is 888-888-8888.”

Frank called Ronald that evening and the next morning; however, Ronald never answered, nor did he return his call. Frank called Ronald Monday morning. As luck would have it, Ronald was out of the office for the day. Frank called Ronald again on Tuesday morning and Ronald answered. Frank asked, “Ronald, you called?” He replied, “Yes, I did. How were you able to get to the airport on Friday and catch a 4:30 PM flight without leaving your job early? I had your flight schedule and you left the survey early. You could not possibly have traveled to the airport in time to catch your flight without leaving early.”

Frank replied, “I did not schedule the exit time from the survey. The physician team leader determined the time of the exit. He said that he was conducting a system tour and would like to get the exit briefing started as soon as possible. He asked for everybody to be ready to exit by having draft reports ready the night before.” Ronald replied, “Dr. Layblame told me the team had to exit early because you scheduled an early flight.”

Frank asked, “Just one question, Ronald. Why would you leave a message for me at 4:30 PM to call you by 5:30 PM when you knew I was 36,000 feet high in the sky? And why didn’t you call the team leader at the beginning of the assignment and not after it was completed? Since you know flight schedules, why would you wait until the assignment was completed to raise this issue? Sounds a bit peculiar, don’t you think? Sort of like observing a protocol not being followed in the OR and then chastising the OR team after the surgery is completed for not following protocol. This is a serious business we are in. You need to ask yourself why you would allow an event to occur if you believed it to be wrong.”

—Anonymous

Discussion

  1. Discuss the ethical issues involved in this case.
  2. Discuss what you would do if you found yourself in Frank’s situation.
  3. What should Frank have said if his manager said, “You should have reported Dr. Layblame”?
  4. How would you describe Ronald’s management style?
Declining Trust in the Healthcare System

The declining trust in the nation’s ability to deliver high-quality health care is evidenced by a system caught up in the quagmire of managed care companies, which have in some instances inappropriately devised ways to deny healthcare benefits to their constituency. In addition, the continuing reporting of numerous medical errors serves only to escalate distrust in the nation’s political leadership and the providers of health care.

Physicians find themselves vulnerable to lawsuits, often because of misdiagnosis. As a result, patients are passed from specialist to specialist in an effort to leave no stone unturned. Fearful to step outside the boundaries of their own specialties, physicians escalate the problem by ineffectively communicating with the primary care physician responsible for managing the patient’s overall healthcare needs. This can also be problematic if no one physician has taken overall responsibility to coordinate and manage a patient’s care.

Cancer Doctor Allegedly Prescribed $35 Million Worth of Totally Unnecessary Chemotherapy

A Michigan oncologist has been charged with giving $35 million in needless chemotherapy to patients—some of whom didn’t even have cancer,
The Today Show reported.

Popular physician Farid Fata, who had more than 1,000 patients, allegedly misdiagnosed people with cancer just so he could bill Medicare.

He’s also accused of giving chemo to “end-of-life” patients who wouldn’t benefit and had to endure the treatment’s nasty side effects during their final days.

—Christina Sterbenz,
Business Insider, August 15, 2013

Politics and Distrust


Lies or the appearance of lies are not what the writers of our Constitution intended for our country—it’s not the America we salute every Fourth of July, it’s not the America we learned about in school, and it is not the America represented in the flag that rises above our land.

—Anonymous

Truthfulness is just one measure of one’s moral character. Unfortunately, politicians do not always set good examples for the people they serve. The following news clipping is an example of how political decisions can lead to distrust in government.

Cheney’s Staff Cut Testimony on Warming

In a letter to Sen. Barbara Boxer (D-Calif.), former EPA deputy associate administrator Jason K. Burnett said an official from [Vice President Dick] Cheney’s office ordered last October that six pages be edited out of the testimony of Julie L. Gerberding, director of the Centers for Disease Control and Prevention. Gerberding had planned to say that the “CDC considers climate change a serious public health concern.”

—Juliet Eilperin,
The Washington Post, July 9, 2008

Discussion

  1. Discuss how headlines such as this affect your opinion of politicians.
  2. Assuming a cover-up, discuss how the principles of beneficence and nonmaleficence apply.
  3. At the end of our days, the most basic principles of life—trust and survival—are on trial. What is your verdict, if indeed there was a cover-up?

Integrity


Nearly all men can stand adversity, but if you want to test a man’s character, give him power.

—Abraham Lincoln

Wrong-Operation Doctor

Hospitals find it hard to protect patients from wrong-site surgery

Last year a jury returned a $20 million negligence verdict against Arkansas Children’s Hospital for surgery on the wrong side of the brain of a 15-year-old boy who was left psychotic and severely brain damaged. Testimony showed that the error was not disclosed to his parents for more than a year. The hospital issued a statement saying it deeply regretted the error and had “redoubled our efforts to prevent” a recurrence.

“Healthcare has far too little accountability for results. … All the pressures are on the side of production; that’s how you get paid,” said Peter Pronovost, a prominent safety expert and medical director of the Johns Hopkins Center for Innovation in Quality Patient Care, who added that increased pressure to turn over operating rooms quickly has trumped patient safety, increasing the chance of error.

—Sandra G. Boodman, Kaiser Health News,
The Washington Post, June 20, 2011

Discussion

  1. Discuss the issues of integrity in this case.
  2. Should criminal charges be a consideration in this case, if accurately reported? Discuss your answer.

Integrity involves a steadfast adherence to a strict moral or ethical code and a commitment not to compromise this code.

There are many ways integrity is defined. Most of us have heard integrity defined as what you do when nobody else is around, or what you do and how you do it on a daily basis. Integrity is a concept that includes consistency in actions, expectations, measures, methods, outcomes, principles, and
values. Integrity means our actions are honest and trustworthy.

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A person with integrity has a staunch belief in and faithfulness to, for example, his or her religious beliefs. Patients and professionals alike often make healthcare decisions based on their integrity and their strict moral beliefs. For example, Jehovah’s Witnesses generally refuse blood transfusions because it is contrary to their religious beliefs, even if such refusal may result in death. A provider of health care may refuse to participate in an abortion because it is against the provider’s moral beliefs. A person without personal integrity lacks sincerity and moral conviction and may fail to act on professed moral beliefs.

Having integrity means doing the right thing in a reliable way. It’s a personality trait that we admire, since it means a person has a moral compass that doesn’t waver. It literally means having “wholeness” of character, just as an integer is a “whole number” with no fractions.

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Integrity begins at the top of an organization with the governing body to select a leader who exhibits the virtue of integrity. The success of the right choice is described in a quote by Bessie Anderson Stanley (see the opening quote in the Front Matter).

The career of a successful CEO is described in the following
Reality Check.

Man of Integrity

How we want to be remembered by all throughout our career:

June 1978: Congratulations and good wishes on your appointment as administrator. This is a great responsibility, but you are young and capable and it should be an interesting challenge. Most people of all stations working in the hospital are behind you and you certainly have the backing of the medical staff. This is a very good start. We will work 100% with you so please feel that you have our sincere backing. Once again, congratulations, good luck and good management.

—Bob

July 1978: Following our conversation yesterday, and for whatever it’s worth, I’d just like to tell you that I think you’re doing a terrific job! I like your administrative style and feel comfortable already. I’m very happy to be working with you. Have a good day!

—Yvonne

September 1998: Good luck in all your endeavors. It was my good fortune to be associated with you. People who are people-oriented should do well in any career path they choose. Happiness and good health.

—Natalie

November 2008: Daniel, before we talk about anything else, I want to first of all thank you for your approach to our staff. I want you to know I was happy to have had the pleasure to work with you. You had a wonderful way to put people at ease and glean information from them. You were able to determine from your questions the quality of care we offer here at Hennepin. When I think of the book, ‘If Disney ran your hospital’ and the fact that you went over and beyond what the book teaches … I saw that in you. I have a report somewhere here on my desk as to staff feedback and how well you related to them … You should see it. I am off to a meeting right now but I will share it with you.

—Jeanette

The integrity of the numbers of an employee satisfaction survey that were presented to employees during an annual educational conference is highlighted in the
Reality Check presented here.

Employee Satisfaction Survey

The human resources department manager was reporting on an employee satisfaction survey at a leadership roundtable session with the organization’s employees. To maintain employee confidentiality, a third-party consulting firm had conducted the survey. Approximately 49% of employees had responded to the survey, compared with 47% 3 years earlier. The HR manager commented that it is was the first satisfaction survey conducted in 3 years and that the results were excellent, with a 4.2% rise in overall employee satisfaction. Management was all smiles as they sat listening to the report. The HR manager had actually briefed the organization’s leadership prior to the roundtable session. Following the
report, she asked if there were any questions. The silence was deadly—no one responded. Finally, one employee, Richard, placed his hands on the table to stand up, but he felt a nudge on his right shoulder from Phil, a physician friend. Phil whispered, “Richard, are you sure you want to ask any questions? There is nothing to gain here.” Richard, looking down with a smile, said, “I agree, but I can’t help myself.” Richard then stood up and asked the HR manager, “Do you know what the employee turnover rate has been during the past 3 years?” She responded, “Well, ugh, yes, it was about 30%.” Richard replied, “So, then, does this report reflect that we have had a 30% turnover?” The manager replied, “Good point, I will have to get back to you on that.” When he returned to his seat, Phil said, “Do you really think you will ever hear back an answer to your question?” Richard smiled and replied, “Not really.” Richard was right; she never did get back to him.

Discussion

  1. Discuss why employees are often reluctant to ask questions when their questions are solicited by leadership.
  2. Knowing that the HR manager never followed up with Richard, should he have followed up with the manager as to the validity of the survey data? Explain your answer.
  3. Was integrity at issue in this Reality Check? Discuss your answer.

The integrity of hospital staff not only involves the care for patients in the hospitals but extends to those outside accrediting agencies and their employees responsible for identifying problems associated with the delivery of quality patient care in the hospital, as noted in the following
Reality Check
.

Behind the Smiles

Jeff well remembers what happened after Bill left the hospital boardroom. He remembers more clearly how Bill, a consultant, was treated while he was in the room after presenting his organizational improvement report to the hospital’s leadership. Bill was treated with kindness and assurances as to how well he took an educational approach to his audit findings with the staff and how employees appreciated his suggestions for improvement.

Prior to exiting the conference room, Bill asked whether there were any questions about his report. No questions, just smiles, accolades, and goodbyes. Jeff thought to himself,
Wow, it is good to see good people take suggestions and be so willing to make the changes that Bill suggested.

Oops, hold on—it turns out Bill wasn’t as wonderful as the leadership described. The organization’s leadership was now disgruntled about Bill’s report. Now that Bill was gone, he was being vilified. Jeff, a consultant not scheduled to finish his assignment for another 2 weeks, asked, “Why didn’t you ask questions while Bill was here?”

Carol, the finance director replied, “I spent 2 weeks with Bill. He just made up his mind. There was just no changing his mind.”

Jeff said, “Are you saying that you disagree with Bill’s report?”

Carol replied, “Yes, I do disagree with it.”

Jeff continued, “But you did not say that while he was here. You told him you liked his suggestions and that you were already in the process of implementing them.”

Carol replied, “That’s true, but since we made the suggested changes while he was here, he did not have to include them in his written report.”

Jeff replied, “It speaks well of leadership that you have done the work; however, it’s the hospital board that asked for the audit. We must report what we found.” Carol, disgruntled, remained silent. Jeff thought to himself,
integrity includes being honest and truthful and surely not criticizing a person after leaving the conference room.

—Anonymous

Discussion

  1. Should Bill have left his findings off the report? Explain your answer.
  2. Discuss why Bill’s integrity in reporting the deficiencies he found and reported were important to both ABC consulting and the hospital board, which had contracted with ABC to conduct the audit.
Medical Integrity and Patient Autonomy

For many medical providers, the relationship between medical ethics and professionalism may be what they consider to be integrity. Medical providers are asked to do what is right while using professional judgment. With professionalism comes an expectation of expertise, in a responsible and reliable manner.

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The integrity of the medical profession is not threatened by allowing competent patients to decide for themselves whether a particular medical treatment is in their best interests. Patient autonomy sets the foundation of one’s right to bodily integrity, including the right to accept or refuse treatment. Those rights are superior to the institutional considerations of hospitals and their medical staffs. A state’s interest in maintaining the ethical integrity of a profession does not outweigh, for example, a patient’s right to refuse blood transfusions.

Kindness


When you carry out acts of kindness, you get a wonderful feeling inside. It is as though something inside your body responds and says, yes, this is how I ought to feel.

—Harold Kushner

Kindness involves the quality of being considerate and sympathetic to another’s needs. Some people are takers, and others are givers. If you go through life giving without the anticipation of receiving, you will be a kinder and happier person.

Kindness is not Always Returned

The widely known saying “actions speak louder than words” is well demonstrated in this Reality Check. Joe was a healthcare consultant. He had collected thousands of documents of helpful information to share with healthcare organizations with which he had worked. His thinking was this: Why should hospitals have to reinvent the wheel? If organizations are willing to share with others, why not disseminate such information for the benefit of other hospitals? His hopes were that larger trade organizations would eventually collect the information and freely share with their constituents. After all, the goal was better care for all wherever they lived. Joe would provide copies of his CD to fellow consultants and encourage them to share the information with others. One day upon arriving at work he noticed that one of the consultants to whom he had given a copy of the CD had four or five newspaper clippings about hospitals spread out on a conference room table. Joe thought they looked interesting and asked, “Could I have a copy of your clippings?” The consultant said, “No, these are proprietary information.”

On another occasion, after sharing his CD with an organization, he asked, “Would you be willing to share your 12 Step Addiction Program with other healthcare organizations?” A representative from the organization said, “We will share it with you but not others.” Joe kindly said, “That’s okay. I can accept only what you are willing to share with others.”

—Anonymous

Discussion

  1. Should Joe have asked for his CD back from the consultant and organization? Discuss your answer.
  2. Discuss why an organization might not be willing to share program information.

Respect


Respect for ourselves guides our morals; respect for others guides our manners.

—Laurence Sterne

Respect is an attitude of admiration or esteem. Kant was the first major Western philosopher to put respect for persons, including oneself as a person, at the center of moral theory. He believed that persons are ends in themselves with an absolute dignity, which must always be respected. In contemporary thinking, respect has become a core ideal extending moral respect to things other than persons, including all things in nature.

Caregivers who demonstrate respect for one another and their patients will be more effective in helping them cope with the anxiety of their illness. Respect helps to develop trust between the patient and caregiver and improve healing processes. If caregivers respect the family of a patient, cooperation and understanding will be the positive result, encouraging a team effort to improve patient care.

Hopefulness


Hope is the last thing that dies in man; and though it be exceedingly deceitful, yet it is of this good use to us, that while we are traveling through life, it conducts us in an easier and more pleasant way to our journey’s end.

—Francois De La Rochefoucauld

Brooke Greenberg: 20-Year-Old “Toddler’s” Legacy of Hope and Love

The baffling case of Brooke Greenberg, a 20-year-old who never developed beyond the toddler stage, may provide clues to help scientists unlock the secrets of longevity and fight age-related disorders, such as Alzheimer’s, Parkinson’s, and heart disease. Brooke, who passed away last Thursday, had the body and cognitive function of a 1-year-old. She didn’t grow after the age of five—and basically, she stopped
aging entirely until her death at the chronological age of 20.

Brooke may have been the only person in the world suffering from a mysterious genetic disease that her doctors called Syndrome X. “Finding out that her DNA makeup is completely different than anyone else brought to our attention that we could help,” her father, Howard Greenberg, told Yahoo Shine in a previous interview. “So eventually, at the end of the rainbow, there will be something that comes out of all this. I believe everyone is here for a reason.”

—Sarah B. Weir,
Healthy Living, October 29, 2013

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Hopefulness in the patient care setting involves looking forward to something with the confidence of success. Caregivers have a responsibility to balance truthfulness while promoting hope. The caregiver must be sensitive to each patient’s needs and provide hope. As noted by Brooke’s father in the following news clipping, we can pass on hope and love to others.

Tolerance


There is a criterion by which you can judge whether the thoughts you are thinking and the things you are doing are right for you. The criterion is: Have they brought you inner peace? If they have not, there is something wrong with them—so keep seeking! If what you do has brought you inner peace, stay with what you believe is right.

—Peace Pilgrim

Tolerance can be viewed in two ways: positive or negative.
Positive tolerance implies that a person accepts differences in others and that one does not expect others to believe, think, speak, or act as he or she does. Tolerant people are generally free of prejudice and discrimination. Recognizing this fact, Thomas Jefferson incorporated theories of tolerance into the U.S. Constitution.
Negative tolerance implies that one will reluctantly put up with another’s beliefs. In other words, he or she merely tolerates the views of others.

Although tolerance can be viewed as a virtue, not all tolerance is virtuous nor is all intolerance necessarily wrong. An exaggerated tolerance may amount to a vice, whereas intolerance may sometimes be a virtue. For example, tolerating everything regardless of its repugnance (e.g., continuously and knowingly failing to follow required hand washing policies prior to surgical procedures).

Cooperation and Teamwork


If we do not hang together, we will all hang separately.

—Benjamin Franklin (1706–1790)

Cooperation is the process of working with others. In the healthcare setting, caregivers must work together to improve patient outcomes. The healthcare worker today works in an environment where change is the norm. Those unwilling to accept change and work in unity will eventually be working alone. Change is the only constant in today’s workplace and society in general. Technological change is occurring at a pace faster than the human mind can absorb, thus requiring teamwork between individuals with a wide variety of skill sets. Congress, as noted in the preceding news clipping, is an example of how little can be accomplished when its members are dysfunctional and unwilling to cooperate and work together toward common goals.

Congress Gets Stuck Again—Over FAA

Parties Blame Each Other in Funding Dispute and Partial Shutdown

A dispute over funding for the Federal Aviation Administration has left an estimated 74,000 people out of work for a dozen days and tossed Congress into the throes of yet another interparty battle.

Now, with lawmakers leaving town or already on recess, there seems to be little hope of a resolution on the horizon.

—Ashley Halsey III,
The Washington Post, August 4, 2011

Failure to cooperate has a rippling effect in any setting. The failure of Congress to cooperate and resolve funding issues for the Federal Aviation Administration (FAA) before taking its summer recess in 2011 left 74,000 people out of work, costing the nation nearly a billion dollars for the month of August. Failure of the few to cooperate and act responsibly not only affected employees placed on a leave of absence but also placed a financial hardship on their families, not to mention the effect it has had on the communities where they live. In addition, passenger safety on airline flights was placed in jeopardy. If hospitals operated in this manner, there would be even more recorded bad outcomes. Teamwork is effective only as long as each member of the team cooperates and fulfills the duties assigned. High-quality patient care is more likely to be better in those organizations where respect and cooperation abound.

Tying together the Patient Protection and Affordable Care Act, commonly referred to as Obamacare, as a prerequisite to approving the national budget has merely resulted in name-calling by government
officials, which has stirred bitterness between citizens of varying beliefs. Pundits and politicians alike fill the airways with contemptuous remarks that stoke the flames of division. The need to win one’s point of view has selfishly become the norm and more important than the nation itself. Pride and self-appointed power brokers are the hallmarks of those responsible for crisis after crisis. Change comes when the players learn to cooperate for the common good.

Forgiveness


Forgiveness is a virtue of the brave.

—Indira Gandhi


Forbearing one another, and forgiving one another, if any man have a quarrel against any: even as Christ forgave you, so also do ye.

—Colossians 3:13 KJV

Forgiveness is a virtue and a value. It is the willingness to pardon someone who has wronged you in some way. It is also a form of mercy. Forgiveness is to forgive and let loose the bonds of blame. It is a form of cleansing souls of both those who forgive and those who accept the forgiveness offered.

The following
Reality Check is an excerpt of a Facebook discussion between two friends involving courage and forgiveness by two very special people.

Courage and Forgiveness

7:38 AM

Scotty: Did you see this link [
http://www.josieking.org/page.cfm?pageID=10] on the internet?

7:38 AM

Diane: Reading it now

[Josie was 18 months old. … In January of 2001 Josie was admitted … after suffering first and second degree burns from climbing into a hot bath. She healed well and within weeks was scheduled for release. Two days before she was to return home she died of severe dehydration and misused narcotics …

Josie spent 10 days in the PICU. I [Josie’s mother] was by her side every day and night. I paid attention to every minute detail of the doctors’ and nurses’ care, and I was quick to ask questions. I bonded with them and was in constant awe of the medical attention she received. … She was sent down to the intermediate care floor with expectations of being sent home in a few days. Her three older siblings prepared for her welcome home celebration …

The following week her central line had been taken out. I began noticing that every time she saw a drink she would scream for it, and I thought this was strange. I was told not to let her drink. While a nurse and I gave her a bath, she sucked furiously on a washcloth. As I put her to bed, I noticed that her eyes were rolling back in her head. Although I asked the nurse to call the doctor, she reassured me that oftentimes children did this, and her vitals were fine. I told her Josie had never done this and perhaps another nurse could look at her. After yet another reassurance from another nurse that everything was fine, I was told that it was okay for me to sleep at home. I called to check in two times during the night and returned to the hospital at 5:30 am. I took one look at Josie and demanded that a doctor come at once. She was not fine. Josie’s medical team arrived and administered two shots of Narcan. I asked if she could have something to drink. The request was approved, and Josie gulped down nearly a liter of juice. Verbal orders were issued for there to be no narcotics given. As I sat with Josie, I noticed that the nurse on morning duty was acting very strangely. She seemed nervous, overly demonstrative and in a hurry. Uneasy, I asked the other nurses about her and they said she had been a nurse for a long time. Still worried, I expressed my concern to one of the doctors, and he agreed that she was acting a bit odd. Meanwhile, Josie started perking up. She was more alert and had kept all liquids down. I was still scared and asked her doctors to stay close by. At 1:00 the nurse walked over with a syringe of methadone. Alarmed, I told her that there had been an order for no narcotics. She said the orders had been changed and administered the drug.

Josie’s heart stopped as I was rubbing her feet. Her eyes were fixed, and I screamed for help. I stood helpless as a crowd of doctors and nurses came running into her room. I was ushered into a small room with a chaplain.

The next time I saw Josie she had been moved back up to the PICU. Doctors and nurses were standing around her bed. No one seemed to want to look at me. She was hooked up to many machines, and her leg was black and blue. I looked into their faces, and said to them, “You did this to her now YOU must fix her.” I was told to pray. Two days later Jack, Relly and Eva were brought to the hospital to kiss their beloved Josie goodbye. Josie was taken off of life support. She died in our arms on a snowy night in what’s considered to be one of the best hospitals in the world. Our lives were shattered and changed forever.

Josie died from severe dehydration and misused narcotics. Careless human errors. On top of our overwhelming sorrow and intense grief we were consumed by anger. They say anger can do one of two things to you. It can cause you to rot away or it can propel you forward. There were days when all I wanted was to destroy the hospital and then put an
end to my own pain. My three remaining children were my only reason for getting out of bed and functioning. One day I will tell them how they saved my life. My husband Tony and I decided that we had to let the anger move us forward. We would do something good that would help prevent this from ever happening to a child again.]

7:43 AM

Diane: I’ve experience firsthand human error in the hospital. I was told by my Dr. it could have been critical and I would have died.

7:45 AM

Diane: The nurses don’t like him, and he told me to write a letter to file a complaint, but the thing is, the nursing staff was so good to me before and after that incident. Evidently when it was happening he yelled at the staff without me knowing. I had no clue what had happened till days later the nurse involved apologized to me profusely.

7:46 AM

Diane: But I was so ill I didn’t give it much thought you ever heard of TPN [total parenteral nutrition]? It’s a sugar mixture via IV because I couldn’t eat. Supposedly it was supposed to be infused in me I think over a 12 hr period?

7:47 AM

Diane: But the nurse put it for 4 hrs. I could have gone into diabetic shock. I do remember trying to wake up but I couldn’t open my eyes and I heard a lot of movement in my room with the nurses. I yelled out. I can’t open my eyes and I’m drenched in sweat. I had no idea what was happening. I was then put on insulin.

7:50 AM

Scotty: I must say you are an amazing young lady.

—Anonymous Patient

Discussion

  1. This young lady forgave the nurse and suggested that when the nurse was setting the timing for the TPN, she may have distracted the nurse, and she blamed herself for the wrong setting. Discuss how courage and forgiveness were displayed in this case.
  2. Discuss the similarities in values that Josie’s mother and the young lady on the Internet have in common.
  3. Discuss your thoughts as to how human errors can be prevented, including what roles patients, families, caregivers, hospitals, and regulatory agencies should play in preventing similar errors.

RELIGIOUS ETHICS


The Great Physician: Dear Lord, You are the great physician. I turn to you in my sickness, asking you for help. I place myself under Your loving care, praying that I may know Your healing grace and wholeness. Help me to find love in this strange world and to feel your presence by my bed both day and night. Give my doctors and nurses wisdom, that they may understand my illness. Steady and guide them with your strong hand. Reach out Your hand to me and touch my life with Your peace. Amen.

—University of Pennsylvania Health System

Religious ethics serve a moral purpose by providing codes of conduct for appropriate behavior through revelations from a divine source (


FIGURE 1-3

). These codes of conduct are enforced through fear of pain and suffering in the next life and/or reward in the next life for adhering to religious codes and beliefs. The prospect of divine justice helps us to tolerate the injustices in this life, where goodness is no guarantee of peace, happiness, wellness, or prosperity.

Many Think God’s Intervention Can Revive the Dying

When it comes to saving lives, God trumps doctors for many Americans. An eye-opening survey reveals widespread belief that divine intervention can revive dying patients. And, researchers said, doctors “need to be prepared to deal with families who are waiting for a miracle.”

—Lindsey Tanner,
USA Today, August 18, 2008

Religion should be a component of the education, policy development, and consultative functions of ethics committees. There is a need to know, for example, how to respond to Jehovah’s Witnesses who refuse blood transfusions. Some hospitals provide staff with materials that describe various religious beliefs and
how those beliefs might affect the patient’s course of care while in the hospital.

Religion is often used as a reason to justify what otherwise could be considered unjustifiable behavior. Political leaders often use religion to legitimize and consolidate their power. Leaders in democratic societies speak of the necessity to respect the right to “freedom of religion.”

Political leaders often use religion to further their political aspirations. They have often used religion to justify their actions. Religious persecution has plagued humanity from the beginning of time.

Syrian Rebels Combat al-Qaeda Force

The ISIS extremists “have not the support of the people because they treated them badly. They were cutting off people’s heads all of the time to scare them in the name of religion,” said Col. Qassim Saadeddine, spokesman for the Revolutionary Front.

—Liz Sly,
The Washington Post, January 6, 2013

The world today, with the aid of the news media, is able to see firsthand the results of what can happen to innocent people in the name of religion. The atrocities of evil people strapping bombs to the mentally deficient with the purpose of blowing them up in public places, killing and maiming men, women, and children, are but a few of the numerous atrocities of what has occurred throughout the ages.

Spirituality implies that there is purpose and meaning to life; spirituality generally refers to faith in a higher being. For a patient, injury and sickness are frightening experiences. This fear is often heightened when the patient is admitted to a hospital or nursing facility. Healthcare organizations can help reduce patient fears by making available to them appropriate emotional and spiritual support and coping resources. It is a well-proven fact that patients who are able to draw on their spirituality and religious beliefs tend to have a more comfortable and often improved healing experience. To assist both patients and caregivers in addressing spiritual needs, patients should be provided with information as to how their spiritual needs can be addressed.

Surgeon Uses Ministry in Medical Practice

At 83, Carl Smith found himself facing quadruple bypass surgery and the real possibility that he may not survive.

Within hours on this spring morning, Dr. Daniel Pool would temporarily bring Smith’s heart to a stop in an attempt to circumvent its blocked passages.

And to help his patient confront the uncertainty, Pool did something unusual in his profession: He prayed with him.

The power of healing: Medicine and religion have had their day, and they haven’t always been able to coexist. But as today’s medical treatment becomes more holistic, doctors are increasingly taking spirituality into account.

—Marc Ramirez,
Altoona Mirror, August 9, 2013

Discussion

  1. Discuss the pressure, if any, placed on the patient in responding to the suggestion of prayer prior to surgery.
  2. Describe how you, as the surgeon, would address a patient’s religious or spiritual needs if the risks of a complex surgical procedure appear to be threatening.

Difficult questions regarding a patient’s spiritual needs and how to meet those needs are best addressed on admission by first collecting information about the patient’s religious or spiritual preferences. Caregivers often find it difficult to discuss spiritual issues for fear of offending a patient who may have beliefs different from their own. If caregivers know from admission records a patient’s religious beliefs, the caregiver can share with the patient those religious and spiritual resources available in the hospital and community. Staff education is often provided to hospital staff and spiritual resources are generally available in patient handbooks that are provided to patients at the time of admission to the hospital.

A variety of religions are described next for the purpose of understanding some of the basic tenets of these religions. They are presented here to note the
importance of better understanding why patients differ in decision-making processes and how religion affects their beliefs and to encourage further study of how each religion affects the decision-making process. Hospitals should maintain a directory of the various religions that includes contacts for referral and consultation purposes.

Northside Hospital describes in part on its website how it addresses the spiritual needs of patients.

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Spiritual Health

Spiritual Health & Education

Healing takes place in all dimensions—physical, mental, emotional, and spiritual.

The Spiritual Health and Education Department at Northside provides spiritual care that is sensitive to each person’s need to find personal truth and meaning in his or her own experience. Our chaplains are partners in healing with patients, families and staff, responding to spiritual distress, providing access to religious resources, facilitating communication with faith representatives or clergypersons outside of the hospital and responding and providing religious rituals.

They are available 24 hours a day, 7 days a week at each of Northside’s three hospital campuses.

Patient Care

As members of your healthcare team, Northside Hospital’s chaplains visit patients and their families to offer support as they make meaning of their healthcare journeys at Northside.

They respect diverse faith traditions and cultural backgrounds, seeking to support patients in drawing on the resources that are most meaningful to them during their hospitalization.

Our chaplains are glad to assist patients in contacting and utilizing the services of their own spiritual care provider (e.g., pastor, rabbi, priest, imam, or designated lay visitors).

Sacred Space for Prayer and Reflection

Each Northside Hospital campus has an easily accessible chapel, open at all times to persons of all faiths for prayer, meditation and reflection, as well as for religious services coordinated by chaplaincy staff.

Multi-faith Services

At Northside, we respect the right of individuals to hold and express their own spiritual beliefs. Our chaplains provide spiritual health support to patients across the spectrum of beliefs and maintain relationships with skilled volunteers and local clergy to offer referral support by patient request.

Additionally, we facilitate weekly multi-faith chapel services at Northside Hospital’s Atlanta campus and oversee sacred inclusive chapel spaces at Northside Hospital’s Forsyth and Cherokee Campuses.

For those in need, we offer spiritual health support services to patients or their loved ones nearing or at the end-of-life. Community memorial services and times of remembrance are also conducted by our chaplains.

Numerous resources for caregivers and patients are available on the web.

HealthCare Chaplaincy Network™ (HCCN), founded in 1961, is a global healthcare nonprofit organization that offers spiritual care-related information and resources, and professional chaplaincy services in hospitals, other healthcare settings, and online. Its mission is to advance the integration of spiritual care in health care through clinical practice, research, and education in order to improve patient experience and satisfaction and to help people faced with illness and grief find comfort and meaning—whoever they are, whatever they believe, wherever they are.

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Judaism

Jewish Law refers to the unchangeable 613 mitzvot (commandments) that God gave to the Jews. Halakhah (Jewish Law) comes from three sources: (1) the Torah (the first five books of the Bible); (2) laws instituted by the rabbis; and (3) longstanding customs. The Jewish People is another name for the Children of Israel, referring to the Jews as a nation in the classical sense, meaning a group of people with a shared history and a sense of a group identity rather than a specific place or political persuasion.

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Judaism is a monotheistic religion based on principles and ethics embodied in the Hebrew Bible (Old Testament). The notion of right and wrong is not so much an object of philosophical inquiry as an acceptance of divine revelation. Moses, for example, received a list of 10 laws directly from God. These laws were known as the 10 Commandments. Some of the 10 Commandments are related to the basic principles of justice that have been adhered to by society since they were first proclaimed and published. For some societies, the 10 Commandments were a turning point, where essential commands such as “thou
shalt not kill” or “thou shalt not commit adultery” were accepted as law. The 10 Commandments (King James Version of the Bible) are as follows:

  1. Thou shalt have no other gods before me.
  2. Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.
  3. Thou shalt not bow down thyself to them, nor serve them. Thou shalt not take the name of the Lord thy God in vain.
  4. Remember the Sabbath day, to keep it holy.
  5. Honor thy father and thy mother: that thy days may be long upon the land which the Lord thy God giveth thee.
  6. Thou shalt not kill.
  7. Thou shalt not commit adultery.
  8. Thou shalt not steal.
  9. Thou shalt not bear false witness against thy neighbor.
  10. Thou shalt not covet thy neighbor’s house, thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor anything that is thy neighbor’s.

When caring for the dying, family members will normally want to be present and prayers spoken. If a rabbi is requested, the patient’s own rabbi should be contacted first.

Hinduism

Hinduism is a polytheistic religion with many gods and goddesses. Hindus believe that God is everything and is infinite. The earliest known Hindu scriptures were recorded around 1200 BC. Hindus believe in reincarnation and that one’s present condition is a reflection of one’s virtuous behavior or lack thereof in a previous lifetime.

When caring for the dying, relatives may wish to perform rituals at this time. In death, jewelry, sacred threads, or other religious objects should not be removed from the body. Washing the body is part of the funeral rites and should be carried out by the relatives.

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Buddhism

Buddhism is a religion and philosophy encompassing a variety of traditions, beliefs, and practices, based largely on teachings attributed to Prince Siddhartha Gautama (563–483 BC), son of King Suddhodana and Queen Mayadevi, who lived in the present-day border area between India and Nepal. He had gone on a spiritual quest and eventually became enlightened at the age of 35, and from then on, he took the name Buddha. Simply defined, Buddhism is a religion to some and a philosophy to others that encourages one “to do good, avoid evil, and purify the mind.”

When caring for the dying, Buddhists like to be informed about their health status in order to prepare themselves spiritually. A side room with privacy is preferred.

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Falun Gong

Falun Gong, also referred to as
Falun Dafa, is a traditional Chinese spiritual discipline belonging to the Buddhist school of thought. It consists of moral teachings, a meditation, and four exercises that resemble tai chi and are known in Chinese culture as
qigong. Falun Gong does not involve physical places of worship, formal hierarchies, rituals, or membership and is taught without charge. The three principles practiced by the followers are truthfulness, compassion, and forbearance/tolerance toward others. The followers of Falun Gong claim a following in 100 countries.

Zen

Zen evolved from Buddhism in Tibet. It emphasizes dharma practice (from the master to the disciple) and experiential wisdom based on learning through the reflection on doing, going beyond scriptural readings. In Zen Buddhism, learning comes through a form of seated meditation known as
zazen, where practitioners perform meditation to calm the body and the mind and experience insight into the nature of existence and thereby gain enlightenment.

Taoism

Taoists believe that ultimate reality is unknowable and unperceivable. The founder of Taoism is believed to be Lao Tzu (6 BC). Taoist doctrine includes the belief that the proper way of living involves being in tune with nature. Everything is ultimately interblended and interacts. Taoist ethics include compassion, frugality, and humility. They emphasize the importance of meditation in daily life, which can be a challenge in the hospital setting.

Christianity

Christianity is based on the Bible’s New Testament teachings. Christians accept both the Old and New Testament as being the word of God. The New Testament describes Jesus as being God, taking the form of man. He was born of the Virgin Mary, sacrificed
his life by suffering crucifixion, and after being raised from the dead on the third day, he ascended into Heaven from which he will return to raise the dead, at which time the spiritual body will be united with the physical body. His death, burial, and resurrection provide a way of salvation through belief in Him for the forgiveness of sin. God is believed to be manifest in three persons: the Father, Son, and Holy Spirit.

The primary and final authority for Christian ethics is found in the life, teachings, ministry, death, and resurrection of Jesus Christ. He clarified the ethical demands of a God-centered life by applying the obedient love that was required of Peter. The 10 Commandments are accepted and practiced by both Christians and Jews.

Christians, when determining what is the right thing to do, often refer to the Golden Rule, which teaches us to “do unto others as you would have them do unto you,” a common principle in many moral codes and religions.

There have been and continue to be numerous interpretations of the meaning of the scriptures and their different passages by Christians over the centuries. This has resulted in a plethora of churches with varying beliefs. As noted later, such beliefs can affect a patient’s wishes for health care. However, the heart of Christian beliefs is found in the book of John:


For God so loved the world, that he gave his only begotten Son, that whoever believeth in him should not perish, but have everlasting life.

—John 3:16 (King James Version)

The Apostle Paul proclaimed that salvation cannot be gained through good works but through faith in Jesus Christ as savior. He recognized the importance of faith in Christ over good works in the pursuit of salvation.


That if thou shalt confess with thy mouth the Lord Jesus, and shalt believe in thine heart that God hath raised him from the dead, thou shalt be saved.

—Romans 10:9 (King James Version)

The Apostle Paul, however, did not dismiss the importance of good works. Works are the fruit of one’s faith. In other words, good works follow faith.

Anointing of the Sick

When caring for the dying, services of the in-house chaplain and/or one’s religious minister should be offered to the patient. A Catholic priest should be offered when Last Rites need to be administered to those of the Catholic faith.

Islam

The Islamic religion believes there is one God: Allah. Muhammad (AD 570–632) is considered to be a prophet/messenger of God. He is believed to have received revelations from God. These revelations were recorded in the Qur’an, the Muslim Holy Book. Muslims accept Moses and Jesus as prophets of God. The Qur’an is believed to supersede the Torah and the Bible. Muslims believe that there is no need for God’s grace and that their own actions can merit God’s mercy and goodness. Humans are believed to have a moral responsibility to submit to God’s will and to follow Islam as demonstrated in the Qur’an. The five pillars of the practice of Islam are believing the creed, performing five prayers daily, giving alms, fasting during Ramadan, and making a pilgrimage to Mecca at least once in a lifetime.

When caring for the dying, patients may want to be with relatives and die facing Mecca (in the United States, that means the patient should be oriented toward the southeast). In death, many Muslims follow strict rules in respect for the body after death.

Religious Beliefs and Duty Conflict

Religious beliefs and codes of conduct sometimes conflict with the ethical duty of caregivers to save lives. For example, Jehovah’s Witnesses believe that it is a sin to accept a blood transfusion because the Bible states that we must “abstain from blood” (Acts 15:29). A principal tenet of the Jehovah’s Witness faith is the belief that receiving blood or blood products into one’s body precludes resurrection and everlasting life after death. Current Jehovah’s Witness doctrine, in part, states that blood must not be transfused. In order to respect this belief, bloodless surgery is available in a number of hospitals to patients who find it against their religious beliefs to receive a blood transfusion.

Every attempt should be made to resolve blood transfusion issues prior to any elective surgery. The transfusion of blood to an emergent unconscious patient may be necessary to save the patient’s life. Because some Jehovah’s Witnesses would accept blood in such situations, most courts would most likely find such a transfusion acceptable. When transfusion of a minor becomes necessary and parental consent is refused, it may be necessary to seek a court order to allow for such transfusions. Because time is of the essence in many cases, it is important for hospitals to work out such issues in advance with legislative bodies and the judicial system in order to provide legal protection for caregivers who find it necessary to transfuse blood in order to save a life. In those instances where the patient has a right to refuse a blood transfusion, the hospital should seek a formal signed release from the patient.

SECULAR ETHICS

Unlike religious ethics,
secular ethics is based on codes developed by societies that have relied on customs to formulate their codes. The Code of Hammurabi, for example, carved on an 8-foot black stone column, now located in the Louvre in Paris, depicts a mythical Babylonian sun god presenting a code of laws to Hammurabi, a great military leader and ruler of Babylon (1795–1750 BC). Hammurabi’s code of laws is an early example of a ruler proclaiming to his people an entire body of laws. The following excerpts are from the Code of Hammurabi.

Code of Hammurabi

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If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge’s bench, and never again shall he sit there to render judgment.

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If a man give his child to a nurse and the child die in her hands, but the nurse unbeknown to the father and mother nurse another child, then they shall convict her of having nursed another child without the knowledge of the father and mother and her breasts shall be cut off.

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If a physician make a large incision with an operating knife and cure it, or if he open a tumor (over the eye) with an operating knife, and saves the eye, he shall receive ten shekels in money.

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If he be the slave of some one, his owner shall give the physician two shekels.

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If a physician make a large incision with the operating knife, and kill him, or open a tumor with the operating knife, and cut out the eye, his hands shall be cut off.

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If a physician make a large incision in the slave of a freed man, and kill him, he shall replace the slave with another slave.

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If a physician heal the broken bone or diseased soft part of a man, the patient shall pay the physician five shekels in money.

ATHEISM

Atheism is the rejection of belief in any god, generally because atheists believe there is no scientific evidence that can prove God exists. They argue that there is no objective moral standard for right and wrong and that ethics and morality are the products of culture and politics, subject to individual convictions.

Those of various religious faiths, however, believe there is overwhelming evidence that there is reason to believe that God does exist and that the evidence through historical documents, archaeological finds, and the vastness of space and time clearly supports and confirms the existence of God. Christians often refer to the Old Testament and cite the book of Isaiah:


It is He that sitteth upon the circle of the earth …

—Isaiah 40:22 (King James Version)

Christians argue when citing this verse that Isaiah could not possibly know that the earth is the shape of a circle. He presents no magical formula or scientific argument in his writings as to why the earth is round. Furthermore, Isaiah does not belabor the fact that the earth is round. The argument continues in the book of Job:


He stretcheth out the north over the empty place, and hangeth the earth upon nothing.

—Job 26:7 (King James Version)

The obvious question then arises, how did Job know, 3,000 years before it became a scientific, verifiable fact, the earth hangs upon nothing?

SITUATIONAL ETHICS


Be careful how you judge others. … As Scottish author J.M. Barrie said, “Never ascribe to an opponent motives meaner than your own.” We tend to judge others based on their behavior, and ours based on our intent. In almost all situations, we would do well to recognize the possibility—even probability—of good intent in others … sometimes despite their observable behavior.

—Stephen M. R. Covey,
The Speed of Trust (Free Press)

Situational ethics is concerned with the outcome or consequences of an action in which the ends can justify the means. It refers to those times when a person’s beliefs and values can change as circumstances
change. Why do good people behave differently in similar situations? Why do good people sometimes do bad things? The answer is fairly simple: One’s moral character can sometimes change as circumstances change; thus the term situational ethics. A person, therefore, may contradict what he believes is the right thing to do and do what he morally considers wrong. For example, a decision not to use extraordinary means to sustain the life of an unknown 84-year-old may result in a different decision if the 84-year-old is one’s mother.

The news clipping that follows illustrates how far society can regress when there are no common rules, values, or boundaries to guide us.

Viet Cong Execution

“And out of nowhere came this guy who we didn’t know.” Gen. Nguyen Ngoc Loan, chief of South Viet Nam’s national police, walked up and shot the prisoner in the head. His reason: The prisoner, a Viet Cong lieutenant, had just murdered a South Vietnamese colonel, his wife, and their six children.

The peace movement adopted the photo as a symbol of the war’s brutality. But Adams, who stayed in touch with Loan, said the photo wrongly stereotyped the man. “If you’re this general and you caught this guy after he killed some of your people … how do you know you wouldn’t have pulled that trigger yourself? You have to put yourself in that situation. … It’s a war.”

—1969 Spot News, Newseum, Washington, DC

Have we lost our way? Have we lost our sense as to what is right and what is wrong? We say we have become a melting pot with some common themes but uncommon beliefs. In religion, there are those who sometimes seek a place of worship not always because one seeks what is right but because unconsciously it supports an individual’s beliefs of what is right and wrong. Sometimes one’s ever-changing choice of lifestyle contradicts earlier beliefs and can often result in a change in place of worship.

The values held so strongly in one situation may conflict with the same values given a different fact pattern. To better understand the concept of situational ethics, consider the desire to live and the extreme measures one will take in order to do so, remembering that ethical decision making is the process of determining the right thing to do when faced with moral dilemmas.

Consider the account of the plane crash on October 13, 1972, high in the Andes Mountains. The survivors of the crash, until the day they were rescued, were faced with difficult decisions in order to survive. Of the original 40 passengers and 5 crewmembers, 16 emerged alive 72 days later to tell the story of the difficult ethical dilemmas and survival decisions they had to make.

Those who wished to survive had to eat the flesh of those who did not. They realized that to survive, they would have to deviate from their beliefs that teach it is morally wrong to eat the flesh of another human being. Given a different fact pattern, where there would have been an abundance of food at the site of the plane crash, the survivors would have found it reprehensible to eat human flesh. This is a gruesome story indeed, but it illustrates how there are no effective hard and fast rules or guidelines to govern ethical behavior when faced with life-or-death decisions. The reader here should consider how one’s beliefs, decisions, and/or actions can change as circumstances change. Such is the case in the patient care setting where individual differences emerge based on needs, beliefs, and values.

REASONING AND THE DECISION-MAKING PROCESS


Reason guides our attempt to understand the world about us. Both reason and compassion guide our efforts to apply that knowledge ethically, to understand other people, and have ethical relationships with other people.

—Molleen Matsumura

Reasoning is the process of forming conclusions, judgments, or inferences based on one’s interpretation of facts or premises that help support a conclusion.
Reasoning includes the capacity for logical inference and the ability to conduct inquiry, solve problems, evaluate, criticize, and deliberate about how we should act and to reach an understanding of other people, the world, and ourselves.

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Partial reasoning involves bias for or against a person based on one’s relationship with that person.
Circular reasoning describes a person who has already made up his/her mind on a particular issue and sees no need for deliberation (i.e., “Don’t confuse me with the facts”). For example, consider the following statement by Mr. X: “John Smith has lived a good life. It’s time to pull the plug. He is over 65 and, therefore, should not have any rights to a recently available kidney for transplant. Regardless of Mr. Smith’s need for a kidney transplant, all donated organs should be given to those under 65.” Here, Mr. X outright rejects any consideration to donating an organ to Mr. Smith regardless of any argument presented by Ms. Y as to why Smith should be considered for a kidney transplant. This conversation is circular reasoning because Mr. X has closed his mind to any argument by Ms. Y. His only discussion will be his attempt to refute any arguments presented by Ms. Y. The rightness or wrongness of this statement is a moral issue and should be open for discussion, fact-finding, evaluation, reasoning, and consensus decision making and not be closed to discussion by one party’s total rejection of an opposing argument.

Ethical dilemmas often arise when ethical theories, principles, and values conflict. Healthcare dilemmas occur when there are alternative choices, limited resources, and differing values among patients, family members, and caregivers. Ethical dilemma arises when, for example, the principles of autonomy and beneficence conflict with one another. Coming to an agreement may mean sacrificing one’s personal wishes and following the road where there is consensus.
Consensus building during the decision-making process will occur when the parties involved can sit and reason together. The process of identifying the various alternatives to an ethical dilemma, determining the pros and cons of each choice, and making informed decisions requires a clear, unbiased willingness to listen, learn, and, in the end, make an informed decision. The application of the theories, principles, and values discussed in this chapter will assist caregivers and patients in making better decisions when facing ethical dilemmas in the healthcare setting.

The resolution of patient care dilemmas without personal biases will result in better decisions. For example, Martha, at 95 years of age, has a “living will that provides that all measures are to be taken to prolong her life in the event she lapses into a coma and is unable to make her own decisions.” Martha later changes her will to read: “extraordinary means to maintain her life such as assisted breathing devices are not to be used.” One member of the family, aware of the written changes to Martha’s living will, decides not to share the latest changes with family members or caregivers. As a result, a wrong decision is reached for Martha in honoring her end-of-life wishes.
Knowledge and
information of Martha’s wishes must be shared so that the
analysis of the dilemma leads to a
decision made based on Martha’s end-of-life wishes. Such is the case in all scenarios where care dilemmas and conflicting issues of right and wrong, good and bad arise and difficult decisions must be made.

ABSENCE OF A MORAL COMPASS


The world is a dangerous place. Not because of the people who are evil; but because of the people who don’t do anything about it.

—Albert Einstein

The nation’s healthcare system is off course as noted by the absence of a moral compass. Trust in the healthcare system continues to decline when those who are entrusted with providing health care prescribe unnecessary procedures (e.g., cardiac catheterizations, hysterectomies, tonsillectomies), molest our children, secretly record photographic pictures of patients while they are receiving physical examinations, engage in fraudulent billing scams costing the nation billions of dollars annually, tamper with chemotherapy agents by diluting them (unbeknown to patients who trust they are being treated by caregivers with integrity), perform unwarranted high-risk lifesaving treatment delays for our veterans
and falsification of records, and the list of unethical behavior continues to grow, seemingly unabated. The government and those in leadership roles have failed to reset the nation’s moral compass. The present path to better health care for all continues on an unacceptable course of corruption and is increasingly becoming a disturbing public concern.

Political corruption, antisocial behavior, declining civility, and rampant unethical conduct have heightened discussions over the nation’s moral decline and decaying value systems in the delivery of health care. The numerous instances of questionable political decisions and numbers-cooking executives with exorbitant salaries, including healthcare executives working for both profit and nonprofit organizations, have all contributed to the nation’s moral decline.

The continuing trend of consumer awareness of declining value systems mandates that the readers of this book understand ethics and the law and how they intertwine. Applying the generally accepted ethical principles (e.g., do good and not harm) and the moral values (e.g., respect, trust, integrity, compassion) described in this chapter will help set a better course for those who are guided by a moral compass. It is the responsibility of every person to participate in resetting the moral compass, in our nation and in the world at large.

CREATING A CULTURE OF ETHICS

There is no lack of articles and books that describe the importance of and how to create a culture of ethics in healthcare organizations. Creating a culture of ethics begins with the governing body. The CEO must take a leadership role in creating and maintaining a culture of ethics. “Employees listen to their leadership’s messages and observe their behavior; therefore, it is incumbent on any healthcare board to define, both in word and deed, ethical conduct and to determine the degree to which ethics are a part of the organization’s culture.”

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One of the premiere descriptions outlining the importance of the CEO’s obligation to take a leadership role in creating a culture of ethics is presented here with permission by the American College of Healthcare Executives.

Creating an Ethical Culture Within the Healthcare Organization

Statement of the Issue

The number and significance of challenges facing healthcare organizations are unprecedented. Growing financial pressures, rising public and payor expectations, consolidations and mergers, patient safety and quality improvement issues and healthcare reform have placed healthcare organizations under great stress—thus potentially intensifying ethics concerns and conflicts.

Healthcare organizations must be led and managed with integrity and consistent adherence to organizational values, professional and ethical standards. The executive, in partnership with the board, must act with other responsible parties such as ethics committees, to serve as a role model, fostering and supporting a culture that not only provides high-quality, value-driven healthcare but promotes the ethical behavior and practices of individuals throughout the organization.

Recognizing the significance of ethics to the organization’s mission and fulfillment of its responsibilities, healthcare executives must demonstrate the importance of ethics in their own actions and seek various ways to integrate ethical practices and reflection into the organization’s culture. To create an ethical culture, healthcare executives should: 1) support the development and implementation of ethical standards of behavior including ethical clinical, management, research and quality-improvement practices; 2) ensure effective and comprehensive ethics resources, including an ethics committee, exist and are available to develop, propagate and clarify such standards of behavior when there is ethical uncertainty; and 3) support and implement a systematic and organization-wide approach to ethics training and corporate compliance.

The ability of an organization to achieve its full potential as an ethically aligned organization will remain dependent upon the motivation, knowledge, skills and practices of each individual within the organization. Thus, the executive has an obligation to accomplish the organization’s mission in a manner that respects the values of individuals and maximizes their contributions.

Policy Position

The American College of Healthcare Executives believes all healthcare executives have a professional obligation to create an ethical culture. To this end, healthcare executives should lead these efforts by:

  • Demonstrating and modeling the importance of and commitment to ethics through decisions, practices and behaviors;
  • Promulgating an organizational code of ethics that includes ethical standards of behavior and guidelines;
  • Reviewing the principles and ideals expressed in vision, mission and value statements, personnel policies, annual reports, orientation materials and other documents to ensure congruence;
  • Supporting policies and behaviors that reflect those ethics is essential to achieving the organization’s mission;
  • Using regular communications to help foster an understanding of the organization’s commitment to ethics;
  • Communicating expectations that behaviors and actions are based on the organization’s code of ethics, values and ethical standards of practice. Such expectations also should be included in orientations and position descriptions where relevant;
  • Ensuring individuals throughout the organization are respected and expected to behave in an ethical manner;
  • Fostering an environment where the free expression of ethical concerns is encouraged and supported without retribution;
  • Ensuring effective ethics resources—such as an ethics committee—are available for discussing, researching, and addressing clinical, organizational and ethical concerns;
  • Establishing a mechanism that safeguards individuals who wish to raise ethical concerns;
  • Seeking to ensure that individuals are free from all harassment, coercion and discrimination;
  • Providing an effective and timely process to facilitate dispute resolution;
  • Using each individual’s knowledge, skills and abilities appropriately; and
  • Ensuring a safe work environment exists.

These responsibilities can best be implemented in an environment in which each individual within the organization is encouraged and supported in adhering to the highest standards of ethics. This should be done with attention to the organization’s values, code of ethics and appropriate professional codes, particularly those that stress the moral character and behavior of the executive and the organization itself.

To ensure the creation of an ethically grounded culture, leaders should regularly assess their organization’s culture using such approaches as employee surveys (internal town hall forums), informal job shadowing and focus groups. Executives in collaboration with clinical and administrative leaders need to recognize any barriers to maintaining an ethical culture. It is the responsibility of healthcare executives, leaders and all staff to take immediate and definite action when addressing ethical barriers. The ethical foundation of the organization depends on whether or not the leadership, and all associated individuals, are fulfilling its mission and values.

Approved by the Board of Governors of the American College of Healthcare Executives on November 9, 2015.

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SUMMARY THOUGHTS


Be careful of your thoughts, for your thoughts inspire your words. Be careful of your words, for your words precede your actions. Be careful of your actions, for your actions become your habits. Be careful of your habits, for your habits build your character. Be careful of your character, for your character decides your destiny.

—Chinese Proverb

Although you cannot control the amount of time you have in this lifetime, you can control your behavior by adopting the virtues and values that will define who you are and what you will become and how you will be remembered or forgotten.

Become who you want to be and behave how you want to be remembered. The formula is easy and well described previously in what has been claimed to be a Chinese proverb. Read it. Reread it. Write it. Memorize it. Display it in your home, at work, and in your car, and most of all, practice it, always remembering that it all begins with thoughts.

Control your thoughts, and do not let them control you. As to words, they are the tools of thought. They can be sharper than any double-edged sword and hurt, or they can do good and heal.

It is never too late to change your thoughts, as long as you have air to breathe. Your legacy may be short, but it can be powerful. Remember the Gettysburg address. In the final analysis:


People are often unreasonable, illogical and self-centered; forgive them anyway. If you are kind, people may accuse you of selfish, ulterior motives; be kind anyway. If you are successful, you will win some false friends and some true enemies; succeed anyway. What you spend years building, someone may destroy overnight; build anyway. The good you do today, people will often forget tomorrow; do good anyway. Give the world the best you have, and it may never be enough; give the world the best you have anyway. You see, in the final analysis, it is between you and God; It was never between you and them anyway.

—Author Unknown

CHAPTER REVIEW

  1. Ethics is the branch of philosophy that seeks to understand the nature, purposes, justification, and founding principles of moral rules and the systems they compose.

    • Microethics involves an individual’s view of what is right and wrong based on his or her life experiences.
    • Macroethics involves a more generalized view of right and wrong.
  2. Bioethics addresses such difficult issues as the nature of life, the nature of death, what sort of life is worth living, what constitutes murder, how we should treat people who are especially vulnerable, and the responsibilities we have to other human beings.
  3. We study ethics to aid us in making sound judgments, good decisions, and right choices.
  4. Ethics signifies a general pattern or way of life, such as religious ethics; a set of rules of conduct or “moral code,” which involves professional ethics; or philosophical ethics, which involves inquiry about ways of life and rules of conduct.
  5. Morality is a code of conduct. It is a guide to behavior that all rational persons would put forward for governing the behavior of all moral agents.
  6. There is no “universal morality.” Whatever guide to behavior that an individual regards as overriding and wants to be universally adopted is considered that individual’s morality.
  7. Moral judgments are those judgments concerned with what an individual or group believes to be the right or proper behavior in a given situation.
  8. Morality is often legislated when differences cannot be resolved because of conflicting moral codes with varying opinions as to what is right and what is wrong (e.g., abortion). Laws are created to set boundaries for societal behavior, and they are enforced to ensure that the expected behavior is followed.
  9. Ethical theories and principles introduce order into the way people think about life.
    Metaethics seeks to understand ethical terms and theories and their application. The following are ethical theories:

    • Normative ethics is the attempt to determine what moral standards should be followed so that human behavior and conduct may be morally right.
    • Descriptive ethics, also known as comparative ethics, deals with what people believe to be right and wrong.
    • Applied ethics is the application of normative theories to practical moral problems. It is the attempt to explain and justify specific moral problems such as abortion, euthanasia, and assisted suicide.
    • The
      consequential theory emphasizes that the morally right action is whatever action leads to the maximum balance of good over evil. The consequential theory is based on the view that the value of an action derives solely from the value of its consequences.
    • Utilitarian ethics involves the concept that the moral worth of an action is determined solely by its contribution to overall utility, that is, its contribution to happiness or pleasure as summed among all persons.
    • Deontological ethics focuses on one’s duties to others. It includes telling the truth and keeping your promises. Deontology is an ethical analysis according to a moral code or rules.
    • The
      nonconsequential ethical theory denies that the consequences of an action or rule are the only criteria for determining the morality of an action or rule.
    • Ethical relativism is the theory that holds that morality is relative to the norms of one’s culture.
  10. Common principles of ethics include:
    • Autonomy involves recognizing the right of a person to make his or her own decisions.

    • Beneficence describes the principle of doing good, demonstrating kindness, showing compassion, and helping others.

      • Paternalism is a form of beneficence. It may involve withholding information from a person because of the belief that doing so is in the best interest of that person.
      • Medical paternalism involves making choices for (or forcing choices on) patients who are capable of choosing for themselves. It directly violates patient autonomy.

    • Nonmaleficence is an ethical principle that requires caregivers to avoid causing harm to patients.
    • Justice is the obligation to be fair in the distribution of benefits and risks.

      • Distributive justice is a principle that requires treatment of all persons equally and fairly.
  11. Virtue ethics and values

    • Virtue is normally defined as some sort of moral excellence or beneficial quality. In traditional ethics, virtues are characteristics that differentiate good people from bad people.
    • Virtue ethics focuses on the inherent character of a person rather than on the specific actions he or she performs.
    • Value is something that has worth. Values are used for judging the goodness or badness of some action.

      • Ethical values imply standards of worth.
      • Intrinsic value is something that has value in and of itself.
      • Instrumental value is something that helps to give value to something else (e.g., money is valuable for what it can buy).
      • Values may change as needs change.
  12. Religious ethics serves a moral purpose by providing codes of conduct for appropriate behavior through revelations from a divine source.
  13. Secular ethics is based on codes developed by societies that have relied on customs to formulate their codes.
  14. Situational ethics describes how a particular situation may influence how one’s reaction and values may change in order to cope with changing circumstances.
  15. Reasoning includes the capacity for logical inference and the ability to conduct inquiry, solve problems, evaluate, criticize, and deliberate about how we should act and to reach an understanding of other people, the world, and ourselves.
  16. The acceptance, understanding, and application of the ethical and moral concepts learned in this chapter will provide a moral compass to guide the reader through life’s journey.

TEST YOUR UNDERSTANDING

Terminology

  • applied ethics
  • autonomy
  • beneficence
  • bioethics
  • code of ethics
  • commitment
  • compassion
  • conscientiousness
  • consequential theory
  • cooperation
  • courage
  • deontological ethics
  • descriptive ethics
  • detachment
  • distributive justice
  • discernment
  • employment-related paternalism
  • ethical principles
  • ethical relativism
  • ethical theories
  • ethics
  • fairness
  • fidelity
  • freedom
  • honesty
  • hopefulness
  • instrumental value
  • integrity
  • intrinsic value
  • justice
  • kindness
  • macroethics
  • medical paternalism
  • metaethics
  • microethics
  • moral dilemmas
  • moral judgments
  • moral values
  • morality
  • nonconsequential ethics
  • nonmaleficence
  • normative ethics
  • paternalism
  • religious ethics
  • respect
  • secular ethics
  • situational ethics
  • spirituality
  • tolerance
  • truth telling
  • values
  • veracity
  • virtue ethics
  • virtues

REVIEW QUESTIONS

  1. What is ethics?
  2. Why should one study ethics?
  3. What is morality?
  4. Describe the ethical theories presented in this chapter.
  5. What is ethical relativism? What is the relevance of this concept to individuals of various cultures living in the same society?
  6. Describe the various ethical principles reviewed and how they might be helpful in resolving healthcare ethical dilemmas.
  7. Describe virtue ethics and values. How do virtues and values differ?
  8. Discuss why “courage” could be considered as the greatest of all virtues.
  9. Discuss how religion can affect one’s character.
  10. Describe the principle of justice and how it can affect the decision-making process.
  11. Explain how you would allocate scarce resources in the provision of health care?
  12. What is “situational ethics”? Why do people behave differently in different situations?
  13. What role do religious beliefs play in a healthcare setting?
  14. Describe how legal principles can conflict with religious beliefs in the hospital setting.

NOTES

1. “Cultural Relativism Morals Ethics Ruth Benedict Anarchy De Facto,” Pitlane Magazine.
http://www.pitlanemagazine.com/cultures/cultural-relativism-morals-ethics-ruth-benedict-anarchy-de-facto.html (accessed August 8, 2018).

2. Wikipedia, s.v. “code of conduct.”
https://en.wikipedia.org/wiki/Code_of_conduct (June 28, 2018; accessed July 5, 2018).

3. A. J. Ayer, “A Critique of Ethics,” in
Language, Truth and Logic (London: Gollanz, 1946), 102–114.

4. Larry N. Gowdy, “Meta-Ethics.”
http://www.ethicsmorals.com/metaethics.html (October 15, 2013; accessed July 5, 2018).

5. Ibid.

6. National Institute on Aging, “Providing Comfort at the End of Life.”
https://www.nia.nih.gov/health/providing-comfort-end-life (May 17, 2017; accessed July 5, 2018).

7. Oregon Health Authority, “Death with Dignity Act.”
http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/index.aspx (accessed July 5, 2018).

8. Austin Cline, “Ethics: Descriptive, Normative, and Analytic.” ThoughtCo.
https://www.thoughtco.com/ethics-descriptive-normative-and-analytic-4037543 (accessed July 5, 2018).

9. Larry N. Gowdy, “Applied Ethics.”
http://www.ethicsmorals.com/ethicsapplied.html (October 16, 2013; accessed July 5, 2018).

10. Jason Gillikin, “Workplace Example of Duty Based Ethics.” Chron.
http://smallbusiness.chron.com/workplace-example-duty-based-ethics-11972.html (accessed July 5, 2018).

11.
Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914).

12. American Medical Association, AMA Principles of Medical Ethics.
https://www.ama-assn.org/delivering-care/ama-principles-medical-ethics (accessed July 5, 2018).

13.
The Stamford Hospital v. Nelly E. Vega, 236 Conn. 646 (1996).

14. Vega, 236 Conn. at 667.

15. Centers for Medicare & Medicaid Services, “Memorandum [October 18, 2013]: Cardiopulmonary Resuscitation (CPR) in Nursing Homes,” Ref: S&C: 14-01-NH REVISED 01.23.15.
https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-14-01.pdf (accessed July 5, 2018).

16. David S. Brody, “The Patient’s Role in Clinical Decision-Making,” Annals of Internal Medicine 93 (November 1980): 718–722.

17. Craig R. Senn, “Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law,”
UCLA Law Review 58 (2011): 947–1024.
http://uclalawreview.org/?p=1679 (accessed July 5, 2018).

18.
In re Conroy, 464 A.2d 303, 314 N.J. Super. Ct. App. Div. (1983).

19. Joshua Melvin, “Peninsula child Psychiatrist William Ayres Sentenced to Eight Years for Molesting Patients,” The Mercury News (August 26, 2013).
http://www.mercurynews.com/san-mateo-county-times/ci_23948856/peninsula-child-psychiatrist-william-ayres-sentenced-eight-years?source=rss&cid=dlvr.it (accessed July 5, 2018).

20. Edward M. Kennedy, “Remarks on Health Care, John F. Kennedy Presidential Library and Museum, April 28, 2002.”
https://www.jfklibrary.org/Research/Research-Aids/Ready-Reference/EMK-Speeches/Remarks-of-Senator-Edward-M-Kennedy-on-Health-Care.aspx (accessed July 5, 2018).

21. CNN, “Transcript: Edward Kennedy’s DNC Speech” (August 25, 2008).
http://www.cnn.com/2008/POLITICS/08/25/kennedy.dnc.transcript/index.html (accessed July 5, 2018).

22. Dan Munro, “U.S. Healthcare Spending on Track to Hit $10,000 per Person This Year,” Forbes (January 5, 2015).
https://www.forbes.com/sites/danmunro/2015/01/04/u-s-healthcare-spending-on-track-to-hit-10000-per-person-this-year/#4c140c936dea (accessed July 5, 2018).

23. Ricardo Alonso-Zalivar, “$10,345 per Person: U.S. Health Care Spending Reaches New Peak,” Associated Press (July 13, 2016).
https://www.pbs.org/newshour/health/new-peak-us-health-care-spending-10345-per-person (accessed July 5, 2018).

24. Kimberly Amadeo, “Current U.S. Federal Budget Deficit: Four Reasons the U.S. Deficit Is Out of Control,” The Balance (blog), May 30, 2018.
https://www.thebalance.com/current-u-s-federal-budget-deficit-3305783.

25. Michael De Dora, “On Utilitarianism and Consequentialism,” Rationally Speaking (blog), November 18, 2010,
http://rationallyspeaking.blogspot.com/2010/11/on-utilitarianism-and-consequentialism.html.

26. Sara Austin, “Think You’re Covered? Think Again,” Self (May 15, 2006).
https://www.self.com/story/health-insurance-crisis (accessed July 5, 2018).

27. Liz Hamel, Mira Norton, Karen Pollitz, Larry Levitt, Gary Claxton, and Mollyann Brodie, “The Burden of Medical Debt: Results from the Kaiser Family Foundation/New York Times Medical Bills Survey,”
kff.org (January 5, 2016).
https://www.kff.org/report-section/the-burden-of-medical-debt-introduction/ (accessed July 5, 2018).

28. David U. Himmelstein, Deborah Thorne, Elizabeth Warren, and Steffie Woolhander, “Medical Bankruptcy in the United States, 2007: Results of a National Study,” Journal of the American Medical Association 122 (August 2009): 741–746.
http://www.amjmed.com/article/S0002-9343(09)00404-5/fulltext.

29. Ayla Ellison, “22 Bankruptcies So Far in 2017,” Becker’s Hospital CFO Report (September 15, 2017).
https://www.beckershospitalreview.com/finance/20-healthcare-bankruptcies-so-far-in-2017-091517.html (accessed July 5, 2018).

30. Avery Comarow, “Under the Knife in Bangalore,” U.S. News & World Report 144 (May 2008): 42, 45, 47–50.

31. Beth Braverman, “1.4 Million Americans Will Go Abroad for Medical Care This Year. Should You?” The Fiscal Times (August 17, 2016).
http://www.thefiscaltimes.com/2016/08/17/14-Million-Americans-Will-Go-Abroad-Medical-Care-Year-Should-You (accessed July 5, 2018).

32. U.S. Department of Health and Human Services, Revisiting and Updating the Multicultural Principles for Head Start Programs Serving Ages Birth to Five.
https://eclkc.ohs.acf.hhs.gov/sites/default/files/pdf/principles-01-10-revisiting-multicultural-principles-hs-english_0.pdf (accessed August 8, 2018).

33. 146th U.S. Congress. “Important Issue Facing House–Senate Conference on Health Care Reform,” Congressional Record – House, March 18, 2000, pp. H1465–H1466.
https://www.gpo.gov/fdsys/pkg/CREC-2000-03-28/pdf/CREC-2000-03-28-pt1-PgH1465.pdf (accessed July 5, 2018).

34. Matt Zarrell, “Murder Charge Filed After Nurses Caught Laughing at WWII Vet Gasping for Breath,” New York Daily News (February 22, 2018).
http://www.nydailynews.com/news/crime/murder-charge-filed-nurses-laugh-dying-wwii-vet-article-1.3835593 (accessed July 5, 2018).

35. “WWII Veteran Calls for Help and Dies as Nurses Laugh, Video Shows.”
http://www.foxnews.com/us/2017/11/18/wwii-veteran-calls-for-help-and-dies-as-nurses-laugh-video-shows.html (accessed July 5, 2018).

36. Nathan Thornburgh, “Teaching Doctors to Care,” Time (May 29, 2006): 58–59.

37.

Merriam-Webster’s Collegiate Dictionary, 11th ed., s.v. “empathy.”

38. Jodi Halpern, “Empathy and Patient–Physician Conflicts,” Journal of General Internal Medicine 22 (2007): 696–700.
https://doi.org/10.1007/s11606-006-0102-3.

39. Rick Blizzard, “The Fear Factor and Patient Satisfaction.” Gallup (November 26, 2002).
http://www.gallup.com/poll/7288/Fear-Factor-Patient-Satisfaction.aspx (accessed July 5, 2018).

40. Tony Padilla, “Kindness: At the Center of Patient Experience Strategies,” American College of Healthcare Executives 62 (July/August 2017): 232–233.

41. Sandhya Somashekhar and Ariana Eunjung Cha, “Insurers Restricting Choice of Doctors and Hospitals to Keep Costs Down,” The Washington Post (November 20, 2013).
https://www.washingtonpost.com/national/health-science/insurers-restricting-choice-of-doctors-and-hospitals-to-keep-costs-down/2013/11/20/98c84e20-4bb4-11e3-ac54-aa84301ced81_story.html.

42.
Perna v. Pirozzi, 92 N.J. 446 (1983).

43.
Ibid. at 453.

44.
Ibid. at 466.

45.
Ibid. at 465.

46.
Healthcare.gov, “No Health Insurance? How Much You’ll Pay.”
https://www.healthcare.gov/fees/fee-for-not-being-covered/ (accessed July 5, 2018).

47. American Legislative Exchange Council, “Freedom of Choice in Health Care Act.”
https://www.alec.org/model-policy/freedom-of-choice-in-health-care-act/ (accessed July 5, 2018).

48. Thomas H. Gallagher, Amy D. Waterman, and Alison G. Ebers, “Patients’ and Physicians’ Attitudes Regarding the Disclosure of Medical Errors,” Journal of the American Medical Association 289 (February 26, 2003): 1001–1007.
https://jamanetwork.com/journals/jama/fullarticle/196045 (accessed July 5, 2018).

49. A.K. Edwin, “Non-Disclosure of Medical Errors an Egregious Violation of Ethical Principles,” Ghana Medical Journal 43 (Mar 2009): 34–39.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2709172/ (accessed July 5, 2018).

50. Gallagher, Waterman, and Ebers. “Patients’ and Physicians’ Attitudes.”

51. Manoj Jain, “Medical Errors Are Hard for Doctors to Admit, But It’s Wise to Apologize to Patients,” The Washington Post (May 27, 2013).
https://www.washingtonpost.com/national/health-science/medical-errors-are-hard-for-doctors-to-admit-but-its-wise-to-apologize-to-patients/2013/05/24/95e21a2a-915f-11e2-9abd-e4c5c9dc5e90_story.html (accessed July 5, 2018).

52. “Integrity: More than Just a Piece of the Healthcare Compliance Puzzle.” Healthcare Compliance Pros (blog).
http://www.healthcarecompliancepros.com/blog/integrity-more-than-just-a-piece-of-the-healthcare-compliance-puzzle-2/ (accessed July 5, 2018).

53.
Vocabulary.com, s.v. “integrity.”
https://www.vocabulary.com/dictionary/integrity (accessed July 5, 2018).

54. “Integrity: More than Just a Piece of the Healthcare Compliance Puzzle.”

55. Sarah B. Weir, “Brooke Greenberg: 20-Year-Old ‘Toddler’s’ Legacy of Hope and Love,” Yahoo Shine.
http://shine.yahoo.com/healthy-living/brooke-greenberg-20-old-8220-toddler-8217-8221-185100345.html.

56. Northside Hospital, “Spiritual Health and Education.”
https://www.northside.com/spiritual-health-education (accessed July 5, 2018).

57. Healthcare Chaplaincy Network, “About Us.”
https://www.healthcarechaplaincy.org/about-us.html (accessed July 5, 2018).

58. Tracey R. Rich, “Halakhah: Jewish Law,”
http://www.jewfaq.org/halakhah.htm (accessed October 13, 2010).

59.
Ibid.

60.
Ibid.

61. George Lakoff and Mark Johnson,
Philosophy in the Flesh (New York: Basic Books, 1999), 3–4.

62. P. Michael Peterson, “Ethics, Culture and the Hospital Board,” Prescriptions for Excellence in Health Care (Summer 2009): 2.
http://jdc.jefferson.edu/cgi/viewcontent.cgi?article=1044&context=pehc.

63. American College of Healthcare Executives, “Creating an Ethical Culture Within the Healthcare Organization.”
https://www.ache.org/policy/environ.cfm (accessed July 5, 2018).

CHAPTER 2

Contemporary Ethical Dilemmas


No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestioned authority of law.


Union Pac. Ry. Co. v. Botsford

INTRODUCTION

An
ethical dilemma arises in situations where a choice must be made between unpleasant alternatives. It can occur whenever a choice involves giving up something good and suffering something bad, no matter what course of action is taken. Ethical dilemmas often require caregivers to make decisions that may break some ethical norm or contradict some ethical value. For example, should I choose to continue a pregnancy knowing that an unborn child will be born with severe disabilities, or should I choose abortion with the goal of preventing pain for both parent and child? Should I adhere to my spouse’s wishes not to be placed on a respirator, or should I choose life support technology, disregarding her wishes and right to self-determination? Should I encourage my daughter—the victim of a gang rape—to have an abortion, or should I advocate that she do no harm to the unborn child? Such dilemmas give rise to conflicting answers.

There is a wide range of ethical and legal issues impacting the healthcare system. This chapter focuses on some of the more common ethical and legal dilemmas facing the providers of health care. In reviewing this chapter, the reader should apply court decisions and the ethical theories, principles, and values previously discussed.

NOTEWORTHY HISTORICAL EVENTS


I was created at the end of the Renaissance, watched pirates rule the oceans as Ivan the Terrible ruled Russia, and witnessed the arrest of Galileo for believing the earth revolved around the sun.

—I Am History

The historical events presented in this section describe some of the many milestones that have had a significant impact on healthcare ethics.

68,000–58,000 BC

Neanderthal Burial Sites

Evidence of belief in an afterlife was found in Neanderthal burial sites, where various implements and supplies were buried with the deceased.

According to anthropologist F. Clark Howell the flexed position of the body, and discoveries of other sites where stone slabs were placed over the Neanderthal graves, along with food and tools, suggests that Neanderthal man believed in life after death. Their concept of the afterlife must not have been that much different than the life they experienced on earth; they provided the dead with food, tools, and other everyday items, much like the Egyptians did for their journey to the next life.

1

AD 1932–1972

Tuskegee Study of Syphilis

The Tuskegee Study of Syphilis, involving African American men, was designed to analyze the natural progression of untreated syphilis. The study was conducted from 1932 through the early 1970s. The participants were not told during the study that there was a cure for syphilis at the time of the study. It is reported that some of the participants in the study had syphilis and others were intentionally given syphilis during the study. The participants believed that they were receiving adequate care and unknowingly suffered unnecessarily. The Tuskegee syphilis study used disadvantaged black men to investigate the untreated course of a disease, one that is by no means confined to that population. We know now that the selection of research subjects must be closely monitored to ensure that specific classes of individuals (e.g., terminally ill patients, welfare patients, racial and ethnic minorities, or persons confined to institutions) are not selected for research studies because of their easy availability, compromised position, or manipulability. Rather, they must be selected for reasons directly related to the research being conducted.

1933–1945

The Holocaust

The Holocaust was one of the most violent events in human history. Over 6 million Jews were murdered as well as millions of people from other cultural groups, including Slavs, homosexuals, and Gypsies.

Doctors have always been thought of as the saviors of mankind, the healers, and caretakers of our utter existence. Even ancient civilizations revered the medicine men as having special power to protect life. The trust of a physician is sacred. This is why the practice of medicine by the doctors of the Third Reich is egregious, outrageous, and shocking. The Nazi doctors violated the trust placed in them by humanity. The most painful truth is for the most part the doctors escaped their crimes against Humanity and lived a life, unlike their victims.

2

1946

Military Tribunal for War Crimes

In 1946, the Military Tribunal for War Crimes began criminal proceedings against 23 German physicians and administrators for war crimes and crimes against humanity. As a direct result of these proceedings, the Nuremberg Code was established, which made it clear that the voluntary and informed consent of human subjects is essential to research and that benefits of research must outweigh risks to human subjects involved.

3

1949

WMA International Code of Medical Ethics

The World Medical Association International Code of Medical Ethics was adopted in October 1949 after it was learned that the Nazis conducted numerous inhumane experiments on prisoners in concentration camps. Prisoners were exposed to cholera, diphtheria, malaria, mustard gas, yellow fever, and typhus and forced to participate in other horrendous experiments, ultimately claiming thousands of lives. This exploitation of unwilling prisoners as research subjects was condemned as a particularly flagrant injustice. The code has been amended several times since its initial adoption—first in August 1968, then in October 1983, and most recently in October 2006 at the 57th WMA General Assembly, Pilanesberg, South Africa.

4

1954

Guidelines on Human Experimentation

The National Institutes of Health published guidelines on human experimentation following the first kidney transplant

5
conducted in 1954. The transplantation of human organs has generated numerous ethical issues (e.g., the harvesting and selling of organs, who should have first access to freely donated human organs, how death is defined).

1960s

Cardiopulmonary Resuscitation Raises Ethical Dilemmas

Cardiopulmonary resuscitation was developed, leading to numerous ongoing ethical dilemmas because it involves the prolonging of life beyond what would reasonably be expected. Should limited resources, for example, be spent on those who have been determined to be in a comatose vegetative state without hope of recovery? Or, should limited resources be spent on preventative medicine, aimed at improving the quality of life?

1964

WMA Guidelines for Conducting Biomedical Research

The World Medical Association established guidelines for medical doctors conducting biomedical research involving human subjects.

6
The WMA’s Declaration of Helsinki laid the foundation for advanced clinical practices today.

7

1968

Harvard Ad Hoc Committee on Brain Death

The Harvard Ad Hoc Committee on Brain Death published the following criteria to aid in determining a permanently nonfunctioning brain, a condition it referred to as “irreversible coma,” now known as brain death:

  1. Patient shows total unawareness to external stimuli and unresponsiveness to painful stimuli.
  2. No movements or breathing; all spontaneous muscular movement, spontaneous respiration, and response to stimuli are absent.
  3. No reflexes; fixed, dilated pupils; no eye movement even when hit or turned, or when ice water is placed in the ear; no response to noxious stimuli; no tendon reflexes.

In addition to these criteria, the report recommended adding the presence of a flat electroencephalogram.

8

1970

Patient as a Person

The Patient as a Person by Paul Ramsey discusses the question of
paternalism. As physicians are faced with many options for saving lives, transplanting organs, and furthering research, they also must wrestle with new and troubling choices, for example, who should receive scarce resources (e.g.., organ transplants), how to determine when life ends, and what limits should be placed on care for the dying.

1971

Kennedy Institute of Ethics

The Joseph P. and Rose F. Kennedy Institute of Ethics was established at Georgetown University in 1971 by a generous grant from the Joseph P. Kennedy Jr. Foundation. Today it is the world’s oldest and most
comprehensive academic bioethics center. The institute and its library serve as an unequaled resource for those who research and study ethics, as well as those who debate and make public policy. The Kennedy Institute is home to scholars who engage in research, teaching, and public service on issues that include protection of research subjects, reproductive and feminist bioethics, end-of-life care, healthcare justice, intellectual disability, cloning, gene therapy, eugenics, and other major bioethical issues. Institute scholars figure prominently among the pioneers of the discipline. They are extending the boundaries of the field to incorporate emerging issues of racial and gender equality, international justice and peace, and other policies affecting the world’s most vulnerable populations.

9

1972

Informed Consent

Informed consent in the
Canterbury v. Spence

10
case set the
reasonable man standard, requiring informed consent for treatment. Patients must be informed of the risks, benefits, and alternatives associated with recommended treatments. The court found that Dr. Spence negligently failed to disclose a risk of serious disability inherent in the operation and that the Washington Hospital Center provided negligent postoperative care.

11
The U.S. Court of Appeals Justice Spottswood W. Robinson III described what led up to the Court’s decision remanding the case to the District Court, which had previously ruled in favor of the appellees:

The record we review tells a depressing tale. A youth troubled only by back pain submitted to an operation without being informed of a risk of paralysis incidental thereto. A day after the operation he fell from his hospital bed after having been left without assistance while voiding. A few hours after the fall, the lower half of his body was paralyzed, and he had to be operated on again. Despite extensive medical care, he has never been what he was before. Instead of the back pain, even years later, he hobbled about on crutches, a victim of paralysis of the bowels and urinary incontinence. In a very real sense, this lawsuit is an understandable search for reasons.

12
… In the case before us, appellant’s evidentiary presentation on negligence survived the claims of legal insufficiency, and appellees should have been put to their proof.

1973

Women’s Right to Abortion

The
Roe v. Wade

13
abortion case gave strength to a woman’s right to privacy in the context of matters relating to her own body, including how a pregnancy would end.

1974

National Research Act (NRA) of 1974

Because of publicity from the Tuskegee Syphilis Study, the National Research Act (NRA) of 1974 was passed. The NRA created the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. One of the commission’s charges was to identify the basic ethical principles that should underlie the conduct of biomedical and behavioral research involving human subjects and to develop guidelines to ensure that such research is conducted in accordance with those principles.

14

The commission was directed to consider the following:

15

  1. The boundaries between biomedical and behavioral research and the accepted and routine practice of medicine
  2. The role of assessment of risk-benefit criteria in determining the appropriateness of research involving human subjects
  3. Appropriate guidelines for the selection of human subjects for participation in such research
  4. The nature and definition of informed consent in various research settings

1976

Substituted Judgment—Karen Ann Quinlan

The New Jersey Supreme Court in the
Matter of Karen Ann Quinlan

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rendered a unanimous decision providing for the appointment of Joseph Quinlan as personal guardian of his daughter, Karen Ann Quinlan, a young woman in a persistent vegetative state who was being kept alive on a respirator against her parents’ wishes. A conflict arose when hospital officials refused to remove the respirator, concerned that they would be charged with homicide if they complied. The record was remanded to the trial court to implement without further testimonial hearing:

To appoint Joseph Quinlan as guardian of the person of Karen Quinlan with full power to
make decisions with regard to the identity of her treating physicians.

We repeat for the sake of emphasis and clarity that upon the concurrence of the guardian and family of Karen, should the responsible attending physicians conclude that there is no reasonable possibility of Karen’s ever emerging from her present comatose condition to a cognitive, sapient state and that the life-support apparatus now being administered to Karen should be discontinued, they shall consult with the hospital “Ethics Committee” or like body of the institution in which Karen is then hospitalized. If that consultative body agrees that there is no reasonable possibility of Karen’s ever emerging from her present comatose condition to a cognitive, sapient state, the present life-support system may be withdrawn and said action shall be without any civil or criminal liability therefor, on the part of any participant, whether guardian, physician, hospital or others.

By the above ruling we do not intend to be understood as implying that a proceeding for judicial declaratory relief is necessarily required for the implementation of comparable decisions in the field of medical practice.

First Living Will Legislation Enacted

In California, the first living will legislation was enacted, permitting a person to sign a declaration stating that if there is no hope of recovery, no heroic measures need to be taken to prolong life. This provision is now available in every state.

1978

Commission for the Study of Ethical Problems

The President’s Commission for the Study of Ethical Problems in Medicine includes studies regarding the ethical and legal issues of informed consent for research participants; the matter of defining death, including the advisability of developing a uniform definition of death; the voluntary testing, counseling, and information and education programs with respect to genetic diseases and conditions, taking into account the essential equality of all human beings, born and unborn; the differences in the availability of health services, as determined by the income or residence of the persons receiving the services; current procedures and mechanisms designed to safeguard the privacy of human subjects of behavioral and biomedical research, to ensure the confidentiality of individually identifiable patient records and to ensure appropriate access of patients to information; and such other matters relating to medicine or biomedical or behavioral research as the president may designate for study by the commission.

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1980

Hemlock Society

The Hemlock Society was an organization formed to advocate for physician-assisted dying for the terminally ill, mentally competent patient suffering with incurable illnesses.

Controversial in death as in life, the Hemlock Society USA as a name died suddenly on June 13, 2003, in a boardroom in Denver, Colorado. It was 23 years old. Public relations experts and political strategists—leaning heavily on focus groups—were on hand to usher in the death knell. Months of agonizing debate had preceded the decision because no one could think of a better name!

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1983

First Durable Power of Attorney Legislation

California enacted the first durable power of attorney legislation permitting an advance directive to be made describing the kind of health care that one would desire when facing death by designating an agent to act on the patient’s behalf. Currently, the California Advance Health Care Directive Form reads in part:

You have the right to give instructions about your own health care. You also have the right to name someone else to make health care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding donation of organs and the designation of your primary physician. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.

19

Compassion and Choices

The Hemlock Society evolved into “End-of-Life Choices,” which in 2005 merged with “Compassion in Dying” to form “Compassion & Choices.”

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Despite sophisticated medical advances—and sometimes because of them—too many people suffer painful, drawn-out deaths against their wishes. At Compassion & Choices, we are fighting to broaden end-of-life options and place control back in the hands of people. We have advocated the right to refuse unwanted medical treatment … legitimized the use of advance directives … and secured people’s right to receive the full measure of pain medication needed for relief.

Beginning with Oregon’s Death with Dignity Act in 1997, we have been instrumental to the passage of every medical aid-in-dying law in the nation. These laws allow terminally ill adults to request medication to die gently if they choose.

21

1987

Unethical Experiments on Children

The Willowbrook State School on Staten Island, New York, was a state institution for children with intellectual disability from 1947 until 1987. Infectious disease expert Paul Offit, in his history of the work of vaccine pioneer Maurice Hilleman, recounted how the school’s residents were abused in the name of research:

In an effort to control outbreaks of hepatitis, the medical staff at Willowbrook consulted Saul Krugman [an award-winning U.S. pediatrician whose studies of hepatitis, rubella, and measles resulted in the development of vaccinations for these debilitating diseases]. … One of his studies involved feeding live hepatitis virus to sixty healthy children. Krugman watched as their skin and eyes turned yellow and their livers got bigger. He watched them vomit and refuse to eat. All the children fed hepatitis virus became ill, some severely. Krugman reasoned that it was justifiable to inoculate retarded children at Willowbrook with hepatitis virus because most of them [90%] would get hepatitis anyway. But by purposefully giving the children hepatitis, Krugman increased that chance to 100 percent.

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Offit calls the Willowbrook studies “the most unethical medical experiments ever performed on children in the United States”

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—a far more damning assessment than the contemporaneous judgment of medical ethicist Henry Beecher, who in a 1966
New England Journal of Medicine article cited Willowbrook as being merely “ethically dubious.”

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The Willowbrook studies represented a shift in how experimentation on children and individuals not capable of informed consent was perceived.

25

1990

Patient Self-Determination Act

The Patient Self-Determination Act of 1990

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was enacted to ensure that patients are informed of their rights to execute advance directives and accept or refuse medical care. The act was intended to reinforce a person’s constitutional right to make his or her own healthcare decisions. The act requires that federally funded healthcare organizations explain to patients their right to complete an advance directive.

Nancy Cruzan Feeding Tube Removed

The Supreme Court ruled that the parents of Nancy Cruzan, a 32-year old woman who had been unconscious since a 1983 car accident, could have her feeding tube removed.

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The court determined the Missouri Department of Health was permitted to require clear and convincing evidence of the wishes of a patient regarding provision of artificial nutrition and hydration.

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Thus affirming the right of Americans to refuse unwanted medical treatment and their right to appoint a healthcare proxy.

Kevorkian Illegally Assists Terminally Ill Patients in Suicide

Dr. Jack Kevorkian assisted terminally ill patients in suicide outside the boundaries of law. He used a suicide machine to assist Janet Adkins, a 54-year-old woman with Alzheimer’s disease, in ending her life at her request.

29

Timothy Quill and Prescription for Death

Timothy Quill, a primary care physician, published an article describing how he had prescribed a lethal dose of sedatives to end the life of a young woman whose suffering from leukemia had become unbearable.

30

Final Exit and Freedom of Speech

Derek Humphry’s popular text
Final Exit: The Practicalities of Self-Deliverance and Assisted Suicide for the Dying was published. Although there were calls for it to be banned, it was not possible under the First Amendment to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

31

Radiation Experiments: Human Subjects Unaware

From the 1930s until as recently as the 1990s, the United States government conducted human radiation experiments on uninformed and unconsenting individuals, including pregnant women, school-age children, disabled children, and a range of other individuals. In all of these cases, the
subjects had no knowledge of what was going on and did not consent. Some of the victims were actively deceived by the research program’s staff (over 800 pregnant women were told they were ingesting “vitamin cocktails”). The government covered up most of these radiation mishaps until 1993, when President Bill Clinton ordered a change of policy. The president’s Advisory Committee on Human Radiation Experiments investigated and issued a controversial 1995 report that stated that “wrongs were committed” but held no one accountable.

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1993

Patient’s Wishes Honored

In the case of
DeGrella v. Elston, the Kentucky Supreme Court ruled on an incompetent’s right to die. The decision determined that a patient’s wishes will be honored if the attending physician, the hospital, or nursing home ethics committee where a patient resides and the legal guardian or next of kin all agree upon and document the patient’s wishes and the patient’s condition. If no one disputes their decision, no court order is required to proceed to carry out the patient’s wishes. Future criminal sanctions or civil liability turn not on the existence or absence of a court order, but on the facts of the case. No liability attaches to a decision to refuse or withdraw treatment if the necessary facts are established and carefully documented by the parties involved. In contrast, the court cannot absolve the parties from liability where the facts do not exist to support the action taken.

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1994

Oregon—Physician Assisted Suicide Legal

Oregon’s Death with Dignity Act,

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involving physician-assisted suicide, became a legal medical option for terminally ill patients in Oregon. The Oregon Death with Dignity Act allows terminally ill Oregon residents to obtain from their physicians and use prescriptions for self-administered, lethal medications.

Michigan—Physician Assisted Suicide Illegal

The Supreme Court of Michigan ruled on December 13, 1994, that assisted suicide is illegal in the state of Michigan.

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The ruling overturned several lower court decisions. The court determined that there is no constitutional right to aid in carrying out a suicide in Michigan. Jack Kevorkian, a physician, assisted terminally ill patients in suicide outside the boundaries of the law. He claims to have assisted 130 patients.

1996

Health Insurance Portability and Accountability Act

The Health Insurance Portability and Accountability Act (Public Law 104191) was enacted to protect the privacy, confidentiality, and security of patient information.

Dolly the Sheep Cloned

Ian Wilmut, Keith Campbell, and colleagues at the Roslin Institute, University of Edinburgh, and the biotechnology company PPL Therapeutics near Edinburgh in Scotland successfully cloned Dolly the sheep.

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Several clones had been produced in the lab before Dolly, including frogs, mice, and cows, which had all been cloned from the DNA from embryos. Dolly was remarkable in being the first mammal to be cloned from an adult cell. This was a major scientific achievement as it demonstrated that the DNA from adult cells, despite having specialised as one particular type of cell, can be used to create an entire organism.

37

Fourteenth Amendment and Terminally Ill

The Second and Ninth U.S. Circuit Courts of Appeals ruled that there is a constitutional right under the Fourteenth Amendment for a terminally ill person to receive help from a physician when dying.

1997

Physician-Assisted Suicide

Physician-assisted suicide, through referendum, became a legal medical option within narrowly prescribed circumstances for terminally ill Oregon residents.

Kevorkian Charged with Murder

Kevorkian was charged with murder in five cases of physician-assisted suicide and was acquitted.

Supreme Court—States May Enact Assisted Suicide Laws

The Supreme Court ruled that it is up to the individual states to enact laws regarding medically assisted death.

1998

Oregon Voters Reaffirm Death with Dignity Act

Oregon voters reaffirm their support for the Death with Dignity Act by a 60% majority.

Kevorkian Administers Lethal Injection

Kevorkian administered a lethal injection to Thomas Youk, a 52-year-old man with Lou Gehrig’s disease, on national television.

Ballot Physician-Assisted Suicide Defeated

Michigan voters defeated a ballot measure that would legalize physician-assisted suicide.

1999

Kevorkian Convicted of Second-Degree Murder

Kevorkian was convicted of second-degree murder for Youk’s death and sentenced 10 to 20 years in prison.

Patients Receive Lethal Doses of Medication

Twenty-three terminally ill patients were reported as having received lethal doses of medication since passage of Oregon’s Death with Dignity Act.

2000

Seven Myths About End-of-Life Care

Legal myths about end-of-life care may prevent doctors and patients and families from providing adequate comfort measures to dying patients, according to an article published in the November 15, 2000, issue of the
Journal of the American Medical Association.

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2001

President’s Council on Bioethics

President George W. Bush created the President’s Council on Bioethics. The council was charged with advising the president on bioethical issues that may emerge as a consequence of advances in biomedical science and technology.

Assisted Suicide Act Challenged

U.S. Attorney General John Ashcroft abrogated former Attorney General Janet Reno’s mandate allowing physician-assisted suicide. Instead, he decided that physician-assisted suicide was a violation of the federal Controlled Substance Act.

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In
State of Oregon v. Ashcroft, CV01-1647 (D-Oregon), the judge allowed Oregon’s law to remain in effect.

Oregon: Assisted Suicide Cases

Since 1991, the number of physician-assisted suicide cases totaled 129. On April 17, U.S. District Court Judge Robert Jones upheld Oregon’s Death with Dignity Act.

2002

Attorney General Appeals District Court’s Ruling

Attorney General John Ashcroft filed an appeal, asking the Ninth U.S. Circuit Court of Appeals to lift the District Court’s ruling.

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2003

Human Genome System Fully Sequenced

The human genome system became fully sequenced, allowing molecular genetics and medical research to accelerate at an unprecedented rate. The ethical implications of human genome research are as immense as the undertaking of the totality of the research that was conducted to map the human genome system (e.g., cloning of humans).

41

Oregon: Assisted Suicide Cases

Forty-two residents of the state of Oregon ingested medications under provisions of the Death with Dignity Act.

2004

Death with Dignity Act Upheld

The Ninth U.S. Circuit Court of Appeals upheld Oregon’s Death with Dignity Act, blocking the attempt by the U.S. Justice Department, under Attorney General Ashcroft, to use the federal Controlled Substances Act to prevent doctors in the state from prescribing drugs to assist the suicide of their patients. The Ashcroft directive interfered with Oregon’s authority to regulate medical care within its borders and therefore altered the usual constitutional balance between the state and federal governments.

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2005

The United Nations Educational, Scientific, and Cultural Organization released the second edition to the 2005
Human Cloning, Ethical Issues publication.

43

Hospital Allowed to Remove Life Support Contrary to Wishes of the Legal Guardian

A Texas hospital was allowed to remove life support contrary to the requests of the mother. The patient was eventually accepted at a nursing facility, where he died of natural causes.

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In Houston, Texas, in 2004, Wanda Hudson gave birth to a son with a fatal form of congenital dwarfism. The father was unknown. Ms. Hudson had been informed the infant was most likely unable to survive and should have his breathing tube removed pursuant to Chapter 166 of the Texas Health & Safety Code, the Advance Directives Act. Under this act, a doctor’s recommendations to withdraw medical treatment can be followed, after they have been reviewed by the hospital’s ethics committee and after 10 days’ notice is given to the patient or guardian. Hudson was given 10 days from written notice to find a new facility to accommodate the infant, but was unable to do so.

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Legal delays prevented the removal of the breathing tube, which would have occurred on November 28, 2004, but a judge ruled that the removal of the tube did not require Hudson’s agreement. On March 15, 2005, Texas Children’s Hospital personnel removed the breathing tube. Official reports state that he was sedated and asphyxiated in under a minute. Hudson disputed this and told reporters, who were not permitted entrance, ‘I wanted y’all to see my son for yourself, so you could see he was actually moving around. He was conscious.’”

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2006

U.S. Supreme Court Upholds Death with Dignity Act

On January 17, 2006, the U.S. Supreme Court voted six to three to uphold an Oregon physician-assisted suicide law in the case
Gonzales v. Oregon,

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ruling that former Attorney General John Ashcroft overstepped his authority in seeking to punish doctors who prescribed drugs to help terminally ill patients end their lives. In the decision, the Supreme Court said that the Oregon law supersedes federal authority to regulate physicians and that the Bush administration improperly attempted to use the Controlled Substances Act to prosecute Oregon physicians who assist in patient suicides.

Supreme Court Blocks Bush’s Attempt to Punish Doctors

The Supreme Court blocked the Bush administration’s attempt to punish doctors who help terminally ill patients die, protecting Oregon’s one-of-a-kind assisted-suicide law.

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Morning-after Pill

The Food and Drug Administration approved the morning-after pill to prevent contraception for use without a prescription. This decision added another dimension to the ongoing controversy between right-to-life and pro-choice advocates. Opponents claimed that it was just another way to end human life.

2009

Right to Know End-of-Life Options

On January 1, the Terminal Patients’ Right to Know End-of-Life Options Act, AB 2747, went into effect in California.

2010

California—Living Donor Registry

Legislation was introduced in California that would make it the first state in the country to build a living donor registry. Under Senate Bill 1395, people could declare their wishes regarding organ donation by checking a box when obtaining or renewing their driver’s license.

2013

Information and Referral Service for Kidney Donors

California launched a state-authorized information and referral service to inspire and inform people to be altruistic living kidney donors. Through its website,
www.LivingDonationCalifornia.org, the free service provides information about living kidney donation and refers potentially eligible individuals for evaluation at a transplant center.

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2017

UK Supreme Court Denies Right to Treatment

The parents of Charlie Gard, a 10-month-old British boy with mitochondrial DNA depletion disease, wanted to travel to the United States for an experimental therapy that may have provided some temporary benefit but likely would not have improved his neurological condition. Alternatively, they wanted the hospital to continue to provide advanced life support and palliative care for their son—respiration, nutrition, hydration—or to send him home on life support to eventually die. The hospital argued that removing life support was in the child’s best interest. After a contentious court battle that generated international attention, the parents’ requests were denied and the child’s life support was turned off. He died in the hospital.

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2018

Six States Have a Death with Dignity Act

Death with Dignity Acts have been passed into law in Washington, D.C. and six states: California, Colorado, Hawaii (in effect on January 1, 2019), Oregon, Vermont, and Washington.

States with Death with Dignity Legal by Court Decision

In Montana, legal physician-assisted suicide was established by a court decision in the 2009 case
Baxter v. Montana, and efforts to pass laws forbidding it have failed in the legislature thus far.

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ABORTION


We shall have to fight the politician, who remembers only that the unborn have no votes and that since posterity has done nothing for us we need do nothing for posterity.

—William Ralph Inge (1860–1954)

An
abortion is the termination of pregnancy by removal or expulsion from the uterus of a fetus or embryo before it is viable. The question of viability has been strongly debated between advocates for the pro-life position (advocating that the fetus has a right to life) and the pro-choice position (advocating that the mother has the right to choose to terminate a pregnancy). An abortion can be spontaneous, often referred to as a miscarriage, or it can be an elective, meaning purposely induced; it is the latter that continues to be a hotly debated, controversial issue nationwide. The controversy in its simplest form involves the question of the rights of the fetus to be born versus the rights of the mother to make decisions regarding her body.

A consensus as to when human life begins has not been reached. There has been no final determination as to the proper interplay among a mother’s liberty, the interests of an unborn child, and the state’s interests in protecting human life. In abortion cases, the law presupposes a theory of ethics and morality, which in turn presupposes deeply personal ideas about being and existence. Answers to questions about when human life begins define ethical beliefs, and these ethical beliefs should determine how we govern ourselves. Abortion in this context is less a question about constitutional law and more about who we are as a people. This is a decision the Supreme Court cannot make. Taking these issues out of the public discourse threatens to foment hostility, stifle the search for answers, distance people from the Constitution, and undermine the credibility of that document.

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With 44,498,750 reported abortions in the United States between 1970 and 2014,

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it is certain that the conflict between pro-choice and pro-life advocates will continue to pervade America’s landscape. The issues are numerous, and emotions run high. Common ethical dilemmas include:

  • When does human life begin?
  • Who decides?
  • Who protects the unborn fetus?
  • What are the rights of an unborn child when a woman has been raped?
  • What are the rights of the spouse?
  • What are the rights of the father of an unwed child or woman?
  • What are the rights of society and the state to interfere with another’s rights?
  • Should the principles of autonomy and right to self-determination prevail?
  • Should an abortion be considered murder?
  • Can the use of contraception be considered a form of killing by preventing a birth that might have otherwise occurred?
  • What are the religious implications for a woman who is Catholic, for example, who chooses to undergo an abortion?
  • Is it morally acceptable to save the life of the mother by aborting the fetus?
  • Is an abortion for mere convenience morally wrong?
  • What role should education play in the woman’s decision to undergo an abortion?
  • What alternatives should the woman be educated about (e.g., the choice of adoption) before undergoing an abortion?
  • At what age is a girl or woman sufficiently mature to make an informed decision about abortion?
  • Should a woman considering abortion be offered counseling and cautions about the negative emotional consequences (e.g., guilt and regret) of her decision?
  • Should rape victims receive counseling for emotional consequences (e.g., anger and resentment) of a decision to continue a rape-related pregnancy?
  • When does control over one’s body begin, and when does it end?

These are but a few of the many questions that need to be addressed in the pursuit of doing the right thing. As the following pages point out, for each new issue decided in the courts, new issues arise, all of which seem to involve both legal and moral questions as to what constitutes acceptable behavior. In addition to having substantial ethical, moral, and religious implications, abortion has proven to be a major political issue and will continue as such in the future. As the following court decisions illustrate, new laws will be enacted by the various states and challenged, often winding their way up to the Supreme Court for decision.

Right to Abortion

The
Roe v. Wade 1973 landmark case gave strength to a woman’s right to privacy in the context of matters relating to her own body, including how a pregnancy would end.

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The U.S. Supreme Court has also recognized the interest of the states in protecting potential life and has attempted to spell out the extent to which the states may regulate and even prohibit abortions. The Supreme Court in this case found the Texas penal abortion law unconstitutional, stating, “State criminal abortion statutes … that except from criminality only a lifesaving procedure on behalf of the mother, without regard to the stage of her pregnancy and other interests involved, is violating the Due Process Clause of the Fourteenth Amendment.”

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The court then went on to delineate what regulatory measures a state lawfully may enact during the three stages of pregnancy.

First Trimester

During the first trimester of pregnancy, the decision to undergo an abortion procedure is between the woman and her physician. A state may require that abortions be performed by a licensed physician pursuant to law; however, a woman’s right to an abortion is not unqualified because the decision to perform the procedure must be left to the medical judgment of her attending physician. “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”

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Second Trimester

In
Roe v. Wade, the Supreme Court stated, “For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.”

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Thus, during approximately the fourth to sixth months of pregnancy, the state may regulate the medical conditions under which the procedure is performed. The constitutional test of any legislation concerning abortion during this period would be its relevance to the objective of protecting maternal health.

Third Trimester

The Supreme Court reasoned that by the time the final stage of pregnancy has been reached the state has acquired a compelling interest in the product of conception, which would override the woman’s right to privacy and justify stringent regulation even to the extent of prohibiting abortions. In the
Roe v. Wade case, the court formulated its ruling as to the last trimester in the following words: “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

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Thus, during the final stage of pregnancy, a state may prohibit all abortions except those deemed necessary to protect maternal life or health. The state’s legislative powers over the performance of abortions increase as the pregnancy progresses toward term.

Abortion Restrictions

The following cases illustrate a variety of abortion issues that the various states continue to address. The flow of cases both as they wind their way through both state and federal courts continue to arise with no end in sight.

Abortion Committee Review

In a 1973 companion decision, the U.S. Supreme Court ruled in
Doe v. Bolton,

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that Georgia’s abortion statute requiring residency requirements for women seeking an abortion and calling for the procedure to be performed in a hospital accredited by the Joint Commission is constitutionally invalid. Further, the court found there was no constitutionally justifiable rationale for a statutory requirement necessitating advance approval by the abortion committee of the hospital’s medical staff prior to abortion. The court ruled that “interposition of the hospital abortion committee is unduly restrictive of the patient’s rights and needs that … have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State.”

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Insofar as statutory consultation requirements are concerned, the court reasoned that the acquiescence of two co-practitioners has no rational connection with a patient’s needs and, further, unduly infringes on the physician’s right to practice.

Abortion Counseling

Abortion counseling continues to be an emotionally charged debate that involves a woman’s right to choose and the right to life. The arguments are both compelling, and the division between opposing viewpoints appears to have no end. Case law continues to develop and expand as new legislation is enacted by the various states and federal courts issue new rulings.

The U.S. Supreme Court in 1983 in
City of Akron v. Akron Center for Reproductive Health

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decided that the different states cannot (1) mandate what information physicians give abortion patients or (2) require that abortions for women more than 3 months pregnant be performed in a hospital. With respect to a requirement that the attending physician must inform the woman of specified information concerning her proposed abortion, it was found unreasonable for a state to insist that only a physician is competent to provide information and counseling relative to informed consent. A state may not adopt regulations to influence a woman’s informed choice between abortion and childbirth.

With regard to a second-trimester hospital requirement, this could significantly limit a woman’s ability to obtain an abortion. This is especially so in view of the evidence that a second-trimester abortion may cost more than twice as much in a hospital as in a clinic.

Undue Burden Rule

In
Planned Parenthood v. Casey,

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the U.S. Supreme Court ruling, as enunciated in
Roe v. Wade, reaffirmed:

  • The constitutional right of women to have an abortion before viability of the fetus, as first enunciated in
    Roe v. Wade
  • The state’s power to restrict abortions after fetal viability, so long as the law contains exceptions for pregnancies that endanger a woman’s life or health
  • The principle that the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus

The U.S. Supreme Court rejected the trimester approach in
Roe v. Wade, which limited the regulations states could issue on abortion depending on the development stage of the fetus. In place of the trimester approach, the court will evaluate the permissibility of state abortion rules based on whether they unduly burden a woman’s ability to obtain an abortion. A rule is an “
undue burden” if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. The Supreme Court ruled that it is “not an undue burden” to require that a woman be informed of the nature of the abortion procedure and the risks involved, be offered information on the fetus and alternatives to abortion, and be given informed consent before the abortion procedure. In addition, it is not an undue burden to require parental consent for a minor seeking an abortion, providing for a judicial bypass option if a minor does not wish to or cannot obtain parental consent, and requiring a 24-hour waiting period before any abortion can be performed.

Funding

Some states have placed an indirect restriction on abortion through the elimination of funding. Under the Hyde Amendment, the U.S. Congress, through appropriations legislation, has limited the types of medically necessary abortions for which federal funds may be spent under the Medicaid program. Although the Hyde Amendment does not prohibit states from funding nontherapeutic abortions, this action by the federal government opened the door to state statutory provisions limiting the funding of abortions.

Denial of Financial Assistance for Elective Abortions

In
Beal v. Doe

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in 1977, the Pennsylvania Medicaid plan was challenged based on denial of financial assistance for nontherapeutic abortions. The U.S. Supreme Court held that Title XIX of the Social Security Act (the Medicaid program) does not require the funding of nontherapeutic abortions as a condition of state participation in the program. The state has a strong interest in encouraging normal childbirth, and nothing in
Title XIX suggests that it is unreasonable for the state to further that interest. The court ruled that it is not inconsistent with the Medicaid portion of the Social Security Act to refuse to fund unnecessary (although perhaps desirable) medical services.

Also in 1977, in
Maher v. Roe,

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the U.S. Supreme Court considered the Connecticut statute that denied Medicaid benefits for first-trimester abortions that were not medically necessary. The court rejected the argument that the state’s subsidy of medical expenses incident to pregnancy and childbirth created an obligation on the part of the state to subsidize the expenses incident to nontherapeutic abortions. The Supreme Court voted six to three that states may refuse to spend public funds to provide nontherapeutic abortions for women.

Funding Not Required for Therapeutic Abortions

In the 1980
Harris v. McRae decision,

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the U.S. Supreme Court upheld the Hyde Amendment in a five-to-four vote, which restricts the use of federal funds for Medicaid abortions. Under this case, the different states are not compelled to fund Medicaid recipients’ medically necessary abortions for which federal reimbursement is unavailable, but they may choose to do so.

Funding Bans Unconstitutional in California

The California Supreme Court in 1981 held that funding bans were unconstitutional; the court asked rhetorically:

If the state cannot directly prohibit a woman’s right to obtain an abortion, may the state by discriminatory financing indirectly nullify that constitutional right? Can the state tell an indigent person that the state will provide him with welfare benefits only upon the condition that he join a designated political party or subscribe to a particular newspaper that is favored by the government? Can the state tell a poor woman that it will pay for her needed medical care but only if she gives up her constitutional right to choose whether or not to have a child?

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Funding Discrimination Prohibited in Arizona

In 2002, the Arizona Supreme Court found in
Simat Corp. v. Arizona Health Care Cost Containment Sys.

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that the state’s constitution does not permit the state and the Arizona Health Care Cost Containment System (AHCCCS) to refuse to fund medically necessary abortion procedures for pregnant women suffering from serious illness while funding such procedures for victims of rape or incest or when the abortion was necessary to save the woman’s life (A.R.S. § 35-196.02. AHCCCS). After the state has chosen to fund abortions for one group of indigent, pregnant women for whom abortions are medically necessary to save their lives, the state may not deny the same option to another group of women for whom the procedure is also medically necessary to save their health. An example is cancer, for which chemotherapy or radiation therapy ordinarily cannot be provided without harming the fetus, making an abortion necessary before proceeding with the recognized medical treatment. Other therapy regimens that must at times be suspended during pregnancy include those for heart disease, diabetes, kidney disease, liver disease, chronic renal failure, inflammatory bowel disease, and lupus. In many of the women suffering from these diseases, suspension of recognized therapy during pregnancy will have serious and permanent adverse effects on their health and lessen their life span. In such a situation, the state is not simply influencing a woman’s choice but is actually conferring the privilege of treatment on one economic class and withholding it from another.

A woman’s right to choose preservation and protection of her health, and therefore in many cases her life, is at least as compelling as the state’s interest in promoting childbirth. The court’s protection of the fetus and promotion of childbirth cannot be considered so compelling as to outweigh a woman’s fundamental right to choose and the state’s obligation to be evenhanded in the design and application of its healthcare policies. The majority of states that have examined similar Medicaid funding restrictions have determined that their state statutes or constitutions offer broader protection of individual rights than does the U.S. Constitution, and they have found that medically necessary abortions should be funded if the state also funds medically necessary expenses related to childbirth. The case was remanded to the trial court for further proceedings consistent with this opinion.

Refusal to Fund Abortion Counseling Not Unconstitutional

Federal regulations that prohibit abortion counseling and referral by family planning clinics that receive funds under Title X of the Public Health Service Act were found not to violate the constitutional rights of pregnant women or Title X grantees in a five-to-four decision by the Supreme Court in
Rust v. Sullivan.

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Proponents of abortion counseling argued that (1) the regulations impermissibly burden a woman’s privacy right to abortion, and (2) by prohibiting the delivery of abortion information, even as to where such information could be obtained, the regulations deny a woman her constitutionally protected right to choose under the First Amendment. The question arises: How can a woman make an informed choice between two options when she cannot obtain information as to one of them? The plaintiff had argued that the government may not condition receipt of a benefit on the relinquishment of constitutional rights. In
Sullivan, however, the Supreme Court found that there was no violation of a woman’s or provider’s First Amendment rights to freedom of speech. The court extended the doctrine that government need not subsidize the exercise of the fundamental rights to free speech.

Spousal Consent

The following cases describe a variety of issues where the husband’s desires conflict with those of the spouse.

Husband’s Interest Insufficient

Provisions of the Florida Therapeutic Abortion Act, which required a married woman to obtain the husband’s consent before abortion, were found to be unconstitutional in
Poe v. Gerstein.

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The state’s interest was found not to be sufficiently compelling to limit a woman’s right to abortion. The husband’s interest in the baby was held to be insufficient to force his wife to face the mental and physical risks of pregnancy and childbirth.

Husband’s Required Consent Unconstitutional

In
Doe v. Zimmerman (1975),

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the court declared unconstitutional the provisions of the Pennsylvania Abortion Control Act, which required that the written consent of the husband of a married woman be secured before performing an abortion. The court found that these provisions impermissibly allowed the husband to withhold his consent either because of his interest in the potential life of the fetus or for capricious reasons. The natural father of an unborn fetus in
Doe v. Smith (1988)

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was not entitled to an injunction to prevent the mother from obtaining an abortion. Although the father’s interest in the fetus was legitimate, it did not outweigh the constitutionally protected right of the mother to an abortion, particularly in light of evidence that the mother and father had never married.

In the 1992 decision of
Planned Parenthood v. Casey, the Supreme Court ruled that spousal consent would be an undue burden on the woman.

Parental Consent

A majority of states require parental consent for minors seeking an abortion. Notification of one parent is generally required 24 to 48 hours prior to the abortion. The following cases present a variety of cases demonstrating how the Supreme Court has ruled as the circumstances vary.

Competent Persons Under 18

The U.S. Supreme Court ruled in 1973 in
Danforth v. Planned Parenthood

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that it is unconstitutional to require all women younger than the age of 18 years to obtain parental consent in writing prior to obtaining an abortion. The court, however, failed to provide any definitive guidelines as to when and how parental consent may be required if the minor is too immature to comprehend fully the nature of the procedure.

The U.S. Supreme Court in
Bellotti v. Baird

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ruled eight to one in 1979 that a Massachusetts statute requiring parental consent before an abortion for an unmarried woman younger than the age of 18 years was unconstitutional. Justice John P. Stevens, joined by Justices William J. Brennan, Jr., Thurgood Marshall, and Harry Blackmun, concluded that the Massachusetts statute was unconstitutional because under that statute, as written and construed by the Massachusetts Supreme Judicial Court, no minor, no matter how mature and capable of informed decision making, could receive an abortion without the consent of either both parents or a Superior Court judge, thus making the minor’s abortion subject in every instance to an absolute third-party veto.

Incompetent Person

Abortion was found to be proper by a family court in
In re Doe (1987)

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for a woman who had become pregnant during her residence in a group home as a result of a sexual assault by an unknown person. The record had supported a finding that if the woman had been able to do so, she would have requested the abortion. The court properly chose welfare agencies and the woman’s guardian
ad litem (a guardian appointed to prosecute or defend a suit on behalf of a party incapacitated by infancy, mental incompetence, etc.) as the surrogate decision makers.

In selecting the surrogate decision maker, the trial justice was correct in determining that
the mother’s contact with the child over the years of her placement with DCF was of such slight and sporadic quality as to disqualify her from making decisions on behalf of the child. The state agencies, as assisted by the guardian
ad litem, acted in good faith and in the best interests of the incompetent person who had been placed in the custody of DCF and were properly considered by the court as the appropriate surrogates in attempting to exercise substituted judgment in respect to Jane Doe.

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Parental Notification Permitted

The U.S. Supreme Court in 1981 in
H. L. v. Matheson,

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by a six-to-three vote, upheld a Utah statute that required a physician to “notify, if possible” the parents or guardian of a minor on whom an abortion is to be performed. In this case, the physician advised the patient that an abortion would be in her best medical interest but, because of the statute, refused to perform the abortion without notifying her parents. The Supreme Court ruled that although a state may not constitutionally legislate a blanket, unreviewable power of parents to veto their daughter’s abortion, a statute setting out a mere requirement of parental notice when possible does not violate the constitutional rights of an immature, dependent minor.

Emancipated Minor

An Alabama trial court in the 1987 case
In re Anonymous

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was found to have abused its discretion when it refused a minor’s request for waiver of parental consent to obtain an abortion. The record indicated that the minor lived alone, was within 1 month of her 18th birthday, lived by herself most of the time, and was employed full time.

Parental Notification Not Required

The issue in 2000 in
Planned Parenthood v. Owens

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was whether the Colorado Parental Notification Act,

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which requires a physician to notify the parents of a minor prior to performing an abortion upon her, violates the minor’s rights as protected by the U.S. Constitution. The act, a citizen-initiated measure, was approved at Colorado’s general election. The act generally prohibited physicians from performing abortions on an unemancipated minor until at least 48 hours after written notice has been delivered to the minor’s parent, guardian, or foster parent.

The U.S. District Court decided that the act violated the rights of minor women protected by the Fourteenth Amendment. The Supreme Court, for more than a quarter of a century, has required that any abortion regulation make an exception for an abortion that is medically necessary for the preservation of the mother’s health. The Colorado act failed to provide such a health exception.

Informed Consent

The Fifth U.S. Circuit Court of Appeals determined that a Texas law requiring a pregnant mother to undergo an ultrasound prior to abortion is constitutional. Although a pregnant woman cannot be compelled to view the ultrasound image, the physician is required to describe what the image shows. The pregnant woman, however, has a concomitant right to refuse to listen to any detailed explanation. Chapter 171 of the Texas Health and Safety Code requires the following as prerequisites for a woman’s informed and voluntary consent to an abortion:

(1) the physician who is to perform the abortion, or a certified sonographer agent thereof, must perform a sonogram on the pregnant woman;

(2) the physician must display the sonogram images “in a quality consistent with current medical practice” such that the pregnant woman may view them;

(3) the physician must provide, “in a manner understandable to a layperson,” a verbal explanation of the results of the sonogram images, including a variety of detailed descriptions of the fetus or embryo; and

(4) the physician or certified sonographer agent must “make … audible the heart auscultation for the pregnant woman to hear, if present, in a quality consistent with current medical practice and provide …, in a manner understandable to a layperson, a simultaneous verbal explanation of the heart auscultation,” …

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States May Protect Fetus

The U.S. Supreme Court in 1979 in
Colautti v. Franklin

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voted six to three that states can seek to protect a fetus that a physician has determined could survive outside the womb. Determination of whether a particular fetus is viable is, and must be, a matter for judgment of the responsible attending physician. State abortion regulations that impinge on this
determination, if they are to be constitutional, must allow the attending physician the room that he or she needs to make the best medical judgment.

Abortion Rights Narrowed

Webster v. Reproductive Health Services

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began the U.S. Supreme Court’s narrowing of abortion rights by upholding a Missouri statute providing that no public facilities or employees should be used to perform abortions and physicians should conduct viability tests before performing abortions. The Court stated the statute did not prevent women from obtaining abortion services from private healthcare providers.

The Court also upheld Missouri Revised Statutes section 188.029 requiring physicians to conduct viability tests before performing abortions, when there was reason to believe the fetus had reached at least 20 weeks of gestational age.

Partial Birth Abortion

In 1998, the Supreme Court ruled on the case
Women’s Medical Professional Corp. v. Voinovich,

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which involved an Ohio statute that banned the use of the intact dilation and extraction (D&X) procedure in the performance of any previability or postviability abortion. (The D&X procedure, also referred to colloquially as
partial birth abortion, is a late-term abortion involving artificial ripening and dilation of the cervix prior to abortion of the fetus so that the aborted fetus may be delivered via the birth canal.) The Sixth Circuit Court of Appeals held that the statute banning any use of the D&X procedure was unconstitutionally vague. It is likely that a properly drafted statute will eventually be judged constitutionally sound.

Partial Birth Abortion Ban Struck Down

On June 28, 2002, the U.S. Supreme Court struck down a Nebraska ban on “partial-birth abortion,” finding it an unconstitutional violation of
Roe v. Wade.

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The court found these types of bans to be extreme descriptive attempts to outlaw abortion—even early in pregnancy—that jeopardizes women’s health.

Partial-Birth Abortion Ban Unconstitutional

The Partial-Birth Abortion Ban Act, 18 U.S.C. Section 1531, in
National Abortion Fed’n v. Gonzages,

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was found to be unconstitutional because it lacked any exception to preserve the health of the mother, where such exception was constitutionally required. Also, the act was unconstitutional because it imposed an undue burden on a woman’s right to choose previability abortion and was constitutionally vague.

Texas Restrictions on Women’s Rights

The U.S. Supreme Court reviewed both the admitting privileges and Ambulatory Surgery Center requirements in Texas Health Bill House Bill 2.

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The first provision of HB 2 required:

[a] physician performing or inducing an abortion … must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that … is located not further than 30 miles from the location at which the abortion is performed or induced.

Previously, Texas law required abortion facilities to maintain a written protocol “for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital.”

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The second provision of HB 2, referred to as the “surgical center requirement,” required:

… the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.

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Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually. The record contained nothing to suggest that HB 2 would be more effective than pre-existing Texas law at deterring wrongdoers.

The United States Supreme Court struck down Texas’s restrictions on a woman’s right to choose to have an abortion on June 27, 2016. The Court determined that the two provisions of Texas’s HB 2 violated the U.S. Constitution. The provisions of HB 2 did not offer medical benefits sufficient to justify the burdens placed upon women seeking a previability abortion.

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State Abortion Statutes

The effect of the Supreme Court’s 1973 decisions in
Roe v. Wade and
Doe v. Smith was to invalidate all or part of almost every state abortion statute then in force. The responses of state legislatures to these decisions were varied, but it is clear that many state laws had been enacted to restrict the performance of abortions as much as possible. Although
Planned Parenthood v. Casey was expected to clear up some issues, it
is evident that the states have been given more power to regulate the performance of abortions.

24-Hour Waiting Period Not Burdensome

In 1992, the U.S. Supreme Court in
Planned Parenthood v. Casey

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determined that in asserting an interest in protecting fetal life, a state may place some restrictions on previability abortions, so long as those restrictions do not impose an “undue burden” on the woman’s right to an abortion. The court determined that the 24-hour waiting period, the informed consent requirement, and the medical emergency definitions did not unduly burden the right to an abortion and were therefore constitutional.

The 1993 Utah Abortion Act Revision, Senate Bill 60, provides for informed consent by requiring that certain information be given to the pregnant woman at least 24 hours before performing an abortion. The law allows for exceptions to this requirement in the event of a medical emergency. The Utah Women’s Clinic, in
Utah Women’s Clinic, Inc. v. Leavitt,

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filed a 106-page complaint challenging the constitutionality of the new Utah law. It was determined that the 24-hour waiting period did not impose an undue burden on the right to an abortion. On appeal, a U.S. District Court held that the Utah abortion statute’s 24-hour waiting period and informed consent requirements do not render the statute unconstitutionally vague.

Abortions After 20 Weeks Prohibited

Governor Nikki Haley signed bill A183, R196, H3114 into law, prohibiting abortions 20 or more weeks post-fertilization, thus amending the code of laws of South Carolina by adding Article 5 to Chapter 41, Title 44, enacting the “South Carolina Pain-Capable Unborn Child Protection Act.” The South Carolina bill has no provisions for rape or incest. South Carolina is the 13th state to enforce such a ban, along with Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Nebraska, North Dakota, Oklahoma, Texas, West Virginia, and Wisconsin. The act provides in part:

Section 44-41-440. Except in the case of a medical emergency or fetal anomaly, no abortion must be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first made a determination of the probable post-fertilization age of the unborn child or relied upon such a determination made by another physician. In making such a determination, the physician shall make such inquiries of the woman and perform or cause to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to post-fertilization age.

Section 44-41-450. (A) No person shall perform or induce or attempt to perform or induce an abortion upon a woman when it has been determined, by the physician performing or inducing or attempting to perform or induce the abortion or by another physician upon whose determination that physician relies, that the probable post-fertilization age of the woman’s unborn child is twenty or more weeks, except in the case of fetal anomaly, or in reasonable medical judgment, she has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No such greater risk must be considered to exist if it is based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

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Abortions in South Carolina may be performed after 20 weeks only if the mother’s life is in jeopardy. However, there are no exceptions for rape or incest. Physicians who perform illegal abortions can face a $10,000 fine and up to three years in prison.

Law and Morality of Abortion—Conflicting Beliefs

The abortion issue is obviously one that invokes strong feelings on both sides. Individuals are free to urge support for their cause through debate, advocacy, and participation in the political process. The subject also might be addressed in the courts so long as there are valid legal issues in dispute. Where, however, a case presents no legitimate legal arguments, the courthouse
is not the proper forum. Litigation, or the threat of litigation, should not be used as economic blackmail to strengthen one’s hand in the political battle.

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The morality of abortion involves philosophy, ethics, and theology. It is a subject wherein reasonable people adhere to vastly divergent convictions and principles. The obligation of society is to define the liberties of all and not to mandate one’s own moral code.

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Two or more ethical principles in conflict with one another are considered “ethical dilemmas,” such as in the case of abortion. Further complication of ethical dilemmas occurs when laws and regulations affect the decision-making process and, further, when the courts enter the melting pot by interpreting laws and regulations while recognizing the rights of individuals as provided under the U.S. Constitution.

Pro-life advocates argue on constitutional, ethical, and religious grounds that the unborn child has a right to life, and that right must be protected. Pro-choice advocates argue that a woman has a right to choose preservation and protection of her health, and therefore, in many cases, her life is at least as compelling as the state’s interest in promoting childbirth. These pose two viewpoints, as different as day and night, involving opposite opinions surrounded by highly charged emotional and religious beliefs as to what is right and what is wrong. Each side has drawn large numbers of supporters, but the law has continued to favor pro-choice.

Dr. Gosnell, a Philadelphia physician, was found guilty of murder in some instances by severing the spinal cord of a fetus during late-term abortions. As noted in part in the
Report of the Grand Jury:

This case is about a doctor who killed babies and endangered women. What we mean is that he regularly and illegally delivered live, viable, babies in the third trimester of pregnancy—and then murdered these newborns by severing their spinal cords with scissors. The medical practice by which he carried out this business was a filthy fraud in which he overdosed his patients with dangerous drugs, spread venereal disease among them with infected instruments, perforated their wombs and bowels—and on, at least two occasions, caused their deaths. Over the years, many people came to know that something was going on here. But no one put a stop to it.

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As noted in the Gosnell
Report of the Grand Jury, opposing viewpoints stoke the flames of the ongoing abortion controversy in the news media.

Philadelphia Abortion Doctor Guilty of Murder in Late-Term Procedures

While abortion rights groups argued that Dr. Gosnell operated far outside the legalities and norms of women’s health care, abortion opponents seized on the case to raise questions about the ethics of late-term abortions. Put simply, they asked why a procedure done to a living baby outside the womb is murder, but destroying a fetus of similar gestation before delivery can be legal.

—John Hurdle and Trip Gabriel,
The New York Times, May 13, 2013

Pa. Abortion Provider Convicted of Murder

… “Some abortionists may have cleaner sheets than Gosnell, and better sterilized equipment and better trained accomplices, but what they do—what Gosnell did—kill babies and hurt women is the same,” Rep. Christopher H. Smith (R-NJ) said in a statement.

Meanwhile, abortion-rights groups insisted that Gosnell’s crimes are an anomaly and that the abysmal conditions inside his clinic persisted only because numerous regulators ignored red flags for years.

—Brady Dennis,
The Washington Post, May 14, 2013

To make the right choices in the resolution of ethical dilemmas, it is often necessary to value one ethical principle more than another. The difficulty in the abortion dilemma arises because beliefs, religion, culture, education, and life experiences can differ from person to person. Good people cannot be considered bad people merely because their beliefs differ from another’s beliefs. Values differ, and, therefore, determining what is morally right or wrong can differ from person to person. It is certain that the controversies and ethical dilemmas surrounding abortion will continue for many years to come. Preferably common ground can be the beginning point for resolving this emotionally charged dilemma.

The landscape of political contention and differing religious beliefs and values of the human race will forever be a dark side in human history, making these natural phenomena of creation forever debated and written as a black mark in the annals of history. Rather in the
prevention of conception or the abortion of the fetus/unborn child depending on your beliefs will continue to be forever a contentious topic in the world order.

Moral Persuasion on Abortion

If you wish to persuade someone to adopt your viewpoint on any issue, it is usually counter-productive to begin by insulting that person. The reason is simple: Your target is likely to want to defend himself or herself from the insult, and consequently will not be in a position to hear your argument.

—Joseph B. Kadane,
Huffington Post, September 27, 2013

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STERILIZATION

Sterilization is the termination of the ability to produce offspring. Sterilization often is accomplished by either a
vasectomy for men or a tubal ligation for women. A vasectomy is a surgical procedure in which the vas deferens is severed and tied to prevent the flow of the seminal fluid into the urinary canal. A
tubal ligation is a surgical procedure in which the fallopian tubes are cut and tied, preventing passage of the ovum from the ovary to the uterus. Sterilizations are often pursued for such reasons as:

  • Birth control
  • Economic necessity
  • Therapeutic necessity (e.g., prevent harm to a woman’s health)
  • Genetic concerns (e.g., prevent birth defects)

Elective Sterilization

Voluntary or
elective sterilizations on competent individuals present few legal problems, so long as proper consent has been obtained from the patient and the procedure is performed properly. Civil liability for performing a sterilization of convenience may be imposed if the procedure is performed in a negligent manner. Like abortion, voluntary sterilization is the subject of a variety of debates concerning its moral and ethical propriety.

Therapeutic Sterilization

If the life or health of a woman may be jeopardized by pregnancy, the danger may be avoided by terminating: (1) her ability to conceive or (2) her husband’s ability to impregnate. Such an operation is a
therapeutic sterilization—one performed to preserve life or health. The medical necessity for sterilization renders the procedure therapeutic. Sometimes a diseased reproductive organ has to be removed to preserve the life or health of the individual. The operation results in sterility, although this was not the primary reason for the procedure. Such an operation technically should not be classified as sterilization because it is incidental to the medical purpose.

Eugenic Sterilization

The term
eugenic sterilization refers to the involuntary sterilization of certain categories of persons described in statutes, without the need for consent by, or on behalf of, those subject to the procedures. Persons classified as mentally deficient, “feebleminded,” and, in some instances, epileptic have been included within the scope of such statutes. Several states also have included certain sexual deviants and persons classified as habitual criminals. Such statutes ordinarily are designed to prevent the transmission of hereditary defects to succeeding generations, but several statutes also have recognized the purpose of preventing procreation by individuals who would not be able to care for their offspring.

Although there have been judicial decisions to the contrary, the United States Supreme Court in
Buck v. Bell

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specifically upheld the validity of such eugenic sterilization statutes, provided that certain procedural safeguards are observed. The U.S. Supreme Court determined:

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.
Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.

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Several states have laws authorizing eugenic sterilization. The decision in
Wade v. Bethesda Hospital

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strongly suggests that in the absence of statutory authority the state cannot order sterilization for eugenic purposes. Eugenic sterilization statutes provide the following: a grant of authority to public officials supervising state institutions for the mentally ill or prisons and to certain public health officials to conduct sterilizations; a requirement of personal notice to the person subject to sterilization and, if that person is unable to comprehend what is involved, notice to the person’s
legal representative, guardian, or nearest relative; a hearing by the board designated in the particular statute to determine the propriety of the prospective sterilization; at the hearing, evidence that may be presented, and the patient, who must be present or represented by counsel or the nearest relative or guardian; and an opportunity to appeal the board’s ruling to a court.

The procedural safeguards of notice, hearing, and the right to appeal must be present in sterilization statutes to fulfill the minimum constitutional requirements of due process. An Arkansas statute was found to be unconstitutional in that it did not provide for notice to the incompetent patient and opportunity to be heard or for the patient’s entitlement to legal counsel.

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Case Studies

Negligent Sterilization

Dr. Kenneth Chaffee performed a partial salpingectomy on Heather Seslar. The purpose of the procedure was to sterilize Seslar, who had already borne four children, so that she could not become pregnant again. After undergoing the surgery, however, Seslar conceived and delivered a healthy baby. Seslar sued Chaffee.

The Court of Appeals held in
Chaffee v. Seslar that damages for the alleged negligent sterilization procedure could not include the costs of raising a normal healthy child. Although raising an unplanned child is costly, all human life is presumptively invaluable. A child, regardless of the circumstances of birth, does not constitute harm to the parents so as to permit recovery for the costs associated with raising and educating the child. As with a majority of jurisdictions, the court held that the value of a child’s life to the parents outweighs the associated pecuniary burdens as a matter of law. Recoverable damages may include pregnancy and childbearing expenses but not the ordinary costs of raising and educating a normal, healthy child conceived after an allegedly negligent sterilization procedure.

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Ethical and Legal Issues

  1. Do you agree with the court’s decision?
  2. Under what circumstances would you not agree with the court’s decision?
  3. Describe the ethical issues in this case.

WRONGFUL BIRTH, LIFE, AND CONCEPTION

The improper performance of sterilization can result in lawsuits based on such theories as
wrongful birth,
wrongful life, and
wrongful conception. Wrongful life suits are generally unsuccessful, primarily because of the court’s unwillingness, for public policy reasons, to permit financial recovery for the “injury” of being born into the world.

Some success, however, has been achieved in litigation by the patient (and his or her spouse) who allegedly was sterilized and subsequently proved fertile. Damages have been awarded for the cost of the unsuccessful procedure; pain and suffering as a result of the pregnancy; the medical expense of the pregnancy; and the loss of comfort, companionship services, and consortium of the spouse. Again, as a matter of public policy, the courts have indicated that the joys and benefits of having the child outweigh the cost incurred in the rearing process.

There have been many cases in recent years involving actions for wrongful birth, wrongful life, and wrongful conception. Litigation originated with the California case in which a court found that a genetic testing laboratory could be held liable for damages from incorrectly reporting genetic tests, leading to the birth of a child with defects.

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Injury caused by birth had not been previously actionable by law. The court of appeals held that medical laboratories engaged in genetic testing owe a duty to parents and their unborn child to use ordinary care in administering available tests for the purpose of providing information concerning potential genetic defects in the unborn. Damages in this case were awarded on the basis of the child’s shortened life span.

Wrongful Birth

In a wrongful birth action
, the plaintiffs claim that but for a breach of duty by the defendant(s) (e.g., improper sterilization), the child would not have been born. A wrongful birth claim can be brought by the parent(s) of a child born with genetic defects against a physician who or a laboratory that negligently fails to inform them, in a timely fashion, of an increased possibility that the mother will give birth to such a child, therefore precluding an informed decision as to whether to have the child.

In a New Jersey case,
Canesi ex rel. Canesi v. Wilson,

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the New Jersey Supreme Court reviewed the dismissal of an action for wrongful birth on the claim of the parents that had the mother been informed of the risk that a drug, Provera, which she had been taking before she learned that she was pregnant, might cause the fetus to be born with congenital anomalies such as limb reduction, she would have decided to abort the fetus. It was alleged that the physicians failed to disclose the risks associated with the drug. The physicians argued that the informed consent doctrine requires that the plaintiffs establish that the drug in fact caused the birth anomalies. The court rejected the argument and distinguished the wrongful birth action from one based on informed consent:

In sum, the informed consent and wrongful birth causes of action are similar in that both require the physician to disclose those medically accepted risks that a reasonably prudent patient in the plaintiff’s position would deem material to her decision. What is or is not a medically acceptable risk is informed by what the physician knows or ought to know of the patient’s history and condition. These causes of action, however, have important differences. They encompass different compensable harms and measures of damages. In both causes of action, the plaintiff must prove not only that a reasonably prudent patient in her position, if apprised of all material risks, would have elected a different course of treatment or care. In an informed consent case, the plaintiff must additionally meet a two-pronged test for proximate causation: She must prove that the undisclosed risk actually materialized and that it was medically caused by the treatment. In a wrongful birth case, on the other hand, a plaintiff need not prove that the doctor’s negligence was the medical cause of her child’s birth defect. Rather, the test of proximate causation is satisfied by showing that an undisclosed fetal risk was material to a woman in her position; the risk materialized was reasonably foreseeable and not remote in relation to the doctor’s negligence; and had plaintiff known of that risk, she would have terminated her pregnancy. The emotional distress and economic loss resulting from this lost opportunity to decide for herself whether or not to terminate the pregnancy constitute plaintiff’s damages.

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With the increasing consolidation of hospital services and physician practices, a case could be made for finding a hospital liable for the physician’s failure to obtain informed consent where the hospital actually owns or controls the physician’s practice or where both the hospital and the physician’s practice are owned or controlled by another corporation that sets policy for both the hospital and the physician’s practice.

Wrongful Life

Wrongful life claims are initiated by the parent(s) or child based on harm suffered as a result of being born. The plaintiffs generally contend that the physician or laboratory negligently failed to inform the child’s parents of the risk of bearing a genetically defective infant and hence prevented the parents’ right to choose to avoid the birth.

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Because there is no recognized legal right not to be born, wrongful life cases are generally not successful.

[L]egal recognition that a disabled life is an injury would harm the interests of those most directly concerned, the handicapped. Disabled persons face obvious physical difficulties in conducting their lives. They also face subtle yet equally devastating handicaps in the attitudes and behavior of society, the law, and their own families and friends. Furthermore, society often views disabled persons as burdensome misfits. Recent legislation concerning employment, education, and building access reflects a slow change in these attitudes. This change evidences a growing public awareness that the handicapped can be valuable and productive members of society. To characterize the life of a disabled person as an injury would denigrate both this new awareness and the handicapped themselves.

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A cause of action for wrongful life was not cognizable under Kansas law in
Bruggeman v. Schimke.

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Human life is valuable, precious, and worthy of protection. An evaluation that says it is more worthwhile to not be born rather than to be alive with deformities cannot be recognized. The Kansas Supreme Court held that there was no recognized cause for wrongful life.

In
Kassama v. Magat,

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Millicent Kassama alleged that Dr. Aaron Magat failed to advise her of the results of an alpha-fetoprotein blood test that indicated a heightened possibility that her child, Ibrion, might be afflicted with Down syndrome. Had she received that information, Kassama contends, she would have undergone amniocentesis, which would have confirmed that prospect. Kassama claims that if that had
occurred she would have chosen to terminate the pregnancy through an abortion.

The Supreme Court of Maryland decided that for purposes of tort law, an impaired life was not worse than nonlife, and, for that reason, life itself was not and could not be considered an injury. There was no evidence that Ibrion was not deeply loved and cared for by her parents, nor that she did not return that love. Studies have shown that people afflicted with Down syndrome can lead productive and meaningful lives. They can be educated and employed, form friendships, and get along in society. Allowing a recovery of extraordinary life expenses on some theory of fairness—that the physician or his or her insurance company should pay not because the physician was negligent causing the injury or impairment but because the child was born—ignores that fundamental issue.

Wrongful birth is based on the premise that being born and having to live with the affliction are disadvantages and thus cognizable injuries. The injury sued upon was the fact that Ibrion was born; she bears the disability and will bear the expenses only because, due to the alleged negligence of Magat, her mother was unable to terminate the pregnancy and avert her birth. The issue here is whether Maryland law is prepared to recognize that kind of injury—the injury of life itself.

The child has not suffered any damage cognizable at law by being brought into existence. One of the most deeply held beliefs of our society is that life, whether experienced with or without a major physical handicap, is more precious than nonlife. No one is perfect, and each person suffers from some ailments or defects (whether major or minor) that make impossible participation in all of the activities life has to offer. Our lives are not thereby rendered less precious than those of others whose defects are less pervasive or less severe. Despite their handicaps, Down syndrome children are able to love and be loved and to experience happiness and pleasure—emotions that are truly the essence of life and that are far more valuable than the suffering that may be endured.

The right to life and the principle that all are equal under the law are basic to our constitutional order. To presume to decide that a child’s life is not worth living would be to forsake these ideals. To characterize the life of a disabled person as an injury would denigrate the handicapped themselves. Measuring the value of an impaired life as compared with nonexistence is a task that is beyond mortals.

Unless a judgment can be made on the basis of reason rather than the emotion of any given case, that nonlife is preferable to impaired life—that the child–plaintiff would, in fact, have been better off had he or she never been born—there can be no injury, and if there can be no injury, whether damages can or cannot be calculated becomes irrelevant.

The crucial question, a value judgment about life itself, is too deeply immersed in each person’s own individual philosophy or theology to be subject to a reasoned and consistent community response in the form of a jury verdict.

Wrongful Conception

Wrongful conception refers to a claim for damages sustained by the parents of an unexpected child based on an allegation that conception of the child resulted from negligent sterilization procedures or a defective contraceptive device.

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Damages sought for a negligently performed sterilization might include:

  • Pain and suffering associated with pregnancy and birth
  • Expenses of delivery
  • Lost wages
  • Father’s loss of consortium
  • Damages for emotional or psychological pain
  • Suffering resulting from the presence of an additional family member in the household
  • The cost and pain and suffering of a subsequent sterilization
  • Damages suffered by a child born with genetic defects

The most controversial item of damages claimed is that of raising a normal healthy child to adulthood. The mother in
Hartke v. McKelway

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had undergone sterilization for therapeutic reasons to avoid endangering her health from pregnancy. The woman became pregnant as a result of a failed sterilization. She delivered a healthy child without injury to herself. It was determined that “the jury could not rationally have found that the birth of this child was an injury to this plaintiff. Awarding child-rearing expense would only give Hartke a windfall.”

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The cost of raising a healthy newborn child to adulthood was recoverable by the parents of the child conceived as a result of an unsuccessful sterilization by a physician employee at Lovelace Medical Center. The physician in
Lovelace Medical Center v. Mendez

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found and ligated only one of the patient’s two fallopian tubes and then failed to inform the patient of the unsuccessful operation. The court held that:

… the Mendezes’ interest in the financial security of their family was a legally protected interest which was invaded by Lovelace’s negligent failure properly to perform
Maria’s sterilization operation (if proved at trial), and that this invasion was an injury entitling them to recover damages in the form of the reasonable expenses to raise Joseph to maturity.

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Some states bar damage claims for emotional distress and the costs associated with the raising of healthy children but will permit recovery for damages related to negligent sterilizations. In
Butler v. Rolling Hill Hospital,

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the Pennsylvania Superior Court held that the patient stated a cause of action for the negligent performance of a laparoscopic tubal ligation. The patient was not, however, entitled to compensation for the costs of raising a normal, healthy child. “In light of this Commonwealth’s public policy, which recognizes the paramount importance of the family to society, we conclude that the benefits of joy, companionship, and affection which a normal, healthy child can provide must be deemed as a matter of law to outweigh the costs of raising that child.”

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As the Court of Common Pleas of Lycoming County, Pennsylvania, in
Shaheen v. Knight, stated:

Many people would be willing to support this child were they given the right of custody and adoption, but according to plaintiff’s statement, plaintiff does not want such. He wants to have the child and wants the doctor to support it. In our opinion, to allow such damages would be against public policy.

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ARTIFICIAL INSEMINATION

Artificial insemination is the process by which sperm is placed into the reproductive tract of a female, for the purpose of impregnating the female by using means other than sexual intercourse. There are two sources of the sperm for impregnation of a female: homologous artificial insemination involves the use of the husband’s semen to impregnate the female; and heterologous artificial insemination (HAI) involves the use of semen from a donor other than a woman’s husband. The absence of answers to many questions concerning HAI may discourage couples from seeking to use the procedure and physicians from performing it. Some of the questions concern the procedure itself; others concern the status of the offspring, the effect of the procedure on the marital relationship, and the risk of multiple births that can be financially challenging.

Further worrying is the potential for legal actions for multiple births, which even led to the loss of a physician’s license to practice medicine when the Medical Board of California revoked Dr. Michael Kamrava’s medical license after he transplanted multiple embryos, resulting in the birth of octuplets. The Medical Board determined that Dr. Kamrava had acted beyond the reasonable judgment of a physician by implanting a number of embryos that exceeded existing guidelines:

The Board subsequently found Kamrava guilty of gross negligence, repeated negligent acts, and inadequate medical records in the first case. In the additional two cases, Kamrava was found guilty of gross negligence and repeated negligent acts in one case and guilty of repeated negligent acts in the other case.

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Consent

The Oklahoma HAI statute specifies that husband and wife must consent to the procedure.

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It is clear that the wife’s consent must be obtained; without it, the touching involved in the artificial insemination would constitute a battery. Besides the wife’s consent, it is important to obtain the husband’s consent to ensure against liability accruing if a court adopted the view that without the consent of the husband, HAI was a wrong to the husband’s interest, for which he could sustain a suit for damages.

The Oklahoma statute also deals with establishing proof of consent. It requires the consent to be in writing, and it must be executed and acknowledged by the physician performing the procedure and by the local judge who has jurisdiction over the adoption of children, as well as by the husband and wife.

In states without specific statutory requirements, medical personnel should attempt to avoid such potential liability by establishing the practice of obtaining the written consent of the couple requesting the HAI procedure. The hospital’s legal counsel should be consulted with in order to ensure that hospital policy is in compliance with statutory requirements.

Confidentiality

Another problem that directly concerns medical personnel involved in heterologous artificial insemination birth is preserving confidentiality. This problem is met in the Oklahoma HAI statute, which requires that the original copy of the consent be filed pursuant to the rules for filing adoption papers and is not to be made a matter of public record.

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SURROGACY

Surrogacy is a method of reproduction whereby a woman agrees to give birth to a child she will not raise but hand over to a contracted party, who is often unable to conceive a natural child of her or his own. A surrogate “may be the child’s genetic mother (the more traditional form of surrogacy), or she may as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases, surrogacy is the only available option for parents who wish to have a child that is biologically related to them.”

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Surrogacy raises a variety of ethical and legal issues that should be considered before searching for a surrogate mother. For example, is it ethical to enter a contract with a woman by offering her money in exchange for bearing a child and then transferring all parental rights and physical custody of the child to the “commissioning couple”? Although the long-term effects of surrogacy contracts are not known, the adverse psychological impact could be detrimental to the child who learns that he or she is the offspring of someone who gave birth only to obtain money. Would the child want to search for his or her gestational mother? Should records be kept, and should the child have access to the records? After the child is taken, the surrogate mother may be negatively affected as her feeling of isolation is felt along with the reality of the sale of her body.

Some believe that the surrogacy contract is based on principles that are contrary to the objectives of our laws. The surrogate contract is perceived to be illegal when a fee is involved because it is compared with baby selling, which is illegal in all states. Court decisions and legislation in the United States have historically been split on how they address surrogacy contracts. In the District of Columbia, as of April 7, 2017, surrogacy contracts are legal and enforceable. The law offered guidelines for parents and surrogates entering into surrogacy contracts and established how the intended parents should legally assert their parental rights.

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A BILL 21-16

ENGROSSED ORIGINAL

IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

To amend Chapter 4 of Title 16 of the District of Columbia Official Code to permit collaborative reproduction and surrogacy agreements, establish requirements for surrogates, intended parents, and the contents of surrogacy agreements, establish parentage of a child, provide for court orders of parentage, and establish the effect of a subsequent marriage or domestic partnership, dissolution of a marriage or domestic partnership, death of an intended parent, and withdrawal of consent.

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Although there are arguments offered for and against surrogacy contracts, there are many parents who have experienced the joy of raising happy, psychologically well-balanced, and career-successful surrogate children. Those who have done their research and understand the issues live as happy together as those in any other family relationship.

ORGAN DONATIONS

Becoming a Donor

Organ and tissue donation and transplantation provide a second chance at life for thousands of people each year. You have the opportunity to be one of the individuals who make these miracles happen.

By deciding to be a donor, you give the gift of hope … hope for the thousands of individuals awaiting organ transplants and hope for the millions of individuals whose lives could be enhanced through tissue transplants. [
organdonor.gov.]

—U.S. Department of Health and Human Services

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There were approximately 114,895 people as of April 8, 2018, on the the Organ Procurement Transplant Network waiting for an organ transplant. Only 5,448 organ transplantations from 2,677 donors had been performed as of this same date.

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To help resolve the shortage of donors, every eligible adult is encouraged to register in their state as a donor.

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Federal regulations require that hospitals have and implement written protocols regarding their organ procurement responsibilities. The regulations impose specific notification duties, as well as other requirements concerning informing families of potential donors. It encourages discretion and sensitivity in dealing with the families and in educating hospital staff on a variety of issues involved with donation matters in order to facilitate timely donation and transplantation.

Organ transplantations are performed to treat patients with end-stage organ disease who face organ failure. Developments in medical science have enabled physicians to take tissue from persons immediately after death for use in replacing or rehabilitating diseased or damaged organs or other parts of living
persons. Interest in organ transplantation increased in 1954 when the Herrick twins became the first successful kidney transplant.

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The success rates of organ transplants have improved because of advances in the patient selection process, improved clinical and operative management and skills, and immunosuppressant drugs that aid in decreasing the incidence of tissue rejection (e.g., cyclosporin A, which acts to suppress the production of antibodies that attack transplanted tissue); nevertheless, this progress has created the problem of obtaining a sufficient supply of replacement body parts. There is a corresponding cry for more organs as the success rate in organ transplantation increases. Because of the fear of people buying and selling organs, the National Organ Procurement Act was enacted in 1984, making it illegal to buy or sell organs. Throughout the country, there are tissue banks and other facilities that store and preserve organs and tissue that can be used for transplantation and other therapeutic services.

The ever-increasing success of organ transplants and the demand for organ tissue require the close scrutiny of each case, to make sure that established procedures have been followed in the care and disposal of all body parts. Section 1138, Title XI, of the Omnibus Budget Reconciliation Act of 1986 requires hospitals to establish organ procurement protocols or face a loss of Medicare and Medicaid funding. Physicians, nurses, and other paramedical personnel assigned this responsibility often are confronted with several legal issues. Liability can be limited by complying with applicable regulations. Organs and tissues to be stored and preserved for future use must be removed almost immediately after death; therefore, it is imperative that an agreement or arrangement for obtaining organs and tissue from a body be completed before death, or very soon after death, to enable physicians to remove and store the tissue promptly. Mark Zuckerberg, chairman and CEO of Facebook, launched an organ donation campaign in 2012 encouraging its users to help spread awareness of the need for organ donations.

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Some people may wish to make arrangements for the use of their bodies after death for such purposes. A surviving spouse may, however, object to such disposition. In such cases, the interest of the surviving spouse or other family member could supersede that of the deceased.

Who Lives? Who Dies? Who Decides?

Who lives? Who dies? Who decides? These are but a few of the ethical questions that arise when deciding to whom an organ shall be given. The answers are not easy. The decision makers, even with guidelines to follow, often become the judge and jury and often find that the answers to questions such as who lives and dies are not always easy decisions to make. If there were unlimited sources of organs, there would be no supply-and-demand issues. Because supply is limited, numerous ethical principles come into play. In the case of a 70-year-old patient with multiple life-threatening health problems, the patient may not be considered a suitable candidate for a transplant, whereas a 15-year-old patient with few health issues would be considered a more appropriate candidate.

Uniform Anatomical Gift Act

The American Bar Association endorsed a
Uniform Anatomical Gift Act drafted by the Commission on Uniform State Laws. This statute has been enacted by all 50 states and has many detailed provisions that apply to the wide variety of issues raised in connection with the making, acceptance, and use of anatomical gifts. The act allows a person to make a decision to donate organs at the time of death and allows potential donors to carry an anatomical donor card. State statutes regarding donation usually permit the donor to execute the gift during his or her lifetime.

The right to privacy of the donor and his or her family must be respected. Information should not be publicized regarding transplant procedures as well as the names of the donor or donee without consent.

States have enacted legislation to facilitate donation of bodies and body parts for medical uses. Virtually all of the states have based their enactments on the Uniform Anatomical Gift Act, but it should be recognized that in some states there are deviations from this act or additional laws dealing with donation.

Individuals who are of sound mind and 18 years of age or older are permitted to dispose of their own bodies or body parts by will or other written instrument for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation. Among those eligible to receive such donations are any licensed, accredited, or approved hospitals; accredited medical or dental schools; surgeons or physicians; tissue banks; or specified individuals who need the donation for therapy or transplantation. The statute provides that when only a part of the body is donated, custody of the remaining parts of the body shall be transferred to the next of kin promptly after removal of the donated part.

A donation by will becomes effective immediately on the death of the testator, without probate, and the gift is valid and effective to the extent that it has been acted on in good faith. This is true even if the will is not probated or is declared invalid for testimonial purposes.

Failure to Obtain Consent

Although failure to obtain consent for removal of body tissue can give rise to a lawsuit, not all such claims are successful. In
Nicoletta v. Rochester Eye & Human Parts Bank,

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emotional injuries resulted from the removal of the eyes of Nicoletta’s son for donation after a fatal motorcycle accident. The hospital was immune from liability under the provisions of the Uniform Anatomical Gift Act because the hospital had neither actual nor constructive knowledge that the woman who had authorized the donation was not the decedent’s wife. The hospital was entitled to the immunity afforded by the “good faith” provisions of Section 4306(3) of the act, under which its agents had made reasonable inquiry as to the status of the purported wife, who had resided with the decedent for 10 years and was the mother of their two children. The hospital had no reason to believe that any irregularity existed. The father, who was present at the time his son was brought to the emergency department, failed to object to any organ donation and failed to challenge the authority of the purported wife to sign the emergency department authorization.

There are several methods by which an organ or tissue donation authorization may be revoked. If the document has been delivered to a named receiving agency (such as a hospital or a surgeon expected to perform the extraction of donated tissues), it may be revoked by:

  • A written revocation signed by the donor and delivered to the receiving agency
  • An oral revocation witnessed by two persons and communicated to the receiving agency
  • A statement to the attending physician during a terminal illness that has been communicated to the receiving agency
  • A written statement that has been signed and is on the donor’s person or in the donor’s immediate effects

If the written instrument of donation has not been delivered to the receiving agency, the tissue donation may be revoked by destruction, cancellation, or mutilation of the instrument. If the donation is made by a will, it may be revoked in the manner provided for revocation or amendment of wills. Any person acting in good-faith reliance on the terms of an instrument of donation will not be subject to civil or criminal liability unless there is actual notice of the revocation of the donation.

Altruism vs. Sale of Organs

The shortage of organs has led to organs “being trafficked, sometimes with, and sometimes without, the consent of those to whom they belong. People have been directly, or indirectly, being forced to sell their own organs for a low price, often to middlemen, who make thousands of Euros from poor vulnerable persons.”

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Iran addressed by legislation the shortage of organs in 1988 by allowing Iranians to sell a kidney with what has been described as a successful government decision.

In the 1980s, Iran had both a shortage of legally donated kidneys and subpar dialysis equipment to treat the growing segment of the population with end-stage renal disease (ESRD). It
did have highly trained surgeons capable of performing organ transplants, though. So in 1988, the nation decided on a bold (and somewhat controversial) new strategy to eliminate the dangers that come with procuring or receiving an organ illegally: they made it legal for a living person to sell their kidney.

Nearly three decades later, Iran is one of the few nations without an organ shortage—every Iranian who needs a kidney can receive one. Should other nations follow suit?

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The attempt to encourage people to voluntarily be placed on donor lists for organ transplantations has proven to be of limited success. The number of people waiting for an organ and waiting times indicate the need to provide other options such as the approach Iran, for example, has taken.

Because the organ shortage has become more severe worldwide, some from the transplant community believe that altruism alone is not enough to satisfy the needs of the thousands of patients who are on renal transplant waiting lists and that providing some financial incentives or social benefits is necessary to increase the number of deceased or living organ donations.

As mentioned, there is no role for a broker or an agency in this transplantation program. The association for patients with ESRD [end-stage renal disease] is a charitable organization and receives no incentives from donors or recipients. The government pays for all hospital expenses of renal transplantation. The medical and surgical fees for transplantation are greatly lower compared with the fees for similar services.

All transplant candidates who are poor receive renal transplantation. The elimination of renal transplant waiting lists means that
all patients with ESRD, either rich or poor, have equal access to renal transplant facilities; otherwise, many poor patients would remain on the renal transplant waiting list. The main reason for this equal access is the active role of charitable organizations that pay for many expenses of renal transplantation that the poor patients cannot afford.

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Altruism, which entails the unselfish regard or devotion for the welfare of others, has not generated sufficient public interest in helping others in the time of crisis. This may be due to the fear of being transported to an emergency department and being hastily declared not able to survive the injuries sustained, and therefore the organs are harvested for others on the donor list. Although there are safeguards to help prevent this from happening, there is always a risk, however remote, that the interest in declaring the patient unable to survive may have been for some cruel or selfish reason. Failure to obtain a sufficient number of organs may also be due to complacency and lack of knowledge. Whether by greed or financial crisis, donors who sell their organs are solving the problem in Iran. Therefore, it can be argued that more consideration should be given to enacting legislation allowing for each individual to pursue the option of selling his organ(s).

RESEARCH, EXPERIMENTATION, AND CLINICAL TRIALS

Medical progress and improved patient care are dependent on advances in medicine made through research. Research studies are designed to answer specific questions, including a drug’s or device’s safety and effectiveness. Ethical considerations, to name but a few, that should be addressed when conducting research on human subjects include honesty, integrity, autonomy; self-determination; the Hippocratic maxim of do no harm; the application of justice; and how to fairly conduct blind trials. The basic principle of research is honesty, which must be ensured through institutional protocols. Honesty and integrity must govern all stages of research.

Federal regulations control federal grants that apply to experiments involving new drugs, new medical devices, or new medical procedures. Generally, a combination of federal and state guidelines and regulations ensures proper supervision and control over experimentation that involves human subjects. For example, federal regulations require hospital-based researchers to obtain the approval of an
institutional review board.

The science of medicine, which by its very nature studies the human body, is prevented from making progress through direct experimentation. A necessary part of research is to conduct laboratory tests on animals and observe their effects prior to testing them on humans. Advances in research occur by observation and study of how a normal, healthy body functions and when the body malfunctions, studying the cause of those changes that occur and finding a way to slow and possibly reverse the progression of a disease.

Right to Try Experimental Drugs

The U.S. Senate unanimously passed the “Right to Try Bill” in August 2017 that would allow terminally ill patients the right to access experimental treatments without oversight by the Food and Drug Administration. The House of Representatives, on March 21, 2018, passed a bill allowing patients the right to try experimental drugs prior to FDA approval.

House Passes Bill That Would Give Patients Access to Experimental Drugs

WASHINGTON—The House, spurred on by President Trump, passed a bill on Wednesday that would give patients with terminal illnesses a right to try unproven experimental treatments.

The measure, which was approved by a vote of 267 to 149, appears to have a good chance of becoming law. The Senate approved a similar proposal last year.

Supporters said the bill would give dying patients a chance to obtain potentially helpful prescription drugs without waiting for the completion of clinical trials or going through a process established by the Food and Drug Administration to allow the use of “investigational drugs” outside clinical trials.

—Robert Pear
, The New York Times, March 21, 2018

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The contents of that bill are provided in part here.

This Act may be cited as the “Right to Try Act of 2017’’.

SEC. 2. USE OF UNAPPROVED MEDICAL PRODUCTS BY PATIENTS DIAGNOSED WITH A TERMINAL ILLNESS.

(a) In General.—Notwithstanding the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301
et seq.), the Controlled Substances Act (21 U.S.C. 801 et seq.), and any other provision of Federal law, the Federal Government shall not take any action to prohibit or restrict—

(1) the production, manufacture, distribution, prescribing, or dispensing of an experimental drug, biological product, or device that—

(A) is intended to treat a patient who has been diagnosed with a terminal illness; and

(B) is authorized by, and in accordance with, State law; and

(2) the possession or use of an experimental drug, biological product, or device—

(A) that is described in subparagraphs (A) and (B) of paragraph (1); and

(B) for which the patient has received a certification from a physician, who is in good standing with the physician’s certifying organization or board, that the patient has exhausted, or otherwise does not meet qualifying criteria to receive, any other available treatment options.

(b) No Liability or Use of Outcomes.—

(1) No liability.—Notwithstanding any other provision of law, no liability shall lie against a producer, manufacturer, distributor, prescriber, dispenser, possessor, or user of an experimental drug, biological product, or device for the production, manufacture, distribution, prescribing, dispensing, possession, or use of an experimental drug, biological product, or device that is in compliance with subsection (a).

(2) No use of outcomes.—Notwithstanding any other provision of law, the outcome of any production, manufacture, distribution, prescribing, dispensing, possession, or use of an experimental drug, biological product, or device that was done in compliance with subsection (a) shall not be used by a Federal agency reviewing the experimental drug, biological product, or device to delay or otherwise adversely impact review or approval of such experimental drug, biological product, or device.

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Approval by the Senate of this bill was pending at the time of this writing. At the state level, 38 states have passed similar laws.

Office of Research Integrity

The Office of Research Integrity (ORI) oversees and directs Public Health Service (PHS) research integrity activities on behalf of the Secretary of Health and Human Services with the exception of the research integrity activities of the Food and Drug Administration. The ORI carries out its responsibility by developing policies, procedures, and regulations related to the detection, investigation, and prevention of research misconduct and the responsible conduct of research. The ORI is responsible for implementing activities and programs to teach the responsible conduct of research, promote research integrity, prevent research misconduct, and improve the handling of allegations of research misconduct. The ORI administers programs for: maintaining institutional assurances, responding to allegations of retaliation against whistleblowers, approving intramural and extramural policies and procedures, and responding to Freedom of Information Act and Privacy Act requests.

Food and Drug Administration

The Food and Drug Administration (FDA) regulates the conduct of clinical trials. A variety of regulations that describe good clinical practices for studies with both human and nonhuman animal subjects are listed next. More detail on these and other research-related regulations can be found at the FDA website:

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  • Electronic records
  • Protection of human subjects
  • Informed consent elements
  • Financial disclosure by investigators
  • Institutional review boards
  • Investigational drug new application
  • Investigational device exemptions
  • Good laboratory practice for nonclinical laboratory studies
  • Expanded access to investigational drugs for treatment

The FDA—after much criticism over the years because of the red tape involved in the approval of new drugs—issued new rules to speed up the approval process. The rules permit the use of experimental drugs outside a controlled clinical trial if the drugs are used to treat a life-threatening condition. In
Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, the U.S. Court of Appeals for the District of Columbia ruled that terminally ill patients have a “fundamental right” protected by the U.S. Constitution to access experimental drugs that have not yet been fully approved by the FDA. The appeals court ruled that
once the FDA has determined, after Phase I trials, that a potentially lifesaving new drug is sufficiently safe for expanded human trials, terminally ill patients have a constitutional right to seek treatment with the drug if no other FDA-approved drugs are available. The court said that if the FDA wishes to prevent such patients from gaining access to investigational drugs that have completed Phase I trials, it bears the burden of demonstrating that its restrictions are “narrowly tailored” to serve a compelling governmental interest.

Patients participating in research studies should fully understand the implications of their participation. Healthcare organizations involved in research studies should have appropriate protocols in place that protect the rights of patients. Consent forms should describe both the risks and benefits involved in the research activity.

Institutional Review Board

Healthcare organizations conducting medical research must have a mechanism in place for approving and overseeing the use of investigational protocols. This is accomplished through the establishment of an institutional review board (IRB). An IRB is a committee designated by organizations (e.g., hospitals) conducting clinical trials to provide initial approval and periodic monitoring of biomedical research studies. The primary responsibilities of an IRB include:

  • Protecting the rights and welfare of human subjects
  • Ensuring protocols are presented by the sponsor(s)
  • Ensuring sponsor(s) of a protocol discloses
    • Areas of concern that might give the impression of a conflict of interest in the outcome of the clinical research
    • Financial interests that might occur should the clinical trials prove to be successful or give the impression of success, including stock options and cash payouts
    • Reviewing, monitoring, and approving clinical protocols for investigations of drugs and medical devices involving human subjects
    • Ensuring that the rights, including the privacy and confidentiality, of each individual are protected
    • Ensuring that all research is conducted within appropriate state and federal guidelines (e.g., FDA guidelines)

Under FDA regulations, an IRB is an appropriately constituted group that has been formally designated to review and monitor biomedical research involving human subjects. In accordance with FDA regulations, an IRB has the authority to approve, require modifications in (to secure approval), or disapprove research. This group review serves an important role in the protection of the rights and welfare of human research subjects.

The purpose of IRB review is to assure, both in advance and by periodic review, that appropriate steps are taken to protect the rights and welfare of humans participating as subjects in the research. To accomplish this purpose, IRBs use a group process to review research protocols and related materials (e.g., informed consent documents and investigator brochures) to ensure protection of the rights and welfare of human subjects of research.

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Informed Consent

Patients Involved in Clinical Trial Understand Risks

My husband … participated in a clinical trial involving both an autologous (self) and allogeneic (donor) transplant for a hopeful cure of the disease. We both understood the risks involved and the no-promise guarantee, as such is the nature of a clinical trial. The ultimate responsibility for whatever the outcome rested with us, as we were the ones who voluntarily entered into the program. Three years later, we have just learned of the disease’s progression, but we continue to look forward, remain optimistic, and support those who dedicate their lives for the betterment of those afflicted with these cursed cancers.

The reality is that someday, probably sooner than later, my husband will lose the battle with this tenacious enemy, but we are still thankful for the compassionate and learned members of the Fred Hutchinson Cancer Research Center who helped and are still helping us to navigate a most challenging road.

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—Mary Ellen Stokes and Bill Stokes, “Relentless Assault on a Research Hospital,”
Wall Street Journal, March 15, 2004

Healthcare organizations involved in research studies should have appropriate protocols in place that protect the rights of patients. Patients participating in research studies should fully understand the implications of their participation. Physicians have a clear duty to warn patients as to the risks, benefits, and alternatives of an experimental procedure. Written consent should be obtained from each patient who participates in a clinical trial. The consent form must not contain any coercive or exculpatory language through which the patient is forced to waive his or her legal rights,
including the release of the investigator, sponsor, or organization from liability for negligent conduct.

Organizations conducting clinical trials on human subjects, at the very least, must:

  • Fully disclose to the patient the inherent risks, benefits, and treatment alternatives to the proposed research protocol(s)
  • Determine the competency of the patient to consent
  • Obtain written consent from the patient
  • Educate the staff as to the potential side effects, implementation of, and ongoing monitoring of protocols
  • Require financial disclosure issues associated with the protocols
    • Promote awareness of ethical issues
    • Promote education in regard to ethical decision making
    • Increase nurse participation in ethical decision making
    • Have ongoing monitoring of approved protocols

The Centers for Medicare and Medicaid Services (CMS) accreditation survey process for nursing facilities includes a review of the rights of nursing facility residents participating in experimental research. Surveyors will review the records of residents identified as participating in a clinical research study. They will determine whether informed consent forms have been executed properly. The form will be reviewed to determine whether all known risks have been identified. Appropriate questions may be directed to both the staff and residents or the residents’ guardians.

Possible questions to ask staff include:

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  • Is the facility participating in any experimental research?
  • If yes, what residents are involved? (Interview a sample of these residents.)

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  • Residents or guardians may be asked questions, such as:
    • Are you participating in the study?
    • Was this explained to you well enough so that you understand what the study is about and any risks that might be involved?

Experimental Subject’s Bill of Rights

The following is a bill of rights developed by the Veterans Administration system for patients involved in research studies. Human subjects have the following rights. These rights include, but are not limited to, the subject’s right to:

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  • Be informed of the nature and purpose of the experiment
  • Be given an explanation of the procedures to be followed in the medical experiment and any drug or device to be used
  • Be given a description of any attendant discomforts and risks reasonably to be expected
  • Be given an explanation of any benefits to the subject reasonably to be expected, if applicable
  • Be given a disclosure of any appropriate alternatives, drugs, or devices that might be advantageous to the subject, their relative risks, and benefits
  • Be informed of the avenues of medical treatment, if any, available to the subject after the experiment if complications should arise
  • Be given an opportunity to ask questions concerning the experiment or the procedures involved
  • Be instructed that consent to participate in the medical experiment may be withdrawn at any time and the subject may discontinue participation without prejudice
  • Be given a copy of the signed and dated consent form
  • Be given the opportunity to decide to consent or not to consent to a medical experiment without the intervention of any element of force, fraud, deceit, duress, coercion, or undue influence on the subject’s decision


Case Studies

Medical Research and Duty to Warn

About 5,000 patients at Michael Reese Hospital and Medical Center, located in Chicago, Illinois, were treated with X-ray therapy for some benign conditions of the head and neck from 1930 to 1960. Among them was Joel Blaz, now a resident of Florida, who received this treatment for infected tonsils and adenoids while a child in Illinois from 1947 through 1948. He has suffered various tumors, which he now attributes to this treatment. Blaz was diagnosed with a neural tumor in 1987.

In 1974, Michael Reese set up the Thyroid Follow-Up Project to gather data and conduct research among the people who had been subjected to the X-ray therapy. In 1975, the program notified Blaz by mail that he was at increased risk of developing thyroid tumors because of the treatment. In 1976, someone associated with the program
gave him similar information by phone and invited him to return to Michael Reese for evaluation and treatment at his own expense, which he declined to do.

Dr. Arthur Schneider was placed in charge of the program in 1977. In 1979, Schneider and Michael Reese submitted a research proposal to the National Institutes of Health stating that a study based on the program showed “strong evidence” of a connection between X-ray treatments of the sort administered to Blaz and various sorts of tumors: thyroid, neural, and others. In 1981, Blaz received but did not complete or return a questionnaire attached to a letter from Schneider in connection with the program. The letter stated that the purpose of the questionnaire was to “investigate the long-term health implications” of childhood radiation treatments and to “determine the possible associated risks.” It did not say anything about “strong evidence” of a connection between the treatments and any tumors.

In 1996, after developing neural tumors, Blaz sued Michael Reese’s successor, Galen Hospital in Illinois, and Dr. Schneider, alleging, among other things, that they failed to notify and warn him of their findings that he might be at greater risk of neural tumors in a way that might have permitted their earlier detection and removal or other treatment. There is a clear duty to warn the subject of previously administered radiation treatments when there is a strong connection between those treatments and certain kinds of tumors. The harm alleged, neural and other tumors would here be reasonably foreseeable as a likely consequence of a failure to warn and was in fact foreseen by Schneider. A reasonable physician, indeed any reasonable person, could foresee that if someone were warned of “strong evidence” of a connection between treatments to which he had been subjected and tumors, he would probably seek diagnosis or treatment and perhaps avoid these tumors, and if he were not warned he probably would not seek diagnosis or treatment, increasing the likelihood that he would suffer from such tumors. Other things being equal, therefore, a reasonable physician would warn the subject of the treatments.

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Ethical and Legal Issues

  1. Discuss the ethical and legal principles violated in this case.
  2. What preventative measures should be taken to prevent recurrence of cases such as this?

Patient Responsibilities

Patients in National Institutes of Health (NIH) clinical trials have responsibilities, as well as rights. The following extract from the NIH Clinical Center Patient Handbook describes the responsibilities of NIH patients.

In the spirit of working together toward a common goal, our patients (and their parents, guardians, and surrogates) have responsibilities as partners in medical research and as patients at the Clinical Center.

You have the responsibility:

  1. To provide, to the best of your knowledge, complete information about your current medical condition and past medical history, including current illness, prior hospitalizations, current medications, allergies, and all other health-related matters;
  2. To discuss your protocol (study or treatment plan) with the research staff before indicating agreement to take part in it by signing a consent;
  3. To inform the medical staff about your wishes regarding treatment plans. You may provide for a duly authorized family member or spokesperson to make medical decisions on your behalf in the event that you become unable to communicate;
  4. To comply with your protocol, to cooperate with hospital staff, to ask questions if directions or procedures are not clear, and to participate in your health care decisions. You may withdraw from the study for any reason, but it is desirable to discuss your concerns with the attending physician before taking that action. Parents of pediatric patients have the responsibility to indicate if and how they want to be involved in their child’s plan of care;
  5. To refrain from taking any medications, drugs, or alcoholic beverages while participating in the protocol, except those approved by an NIH physician;
  6. To adhere to the no-smoking policy of the NIH;
  7. To report on time for scheduled procedures and to keep all clinic appointments. If unable to do so, you have the
    responsibility of notifying the protocol physician and canceling and rescheduling the appointment;
  8. To report promptly to the medical or nursing staff any unexpected problems or changes in your medical condition;
  9. To inform the appropriate staff or the patient representative of any concerns or problems with the care and treatment that you feel are not being adequately addressed;
  10. To respect the property of the U.S. government, fellow patients, and others; to follow NIH rules and regulations affecting patient care and treatment; to respect the rights of other patients and hospital staff. This includes the responsibility of respecting the privacy of other patients and treating information concerning them as confidential;
  11. To pay all medical or laboratory expenses incurred outside the Clinical Center, except when you have received written authorization on the appropriate NIH form to have such expenses billed to the NIH;
  12. To obtain medical care and medications from your own health care provider for all conditions unrelated to the protocol in which you are participating, except while being treated as an inpatient at the Clinical Center;
  13. To provide your own transportation to and from the Clinical Center and to pay living expenses except when all or part of these expenses are covered by the protocol or authorized by the responsible NIH physician; to advise accompanying escorts or others who travel to and remain in the Bethesda area that they must pay for their travel and living expenses except when designated by NIH as a guardian for you when your expenses are covered;
  14. To provide complete information, so that contacts and communications to schedule visits and monitor health status can be maintained. This information should include (1) your current address and phone number; (2) the names, addresses, and phone numbers of next of kin or persons to be notified in the event of an emergency; and (3) the names, addresses, and phone numbers of physicians responsible for your ongoing care, including your family physician and the physician(s) who referred you to the NIH;
  15. To return to the care of your own health-care provider when participation in the protocol is completed or stopped and your medical condition permits.

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If you have questions about your rights, you may contact the Clinical Center Patient Representative.

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Where Are the Cures? How Patent Gridlock Is Blocking the Development of Lifesaving Drugs

A curious thing happened on the way to the biotech revolution. While investment in biotech research and development has increased over the last three decades, new drugs that improve human health have not been forthcoming at the same rate.

What explains this drug discovery gap? Patent gridlock plays a large role. Since a 1980 Supreme Court decision allowing patents on living organisms, 40,000 DNA-related patents have been granted. Now picture a drug developer walking into an auditorium filled with dozens of owners of the biotech patents needed to create a potential lifesaving cure. Unless the drug maker can strike a deal with every person in the room, the new drug won’t be developed.

Peter Ringrose, former chief science officer at Bristol-Myers Squibb, told the
New York Times that the company would not investigate some 50 proteins that could be cancer-causing, because patent holders would either decline to cooperate or demand big royalties.

—Michael Heller,
Forbes, August 11, 2008

Discussion

  1. Discuss the ethical principles (e.g., beneficence [doing good] and nonmaleficence [avoiding causing harm]) and issues of morality of a legal system that delays research because of the legal rights of patent holders.
  2. Discuss what steps could be taken to right the wrongs of patents that delay and often discourage research.

The Cures Act

The
Cures Act, formally known as H.R. 34 or the 21st Century Cures Act, passed in the U.S. House of Representatives and Senate in the 114th Congress and was signed into law by President Barack Obama on December 13, 2016. It included important changes affecting the Food and Drug Administration and the
National Institutes of Health.

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The Cures Act established and appropriated funds “(1) for biomedical research, including high-risk, high-reward research and research conducted by early stage investigators; (2) to develop and implement a strategic plan for biomedical research; and (3) to carry out specified provisions of this Act.”

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HUMAN GENETICS

The most promising frontier of the future of medical practice is in the area of human genetics, which describes the study of inheritance as it occurs in human beings. It includes such areas as stem cell research, clinical genetics (e.g., genetic disease markers), and molecular genetics. Inevitably there will be ethical issues that will become manifest in these new areas. We have already had a preview of this in the controversy regarding the use of fetal stem cells versus adult stem cells for research and therapy.

The ethics of modern science is a challenging and evolving area, but it is nothing new. In ancient China, for instance, physician Sun Simiao (AD 580–682) had a difficult medical ethical dilemma. In his book
Qianjinfang (Prescriptions Worth a Thousand Pieces of Gold), he is credited with formulating the first ethical basis for the practice of medicine in China. The ethical conundrum he faced was the clash between Confucian and Buddhist ethics. The relatively new religion of Buddhism had taboos against using any animal-derived product for the treatment of disease, as this violated the principle of respect for all life. The more ancient Confucian idea of compassion and kindness could be interpreted to overrule this, however. Sun Simiao dealt with this conflict by prohibiting a “standard physician” from using any medication derived from an animal source. He then included many prescriptions in his book that did have animal-sourced remedies. In other words, he seems to have artfully navigated an ethical gray zone between the two philosophies but with a less than clear distinction between right and wrong. Now in modern times we are still faced with continuing and evolving issues of ethics in the practice of medicine.

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Genetic Markers

Genetic markers are genes or DNA sequences with a known location on a chromosome that can be used to identify specific cells and diseases, as well as individuals and species. They are often used to study the relationship between an inherited disease and its genetic cause in order to determine an individual’s predisposition/proclivity to a specific disease. Genetic markers show observable information in DNA sequence variation, which may arise as a result of mutation of a specific gene. There are companies that will evaluate a person’s DNA for these markers and provide a person with a report of his or her potential health risks. Health insurers, life insurers, employers, and others could potentially use this information to determine one’s insurance premiums and even one’s job future and so forth. There is going to be ethical issues that will arise. For instance, suppose a woman has a family history of breast cancer and has a genetic marker for it, but she is young (e.g., 30 years old) and free of any evidence of cancer. If a physician recommends prophylactic mastectomy or if the patient wants a prophylactic mastectomy, should this be covered by insurance? Should this same logic be extended to other body organs?

Genetic Information Nondiscrimination Act of 2008 (HR493)

On May 21, 2008, President George W. Bush signed into law the Genetic Information Nondiscrimination Act (GINA), which resulted largely from the efforts of Senator Ted Kennedy. The law prohibits discrimination on the basis of genetic information with respect to the availability of health insurance and employment. The GINA prohibits group health plans and insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a specific disease (e.g., cancer or heart disease) at some future time. The GINA also prohibits employers from using an individual’s genetic information when making hiring, firing, job placement, or promotion decisions.

The relatively recent mapping of the human genome and the likelihood of increasing clinical application of advances in genetic disease markers make this an issue of potential increasing importance in the practice of medicine. Most states also have legislation that addresses this issue. Unfortunately, there remains, no federal legislation that protects the individual from discrimination in the availability of life insurance, disability insurance coverage, or long-term care insurance. Because of this loophole, patients and their doctors need to consider the potential downside of ordering prognostic genetic tests.

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Stem Cell Research

Stem cell research involves the use of embryonic stem cells to create organs and various body tissues. It continues to be a highly controversial issue generally involving religious beliefs and fears as to how far scientists might go in their attempt to create, for example,
another human being. Researchers must be free to unlock the secrets that stem cells hold and learn from them with the hope to develop effective therapies.

Some opponents of stem cell research argue that this practice is a slippery slope to reproductive cloning and fundamentally devalues the worth of a human being. Contrarily, some medical researchers in the field argue that it is necessary to pursue embryonic stem cell research because the resultant technologies could have significant medical potential and that excess embryos created for in vitro fertilization could be donated with consent and used for the research. This, in turn, conflicts with opponents in the pro-life movement, who advocate for the protection of human embryos. The ensuing debate has prompted authorities around the world to seek regulatory frameworks and highlighted the fact that embryonic stem cell research represents a social and ethical challenge that includes concern for the natural order of the ecosystem and, ultimately, the survival of the human race.

Acquired Immune Deficiency Syndrome

WHO Issues New HIV Recommendations Calling for Earlier Treatment

GENEVA—New HIV treatment guidelines by WHO recommend offering antiretroviral therapy (ART) earlier. Recent evidence indicates that earlier ART will help people with HIV to live longer, healthier lives, and substantially reduce the risk of transmitting HIV to others. The move could avert an additional 3 million deaths and prevent 3.5 million more new HIV infections between now and 2025.

—World Health Organization,
News Release, June 30, 2013

The epidemic of
acquired immune deficiency syndrome (AIDS) is considered to be the deadliest epidemic in human history. The first case appeared in the literature in 1981.

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It has been estimated that more than 35 million people have died of AIDS.

Global situation and trends: Since the beginning of the epidemic, almost 70 million people have been infected with the HIV virus and about 35 million people have died of AIDS. Globally, 34.0 million (31.4–35.9 million) people were living with HIV at the end of 2011. An estimated 0.8% of adults aged 15–49 years worldwide are living with HIV, although the burden of the epidemic continues to vary considerably between countries and regions. Sub-Saharan Africa remains most severely affected, with nearly 1 in every 20 adults (4.9%) living with HIV and accounting for 69% of the people living with HIV worldwide.

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AIDS, generally, is accepted as a syndrome—a collection of specific, life-threatening, opportunistic infections and manifestations that are the result of an underlying immune deficiency. AIDS is caused by the human immunodeficiency virus (HIV) and is the most severe form of HIV, a highly contagious bloodborne virus. It is a fatal disease that destroys the body’s capacity to ward off bacteria and viruses that ordinarily would be fought off by a properly functioning immune system. Although there is no effective long-term treatment of the disease, indications are that proper management of the disease can improve the quality of life and delay progression of the disease. Internationally, AIDS is posing serious social, ethical, economic, and health problems.

Spread of AIDS

AIDS is spread by direct contact with infected blood or body fluids, such as vaginal secretions, semen, and breast milk. Currently, there is no evidence that the virus can be transmitted through food, water, or casual body contact. HIV does not survive well outside the body. Although there is currently no cure for AIDS, early diagnosis and treatment with new medications can help HIV-infected persons remain healthy for longer periods. High-risk groups include those who have had unprotected sexual encounters, intravenous drug users, and those who require transfusions of blood and blood products, such as hemophiliacs.

Blood Transfusions

The administration of blood is considered to be a medical procedure. It results from the exercise of professional medical judgment that is composed of two parts: (1) diagnosis, deciding the need for blood, and (2) therapy, the actual administration of blood.

Lawsuits often arise as a result of a person with AIDS claiming that he or she contracted the disease as a result of a transfusion of contaminated blood or blood products. In blood transfusion cases, the standards most commonly identified as having been violated concern blood testing and donor screening. An injured party generally must prove that a standard of
care existed, that the defendant’s conduct fell below the standard, and that this conduct was the proximate cause of the plaintiff’s injury.

The most common occurrences that lead to lawsuits in the administration of blood involve:

  • Transfusion of mismatched blood
  • Improper screening and transfusion of contaminated blood
  • Unnecessary administration of blood
  • Improper handling procedures (e.g., inadequate refrigeration and storage procedures)

The risk of HIV infection and AIDS through a blood transfusion has been reduced significantly through health history screening and blood donations testing. Since May 1985, all blood donated in the United States has been tested for HIV antibodies. Blood units that do test positive for HIV are removed from the blood transfusion pool.


Case Studies

Administration of the Wrong Blood

The patient-plaintiff in
Bordelon v. St. Francis Cabrini Hospital (1994)

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was admitted to the hospital to undergo a hysterectomy. Before surgery, she provided the hospital with her own blood in case it was needed during surgery. During surgery, the patient did indeed need blood, but was administered donor blood other than her own. The patient filed a lawsuit claiming that the hospital’s failure to provide her with her own blood resulted in her suffering mental distress.

The court of appeals held that the plaintiff stated a valid cause of action for mental distress. It is well established in law that a claim for negligent infliction of emotional distress unaccompanied by physical injury is a viable claim of action. It is indisputable that HIV can be transmitted through blood transfusions even when the standard procedure for screening for the virus is in place. The plaintiff’s fear was easily associated with receiving someone else’s blood and therefore a conceivable consequence of the defendant’s negligent act. The hospital had a “duty” to administer the plaintiff’s own blood. The hospital breached that duty by administering the wrong blood.

Ethical and Legal Issues

  1. Do you agree with the court’s decision? Explain your answer.
  2. In cases such as this, do you believe that financial awards are effective in preventing future incidents? Explain your answer.
Healthcare Workers

HIV Test Urged for 7,000 Oklahoma Dental Patients

Health officials are urging 7,000 patients of an Oklahoma dentist to be tested for potential exposure to HIV, hepatitis B and hepatitis C.

· · ·

Harrington, an oral surgeon who has been licensed since the 1970s, surrendered his credentials March 20 and discontinued his practice after investigators discovered alleged health and safety violations. Authorities say he is cooperating.

—Katharine Lackey and Michael Winter,
USA Today, March 28, 2013

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Although transmission of HIV from an infected dentist, physician, or other caregiver to his or her patient during invasive procedures is not a common occurrence, there is a foreseeable risk. Because of the potentially deadly consequence of such transmission, physicians should not engage in any activity that creates a risk of transmission.

The ever-increasing likelihood that healthcare workers will come into contact with persons carrying the AIDS virus demands that healthcare workers comply with approved safety procedures. This is especially important for those who come into contact with blood and body fluids of HIV-infected persons.

An AIDS-infected surgeon in New Jersey was unable to recover on a discrimination claim when the hospital restricted his surgical privileges. In
Estate of Behringer v. Medical Center at Princeton (1991),

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the New Jersey Superior Court held that the hospital acted properly in initially suspending a surgeon’s surgical privileges, thereafter imposing a requirement of informed consent and ultimately barring the surgeon from performing surgery. The court held that in the context of informed consent, the risk of a surgical accident involving an AIDS-positive surgeon and implications thereof would be a legitimate concern to a surgical patient that would warrant disclosure of the risk. “The ‘risk of harm’ to the patient includes not
only the actual transmission of HIV from the surgeon to patient but the risk of a surgical accident (e.g.., a scalpel cut or needle stick), which may subject the patient to post-surgery HIV testing.”

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Confidentiality

Guidelines drafted by the Centers for Disease Control and Prevention call on healthcare workers who perform “exposure-prone” procedures to undergo tests voluntarily to determine whether they are infected. The guidelines also recommend that patients be informed. Both healthcare workers and patients claim that mandatory HIV testing violates their Fourth Amendment right to privacy. The dilemma is how to balance these rights against the rights of the public in general to be protected from a deadly disease.

State laws have been developed that protect the confidentiality of HIV-related information. Some states have developed informational brochures and consent, release, and partner notification forms. The unauthorized disclosure of confidential HIV-related information can subject an individual to civil and/or criminal penalties. Information regarding a patient’s diagnosis as being HIV positive must be kept confidential and should be shared with other healthcare professionals only on a need-to-know basis. Each person has a right to privacy as to his or her personal affairs. The plaintiff surgeon in
Estate of Behringer v. Medical Center at Princeton (1991)

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was entitled to recover damages from the hospital and its laboratory director for the unauthorized disclosure of his condition during his stay at the hospital. The hospital and the director had breached their duty to maintain confidentiality of the surgeon’s medical records by allowing placement of the patient’s test results in his medical chart without limiting access to the chart, which they knew was available to the entire hospital community. “The medical center breached its duty of confidentiality to the plaintiff, as a patient, when it failed to take reasonable precautions regarding the plaintiff’s medical records to prevent the patient’s AIDS diagnosis from becoming a matter of public knowledge.”

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The hospital in
Tarrant County Hospital District v. Hughes (1987)

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was found to have properly disclosed the names and addresses of blood donors in a wrongful-death action alleging that a patient contracted AIDS from a blood transfusion administered in the hospital. The physician–patient privilege expressed in the Texas rules of evidence did not apply to preclude such disclosure because the record did not reflect that any such relationship had been established. The disclosure was not an impermissible violation of the donors’ right of privacy. The societal interest in maintaining an effective blood donor program did not override the plaintiff’s right to receive such information. The order prohibited disclosure of the donors’ names to third parties.

In
Doe v. University of Cincinnati (1988),

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a patient who was infected with HIV-contaminated blood during surgery brought an action against a hospital and a blood bank. The trial court granted the patient’s request to discover the identity of the blood donor, and the defendants appealed. The court of appeals held that the potential injury to a donor in revealing his identity outweighed the plaintiff’s modest interest in learning of the donor’s identity. A blood donor has a constitutional right to privacy not to be identified as a donor of blood that contains HIV. At the time of the plaintiff’s blood transfusion in July 1984, no test had been developed to determine the existence of AIDS antibodies. By May 27, 1986, all donors donating blood through the defendant blood bank were tested for the presence of HIV antibodies. Patients who had received blood from donors who tested positive were to be notified through their physicians. In this case, the plaintiff’s family was notified because of the plaintiff’s age and other disability.

HIV-related regulations must continue to address the rights and responsibilities of both patients and healthcare workers. Although this will always be a delicate balancing act, it must be handled with privacy, safety, and compassion in mind.


Case Studies

Disclosure of Physician’s HIV Status

The physician, Doe, was a resident in obstetrics and gynecology at a medical center. In 1991, he cut his hand with a scalpel while he was assisting another physician. Because of the uncertainty that blood had been transferred from Doe’s hand wound to the patient through an open surgical incision, he agreed to have a blood test for HIV. His blood tested positive for HIV, and he withdrew himself from participation in further surgical procedures. The medical center and Harrisburg Hospital, where Doe also participated in surgery, identified those patients who could be at risk. The medical center identified 279 patients, and Harrisburg identified 168 patients, who fell into this category. Because hospital records did not identify those surgeries in which physicians may have accidentally cut themselves, the hospitals filed
petitions in the Court of Common Pleas, alleging that there was, under the Confidentiality of HIV-Related Information Act [35 P.S. § 7608(a)(2)], a “compelling need” to disclose information regarding Doe’s condition to those patients who conceivably could have been exposed to HIV. Doe argued that there was no compelling need to disclose the information and that he was entitled to confidentiality under the act.

The Pennsylvania Supreme Court held that a compelling need existed for at least a partial disclosure of the physician’s HIV status.

The medical experts who testified agreed that there was some risk of exposure and that some form of notice should be given to the patients at risk. Even the expert witness presented by Doe agreed that there was at least some conceivable risk of exposure and that giving a very limited form of notice would not be unreasonable. Failure to notify the patients at risk could result in the spread of the disease to other noninfected individuals through sexual contact and through exposure to other body fluids. Doe’s name was not revealed to the patients, only the fact that a resident physician who had participated in their care had tested HIV positive. “No principle is more deeply embedded in the law than that expressed in the maxim
Salus populi suprema lex … (The welfare of the people is the supreme law), and a more compelling and consistent application of that principle than the one presented would be quite difficult to conceive.”

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Ethical and Legal Issues

  1. Do you agree that there was a need for a partial disclosure of the physician’s HIV status?
  2. If “the welfare of the people is the supreme law,” did the court fall short of its responsibility by not allowing disclosure of the physician’s name? Discuss your answer.
News Media and Confidentiality

The Pennsylvania Superior Court in
Stenger v. Lehigh Valley Hospital Center

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upheld the Court of Common Pleas’ order denying the petition of The Morning Call, Inc., which challenged a court order closing judicial proceedings to the press and public in a civil action against a hospital and physicians. A patient and her family had all contracted AIDS after the patient received a blood transfusion. The access of the media to pretrial discovery proceedings in a civil action is subject to reasonable control by the court in which the action is pending. The protective order limiting public access to pretrial discovery material did not violate the newspaper’s First Amendment rights. The discovery documents were not judicial records to which the newspaper had a common-law right of access. Good cause existed for nondisclosure of information about the intimate personal details of the plaintiffs’ lives, disclosure of which would cause undue humiliation.


Case Studies

HIV Autonomy and Confidentiality

Mr. Jones, a divorcee with two children, was sentenced to 10 years in prison for repeated robberies of three banks. He was in prison for 8 years. His wife, Nora, disappeared shortly after he was sentenced. Five of his close inmate friends at Sing Prison had tested positive for the HIV virus and had since passed away. Prison officials wanted to test Mr. Jones for the HIV virus. He objected and sought legal counsel. Local school officials were informed of the deaths of Mr. Jones’s friends and his refusal to be tested for the HIV virus. Strangely, the community at large became aware of Jones’s situation and the fact that his children were attending school with their children. The parents insisted that the Jones children be removed from school or else they would remove their children from class. Meanwhile, Nora showed up at a local Navy recruiting station posing as a single woman with no children. She admitted to being bisexual several years earlier but claimed that she was now straight. The Navy learned of this situation and required her to undergo HIV testing. She objected and sought legal counsel.

Ethical and Legal Issues

  1. What are Mr. Jones’s rights?
  2. What are the rights of other prisoners?
  3. Is there a legitimate need for a physician to disclose otherwise confidential testing data to the spouse and other intimate sexual partners of an HIV-infected patient?

The Right to Treatment

A variety of healthcare organizations have included in their ethics statements that HIV-infected patients have a right not to be discriminated against in the provision of treatment. The Ethics Committee of the American Academy of Dermatology, for example, states “it is unethical for a physician to discriminate against a class or category of patients and to refuse the management of a patient because of medical risk, real or imagined.”

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Patients with HIV infection, therefore, should receive the same compassionate and competent care provided to other patients.

Basketball Camp’s Exclusion of HIV-Positive Boy Ruled Discrimination

An HIV-positive 10-year-old boy was discriminated against when he was denied admission to a New York basketball camp, a federal judge has ruled. Judge Donald C. Pogue granted a motion for declaratory relief, finding the camp had violated the Americans with Disabilities Act. “The court agrees that defendants were obligated to protect other campers from a very serious, life-threatening viral infection,” Pogue said. “But this obligation does not excuse defendants’ actions when based on unsubstantiated fears.”

—Mark Hamblet,
New York Law Journal, January 22, 2010


Case Studies

Discrimination in the Community

The plaintiff Adam Doe claimed that the defendants, Deer Mountain Day Camp, Inc. (DMDC) and Deer Mountain Basketball Academy (DMBA), discriminated against him by denying him admission to a basketball camp on the basis of his disability, an HIV infection, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-213 (2000) (ADA) and the New York State Human Rights Law (NYHRL), N.Y. Exec. Law §§ 290301 (2004) (NYHRL).

Adam had contracted HIV at birth due to a perinatal infection. He took antiretroviral medications to treat his condition, and his syndrome has been undetectable for years. On the advice of Dr. Neu, Adam’s HIV specialist, Adam and his mother had kept and continued to keep Adam’s HIV seropositivity confidential. Adam liked to play basketball, and in 2004, his HIV clinic recommended that he attend a basketball camp.

Mrs. Doe had been notified that the camp was unable to make reasonable accommodations for Adam and, as a consequence, they could not allow him to attend DMBA. According to Mrs. Doe, she was told that Adam could potentially transmit HIV through blood in his urine or in his stool. Mrs. Doe denied that Adam had problems with bloody stool or urine. Mrs. Doe, however, was told that DMBA could not accept Adam. She later received a refund of Adam’s admission fees.

The plaintiff brings this action for violations of Title III of the ADA and the NYHRL, arguing that the defendants unlawfully discriminated against him on the basis of his disability, e.g., his HIV-seropositivity, by excluding him from participation in the basketball camp. To redress his injuries, including emotional and psychological harm, Adam requested declaratory, compensatory, and injunctive relief, as well as attorney’s fees and costs.

Both parties made motions for summary judgment. The defendants failed to present any evidence of the objective reasonableness of their determination that the plaintiff’s condition posed a threat to other campers.

In their cross motions for summary judgment, the parties placed before the court the issues of whether HIV-seropositivity qualifies as a “disability” and whether defendants’ denial of admission constitutes discrimination “on the basis of” that disability. The plaintiff’s motion argued that the defendants conclusively qualify as “public accommodations,” thus prohibiting them from engaging in such discrimination.

The United States District Court, S.D. of New York, granted the plaintiff’s motion for Summary Judgment of ADA and NYHRL declaratory relief, as to DMDC’s discrimination “on the basis of” Adam’s disability, and denied the defendants’ motion for summary judgment in its entirety.

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Ethical and Legal Issues

  1. Since Adam’s HIV syndrome has been undetectable for years, discuss why you agree or disagree with the basketball camp’s decision to revoke Adam’s registration.
  2. Do you agree with the court’s ruling? Discuss your answer.

AIDS Education

The ever-increasing likelihood that healthcare workers will come into contact with persons carrying HIV demands continuing development of and compliance with approved safety procedures. This is especially important for those who come into contact with blood and body fluids of HIV-infected persons. The Centers for Disease Control and Prevention (CDC) expanded its infection control guidelines and has urged hospitals to adopt universal precautions to protect their workers from exposure to patients’ blood and other body fluids. Hospitals are following universal precautions in the handling of body fluids, which is the accepted standard for employee protection.

A wide variety of AIDS-related educational materials is available on the market. One of the most important sources of AIDS information is the CDC. The process of staff education in preparing to care for patients with AIDS is extremely important and must include a training program on prevention and transmission in the work setting. Educational requirements specified by the Occupational Safety and Health Administration (OSHA) for healthcare employees include epidemiology, modes of transmission, preventive practices, and universal precautions. See the following websites for some helpful information:
www.aids.gov. and
http://www.caps.ucsf.edu/.

CHAPTER REVIEW

  1. Ethical dilemmas arise whenever a choice has to be made in which something good has to be given up or something bad has to be suffered no matter what is chosen.
  2. Noteworthy historical events (see text at the beginning of the chapter).
  3. Abortion is the premature termination of a pregnancy, either spontaneous or induced.

    • The morality of abortion is not a legal or constitutional issue; it is a matter of philosophy, ethics, and theology. It is a subject where reasonable people can and do adhere to vastly divergent convictions and principles.
    • Partial birth abortion is a late-term abortion that involves partial delivery of the baby prior to its being aborted.
  4. Sterilization is defined as the termination of the ability to produce offspring.

    • Therapeutic sterilization is performed to preserve life or health.
    • Eugenic sterilization refers to the involuntary sterilization of certain categories of persons described in statutes, without the need for consent by, or on behalf of, those subject to the procedures.
    • Wrongful birth actions claim that, but for breach of duty by the defendant, a child would not have been born.
    • Wrongful life suits—those in which a parent or child claims to have suffered harm as a result of being born—are generally unsuccessful.
    • Wrongful conception/pregnancy actions claim that damages were sustained by the parents of an unexpected child based on the allegation that the child’s conception was the result of negligent sterilization procedures or a defective contraceptive device.
  5. Artificial insemination most often takes the form of the injection of seminal fluid into a woman to induce pregnancy.

    • Homologous artificial insemination is when the husband’s semen is used in the procedure.
    • Heterologous artificial insemination is when the semen is from a donor other than the husband.
  6. Surrogacy refers to a method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party.
  7. Organ donations: Federal regulations require that hospitals have and implement written protocols regarding the organization’s organ procurement responsibilities.
    • Organ transplantation is the result of the need for treating patients with end-stage organ disease facing organ failure.
    • Uniform Anatomical Gift Act has many provisions that apply to the wide variety of issues raised in connection with the making, acceptance, and use of anatomical gifts.
      • Act allows a person to make a decision to donate organs at the time of death.
      • Allows potential donors to carry an anatomical donor card.
  8. Research, experimentation, and clinical trials.
    • Ethical principles that are relevant to the ethics of research involving human subjects include respect for person, beneficence, and justice.
    • These principles cannot always be applied to resolve ethical problems beyond dispute.
    • The objective in applying ethical principles is to provide an analytical framework that will guide the resolution of ethical problems arising from research involving human subjects.
  9. Human genetics describes the study of inheritance as it occurs in human beings.
    • The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination on the basis of genetic information with respect to the availability of health insurance and employment.
  10. Stem cell research is being conducted to create tissues and organs that can be matched to patients for transplant.
    • Genetic markers are genes or DNA sequences that have a known location on chromosomes and can be associated with particular genes or traits.
  11. Acquired immune deficiency syndrome (AIDS) is a fatal disease that destroys the body’s ability to fight bacteria and viruses.

    • Concerns involve the spread of AIDS, issues of confidentiality, discrimination, and AIDS education.

TEST YOUR UNDERSTANDING

Terminology

  • abortion
  • AIDS
  • artificial insemination
  • elective sterilization
  • ethical dilemma
  • eugenic sterilization
  • genetic marker
  • institutional review board
  • partial birth abortion
  • paternalism
  • reasonable man standard
  • Roe v. Wade
  • stem cell research
  • sterilization
  • surrogacy
  • therapeutic sterilization
  • undue burden
  • Uniform Anatomical Gift Act
  • wrongful birth
  • wrongful conception
  • wrongful life

REVIEW QUESTIONS

  1. Discuss under what circumstances ethical dilemmas arise.
  2. Discuss the controversy over the Supreme Court decision in
    Roe v. Wade.
  3. What ethical principles surround the abortion issue? Discuss these principles.
  4. Do you agree that individual states should be able to impose reasonable restrictions or waiting periods on women seeking abortions? Who should determine what is reasonable?
  5. Should a married woman be allowed to abort without her husband’s consent?
  6. Discuss the arguments for and against partial birth abortions.
  7. Why is the medical issue of abortion an example of legislating morality?
  8. What is artificial insemination? What questions should be asked when considering artificial insemination?
  9. Discuss the importance of organ donations.
  10. Describe the ethical considerations that should be addressed before conducting research on human subjects.
  11. Why is it important that written consent be obtained from each patient who participates in a clinical trial?
  12. What is sterilization, as discussed in this chapter? Do you agree that eugenic sterilization should be allowed? Explain your answer.
  13. Describe the distinctions among wrongful birth, wrongful life, and wrongful conception.
  14. Discuss the moral dilemmas of these concepts.
  15. Describe the controversy over surrogacy.
  16. Discuss why there is controversy over genetic markers and stem cell research.
  17. What is AIDS, and how is it spread?
  18. Discuss the controversy that can occur when considering a patient’s right to know whether a caregiver has AIDS and the caregiver’s right to privacy and confidentiality.

NOTES

1. “Oldest Discovered Burial Site.” Gale Encyclopedia of the Unusual and Unexplained.
Encyclopedia.com.
http://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/oldest-discovered-burial-site (accessed July 10, 2018).

2. “Medical Experiments of the Holocaust and Nazi Medicine,” Remember.org.
http://remember.org/educate/medexp (accessed July 10, 2018).

3.
United States Holocaust Memorial Museum. “International Military Tribunal at Nuremburg,” Holocaust Encyclopedia.
http://www.ushmm.org/wlc/en/article.php?ModuleId=10007069 (accessed July 10, 2018).

4. World Medical Association (WMA), WMA International Code of Medical Ethics.
https://www.wma.net/policies-post/wma-international-code-of-medical-ethics/ (accessed July 10, 2018).

5. “First Successful Kidney Transplant Performed,”
PBS.org.
http://www.pbs.org/wgbh/aso/databank/entries/dm54ki.html (accessed July 10, 2018).

6. W. Rudowski, “World Health Organisation biomedical research guidelines and the conduct of clinical trials.” Journal of Medical Ethics 6 (June 1980): 58–60.
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1154799/.

7. World Medical Association (WMA), WMA Declaration of Helsinki—Ethical Principles for Medical Research Involving Human Subjects.
https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/ (accessed July 10, 2018).

8. “A Definition of Irreversible Coma. Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death.” Journal of the American Medical Association 205 (August 5, 1968): 337–340.

9. The Kennedy Institute of Ethics. “About.”
https://kennedyinstitute.georgetown.edu/ (accessed July 10, 2018).

10.
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972).
https://law.justia.com/cases/federal/appellate-courts/F2/464/772/38141/ (accessed July 10, 2018).

11.
Ibid., at 777.

12.
Ibid., at 772, 776, 796.

13.
Roe v. Wade, 410 U.S. 113 (1973).
https://supreme.justia.com/cases/federal/us/410/113/ (accessed July 10, 2018).

14. National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research.
The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research. Bethesda, MD: Author, 1978.
http://www.hhs.gov/ohrp/humansubjects/guidance/belmont.html (accessed July 10, 2018).

15.
Ibid.

16.
In re Quinlan, 70 N.J.10, 355 A.2d 647 (N.J. 1976).
https://www.uta.edu/philosophy/faculty/burgess-jackson/In%20re%20Quinlan,%2070%20N.J.%2010,%20355%20A.2d%20647%20(1976).pdf (accessed July 10, 2018).

17. United States Code, Title 42—The Public Health and Welfare, Chapter 6A—Public Health Service, Subchapter XVI—President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavior Research, Section 300v-1,
https://www.gpo.gov/fdsys/pkg/USCODE-2010-title42/html/USCODE-2010-title42-chap6A.htm (accessed July 10, 2018).

18. Derek Humphry, “Farewell to Hemlock: Killed by Its Name.”
http://assistedsuicide.org/farewell-to-hemlock.html (February 21, 2005; accessed July 10, 2018).

19. State of California Office of Justice, “Advance Health Care Directive (California Probate Section 4701).”
http://ag.ca.gov/consumers/pdf/ProbateCodeAdvancedHealthCareDirectiveForm-fillable.pdf (accessed July 10, 2018).

20. Compassion & Choices, “About Compassion & Choices [web page].”
https://www.compassionandchoices.org/who-we-are/ (accessed July 10, 2018).

21. Compassion & Choices, “About Compassion & Choices [PDF].”
https://www.compassionandchoices.org/wp-content/uploads/2018/01/About-Compassion-and-Choices-Booklet-FINAL-9.25.17-Approved-for-Public-Distribution.pdf (accessed August 8, 2018).

22. Paul A. Offit,
Vaccinated: One Man’s Quest to Defeat the World’s Deadliest Diseases, New York: Smithsonian Books/Collins, (2007): 27.

23.
Ibid.

24. Henry K. Beecher, “Ethics and Clinical Research,” The New England Journal of Medicine, 274 (1966): 1354–1360.

25. Offit,
Vaccinated, 27.

26. The Patient Self-Determination Act of 1990, 42 U.S.C. 1395cc(a)(1).

27. Cruzan v. Director of the Mo. Dep’t of Health, 497 U.S. 261 (1990).

28.
Ibid.

29. Jason Renaud, “Janet Adkins, Jack Kevorkian and the end of an era.” The Oregonian (June 7, 2011).
https://www.oregonlive.com/opinion/index.ssf/2011/06/janet_adkins_jack_kevorkian_an.html (accessed July 10, 2018).

30. Timothy E. Quill, “Death and Dignity—A Case of Individualized Decision Making,” The New England Journal of Medicine 324 (1991): 691–694.

31. [Amendment] U.S. Const. amend. XI. Sec. 2. [Article] U.S. Const. art. 2. sec. 3. cl. 1.
http://www.usconstitution.net/xconst_Am1.html (accessed July 10, 2018).

32.
Eileen Welsome,
The Plutonium Files: America’s Secret Medical Experiments in the Cold War. New York: Delta Books, 1999.

33.
DeGrella v. Elston, 858 S.W.2d 698 (1993).

34. Oregon Public Health Division. (2015). Oregon’s Death with Dignity Act—2014.
http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year17.pdf (accessed July 10, 2018).

35.
Michigan v. Kevorkian, et al., 1994 WL 700448 (Mich.)

36. The Roslin Institute, “The Life of Dolly.”
http://dolly.roslin.ed.ac.uk/facts/the-life-of-dolly/index.html (accessed July 10, 2018).

37.
AnimalResearch.Info, “Cloning Dolly the Sheep.”
http://www.animalresearch.info/en/medical-advances/151/cloning-dolly-the-sheep/ (accessed July 10, 2018).

38. Alan Meisel, Lois Snyder, Timothy Quill, for the American College of Physicians-American Society of Internal Medicine End-of-Life Care Consensus Panel. “Seven Legal Barriers to End-of-Life Care: Myths, Realities, and Grains of Truth,” Journal of the American Medical Association, 284 (2000): 2495–2501.
http://jama.jamanetwork.com/article.aspx?articleid=193273 (accessed July 10, 2018).

39. Casey Kaufman, “
Oregon v. Ashcroft: The Attorney General’s Attempt to Override State Controlled Medical Practice,” University of San Francisco Law Review 37 (2003): 1065–1090.

40.
Ibid.

41. National Human Genome Research Institute, “International Consortium Completes Human Genome Project” [press release, April 14, 2003].
https://www.genome.gov/11006929/ (accessed July 10, 2018).

42.
State of Oregon v. Ashcroft, No. 02-35587 (C.A. 9, Ore. 2004).

43. UNESCO, Human Cloning: Ethical Issues.
http://unesdoc.unesco.org/images/0013/001359/135928e.pdf (accessed July 10, 2018).

44. Leigh Hopper, “Baby Dies After Hospital Removes Breathing Tube,” Houston Chronicle (March 16, 2005).
https://en.m.wikipedia.org/wiki/Sun_Hudson_case (accessed July 10, 2018).

45.
Ibid.

46.
Ibid.

47.
Gonzales v. Oregon (04-623) 546 U.S. 243 (2006) 368 F.3d 1118, affirmed.

48. Death with Dignity National Center, “Legal and Political Timeline in Oregon.”
http://www.deathwithdignity.org/in-oregon (accessed July 10, 2018).

49. Donate Life California Donor Registry [Home].
http://donatelifecalifornia.org/livingdonationcalifornia/ (accessed July 10, 2018).

50. Robert D. Truong, “The United Kingdom Sets Limits on Experimental Treatments: The Case of Charlie Gard,” Journal of the American Medical Association, 318 (2018): 1001–1002.

51. Death with Dignity, “Current Status: Montana.”
https://www.deathwithdignity.org/take-action/ (accessed July 10, 2018).

52.
Causeway Medical Suite v. Ieyoub, 109 F.3d 1096 (1997).

53. Guttmacher Institute,
Abortion Worldwide 2017: Uneven Progress and Unequal Access. New York: Guttmacher Institute, 2017.
https://www.guttmacher.org/report/abortion-worldwide-2017 (accessed July 10, 2018).

54.
Roe v. Wade, 410 U.S. 113 (1973).

55.
Ibid. at 164.

56.
Ibid.

57.
Ibid.

58.
Ibid.

59.
Doe v. Bolton, 410 U.S. 179 (1973).

60.
Ibid. at 198.

61.
City of Akron v. Akron Center for Reproductive Health, 103 S. Ct. 2481 (1983).

62.
Planned Parenthood v. Casey, 112 S. Ct. 2792 (1992).

63.
Beal v. Doe, 432 U.S. 438 (1977).

64.
Ibid. at 464.

65.
Harris v. McRae, 448 U.S. 297 (1980).

66.
Committee to Defend Reproductive Rights v. Myers, 625 P.2d 779, 798 (Cal. 1981).

67.
Simat Corp. v. Arizona Health Care Cost Containment Sys., 56 P.3d 28 (Ariz. 2002).

68.
Rust v. Sullivan, 111 S. Ct. 1759 (1991).

69.
Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975).

70.
Doe v. Zimmerman, 405 F. Supp. 534 (M.D. Pa. 1975).

71.
Doe v. Smith, 486 U.S. 1308 (1988).

72.
Danforth v. Planned Parenthood, 428 U.S. 52 (1976).

73.
Bellotti v. Baird, 443 U.S. 622 (1979).

74.
In re Doe, 533 A.2d 523 (R.I. 1987).

75.
Ibid. at 27.

76.
H. L. v. Matheson, 101 S. Ct. 1164 (1981).

77.
In re Anonymous, 515 So. 2d 1254 (Ala. Civ. App. 1987).

78.
Planned Parenthood v. Owens, 107 F. Supp. 1254 (Ala. Civ. App. 1987).

79. Colorado Revised Statute §§ 12-37.5-101, et seq. [1998]

80. H.B. 15, Sec. 2 (amending Tex. Health & Safety Code Ann. § 171.012)

81.

Colautti v. Franklin, 99 S. Ct. 675 (1979).

82.
Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

83.
Women’s Medical Professional Corp. v. Voinovich, 118 S. Ct. 1347 (1998).

84.
Stenberg v. Carhart, 192 F.3d 1142 (8th Cir. 1999), 120 S. Ct. 2597 (2000).

85.
National Abortion Fed’n v. Gonzages, 437 F.3d. 278 (C.A. N.Y. 2006).

86. Tex. Health & Safety Code Ann. §171.0031(a) (West Cum. Supp. 2015).

87. 38 Tex. Reg. 6546 (2013).

88. Tex. Health & Safety Code Ann. §245.010(a).

89.
Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (June 27, 2016).

90.
Planned Parenthood v. Casey 112 S. Ct. 2791 (1992).

91.
Utah Women’s Clinic, Inc. v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994).

92. South Carolina General Assembly, 121st Session, 2015–2016. An Act to Amend the Code of Laws of South Carolina, 1976, by Adding Article 5 to Chapter 41, Title 44 so as to Enact the “South Carolina Pain-Capable Unborn Child Protection Act.”
http://www.scstatehouse.gov/sess121_2015-2016/bills/3114.htm (accessed July 10, 2018).

93. 844 F. Supp. 1482 (D. Utah 1994) at 1494.

94.
American Acad. of Pediatrics v. Lungren, 940 P.2d 797 (1997).

95. First Judicial District of Pennsylvania, Criminal Trial Division. Report of the Grand Jury in re Misc. No. 0009901-2008.
https://priestsforlife.org/gosnell/GrandJuryWomensMedical.pdf (accessed July 10, 2018).

96. Joseph B. Kadane, “Moral Persuasion on Abortion [blog],” The Huffington Post (September 27, 2013).
http://www.huffingtonpost.com/joseph-b-kadane/moral-persuasion-on-abortion_b_4004735.html (accessed July 11, 2018).

97.
Buck v. Bell, 274 U.S. 200 (1927).

98.
Ibid. at 208.

99.
Wade v. Bethesda Hospital, 337 F. Supp. 671 (E.D. Ohio 1971).

100.
McKinney v. McKinney, 805 S.W.2d 66 (Ark. 1991).

101.
Chaffee v. Seslar, 786 N.E.2d 705 (2003).

102.
Curlender v. Bio-Science Laboratories, 165 Cal. Rptr. 477 (Cal. Ct. App. 1980).

103.
Canesi ex rel. Canesi v. Wilson, 730 A.2d 806 (N.J. 1999).

104.
Ibid. at 18.

105.
Smith v. Cote, 513 A.2d 344 (N.H. 1986).

106.
Ibid. at 353.

107.
Bruggeman v. Schimke, 79.718 P.2d 635 (Kan. 1986).

108.
Kassama v. Magat, 136 Md. App. 38 (2002).

109.
Cowe v. Forum Group, Inc., 575 N.E.2d 630, 631 (Ind. 1991).

110.
Hartke v. McKelway, 707 F.2d 1544 (D.C. Cir. 1983).

111.
Ibid. at 1557.

112.
Lovelace Medical Center v. Mendez, 805 P.2d 603 (N.M. 1991).

113.
Ibid. at 612.

114.
Butler v. Rolling Hill Hospital, 582 A.2d 1384 (Pa. Super. Ct. 1990).

115.
Ibid. at 1385.

116.
Shaheen v. Knight, 11 Pa. D. & C.2d 41, 46 (Lycoming Co. Ct. Com. Pl. 1957).

117. Medical Board of California, “Medical Board of California Accusation Leads to Surrender of Former Newport Beach Physician’s License” [news release].
http://www.mbc.ca.gov/About_Us/Media_Room/2011/news_releases_2011.pdf (accessed July 11, 2018).

118. Okla. Stat. Ann. 10, §§ 551–553.

119.
Ibid.

120.
Ibid.

121. District of Columbia. B21-16 Collaborative Reproduction Amendment Act (2015).
https://legiscan.com/DC/text/B21-0016/2015 (accessed July 11, 2018).

122.
Ibid.

123. U.S. Department of Health and Human Services.
OrganDonor.gov [website].
http://www.organdonor.gov/register.html (accessed July 11, 2018).

124. Organ Procurement Transplant Network [website].
https://optn.transplant.hrsa.gov (accessed July 11, 2018).

125.
OrganDonor.gov, “Organ Donation Statistics.”
https://www.organdonor.gov/statistics-stories/statistics.html (accessed July 11, 2018).

126. “First Successful Kidney Transplant Performed 1954.”
PBS.org [online].
http://www.pbs.org/wgbh/aso/databank/entries/dm54ki.html (accessed July 11, 2018).

127. Nicola Leske, Jill Serjeant, and Patricia Reaney, “Facebook Launches Organ Donation Campaign,” Chicago Tribune (May 1, 2012).

128.
Nicoletta v. Rochester Eye & Human Parts Bank, 519 N.Y.S.2d 928 (N.Y. Sup. Ct. 1987).

129. United Nations Regional Information Centre for Western Europe, “Organs for Sale.”
http://www.unric.org/en/human-trafficking/27447-organs-for-sale (accessed July 11, 2018).

130.
Krisitin Houser, “Black Market Bodies: How Legalizing the Sale of Human Organs Could Save Lives,”
Futurism.com (November 6, 2013).
https://futurism.com/sale-human-organ/ (accessed July 11, 2018).

131. Ahad J. Ghods and Shekoufeh Savaj, “Iranian Model of Paid and Regulated Living-Unrelated Kidney Donation,” Clinical Journal of the American Society of Nephrology 1 (November 2006): 1136–1145.
http://cjasn.asnjournals.org/content/1/6/1136.full (accessed July 11, 2018).

132. Robert Pear, “House Passes Bill That Would Give Patients Access to Experimental Drugs,” New York Times (March 21, 2018).
https://www.nytimes.com/2018/03/21/us/politics/house-passes-right-to-try-bill.html (accessed July 11, 2018).

133. H.R.878—115th Congress (2017–2018). Right to Try Act of 2017.
https://www.congress.gov/bill/115th-congress/house-bill/878/text?format=txt (accessed July 11, 2018).

134. U.S. Food and Drug Administration, “Clinical Trials and Human Subjects Protection.”
https://www.fda.gov/ScienceResearch/SpecialTopics/default.htm (accessed July 11, 2018).

135.
https://www.fda.gov/RegulatoryInformation/Guidances/ucm126420.htm.

136. Mary Ellen Stokes and Bill Stokes, “Relentless Assault on a Research Hospital,” Wall Street Journal (March 15, 2004) at A17.

137. 2 C.F.R. § 488.115 (1989).

138.
Ibid.

139.
Ibid.

140.
Blaz v. Michael Reese Hosp. Found, 74 F. Supp. 2d 803 (D.C. Ill. 1999).

141.
http://www.cc.nih.gov/participate/patientinfo/legal/responsibilities.shtml.

142. National Institutes of Health (NIH), “Patient Responsibilities.”
https://clinicalcenter.nih.gov/participate/patientinfo/legal/responsibilities.html (accessed July 11, 2018).

143. Kathy L. Hudson and Francis S. Collins, “The 21st Century Cures Act—A View from the NIH,” New England Journal of Medicine 376 (2017): 111–113.
http://www.nejm.org/doi/full/10.1056/NEJMp1615745?query=TOC (accessed July 11, 2018).

144. 114th Congress (2015–2016). H.R.6—21st Century Cures Act.
https://www.congress.gov/bill/114th-congress/house-bill/6 (accessed July 11, 2018).

145. Yuanyi S. Chun, History of Medicine. Hubei Press of Science and Technology, Wuhan, China; 1988.

146. U.S. National Library of Medicine, “What is genetic discrimination?” Genetics Home Reference.

147. Alan Cantwell,
AIDS: The Mystery and the Solution (Los Angeles: Aries Rising Press, 1986), at 54.

148. World Health Organization (WHO), “Global Health Observatory (GHO) data: AIDS.”
http://www.who.int/gho/hiv/en/index.html (accessed July 11, 2018).

149.
Bordelon v. St. Francis Cabrini Hospital, 640 So. 2d 476 (La. App. 3d Cir. 1994).

150. Katherine Lackey and Michael Winter, “HIV test urged for 7,000 Oklahoma dental patients,” USA Today (March 28, 2013).
http://www.usatoday.com/story/news/nation/2013/03/28/hiv-oklahoma-dentist/2028865/ (accessed July 11, 2018).

151.
Estate of Behringer v. Medical Center at Princeton, 592 A.2d 1251 (N.J. Super. Ct. Law Div. 1991).

152.
Ibid. at 1255.

153.
Ibid. at 1251.

154.
Ibid. at 1255.

155.
Tarrant County Hospital District v. Hughes 734 S.W.2d 675 (Tex. Ct. App. 1987).

156.
Doe v. University of Cincinnati, 538 N.E.2d 419 (Ohio Ct. App. 1988).

157. Application of Milton S. Hershey Med. Ctr., 639 A.2d 159, 163 (Pa. 1993).

158.
Stenger v. Lehigh Valley Hospital Center 554 A.2d 954 (Pa. Super. Ct. 1989).

159. Ethics Committee of the American Academy of Dermatology,
Ethics in Medical Practice. Schaumburg, IL: AAD (1992), at 6.
https://www.aad.org/Forms/Policies/Uploads/AR/COE%20-%20Ethics%20in%20Medical%20Practice%20Booklet.pdf (accessed July 11, 2018).

160.
Doe v. Deer Mountain Day Camp, Inc.; Deer Mountain Basketball Academy 682 F. Supp. 2d 324 (2010).

CHAPTER 3

End-of-Life Dilemmas


When we finally know we are dying, and all other sentient beings are dying with us, we start to have a burning, almost heartbreaking sense of the fragility and preciousness of each moment and each being, and from this can grow a deep, clear, limitless compassion for all beings.

—Sogyal Rinpoche

INTRODUCTION


One of the hardest lessons in life is letting go. Whether it’s guilt, anger, love, loss or betrayal. Change is never easy. We fight to hold on and we fight to let go.

—Sherry Jones

The human struggle to survive and dreams of immortality have been instrumental throughout history in the search for ways to help alleviate pain and human suffering. As a result of the quest for a longer and happier life, the quality of life has been extended through numerous advances in the practice of medicine. Although the process of dying can be prolonged, there comes a point where the quality of living begins to decline, and the patient is ready to let go. This tipping point of “enough is enough” and when to say “it is okay to die” varies from patient to patient. The patient’s right to accept or decline treatment, appoint a surrogate decision maker, and be provided assistance in dying is reviewed in this chapter.

The struggle to survive and a family’s inability to let go are as real today as when Methuselah passed away at the age of 969 (Genesis 5:27). Jahi McMath had started coughing up blood following removal of her tonsils and adenoids. The nurses said this was normal and showed the mother how to suction blood from her daughter’s mouth. “Three hours later, at about 10 p.m., the blood filled a bucket. It covered Jahi’s clothes and bedsheets, her family recounted in a lawsuit. Despite repeated calls from her family for a doctor, a physician did not arrive until 12:30 a.m., when Jahi’s grandmother—a nurse—noticed her oxygen-saturation levels drop. At her bedside, Jahi’s family heard the doctor curse. ‘Her heart stopped.’”

1

As noted in the News Clipping, the family of 13-year-old Jahi McMath, who lapsed into a coma following a tonsillectomy and was determined to be brain dead by physicians, held on for 4.5 years, until Jahi’s death in June of 2018.

Jahi McMath, the Calif. Girl in Life-Support Controversy, is Now Dead

More than 4 years later, Jahi has now died, her family’s lawyer announced Thursday in a statement to
The Washington Post.

She died on June 22 in the New Jersey hospital alongside her mother, Nailah Winkfield, and her stepfather, Marvin. On a death certificate, a doctor in the New Jersey hospital listed Jahi’s preliminary cause of death as bleeding as a result of liver failure, the family’s lawyer, Chris Dolan, said.

—Samantha Schmidt,
The Washington Post, June 29, 2018

2

The McMath family filed a malpractice lawsuit in 2015 against Children’s Hospital Oakland and Dr. Frederick Rosen, the surgeon who performed Jahi’s surgery.

3

The lawsuit alleges that the surgeon noted an abnormal artery in McMath’s throat but did not notify the nurses that this placed the girl at increased risk for serious hemorrhaging. Additionally, the lawsuit alleges that McMath bled from approximately 7:30 p.m. to 12:35 a.m., that a doctor said “[expletive], her heart stopped” when he arrived hours after the family said they requested a doctor, and that the family was given conflicting information from nurses regarding how to care for McMath’s bleeding. The family also claims that the hospital pressured them to donate McMath’s organs.

4

After viewing over four dozen independent videos of McMath, Dr. Alan Shewmon, a UCLA pediatric neurologist, declared her technically alive in a June 29, 2017, court filing, stating that the girl follows movement commands and exhibits other proof of life. Children’s Hospital Oakland states that the original diagnosis of brain death was correct and that the videos do not meet the diagnostic criteria for brain death.

Ultimately, a California judge ruled that Jahi McMath may still be technically alive, thus allowing a malpractice lawsuit against the hospital to proceed.

5
Jahi ultimately died on June 22, 2018, nearly one year after the judge’s ruling.

Rather than watching hopelessly as a disease destroys a person or as a body part malfunctions, causing death to a patient, physicians now can implant artificial body organs. Exotic machines (e.g., ventilators) and antibiotics are weapons in a physician’s
arsenal to help extend a patient’s life. Such situations have generated vigorous debate.

The convergence of shifting payment models, an aging population, and the moral imperative to determine what matters most to patients at the end of life is affecting a sea of change among healthcare providers accustomed to practicing curative medicine. Medical technology, which has pushed the boundaries of what can be done to treat illness, turns out not to be the best guide because, given a choice, many patients do not want aggressive intervention. Healthcare leaders are being called on to guide their organizations in developing reliable systems to receive, record, and ultimately respect patients’ wishes for end-of-life care.

6

Many patients prefer to spend their last days at home and not in a sterile, uninviting hospital or nursing home room. “In California, for example, 70 percent of individuals surveyed said they wish to die at home, yet 68 percent do not. Instead, many of us die in hospitals, subject to overmedication and infection, often after receiving treatment that we do not want. Doctors know this, which may explain why 72 percent of them die at home.”

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When death is near, and the loved one appears strong, hold them close and speak softly, saying, “I love you.” Remember, we are only human, and each day may bring a new fear to what we thought we had conquered even minutes or the day before, as noted below.


They want me to accept hospice care but I refused. I have to admit that I am a bit more fearful now.

—Anonymous

She wanted to pass on to the next world at home surrounded by her family and friends. She made her choice. God Bless Her.


Let your light shine so brightly that others can see their way out of the dark.

—Unknown

Where Do Americans Die?

According to Stanford School of Medicine’s Palliative Care:

  • Studies show that 80% of Americans would prefer to die at home, if possible.
  • Despite this, 60% of Americans die in acute care hospitals, 20% in nursing homes, and only 20% at home.
  • A minority of dying patients use hospice care, even those patients (who) are often referred to hospice, only in the last 3 to 4 years of life.
  • However, not every patient will want to die at home. Dying at home is not favored in certain cultures (due to cultural taboos) and some patients may wish to die at home, out of concern that they might be a burden to the family.

Still, it is clear that fewer patients are dying at home than want to do so.

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Mom Wanted to Live on Her Own Forever

My mother’s words sounded harsh — “I never want to live with either one of my girls” — but I didn’t take offense. It was her way of saying she never wanted to be dependent on us, or anyone.

—Melanie P. Merriman,
The Washington Post, December 12, 2017

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There comes a point in life where some patients wish to halt the aggressive approach to hold on to life when it appears futile. At that point in time, the physician may suggest palliative care in the home by family and/or hospice. Even as one nears the end of life, hospice care may even be rejected by the patient. This chapter reviews a variety of the issues that inevitably arise as one approaches the end of life.

End of Life or Beginning of Life?

My mother is 92 years old, and she is more active and is enjoying life more than when she was much younger. Her advanced age has actually proven to be something of an advantage, as it has given her the time and freedom to do some of the things she couldn’t do while she was raising a family. It has been a joy to me, as her son, and to the rest of the family to witness her joy and vigor. Even strangers have found her stamina to be an inspiration as to the value of the end years of life.

Three years ago, however, it wasn’t so. Mother was critically ill, comatose on a respirator in an intensive care unit. Survival was not considered likely. I am embarrassed to say that I was making arrangements for a funeral. I am even more embarrassed because I am a physician and did not see how she could survive for long except as a vegetable.

Then the unlikely occurred. She recovered! Her condition, including both physical and mental status, rapidly and surprisingly improved dramatically, and she promptly resumed a life even more active than before. It would have been a tragedy to deprive her of these joyous years of her life after she worked and sacrificed so much for others most of her life. I had thought it would be an act of mercy to disconnect the respirator when her condition had looked so hopeless. I was so wrong. I learned that we must not make life and death decisions casually. Life is a beautiful mystery with many wonderful surprises if we will let them happen.

Advances in medical technology have made it possible to survive to an older age. That longer survival inevitably involves considerable cost and can therefore be a substantial financial burden to the family and the government. Is it worth it? How do we make a judgment about quality of life? What is the financial value of another day, week, or year of life? Should we assume that younger years are better than older years? Although our bodies may physically decline over time, our treasure trove of life experiences accrues over time. Our knowledge and judgment may often be better than when we were younger. Furthermore, the aged may be a source of comfort and joy to their children, grandchildren, and even great-grandchildren. As long as we are alive, we have value.

—Physician

EUTHANASIA


There is nothing more sacred than life and there is nothing more natural in life to wish to cling on to it for those you love! And nothing more cruel than to play God by artificially holding onto that which God wants to bring home.

—Author Unknown

When patients and their families perceive a deterioration of the quality of life with no end in sight, conflict often arises within the hearts and minds of both healthcare professionals, who are trained to save lives, and patients and their families, who wish to hold on to their loved ones. This conflict centers on the concept of euthanasia and its place in the modern world. There seems to be an absence of controversy only when a patient who is kept alive by modern technology is still able to appreciate and maintain control over his or her life.

Any discussion of euthanasia obliges a person to confront humanity’s greatest fear—death. The courts and legislatures have faced it and have made advances in setting forth some guidelines to assist decision makers in this arena; however, much more must be accomplished. Society must be protected from the risks associated with permitting the removal of life-support systems. Society cannot allow the complex issues associated with this topic to be simplified to the point where it is accepted that life can be terminated based on subjective quality-of-life considerations. The legal system must ensure that the constitutional rights of the patient are maintained, while protecting society’s interests in preserving life, preventing suicide, and maintaining the integrity of the medical profession. For example, can competent adult patients who ask that no extraordinary lifesaving measures be taken recover damages for finding themselves alive after unwanted resuscitative measures? During a medical emergency, it seems unrealistic to ask a caregiver to first look in a patient’s medical record for an advance directive before tending to the immediate needs of the patient. In the final analysis, the boundaries of patients’ rights often remain uncertain.

From its inception, euthanasia has evolved into an issue with competing legal, medical, and moral implications that continues to generate debate, confusion, and conflict. Currently, there is a strong movement advocating death with dignity, which excludes machines, monitors, and tubes.

Even the connotation of the word “euthanasia” has changed with time depending on who is attempting to define it. Euthanasia originated from the Greek word
euthanatos, meaning
good death or
easy death, and was accepted in situations where people had what was considered to be incurable diseases.
Euthanasia is defined broadly as “the mercy killing of the hopelessly ill, injured, or incapacitated.”

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In the Confucian philosophy and the Buddhist religion, suicide was an acceptable answer to unendurable pain and incurable disease.

11

,

12
The Celts went a step further, believing that those who chose to die of disease or senility, rather than committing suicide, would be condemned to Hell. Such acceptance began to change during the 1800s when Western physicians refused to lessen suffering by shortening a
dying patient’s life. Napoleon’s physician, for example, rejected Napoleon’s plea to kill plague-stricken soldiers, insisting that his obligation was to cure rather than kill people.

In the late 1870s, writings on euthanasia began to appear, mainly in England and the United States. Although such works were written, for the most part, by lay authors, the public and the medical community began to consider the issues raised by euthanasia. Then defined as “the act or practice of painlessly putting to death persons suffering from incurable conditions or diseases,” it was considered to be a merciful release from incurable suffering. By the beginning of the 20th century, however, there were still no clear answers or guidelines regarding the use of euthanasia. Unlike in prior centuries when society as a whole supported or rejected euthanasia, different segments of today’s society apply distinct connotations to the word, generating further confusion. Some believe euthanasia is meant to allow a painless death when one suffers from an incurable disease yet is not dying. Others, who remain in the majority, perceive euthanasia only as an instrument to aid dying people in ending their lives with as little suffering as possible.

It has been estimated that of the 2 million Americans who die each year, 80% die in hospitals or nursing homes, and 70% of those die after a decision to forgo life-sustaining treatment has been made. Although such decisions are personal in nature and based on individual moral values, they must comply with the laws applicable to the prolonging of the dying process. Courts have outlined the ways in which the government is allowed to participate in the decision-making process. Yet the misconceptions and lack of clear direction regarding the policies and procedures have resulted in wide disparity among jurisdictions, both in legislation and in judicial decisions. As a result, the American Medical Association, the American Bar Association, legislators, and judges are actively attempting to formulate and legislate clear guidelines in this sensitive, profound, and not yet fully understood area. To ensure compliance with the law while serving the needs of their patients, it is incumbent on healthcare providers to keep themselves informed of professional guidelines and regulatory requirements in this ever-changing field.

Active or Passive Euthanasia

Active euthanasia is commonly understood to be the intentional commission of an act, such as providing a patient a lethal dose of a medication that results in death. The act, if committed by the patient, is thought of as suicide. Moreover, because in most states the patient cannot take his or her own life, any person who assists in the causing of the death could be subject to criminal sanction for aiding and abetting suicide.

Passive euthanasia occurs when lifesaving treatment (such as a respirator) is withdrawn or withheld, allowing the terminally ill patient to die a natural death. Passive euthanasia is generally accepted pursuant to legislative acts and judicial decisions. These decisions, however, generally are based on the facts of a particular case.

The distinctions are important when considering the duty and liability of a physician who must decide whether to continue or initiate treatment of a comatose or terminally ill patient. Physicians are obligated to use reasonable care to preserve health and to save lives, and, thus, unless fully protected by the law, they will be reluctant, for example, to abide by a patient’s or family’s wishes to terminate life-support devices.

Although there may be a duty to provide life-sustaining equipment in the immediate aftermath of cardiopulmonary arrest, there is no duty to continue its use after it has become futile and ineffective to do so in the opinion of qualified medical personnel. An example is a patient who suffered severe brain damage, placing him in a comatose and vegetative state, from which, according to tests and examinations by other specialists, he was unlikely to recover. The patient, on the written request of his family, was taken off life-support equipment. The patient’s family (his wife and eight children) made the decision together after consultation with the physicians. Evidence had been presented that the patient, before his incapacitation, had expressed to his wife that he would not want to be kept alive by a machine. Decisions by family members are based on love and concern for the dignity of their loved one [
Barber v. Superior Court, 147 Cal. App. 3d 1006 (Cal. Ct. App. 1983)].

The controversy over euthanasia is a common issue throughout the world. Belgium, for example, legalized the practice of euthanasia for adults in 2002 and is at this writing considering legalizing euthanasia for children.

Voluntary or Involuntary Euthanasia

Both active and passive euthanasia may be either voluntary or involuntary.
Voluntary euthanasia occurs when a person suffering an incurable illness makes the decision to die. To be considered voluntary, the request or consent must be made by a legally competent adult and be based on material information concerning the possible ramifications and alternatives available.

Involuntary euthanasia, however, occurs when the decision to terminate the life of an incurable person
(e.g., an incompetent or nonconsenting competent person) is made by someone other than that incurable person.

A patient’s lack of consent can be due to mental impairment or a comatose state. Important value questions face courts struggling with the boundaries for making voluntary euthanasia decisions:

  • Who should decide to withhold or withdraw treatment?
  • On what factors should the decision be based?
  • Are there viable standards to guide the courts?
  • Should criminal sanctions be imposed on a person assisting in ending a life?
  • When does death occur?

RIGHT TO SELF-DETERMINATION

To analyze the important questions regarding whether life-support treatment can be withheld or withdrawn from an incompetent patient, it is necessary to consider first what rights a competent patient possesses. Both statutory law and case law have presented a diversity of policies and points of view. Some courts point to common law and the early case of
Schloendorff v. Society of New York Hospital

13
to support their belief in a patient’s right to self-determination. The
Schloendorff court stated:

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Every human being of adult years has a right to determine what shall be done with his own body; and the surgeon who performs an operation without his patient’s consent commits an assault for which he is liable for damages.

This right of self-determination was emphasized in the case
In re Storar,

15
when the court announced that every human being of adult years and sound mind has the right to determine what shall be done with his or her own body. The
Storar case was a departure from the New Jersey Supreme Court’s rationale in the case of
In re Quinlan.

16
The
Quinlan case was the first to address significantly the issue of whether euthanasia should be permitted when a patient is terminally ill or incapable of living without extensive medical intervention. The
Quinlan court, relying on
Roe v.
Wade,

17
announced that the constitutional right to privacy protects a patient’s right to self-determination. The court noted that the right to privacy “is broad enough to encompass a patient’s decision to decline medical treatment under certain circumstances, in much the same way as it is broad enough to encompass a woman’s decision to terminate pregnancy under certain conditions.”

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The
Quinlan court, in reaching its decision, applied a test balancing the state’s interest in preserving and maintaining the sanctity of human life against Karen Quinlan’s privacy interest. It decided that, especially in light of the prognosis (physicians determined that Quinlan was in an irreversible coma), the state’s interest did not justify interference with her right to refuse treatment. Thus, Karen Quinlan’s father was appointed her legal guardian, and her respirator was shut off.

In the same year as the
Quinlan decision, the case of
Superintendent of Belchertown State School v. Saikewicz

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was decided. Joseph Saikewicz was a 67-year-old intellectually disabled patient with leukemia. The court found from the evidence that the prognosis was dim, and even though a “normal” person would probably have chosen chemotherapy, it allowed Saikewicz to die without treatment to spare him the suffering. In this case, the court, using the balancing test enunciated in
Quinlan, approved the recommendation of a court-appointed guardian
ad litem that it would be in Saikewicz’s best interests to end chemotherapy treatment.

Although the court also followed the reasoning of the
Quinlan opinion in giving the right to an incompetent person to refuse treatment based on either the objective “best interests” test or the subjective “substituted judgment” test, which it favored because Saikewicz had always been incompetent, the court departed from
Quinlan in a major way. It rejected the
Quinlan approach of entrusting a decision concerning the continuance of artificial life support to the patient’s guardian, family, attending physicians, and a hospital ethics committee. The
Saikewicz court asserted that even though a judge might find the opinions of physicians, medical experts, or hospital ethics committees helpful in reaching a decision, there should be no requirement to seek out the advice. The court decided that questions of life and death with regard to an incompetent person should be the responsibility of the courts, which would conduct detached but passionate investigations. The court took a “dim view of any attempt to shift the ultimate decision-making responsibility away from duly established courts of proper jurisdiction to any committee, panel, or group, ad hoc or permanent.”

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This main point of difference between the
Saikewicz and
Quinlan cases marked the emergence of two different policies on the incompetent person’s right to refuse treatment. One line of cases has followed
Saikewicz and supports court approval before physicians are allowed to withhold or withdraw life
support. Advocates of this view argue that it makes more sense to leave the decision to an objective tribunal than to extend the right of a patient’s privacy to a number of interested parties, as was done in
Quinlan. They also attack the
Quinlan method as being a privacy decision effectuated by popular vote.

21

Six months after
Saikewicz, the Massachusetts Appeals Court narrowed the need for court intervention in the case
In re Dinnerstein

22
by finding that “no code” orders are valid to prevent the use of artificial resuscitative measures on incompetent, terminally ill patients. The court was faced with the case of a 67-year-old woman who was suffering from Alzheimer’s disease. It was determined that she was permanently comatose at the time of trial. Furthermore, the court decided that
Saikewicz-type judicial proceedings should take place only when medical treatment could offer a reasonable expectation of effecting a permanent or temporary cure of or relief from the illness.

The Massachusetts Supreme Judicial Court attempted to clarify its
Saikewicz opinion with regard to court orders in
In re Spring.

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The court here held that different factors such as the patient’s mental status and his or her medical prognosis with or without treatment must be considered before judicial approval is necessary to withdraw or withhold treatment from an incompetent patient. The problem in all three cases is that there is still no clear guidance as to exactly when the court’s approval of the removal of life-support systems would be necessary.
Saikewicz seemed to demand judicial approval in every case.
Spring, however, in partially retreating from that view, stated that it did not have to articulate what combination of the factors it discussed, thus making prior court approval necessary.

The inconsistencies presented by the Massachusetts cases led courts since 1977 to follow the parameters set by
Quinlan, requiring judicial intervention. In cases in which physicians have certified the irreversible nature of a patient’s loss of consciousness, an ethics committee (actually a neurologic team) could certify the patient’s hopeless neurologic condition. Then a guardian would be free to take the legal steps necessary to remove life-support systems. The main reason for the appointment of a guardian is to ensure that incompetent patients, like all other patients, maintain their right to refuse treatment. Most holdings indicate that because a patient has the constitutional right of self-determination, those acting on the patient’s behalf can exercise that right when rendering their best judgment concerning how the patient would assert the right. This substituted judgment doctrine could be argued on standing grounds, whereby a second party has the right to assert the constitutional rights of another when that second party’s intervention is necessary to protect the other’s constitutional rights. The guardian’s decision is sounder if it is based on the known desires of a patient who was competent immediately before becoming comatose.

An advance directive, such as a living will, is persuasive evidence of an incompetent person’s wishes. An incompetent patient can act as a guardian and in accordance with the terms of a living will. An agent can substitute his or her judgment for that of the patient.

A court may require the attending physician to certify that a patient is in a permanent vegetative state, with no reasonable chance for recovery, before a family member or guardian can request termination of extraordinary means of medical treatment.

The decision maker would attempt to ascertain the incompetent patient’s actual interests and preferences. A court can appoint a guardian if:

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  • Family members disagree as to the incompetent person’s wishes.
  • Physicians disagree on the prognosis.
  • The patient’s wishes cannot be known because he or she has always been incompetent.
  • Evidence exists of wrongful motives or malpractice.
  • No family member can serve as a guardian.

DEFINING DEATH

When is a patient considered to be legally dead, and what type of treatment can be withheld or withdrawn? Most cases dealing with euthanasia speak of the necessity for a physician to diagnose a patient as being either in a persistent vegetative state or terminally ill.

Traditionally, the definition of death adopted by the courts has been, according to
Black’s Law Dictionary, “cessation of respiration, heartbeat, and certain indications of central nervous system activity, such as respiration and pulsation.”

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Currently, however, modern science has the capacity to sustain vegetative functions of those in irreversible comas. Although life support equipment can sustain heartbeat and respiration, it is generally accepted that the irreversible cessation of brain function constitutes death.

26

Ethicists who advocate the prohibition on taking action to shorten life agree “where death is imminent and inevitable, it is permissible to forgo treatments that would only provide a precarious and painful prolongation of life, as long as the normal care due to the sick person in similar cases is not interrupted.”

27

Relying on the 1968 Harvard Criteria set forth by the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, the
American Medical Association in 1974 accepted that death occurs when there is “irreversible cessation of all brain functions including the brain stem.”

28
Most states now recognize brain death by statute or judicial decision. New York, for example, in
People v. Eulo,

29
in rejecting the traditional cardiopulmonary definition of death, announced that the determination of brain death can be made according to acceptable medical standards. The court also repeated its holding in
In re Storar

30
that clear and convincing evidence of a person’s desire to decline extraordinary medical care may be honored and that a third person may not exercise this judgment on behalf of a person who has not expressed or cannot express the desire to decline treatment.

Some courts hold that artificial nutrition can be withheld from a patient who is unable to converse or feed oneself. Unequivocal proof of a patient’s wishes will suffice when the decision to terminate life support is at issue. Factors for determining the existence of clear and convincing evidence of a patient’s intention to reject the prolongation of life by artificial means include the:

  1. Persistence of statements regarding an individual’s beliefs
  2. Desirability of the commitment to those beliefs
  3. Seriousness with which such statements were made
  4. Inferences that may be drawn from the surrounding circumstances

The family of a patient who is in a persistent vegetative state cannot necessarily order physicians to remove artificial nutrition. In 1983, Nancy Cruzan sustained injuries in a car accident in which her car overturned, after which she was found face down in a ditch without respiratory or cardiac function. Although the patient was unconscious, her breathing and heartbeat were restored at the site of the accident. After examining her at the hospital, a neurosurgeon diagnosed her as having suffered cerebral contusions and anoxia. It was estimated that she had been deprived of oxygen for 12 to 14 minutes. After remaining in a coma for 3 weeks, Cruzan went into an unconscious state. At first, she was able to ingest some food orally. Thereafter, surgeons implanted a gastrostomy feeding and hydration tube, with the consent of her husband, to facilitate feeding her. She did not improve, and until December 1990, she lay in a Missouri state hospital in a persistent vegetative state that was determined to be irreversible, permanent, progressive, and ongoing. She was not dead, according to the accepted definition of death in Missouri, and physicians estimated that she could live in the vegetative state for an additional 30 years. Because of the prognosis, Cruzan’s parents asked the hospital staff to cease all artificial nutrition and hydration procedures. The staff refused to comply with their wishes without court approval. The state trial court granted authorization for termination, finding that Cruzan had a fundamental right—grounded in both the state and federal constitutions—to refuse or direct the withdrawal of death-prolonging procedures. Testimony at trial from a former roommate of Cruzan indicated to the court that she had stated that if she were ever sick or injured she would not want to live unless she could live halfway normally. The court interpreted that conversation, which had taken place when Cruzan was 25 years old, as meaning that she would not want to be forced to take nutrition and hydration while in a persistent vegetative state.

The case was appealed to the Missouri Supreme Court, which reversed the lower court decision. The court not only doubted that the doctrine of informed consent applied to the circumstances of the case, it moreover would not recognize a broad privacy right from the state constitution that would support the right of a person to refuse medical treatment in every circumstance. Because Missouri recognizes living wills, the court held that Cruzan’s parents were not entitled to order the termination of her treatment because “no person can assume that choice for an incompetent person in the absence of the formalities required under Missouri’s Living Will statutes or the clear and convincing, inherently reliable evidence absent here.”

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The court found that Cruzan’s statements to her roommate did not rise to the level of clear and convincing evidence of her desire to end nutrition and hydration.

In June 1990, the U.S. Supreme Court, after hearing oral arguments, held that:

32

  1. The U.S. Constitution does not forbid Missouri from requiring that there be clear and convincing evidence of an incompetent person’s wishes as to the withdrawal of life-sustaining treatment.
  2. The Missouri Supreme Court did not commit constitutional error in concluding that evidence adduced at trial did not amount to clear and convincing evidence of Cruzan’s desire to cease hydration and nutrition.
  3. Due process did not require the state to accept the substituted judgment of close family members, absent substantial proof that their views reflected those of the patient.

In delivering the opinion of the court, Justice William Rehnquist noted that although most state courts have applied the common-law right to informed consent or a combination of that right and
a privacy right when allowing a right to refuse treatment, the Supreme Court analyzed the issues presented in the
Cruzan case in terms of a Fourteenth Amendment liberty interest. They found that a competent person has a constitutionally protected right grounded in the due process clause to refuse lifesaving hydration and nutrition. Missouri provided for the incompetent patient by allowing a surrogate to act for the patient in choosing to withdraw hydration and treatment. Moreover, it put into place procedures to ensure that the surrogate’s action conforms to the wishes expressed by the patient when he or she was competent. Although recognizing that Missouri had enacted a restrictive law, the Supreme Court held that right-to-die issues should be decided pursuant to state law, subject to a due process liberty interest, and in keeping with state constitutional law.

After the Supreme Court rendered its decision, the Cruzans returned to Missouri probate court, where, on November 14, 1990, Judge Charles Teel authorized physicians to remove the feeding tubes from Cruzan. The judge determined that testimony presented to him early in November demonstrated clear and convincing evidence that Nancy would not have wanted to live in a persistent vegetative state. Several of her coworkers had testified that she told them before her accident that she would not want to live “like a vegetable.” On December 26, 1990, 2 weeks after her feeding tubes were removed, Nancy Cruzan died.

LEGISLATIVE RESPONSE

After the
Cruzan decision, states began to draft new legislation in the areas of living wills, durable powers of attorney, healthcare proxies, and surrogate decision making. Pennsylvania and Florida were two of the first states to react to the
Cruzan decision. Pennsylvania law is applied to terminally ill or permanently unconscious patients. The statute, the Advance Directive for Health Care Act,

33
deals mainly with individuals who have prepared living wills. It includes in its definition of life-sustaining treatment the administration of hydration and nutrition by any means if it is stated in the individual’s living will. The statute mandates that a copy of the living will must be provided to the patient’s physician in order to be effective. Furthermore, the patient must be incompetent or permanently unconscious. If there is no evidence of the presence of a living will, the Pennsylvania probate codes allow an attorney-in-fact who is designated in a properly executed durable-power-of-attorney document to give permission for “medical and surgical procedures to be utilized on an incompetent patient.”

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States subsequently have been addressing the problem of surrogate decision making for those who are incompetent. Evidence of an incompetent person’s wishes that had been expressed when he or she was competent is required by the courts.

Unless there is some national uniformity in the legislation, some patients and their families will shop for states that will allow them to have medical treatment terminated or withdrawn with fewer legal hassles. For example, on January 18, 1991, a Missouri probate court judge authorized a father to take his 20-year-old brain-damaged daughter, Christine Busalacchi, from the Missouri Rehabilitation Center to Minnesota for testing by a pro-euthanasia physician, Dr. Ronald Cranford. Cranford, who practiced at the Hennepin County Medical Center, had been at the center of controversy in Minnesota. In January 1991, Pro Life Action Ministries demanded Cranford’s resignation, claiming that he “desires to make Minnesota the killing fields for the disabled.”

35
He, however, viewed himself as an advocate of patients’ rights. It is clear that the main reason Busalacchi sought authorization to take his daughter to Minnesota is that he believed he would have to deal with fewer legal impediments there to allow his daughter to die.

Because of continuing litigation involving the right to die, it is clear that the public must be educated as to the importance of expressing their wishes concerning medical treatment while they are competent. Uniformity with regard to the legal instruments available for demonstrating what a patient wants should be a common goal of legislators, courts, and the medical profession. If living wills, surrogates, and durable powers of attorney were to be enacted pursuant to national rather than individual state guidelines, the process of resolving end-of-life issues might be less complicated. Some states have addressed the problem by statutorily providing for these instruments, thereby enabling individuals to have a say in the medical care they would like to receive should they become unable to speak for themselves.

Chief Justice Fred Dore of the Washington Supreme Court voiced his opinion that a legislative response to right-to-die issues could be better addressed by the legislature.

The United States Supreme Court, in
Cruzan, questioned whether a federally protected right to forgo nutrition and hydration existed. The
Cruzan Court confronted the same philosophical issues that we face today and wisely recognized and deferred to the Legislature’s superior policy-making abilities. As was the case in
Cruzan, our legislature is far better equipped to evaluate this complex issue and should not have its power usurped by this court.

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ASSISTED SUICIDE

Assisted suicide presents profound questions of ethics, religious beliefs, and public policy issues. These are precisely the kinds of issues in which public input is vital, and courts are simply not equipped to conduct the type of comprehensive review required. The legislative and executive branches of government are uniquely well equipped to pursue these issues. Courts have before them only the legal arguments and although questions of law are certainly part of the equation, the core issues presented are fundamentally grounded in questions of policy and how we view ourselves as a society. Those who must answer to the people for their policy product and not those who have no accountability to the people are best suited to answer these questions.

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Physician-Assisted Suicide

Doctor Says Insurers Push Suicide Over Medical Care

Brian Callister, associate professor of internal medicine at the University of Nevada, said he tried to transfer two patients to California and Oregon for procedures not performed at his hospital. Representatives from two different insurance companies denied those transfer requests by phone, he said.

“And in both cases, the insurance medical director said to me, ‘Brian, we’re not going to cover that procedure or the transfer, but would you consider assisted suicide?’”

—Bradford Richardson,
The Washington Times, June 1, 2017

Physician-assisted suicide is an action in which a physician voluntarily aids a patient in bringing about his or her death. Dr. Jack Kevorkian of Michigan announced in October 1989 that he had developed a device that would end one’s life quickly, painlessly, and humanely. He chose to assist a 54-year-old Alzheimer’s disease patient in committing suicide on June 4, 1990. In December 1990, he was charged with first-degree murder, but the charge was later dismissed because Michigan had no law against assisted suicide. He was, however, ordered to refrain from assisting in a patient’s suicide or giving advice about it. On February 6, 1991, he violated the court order by giving advice about the preparation of a drug to a terminally ill cancer patient.

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Additional murder charges were lodged against Kevorkian in October 1991, when he instructed two Michigan women how to use his “suicide machine.” In dismissing the charges against him, the circuit court judge stated, “Some people with intractable pain cannot benefit from treatment.” Although emphasizing that Michigan has no law against assisting suicide, the judge also expressed his belief that physician-assisted suicide remains an alternative for patients experiencing “unmanageable pain.”

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The Michigan House on November 22, 1992, approved legislation placing a temporary ban on assisted suicide. The Senate approved the temporary ban after Kevorkian helped a sixth terminally ill patient kill herself. On December 15, 1992, Michigan governor John Engler signed the law just hours after two more women committed suicide with Kevorkian’s aid.

The new law, which became effective on April 1, 1993, made assisting suicide a felony punishable by up to 4 years in prison and a $2,000 fine. Under the new law, assisted suicide was banned for 15 months. During this time, a special commission studied assisted suicide and submitted its recommendations to the Michigan legislature for review and action. The new law apparently raised constitutional questions and was challenged by the Civil Liberties Union of Michigan because of the claim that it failed to recognize that the terminally ill have the right to end their lives painlessly and with dignity.

Kevorkian faced prosecution for murdering two people and for assisting in the suicides of three others. As a result, he appealed a Michigan Supreme Court ruling that found there is no right to assisted suicide.

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The U.S. Supreme Court rejected his argument that assisted suicide is a constitutional right. The high court’s decision allowed the state of Michigan to move forward and prosecute Kevorkian on the pending charges. At the time of the high court’s ruling, Kevorkian had attended his 22nd suicide, involving a retired clergyman, less than a month after he was left facing murder charges in Michigan.

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As of March 1998, Kevorkian had aided in or witnessed 100 suicides. Kevorkian was eventually convicted of second-degree murder for physician-assisted suicide and sentenced to 10 to 25 years in prison. He was released on June 1, 2007, after serving eight years in prison.

Presently, California, Colorado, the District of Columbia, Montana, Oregon, Vermont, and Washington have legalized physician-assisted suicide. California statistics show that:

For the partial year ending December 31, 2016, 191 individuals received prescriptions under EOLA. 111 individuals died following their ingestion of the prescribed aid-in-dying drug(s). Of the 111 individuals, 87.4 percent were 60 years of age or older, 96.4 percent had health insurance, and 83.8 percent were receiving hospice and/or palliative care. As this report covers only six-months of data, caution should be exercised in drawing conclusions based on the numbers reported.

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Vermont became the third state to legalize physician-assisted suicide when Governor Peter Shumlin signed into law a bill allowing physicians to legally prescribe lethal doses of medication for terminally ill patients.

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The Montana Supreme Court ruled that state law protects physicians from prosecution for assisting terminally ill patients in committing suicide. The court, however, did not address whether assisted suicide was guaranteed under the state’s constitution.

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Montana Bill “HB 505 which would have explicitly prohibited doctor-prescribed suicide was introduced by Rep. Krayton Kerns. The bill passed in the House and was sent to the Senate, where it failed on April 15, 2013 in a 27–23 vote.”

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In 1967, the United States Supreme Court, in two unanimous and separate decisions, ruled that state laws prohibiting assisted suicide are constitutional; nevertheless, the U.S. Supreme Court ruled that states can allow physicians to assist in the suicide of terminally ill patients.

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At the time of this writing, North Carolina is one of several states introducing legislation to legalize physician-assisted suicide. The North Carolina House Bill 789: “End of Life Option Act. 989” was introduced as “An Act Establishing an End of Life Option to Allow Qualified Patients Diagnosed with Terminal Disease to End Life in a Humane and Dignified Manner.”

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The physician-assisted suicide debate, as noted in the following news clippings, continues throughout the nation.

Assisted Suicide Once Again Pushed by New Jersey Lawmakers; Opponents Raise Fears

“I don’t want to have to take that drive to the hospital and walk down the halls knowing that I’m never going to go back again,” she said. “I want to die at home and I want to die peacefully.”

Lawmakers on the Assembly Judiciary Committee did advance that controversial bill Monday, reopening an emotional debate in New Jersey with its roots in the famous court case of Karen Ann Quinlan in the 1970s. The 5-2 vote followed more than 3 hours of testimony that alternated between fierce criticism and impassioned statements of support.

—Nicholas Pugliese,
Republican House Bureau, March 2, 2018

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Physician-Assisted Suicide Bill Dies in Massachusetts

Legislation to authorize physician-assisted suicide is dead in Massachusetts, after the proposal was sent to a study committee late last week, effectively ending the bill’s chance at enactment this session.

The aid-in-dying bills H1194 and S1225 would have given doctors the ability to prescribe life-ending drugs to terminally ill patients who wish to die and are given a prognosis of 6 months or less to live.

Matt Valliere, executive director of Patients Rights Action Fund, which opposes assisted suicide, said the Legislature listened to doctors, disability rights activists, and residents who came out against assisted suicide.

“Your voice was heard: Assisted suicide is not medical treatment,” Mr. Valliere said in a statement. “It is bad public policy that puts a great many at risk of deadly harm through mistakes, coercion, and abuse.”

—Bradford Richardson,
The Washington Times, March 27, 2018

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Assisted Suicide Versus Refusal or Withdrawal of Treatment

The Supreme Court in
Quill v. Vacco

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found that neither the assisted suicide ban nor the law permitting patients to refuse medical treatment treats anyone differently from anyone else or draws any distinctions between persons. There is a distinction between letting a patient die and making one die. Most legislatures have allowed the former but have prohibited the latter. The Supreme Court disagreed with the respondents’ claim that the distinction is arbitrary and irrational.

In its decision, the Supreme Court determined that New York had valid reasons for distinguishing between the refusal of treatment and assisting suicide. Those reasons included prohibiting intentional killing and preserving life, preventing suicide, maintaining the physician’s role as his or her patient’s healer, and protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives. All of those reasons, the court decided, constitute valid and important public interests fulfilling the constitutional requirement that a legislative classification bear a rational relation to a legitimate end.

In the Washington case,
Washington v. Glucksberg,

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the U.S. Supreme Court held that assisted suicide
is not a liberty protected by the Constitution’s due process clause. A majority of states now ban assisted suicide. These rulings, however, do not affect the right of patients to refuse treatment. It is clear that this emotionally charged issue is not settled. Legislative, judicial, and public debates continue to rage. Ultimately, the quality of a patient’s life must be improved so that physician-assisted suicide does not become the answer for those who are suffering. Society must learn to address more effectively end-of-life issues including pain management, fear of death, self-worth, and hopelessness. Thus far, progress is slow and inadequate.

Oregon’s Death with Dignity Act (1994)

On October 27, 1997, physician-assisted suicide became a legal medical option for the terminally ill residents of Oregon. The
Oregon Death with Dignity Act was the first law to legalize assisted suicide, allowing terminally ill Oregon residents to obtain prescriptions from their physician for self-administered, lethal doses of medications. The act legalizes physician-assisted suicide but specifically prohibits euthanasia, where a physician or other person directly administers a medication to end another’s life. The following are excerpts from the Oregon Death with Dignity Act:

Or. Rev. Stat. Sects. 127.800-.897 Section 1.01. Definitions …

(12) “Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within (6) months…

Section 2.01. Who may initiate a written request for medication?

An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner.

Section 2.02. Form of the Written Request.

(1) A valid request for medication … shall be in substantially the form described in ORS 127.897, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request …

Section 3.01. Attending physician responsibilities. The attending physician shall: and has made the request voluntarily.

(2) Inform the patient of:

  1. His or her medical diagnosis;
  2. His or her prognosis;
  3. The potential risks associated with taking the medication to be prescribed;
  4. The probable result of taking the medication to be prescribed; and
  5. The feasible alternatives, including, but not limited to, comfort care, hospice care, and pain control.

(3) Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is capable and acting voluntarily …

Section 3.06. Written and oral requests.

In order to receive a prescription for medication to end his or her life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to his or her attending physician no less than (15) days after making the initial oral request. At the time the qualified patient makes his or her second oral request, the attending physician shall offer the patient an opportunity to rescind the request.

Section 3.07. Right to rescind request. A patient may rescind his or her request at any time and in any manner without regard to his or her mental state. …

Section 3.08. Waiting periods.

No less than (15) days shall elapse between the patient’s initial oral request and the writing of a prescription. … No less than 48 hours shall elapse between the patient’s written request and the writing of a prescription. …

Section 6.01. Form of the request.

A request for a medication … shall be in substantially the following form.


FIGURE 3-1

.

PATIENT SELF-DETERMINATION ACT OF 1990

The
Patient Self-Determination Act of 1990

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provides that patients have a right to formulate advance directives and to make decisions regarding their health care. Self-determination includes the right to accept or refuse medical treatment. Healthcare providers (including hospitals, nursing homes, home health agencies, health maintenance organizations, and hospices) receiving federal funds under Medicare are required to comply with the new regulations. Providers are required to:

  1. Provide individuals written information concerning their rights under state law (whether statutory or recognized by courts of the state) to make decisions including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives.
  2. Document in the individual’s medical record whether the individual has executed an advance directive.
  3. Not condition the provision of care or otherwise discriminate against an individual based on whether the individual has executed an advance directive.
  4. Ensure compliance with requirements of state law (whether statutory or recognized by the courts of the state) regarding advance directives. The provider must inform individuals that complaints concerning the advance directive requirements may be filed with the state survey and certification agency.
  5. Provide education for staff concerning its policies and procedures on advance directives.
  6. Provide for community education regarding issues concerning advance directives by defining what constitutes an advance directive, emphasizing that an advance directive is designed to enhance an incapacitated individual’s control over medical treatment and describe applicable state law concerning advance directives. A provider must be able to document its community education efforts.

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Providers are not entitled to reimbursement under the Medicare program if they fail to meet Patient Self-Determination Act of 1990 requirements.

ADVANCE DIRECTIVES

Patients have a right to make decisions about their health care with their physician. They may agree to a proposed treatment, choose among alternative treatments, or refuse a treatment. Patients have this right even if they become incapacitated and are unable to make decisions regarding their health care. Because of the advances in modern medical technology, everyone should give serious consideration as to their healthcare wishes, to decide what they would want done should they become incapacitated, to execute advance directives and make their wishes known so that family and healthcare providers can respect their decision.

Advance directives, in the form of a “living will” or “durable power of attorney,” allow the patient to state in advance the kinds of medical care that he or she considers acceptable or not acceptable. The patient can appoint an agent, a
surrogate decision maker, to make those decisions on his or her behalf. A patient should be asked at the time of admission if he or she has an advance directive. If a patient does not have an advance directive, the healthcare facility should provide the patient with information about an advance directive and the opportunity to execute a directive. A patient should clearly understand that an advance directive is a guideline for caregivers describing his or her wishes for medical care—what he or she would and would not want—in the event of incapacitation and inability to make decisions. This interaction should be documented in the patient’s medical record. If the patient has an advance directive, a copy should be requested for insertion into the patient’s record. If the patient does not have a copy of the advance directive with him or her, the substance thereof should be documented and flagged in the patient’s medical record. Documentation should include the location of the advance directive, the name and telephone number of the designated healthcare agent, and any information that might be helpful in the immediate care situation (e.g., patient’s desire for food and hydration).

The patient can execute a new directive at any time if desired. Patient and family education should be provided regarding the existence of the directive and its contents. The patient should be periodically queried about whether he or she wishes to make any changes with regard to an advance directive.

Living Will

A
living will is the instrument or legal document that describes those treatments an individual wishes or does not wish to receive should he or she become incapacitated and unable to communicate treatment decisions. Typically, a living will enables a person, when competent, to inform caregivers in writing of his or her wishes with regard to withholding and withdrawing life-supporting treatment, including nutrition and hydration. The living will is helpful to healthcare professionals because it provides guidance about a patient’s wishes for treatment, provides legally valid instructions about treatment, and protects the patient’s rights and the provider who honors them.

The Supreme Court of Florida in
John F. Kennedy Memorial Hospital, Inc. v. Bludworth

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upheld the validity of a living will. The Court determined that:

In the case of a comatose and terminally ill individual who has executed a so-called “living” or “mercy” will, is it necessary that a court appointed guardian of his person obtain the approval of a court of competent jurisdiction before terminating extraordinary life support systems in order for consenting family members, the attending physicians, and the hospital and its administrators to be relieved of civil and criminal liability?

We answer the certified question in the negative and hold that court approval to terminate extraordinary life support systems was not necessary in this type of case in order to relieve the consenting family members, the attending physicians, and the hospital and its administrators of civil and criminal liability.

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The Court went on to say: “This right of terminally ill patients should not be lost when they suffer irreversible brain damage, become comatose, and are no longer
able to personally express their wishes to discontinue the use of extraordinary artificial support systems.

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To be relieved of potential civil and criminal liability, guardians, consenting family members, physicians, hospitals, or their administrators need only act in good faith. For them to be held civilly or criminally liable, there must be a showing that their actions were not in good faith but were intended to harm the patient. Under the circumstances of this and similar cases, prior court approval is not required. The courts, however, are always open to hear these matters if request is made by the family, guardian, physician, or hospital. Disagreement among the physicians or family members or evidence of wrongful motives or malpractice may require judicial intervention upon the filing of an appropriate petition.

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In a 2014 case, Kentucky’s Living Will Directive Act was determined to be constitutional in
T. Bruce Simpson, Jr. v. Commonwealth of Kentucky and Cabinet for Human Resources, 142 S.W.3d 24 (Ky. 2004). The act allows a judicially appointed guardian or other designated surrogate to remove a ward’s life support. After suffering cardiac arrest, it was agreed that the patient, Matthew Woods, would never regain consciousness. After a recommendation of the hospital’s ethics committee, Woods’s guardian asked for the removal of Woods’s life support. If there was no legal guardian but the physicians, family, and ethics committee all agree with the surrogate’s decision—in this case, the state’s—there is no need for judicial approval. The Kentucky Supreme Court did determine that when there is disagreement in a particular case, withdrawal of life support would be prohibited absent clear and convincing evidence that the patient is permanently unconscious or in a persistent vegetative state and that withdrawal of life support was in the patient’s best interest. In support of its holding, the Kentucky Supreme Court cited the ethical standards of the National Center for State Courts, the Council on Ethical and Judicial Affairs of the American Medical Association, an Address to an International Congress of Anesthesiologists by Pope Pius XII, and the Declaration on Euthanasia by Pope John Paul II:

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In determining the patient’s best interests, courts may consider, but are not limited to considering: (1) the patient’s present level of physical, sensory, emotional, and cognitive functioning and possibility of improvement thereof; (2) any relevant statements or expressions made by the patient, when competent, as to his or her own wishes with a rebuttable presumption attaching to a valid living will or a designation of a health care surrogate; (3) to the extent known, the
patient’s own philosophical, religious, and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering, and death; (4) the degree of physical pain caused by the patient’s condition, treatment, and termination of treatment; (5) the degree of humiliation, dependence, and loss of dignity probably resulting from the condition or treatment; (6) the life expectancy and prognosis for recovery with and without the treatment; (7) the various treatment options and their risks, benefits, and side effects; (8) whether any particular treatment would be proportionate or disproportionate in terms of the benefits gained; and (9) the impact on the patient’s family (the assumption being that the patient would be concerned about the well-being and happiness of his or her own family members).

The living will should be signed and dated by two witnesses who are not blood relatives or beneficiaries of the patient’s property. A living will should be discussed with the patient’s physician, and a signed copy should be placed in the patient’s medical record. A copy also should be provided to the individual designated to make decisions in the event the patient is unable to do so. A person who executes a living will when healthy and mentally competent cannot predict how he or she will feel at the time of a terminal illness; therefore, it should be updated regularly so that it accurately reflects a patient’s wishes. The written instructions become effective when a patient is either in a terminal condition, permanently unconscious, or suffering irreversible brain damage. An example of a living will is illustrated in


FIGURE 3-2

.

Right to Die Without a Living Will

In
San Juan-Torregosa v. Garcia,

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the evidence at trial established that Garcia suffered a cardiac arrest. Although she was later resuscitated, she suffered oxygen deprivation to her brain for more than 10 minutes and was in a chronic vegetative state. Medical opinion established that she was breathing reflexively, but there was no evidence that she would be able to recover “cortical functions.” Garcia also had metastatic breast cancer. Her treating physician,

Dr. Parrish, testified at trial that within a reasonable degree of medical certainty Garcia would not recover and that he had never seen anyone in her condition recover. He stated that Garcia was functioning on a low brain level, whereby the brainstem kept her blood circulating, maintained blood pressure, and maintained respiration, and that she was in a persistent vegetative state with zero chance of recovering any cortex activity. Parrish further stated that he discussed the discontinuation of artificial nutrition and hydration with the family and that they had ultimately decided to continue the fluids but stop the nutrition, which he felt was reasonable.

When asked why Garcia had been given life support in the first place, Parrish explained that although Garcia’s injury initially seemed very severe, he could not say from the beginning whether she would recover and wanted to give her every chance to improve if she could.

The trial court ruled that because Garcia, who was in a chronic vegetative state, had not executed a living will, the court had no authority to authorize discontinuance of artificial nutrition. On appeal, the appellants asserted that the trial court erred in refusing to allow Garcia’s family to terminate the artificial nutrition and hydration that was keeping her body alive, thereby failing to honor her wishes and denying her constitutional right to bodily integrity.

The appeals court concurred with the trial court’s fact-finding that evidence is clear and convincing that Garcia would not want to be kept alive by artificial means and that her wishes, expressed while she was competent, would be to have these services discontinued.

We concur with the Trial Court’s fact finding that evidence is clear and convincing that Ms. Garcia would not want to be kept alive by artificial means and that her wishes, expressed while she was competent, would be to have these services discontinued. Courts have the duty to protect and when necessary enable individuals to exercise his or her Constitutional Rights. We Order this matter remanded and direct the Chancellor appoint a conservator to carry out Ms. Garcia’s wishes, including the refusal for medical care. Tenn. Code Ann. § 34-3-104. The requisites for the appointment are established in this case, as there is clear and convincing evidence of Ms. Garcia’s incompetence, and the statute contains a priority list of persons to be considered for the appointment. Since Ms. Garcia had no written preference, her husband would be the first choice to act as her conservator and make medical decisions for her.
See Tenn. Code Ann. § 34-1-126 and § 34-3-103.

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Tennessee’s public policy on this issue is set forth in the “Legislative intent” section of the Tennessee Right to Natural Death Act, codified at Tenn. Code Ann. § 32-11-102. This statute reads:

The general assembly declares it to be the law of the state of Tennessee that every person has the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person’s own medical care, specifically including palliative care and the use of extraordinary procedures and treatment.

This statute and others like it applies to all individuals and does not distinguish between those who are competent and those who are not. Patients have a right to refuse treatment so long as they are mentally competent to make their own healthcare decisions. When an individual becomes clearly incompetent to make healthcare decisions, the state has a duty to help determine what the wishes of the patient would have been had he been conscious and competent to do so. The initial assumption is that an incompetent patient would prefer lifesaving treatment unless there is clear evidence that the patient would not want extraordinary care to save his life. It is clear from both state statutes and court decisions that artificial nutrition and hydration are to be included in the realm of medical treatment that a patient has a right to refuse.

The United States Supreme Court, in
Cruzan v. Director, Missouri Dept. of Health,

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recognized that a competent person had a constitutionally protected liberty interest in refusing unwanted medical treatment. The court stopped short of finding that an incompetent person would have the same right; however, the court said: “An incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment, or any other right. Such a ‘right’ must be exercised for her, if at all, by some sort of surrogate.”

The 2017 Florida Statute Title XXIX, Chapter 381.026 provides that “A patient has the right to refuse any treatment based on information required by this paragraph, except as otherwise provided by law. The responsible provider shall document any such refusal.”

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Durable Power of At torney

A
durable power of attorney is a legal device that permits one individual, known as the “principal,” to give to another person, called the “attorney-in-fact,” the authority to act on his or her behalf. The attorney-in-fact is authorized to handle banking and real estate affairs, incur expenses, pay bills, and handle a wide variety of legal affairs for a specified period of time. The power of attorney may continue indefinitely during the lifetime of the principal so long as that person is competent and capable of granting power of attorney. If the principal becomes comatose or mentally incompetent, the power of attorney automatically expires, just as it would if the principal dies.

Because a power of attorney is limited by the competency of the principal, some states have authorized a special legal device for the principal to express intent concerning the durability of the power of attorney, to allow it to survive disability or incompetency. The durable power of attorney is more general in scope and applies to a wider range of situations than those involving a patient in imminent danger of death, as is necessary for a living will to apply. Although it need not delineate desired medical treatment specifically, it must indicate the identity of the principal’s attorney-in-fact and that the principal has communicated his or her healthcare wishes to the attorney-in-fact. Although the laws vary from state to state, all 50 states and the District of Columbia have durable power of attorney statutes. This legal device is an important alternative to guardianship, conservatorship, or trusteeship. Because a durable power of attorney places a considerable amount of power in the hands of the attorney-in-fact, an attorney in the state where the client resides should draw up the power of attorney. In the healthcare setting, a
durable power of attorney for health care (e.g.,


FIGURE 3-3

) is a legal instrument that designates and grants authority to an agent to, for example, make healthcare decisions for another.

Surrogate Decision Making

A surrogate decision maker is an agent who acts on behalf of a patient who lacks the capacity to participate in a particular decision. A healthcare agent’s rights are no greater than those of a competent patient; however, the agent’s rights are limited to any specific instructions included in the proxy document. An agent’s decisions take priority over those of any other person except the patient. The agent has the right to consent or refuse to consent to any service or treatment, routine or otherwise, to refuse life-sustaining treatment, and to access all of the patient’s medical information to make informed decisions. The agent must make decisions based on the patient’s moral and religious beliefs. If a patient’s wishes are not known, decisions must be based on a good-faith judgment of what the patient would have wanted.

Substituted Judgment

Substituted judgment is a form of surrogate decision making where the surrogate attempts to establish what decision the patient would have made if that patient were competent to do so. This conclusion can be based on the patient’s preference expressed in previous statements or the surrogate’s knowledge of the patient’s beliefs (e.g., religious) and values.

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The Supreme Court of Rhode Island had a case,
In re Jane Doe,

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come before it pursuant to a motion filed on behalf of the mother of Jane Doe, following a determination by the Family Court authorizing termination of her daughter’s pregnancy due to a sexual assault by an unknown person during her residence at a group home. As a result of her pregnancy and overlapping medical concerns, permission was sought to terminate her pregnancy.

Evidence presented to the Family Court showed that Jane Doe would be unable to understand the pain and travail that would normally attend pregnancy and that it would be in her best interests to terminate the pregnancy without delay. One medical expert testified that the pregnancy would be traumatic and the attendant medical risks provided a compelling need in her best interests to discontinue the pregnancy. In addition, evidence revealed that the mother seldom visited her daughter. After considering all the evidence presented, the Family Court justice determined it was in the best interests of Jane Doe to terminate the pregnancy. The mother’s request for a stay of this order was denied and an appeal was filed with the state supreme court.

The state supreme court denied a stay of the trial justice’s order. The only question presented by this litigation was the determination of whether Jane Doe would have chosen an abortion if she were competent to exercise freedom of choice. In the case at bar, the trial justice, after careful consideration of the evidence presented, determined that this incompetent young woman, if she had been capable of doing so, would have exercised the option to terminate a pregnancy brought about by sexual assault, in light of her seizure disorder, cerebral palsy, and other underlying medical concerns.

The state supreme court determined that state agencies, as assisted by the guardian
ad litem, acted in good faith and in the best interests of the incompetent person and were properly considered by the court as the appropriate surrogates in attempting to exercise substituted judgment in respect to Jane Doe.


Case Studies

Spousal Rights in Decision Making

Mr. Martin sustained debilitating injuries as the result of an automobile accident. He suffered severe subcortical brain damage, significantly impairing his physical and cognitive functioning.

65
His injuries left him totally paralyzed on the left side. He could not speak or eat and had no bladder or bowel control. Martin remained conscious and had some awareness of his surroundings. He could communicate to a very minimal degree through head nods.

The trial court determined that Martin did not have nor would he ever have the ability to have the requisite capacity to make decisions regarding the withdrawal of life-support equipment. The evidence demonstrated that Martin’s preference would have been to decline life-support equipment given his medical condition and prognosis. The trial court’s decision was based on the following
four-part test for determining whether a person has the requisite capacity to make a decision: Does the person have sufficient mind to reasonably understand the condition? Is the person capable of understanding the nature and effect of the treatment choices? Is the person aware of the consequences associated with those choices? Is the person able to make an informed choice that is voluntary and not coerced?

The trial court also determined that Mrs. Martin, the patient’s spouse, was a suitable guardian for him. She petitioned to withdraw her husband’s life support. Martin’s mother and sister counter petitioned to have Mrs. Martin removed as the patient’s guardian. The Michigan Court of Appeals held that the evidence was sufficient to support a finding that the patient lacked capacity to make decisions regarding the withholding or withdrawal of life-sustaining treatment. As to the patient’s desire not to be placed on life-support equipment, there was sufficient evidence to show that the patient had a medical preference to decline treatment under circumstances such as those that occurred. There was also sufficient evidence to show that the patient’s spouse was a suitable guardian.

The test for determining whether Martin had the requisite capacity to make a decision regarding the withholding or withdrawal of life-supporting medical treatment was clear and convincing—he did not have sufficient decision-making capacity. The evidence was just as clear that he never would regain sufficient decision-making capacity that would enable him to make such a decision. It was the general consensus of all of the experts that Martin’s condition and cognitive level of functioning would not improve in the future.

Testimony from two of Martin’s friends described statements made by him that he would never want to be maintained in a coma or in a vegetative state. In addition, Mrs. Martin described numerous statements made to her by Martin prior to the accident that he would not want to be maintained alive, given the circumstances described previously here. The trial court found that Mrs. Martin was credible. The court of appeals found no reason to dispute the trial court’s finding as to Mrs. Martin’s credibility.

In contrast to allegations made by the patient’s mother and sister, the evidence was clear that Mrs. Martin’s testimony was credible. There was no evidence that Mrs. Martin had anything but her husband’s best interest at heart. There were allegations, but no evidence, that financial considerations or pressure from another individual influenced Mrs. Martin’s testimony.

Ethical and Legal Issues

  1. Knowing that the patient had some ability to interact with his environment, discuss the four-part test for determining the patient’s ability to make a decision.
  2. Do you agree with the court’s decision? Explain.
  3. Should the concern of the mother and sister have carried more weight in removing custody from Mrs. Martin?
  4. What influence do you believe the mother and sister might have had on Mrs. Martin?

Guardianship

Guardianship is a legal mechanism by which the court declares a person incompetent and appoints a guardian. The court transfers the responsibility for managing financial affairs, living arrangements, and medical care decisions to the guardian. The right to refuse medical treatment on behalf of an incompetent person is not limited to legally appointed guardians but may be exercised by healthcare proxies or surrogates, such as close family members or friends. When a patient has not expressed instructions concerning his or her future health care in the event of later incapacity but has merely delegated full responsibility to a proxy, designation of a proxy must have been made in writing.

Healthcare Proxy

A
healthcare proxy allows a person to appoint a healthcare agent to make treatment decisions in the event he

or she becomes incompetent and is unable to make decisions for him- or herself. The agent must be made aware of the patient’s wishes regarding nutrition and hydration in order to be allowed to make a decision concerning withholding or withdrawing them. In contrast to a living will, a healthcare proxy does not require a person to know about and consider in advance all situations and decisions that could arise. Rather, the appointed agent would know about and interpret the expressed wishes of the patient and then make decisions about the medical care and treatment to be administered or refused. The
Cruzan decision indicates that the Supreme Court views advance directives as clear and convincing evidence of a patient’s wishes regarding life-sustaining treatment.

Although most statutes fail to cover incompetence, cases such as
Quinlan and
Saikewicz created a constitutionally protected obligation to terminate the incurable incompetent patient’s life when guardians use the doctrine of substituted judgment. Furthermore, some states provide for proxy consent in the form of durable power of attorney statutes. Generally, these involve designation of a proxy to speak on the incurable incompetent person’s behalf. They represent a combination of the intimate wishes of the patient and the medical recommendations of the physicians.

Oral declarations are accepted only after the patient has been declared terminally ill. Moreover, the declarant bears the responsibility of informing the physician to ensure that the document becomes a part of the medical record. The California statute provides that the document be re-executed after 5 years. Other statutes differ in the length of time of effectiveness. Most states allow the document to be effective until revoked by the individual. To revoke, the patient must sign and date a new writing, destroy the first document himself or herself, direct another to destroy the first document in his or her presence, or orally state to the physician an intent to revoke. The effect of the directive varies among jurisdictions; however, there is unanimity in the promulgation of regulations that specifically authorize healthcare personnel to honor the directives without fear of incurring liability. The highest court of New York in
In re Eichner

66
complied with the request of a guardian to withdraw life-support systems from an 83-year-old brain-damaged priest. The court reached its result by finding the patient’s previously expressed wishes to be determinative.

Before exercising an incompetent patient’s right to forgo medical treatment, the surrogate decision maker must satisfy the following conditions:

  • The surrogate must be satisfied that the patient executed a document (e.g., Durable Power of Attorney for Health Care and Health Care Proxy) knowingly, willingly, and without undue influence and that the evidence of the patient’s oral declaration is reliable.
  • The patient must not have reasonable probability of recovering competency so that the patient could exercise the right.
  • The surrogate must take care to ensure that any limitations or conditions expressed either orally or in written declarations have been considered carefully and satisfied.

FUTILITY OF TREATMENT

Futility of treatment, as it relates to medical care, occurs when the physician recognizes that the effect of treatment will be of no benefit to the patient. Morally, the physician has a duty to inform the patient when there is little likelihood of success. The determination as to futility of treatment is based on the physician’s assessment and medical judgment.

After a diagnosis has been made that a person is terminally ill with no hope of recovery and is in a chronic vegetative state with no possibility of attaining cognitive function, a state generally has no compelling interest in maintaining life. The decision to forgo or terminate life-support measures is, at this point, simply a decision that the dying process will not be artificially extended. Although the state has an interest in the prolongation of life, it has no interest in the prolongation of dying, and although there is a moral and ethical decision to be made to end the process, that decision can be made only by the surrogate. The decision whether to end the dying process is a personal decision for family members or those who bear a legal responsibility for the patient.

A determination as to the futility of medical care is a decision that must be made by a physician. Even if death is not imminent but a patient’s coma is irreversible beyond doubt and there are adequate safeguards to confirm the accuracy of the diagnosis with the concurrence of those responsible for the patient’s care, it is not unethical to discontinue all means of life-prolonging medical treatment.

WITHHOLDING AND WITHDRAWAL OF TREATMENT

Withholding of treatment is a decision not to initiate treatment or medical intervention for the patient. This is a decision often made when death is imminent and there is no hope of recovery.
Withdrawal of treatment is a decision to discontinue treatment or medical interventions for the patient when death is imminent and cannot be prevented by available
treatment. Withholding or withdrawing treatment should be considered when:

  • the patient is in a terminal condition and there is a reasonable expectation of imminent death of the patient;
  • the patient is in a noncognitive state with no reasonable possibility of regaining cognitive function; and/or
  • restoration of cardiac function will last for a brief period.

Theologians and ethicists have long recognized a distinction between ordinary and extraordinary medical care. The theological distinction is based on the belief that life is a gift from God that should not be destroyed deliberately by humans. Therefore, extraordinary therapies that extend life by imposing grave burdens on the patient and family are not required.

Although the courts have accepted decisions to withhold or withdraw extraordinary care, especially the respirator, from those who are comatose or in a persistent vegetative state with no possibility of emerging, they have been unwilling until recent years to discontinue feeding, which they have considered to be ordinary care. For example, the Illinois Supreme Court, in
In re Estate of Longeway,

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found that the authorized guardian of a terminally ill patient in an irreversible coma or persistent vegetative state has a common-law right to refuse artificial nutrition and hydration. The court found that there must be clear and convincing evidence that the refusal is consistent with the patient’s interest. The court also required the concurrence of the patient’s attending physician and two other physicians. Court intervention is also necessary to guard against the possibility that greed may taint the judgment of the surrogate decision maker. Although there may be a duty to provide life-sustaining equipment in the immediate aftermath of cardiopulmonary arrest, there is no duty to continue its use when it has become futile and ineffective to do so in the opinion of qualified medical personnel.

The Texas Natural Death Act provided immunity to caregivers in the following case for what the plaintiffs claimed was a failure of caregivers to withdraw lifesaving treatment.


Case Studies

Failure to Withdraw Lifesaving Treatment

In this medical malpractice suit, the Stolles (appellants) sought damages from physicians and hospitals (appellees) for disregard of their instructions not to use “heroic efforts” or artificial means to prolong the life of their child, Mariel, who was born with brain damage. The Stolles argued that such negligence resulted in further brain damage to Mariel, prolonged her life, and caused them extraordinary costs that will continue as long as the child lives.

The Stolles had executed a written “Directive to Physicians” on behalf of Mariel in which they made known their desire that Mariel’s life not be artificially prolonged under the circumstances provided in that directive.

Mariel suffered a medical episode after regurgitating her food. An unnamed, unidentified nurse–clinician administered chest compressions for 30 to 60 seconds, and Mariel survived.

The Stolles sued, alleging the following, among other things: Appropriate medical entries were not made in the medical record to reflect the Stolles’ wishes that caregivers refrain from “heroic” life-sustaining measures. Lifesaving measures were initiated in violation of the physician’s orders. The hospital did not follow the physician’s orders, which were in Mariel’s medical chart, when chest compressions and mechanically administered breathing to artificially prolong Mariel’s life were applied, and a bioethics committee meeting was not convened to consider the Stolles’ wishes and the necessity of a do-not-resuscitate (DNR) order.

The central issue in this case is whether appellees are immune from liability under the Texas Natural Death Act. Section 672.016(b) of the Texas Natural Death Act provides the following: “A physician, or a health professional acting under the direction of a physician, is not civilly or criminally liable for failing to effectuate a qualified patient’s directive” [Tex. Health & Safety Code Ann. A4 672.016(b) (Vernon 1992)]. A “qualified patient” is a “patient with a terminal condition that has been diagnosed and certified in writing by the attending physician and one other physician who have personally examined the patient.” A “terminal condition” is an “incurable condition caused by injury, disease, or illness that would produce death regardless of the application of life-sustaining procedures, according to reasonable medical judgment, and in which the application of life-sustaining procedures serves only to postpone the moment of the patient’s death.”

Mariel was not in a terminal condition, as appellees alleged. The Stolles failed to cite any authority that would have allowed the withdrawal of life-sustaining procedures in a lawful manner. The Texas Natural Death Act, therefore, provided immunity to the caregivers for their actions in the treatment and care of Mariel.

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Ethical and Legal Issues

  1. Describe the ethical principles in conflict in this case.
  2. Do you agree with the court’s decision? Explain your answer.

Patient Not in a Persistent Vegetative State

A guardian may direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration,
only if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward.

In
Spahn v. Eisenberg, Betty Spahn, the court-appointed guardian for her sister Edna, sought permission to direct the withholding of Edna’s nutrition, claiming that her sister would not want to live in this condition; however, the only testimony presented at trial regarding Edna’s views on the use of life-sustaining medical treatment involved a statement made 30 years earlier. At that time, Betty and Edna were having a conversation about their mother, who was recovering from depression, and Betty’s mother-in-law, who was dying of cancer. Betty testified that during this conversation, Edna said to her that she would rather die of cancer than lose her mind. Betty further testified that this was the only time that she and Edna discussed the subject and that Edna never said anything specifically about withholding or withdrawing life-sustaining medical treatment.

The ethics committee at the nursing facility where Edna lived met to discuss the issue of withholding artificial nutrition from Edna. The committee approved withholding nutrition if no family member objected; however, one of Edna’s nieces refused to sign a statement approving the withdrawal of nutrition.

The record spoke very little to what Edna’s desires would be, and there was no clear statement of what her desires would be today under the current conditions. Her friends and family never had any conversations or discussions with her regarding her feelings or opinions about withdrawing nutrition or hydration, and she did not execute any advance directives expressing her wishes while she was competent.

Consequently, the court held that a guardian could only direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward. In this case, where the only indication of Edna’s desires was made at least 30 years earlier and under different circumstances, there was not a clear statement of intent such that Edna’s guardian might authorize the withholding of her nutrition.

The circuit judge concluded his own questioning of one member of the ethics committee, “The way I understand it, what you really have is a liability problem, and that’s why you want everybody to consent, is that correct?” Dr. Erickson answered, “That is correct.”

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Removal of Life-Support Equipment

Although there may be a duty to provide life-sustaining equipment in the immediate aftermath of cardiopulmonary arrest, there is no duty to continue its use after it has become futile and ineffective to do so in the opinion of qualified medical personnel. Two physicians in
Barber v. Superior Court

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were charged with the crimes of murder and conspiracy to commit murder. The charges were based on their acceding to requests of the patient’s family to discontinue life-support equipment and intravenous tubes. The patient had suffered a cardiopulmonary arrest in the recovery room after surgery. A team of physicians and nurses revived the patient and placed him on life-support equipment. The patient had suffered severe brain damage, placing him in a comatose and vegetative state from which, according to tests and examinations by other specialists, he was unlikely to recover. On the written request of the family, the patient was taken off life-support equipment. The family, his wife and eight children, made the decision together after consultation with the physicians. Evidence had been presented that the patient, before his incapacitation, had expressed to his wife that he would not want to be kept alive by a machine. There was no evidence indicating that the family was motivated in their decision by anything other than love and concern for the dignity of their loved one. The patient continued to breathe on his own. Because the patient showed no signs of improvement, the physicians again discussed the patient’s poor prognosis with the family. The intravenous lines were removed, and the patient died sometime thereafter.

A complaint then was filed against the two physicians. The magistrate who heard the evidence determined that the physicians did not kill the deceased because their conduct was not the proximate cause of the patient’s death. On motion of the prosecution, the superior court determined as a matter of law that the evidence required the magistrate to hold the physicians to answer and ordered the complaint reinstated. The physicians then filed a writ of prohibition with the court of appeals. The court of appeals held that the physicians’ omission to continue treatment, although intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty. The evidence amply supported the magistrate’s decision. The superior court erred in determining
that, as a matter of law, the evidence required the magistrate to hold the physicians to answer. The preemptory writ of prohibition to restrain the Superior Court of Los Angeles from taking any further action in this matter—other than to vacate its order reinstating the complaint and to enter a new and different order denying the People’s motion—was granted.

Feeding Tubes

The New Jersey Supreme Court in 1985 heard the case of
In re Claire C. Conroy.

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The case involved an 84-year-old nursing home patient whose nephew petitioned the court for authority to remove the nasogastric tube that was feeding her. The court overturned the appellate division decision and held that life-sustaining treatment, including nasogastric feeding, could be withheld or withdrawn from incompetent nursing home patients who will, according to physicians, die within 1 year, in three specific circumstances. These are as follows:

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  1. When it is clear that the particular patient would have refused the treatment under the circumstances involved (the subjective test)
  2. When there is some indication of the patient’s wishes (but he or she has not “unequivocally expressed” his or her desires before becoming incompetent) and the treatment “would only prolong suffering” (the limited objective test)
  3. When there is no evidence at all of the patient’s wishes, but the treatment “clearly and markedly outweighs the benefits the patient derives from life” (the pure objective test, based on pain)

A procedure involving notification of the state Office of the Ombudsman is required before withdrawing or withholding treatment under any of the three tests. The ombudsman must make a separate recommendation.

The court also found tubal feeding to be a medical treatment, and as such, as intrusive as other life-sustaining measures. The court in its analysis emphasized duty, rather than causation, with the result that medical personnel acting in good faith will be protected from liability. If physicians follow the
Quinlan/Conroy standards and decide to end medical treatment of a patient, the duty to continue treatment ceases. Thus, the termination of treatment becomes a lawful act.

Although
Conroy presents case-specific guidelines, there is concern that the opinion will have far-reaching repercussions. There is fear that decisions to discontinue treatment will not be based on the “balancing of interests” test, but rather that a “quality-of-life” test will be used to end the lives of severely senile, old, and economically burdensome people.

Those quality-of-life judgments would be most dangerous for nursing home patients whose age would be a factor in the decision-making process. “Advocates of ‘the right to life’ fear that the ‘right to die’ for the elderly and handicapped will become a ‘duty to die.’”

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In both the
Saikewicz and
Spring cases, age was a determining factor weighing against life-sustaining treatment. Furthermore, in
In re Hier,

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the court found that Mrs. Hier’s age of 92 years made the “proposed gastrostomy substantially more onerous or burdensome … than it would be for a younger, healthier person.” Moreover, a New York Superior Court held that the burdens of an emergency amputation for an elderly patient outweighed the benefit of continued life.

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Finding that prolonging her life would be cruel, the court stated that life had no meaning for her. Although some courts have recognized the difference, other courts must still address the difference between
Quinlan-type patients and older, confined, and conscious patients who can interact but whose mental or physical functioning is impaired.

In a New Jersey case, however, the ombudsman denied a request to remove feeding tubes from a comatose nursing home patient.

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In applying the
Conroy tests, the ombudsman decided that Hilda Peterson might live more than 1 year, the period that
Conroy used as a criterion for determining whether life support can be removed.

To complicate this issue further, on March 17, 1986, the American Medical Association (AMA) changed its code of ethics on comas. Now physicians may ethically withhold food, water, and medical treatment from patients in irreversible comas or persistent vegetative states with no hope of recovery—even if death is not imminent.

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Although physicians can consider the wishes of the patient and family or the legal representatives, they cannot cause death intentionally. The wording is permissive, and, thus, those physicians who feel uncomfortable withdrawing food and water may refrain from doing so. The AMA’s decision does not comfort those who fear abuse or mistake in euthanasia decisions, nor does it have any legal value as such. There are physicians, nurses, and families who have their own, and not the patient’s, interests in mind. Even with the
Conroy decision and
the AMA’s code of ethics change, the feeding tube issue is not settled.

On April 23, 1986, the New Jersey Superior Court ruled that the husband of severely brain-damaged Nancy Jobes could order the removal of her life-sustaining feeding tube, which would ultimately cause the 31-year-old comatose patient, who had been in a vegetative state in a hospice for the past 6 years, to starve to death.

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Dr. Fred Plum created and defined the term “persistent vegetative state” as one in which:

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The body functions entirely in terms of its internal controls. It maintains temperature. It maintains digestive activity. It maintains heart beat and pulmonary ventilation. It maintains reflex activity of muscles and nerves for low-level conditioned responses. But there is no behavioral evidence of either self-awareness or awareness of the surroundings in a learned manner.

Medical experts testified that the patient could, under optimal conditions, live another 30 years. Relieving the nursing home officials from performing the act on one of its residents, the court ruled that the patient may be taken home to die (with the removal to be supervised by a physician and medical care to be provided to the patient at home).

The nursing home had petitioned the court for the appointment of a “life advocate” to fight for continuation of medical treatment for Jobes, which, it argued, would save her life. The court disallowed the appointment of a life advocate, holding that case law does not support requiring the continuation of life-support systems in all circumstances. Such a requirement, according to the court, would contradict the patient’s right of privacy.

The court’s decision applied “the principles enunciated in
Quinlan and …
Conroy” and the “ruling by the [American Medical Association’s] Council on Judicial Affairs that the provision of food and water is, under certain circumstances, a medical treatment like any other and may be discontinued when the physician and family of the patient feel it is no longer benefiting the patient.”

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An Illinois court found that the authorized guardian of a terminally ill patient in an irreversible coma or persistent vegetative state has a common law right to refuse artificial nutrition and hydration. The court found that there must be clear and convincing evidence that the refusal is consistent with the patient’s interest. The court also required the concurrence of the patient’s attending physician and two other physicians. “Court intervention is also necessary to guard against the remote, yet real possibility that greed may taint the judgment of the surrogate decision maker.”

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Dissenting, Judge Ward said, “The right to refuse treatment is rooted in and dependent on the patient’s capacity for informed decision, which an incompetent patient lacks.”

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Also, Elizabeth Bouvia, a mentally competent cerebral palsy victim, won her struggle to have feeding tubes removed even though she was not terminally ill.

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The California Court of Appeals announced on April 16, 1986, that she could go home to die. The court found that Bouvia’s decision to “let nature take its course” did not amount to a choice to commit suicide with people aiding and abetting it. The court stated that it is not “illegal or immoral to prefer a natural, albeit sooner, death than a drugged life attached to a mechanical device.”

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The court’s finding that it was a moral and philosophical question, not a legal or medical one, leaves one wondering whether the courts are opening the door to permitting “legal starvation” to be used by those who are not terminally ill but who do wish to commit suicide.

DO-NOT-RESUSCITATE ORDERS

Do-not-resuscitate orders (DNRs) are physician orders not to resuscitate a patient in the event of cardiac or respiratory arrest. Determination as to futility of medical care is a medical decision based on scientific evidence that further treatment is futile and one’s quality of life has been so diminished that “heroic” rescue methods are no longer in the patient’s best interests. DNR orders must be written, signed, and dated by the physician. Appropriate consents must be obtained either from the patient or his or her healthcare agent. Many states have acknowledged the validity of DNR orders in cases involving terminally ill patients in which the patients’ families make no objections to such orders. Such orders are generally written as the result of a patient’s wishes as a result of an advance directive (e.g., living will). If a patient lacks the ability to make a decision regarding a DNR order, the patient’s
legally appointed decision maker can make such decisions provided it can be demonstrated that the decision maker is following the patient’s wishes. Advance directives, such as living wills, are helpful in determining a patient’s wishes. DNR orders can also be made at the family’s request.

DNR orders must comply with statutory requirements, be of short duration, and be reviewed periodically to determine whether the patient’s condition or other circumstances (e.g., change of mind by the patient or family) surrounding the “no code” orders have changed. Currently, it is generally accepted that if a patient is competent, the DNR order is considered to be the same as other medical decisions in which a patient may choose to reject life-sustaining treatment. In the case of an incompetent patient, absent any advance written directives, the best interests of the patient would be considered.

Competent Patients Make Their Own Decisions

Should relatives of a patient agree to a no-code order when the patient is competent to make his or her own decision?

In
Payne v. Marion General Hospital,

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the Indiana Court of Appeals overturned a lower court decision in favor of the physician. The physician had issued a no-code status on patient David Payne despite evidence given by a nurse that Payne could communicate up to a few minutes before his death. The physician had determined that Payne was incompetent, thereby rendering him unable to give informed consent to treatment. Because Payne left no written directives, the physician relied on one of Payne’s relatives, who asked for the DNR order. The court found that there was evidence that Payne was not incompetent and should have been consulted before a DNR order was given.

Furthermore, the court reviewed testimony that one year earlier, Payne had suffered and recovered from the same type of symptoms, leading to the conclusion that there was a possibility that he could have survived if resuscitation had continued. There was no DNR policy in place at the hospital to assist the physician in making his decision. To avoid this type of problem, healthcare providers should adopt an appropriate process with respect to issuing no-code orders.

Help Me Bear the Pain

Some say, “Men don’t cry.” Not true! You may find yourself crying alone someday. But for now, you have to be strong for Sunshine. Sunshine was her name, as given to her by her grandmother. For purposes of this case, she remains Sunshine. Not Miss or Ms. or Mrs., for Sunshine is her name. If you were to ask Sunshine what she thought about her life, this is what she would tell you.

As a hard-charging former district attorney, Sunshine knows what it’s like to be under the constant threat of death. In the notorious 1990 “Angel Gabriel” case, a key witness to a cult leader’s rape spree was murdered. As a result, the district attorney ordered that a panic alarm be placed in Sunshine’s home.

Still, one enemy has done more damage than all of her former enemies combined. Sunshine has been battling systemic sclerosis for more than six years and has beaten the long-shot odds for survival.

Early on, she lost 20 pounds in three weeks. One by one, from her esophagus to her bottom, her internal organs came under painful attack. Her skin hardened in patches. Her fingers became discolored and swollen. Fingernails fell off. Calcification set in, and she nearly lost several digits. At the moment, she has a mysterious edema throughout her body.

Maintaining a full-time work schedule, she bounced from physician to physician for three years, seeking to find a reason for the sudden illness. The clues were finally put together, and her illness was diagnosed as systemic sclerosis—a degenerative connective tissue disease.

Most people don’t know she has an illness. She’s always in good spirits. She hides it well. Sunshine admits to putting a mask on in the morning. “When I cannot hide the pain, I disappear—go away or go home. I don’t want to be defined by my illness. You go through mourning and anger. You feel tethered by the disease. It’s a sadness you have to cope with.”

With her mask firmly in place, a smiling Sunshine says she is not bitter. “I had a great life. I had fun. If it ended, I had fun.”

Sunshine’s Prayer: Strength to Cope

O God, you know my feelings. You know that I want to feel better. I want to be better. I want to have my health restored. But the hours of testing, the days of diagnosis, and the question marks concerning my future seem nearly more than I can bear! Grant me, O God, the strength to face each hour of this and every day. In fact, when it seems that I cannot face even this hour, fill me with strength to face the next five minutes. Amen.

Wherever Sunshine goes, the sun always shines, for she, as always, recognizes the beauty of each day.

—Anonymous

A NEW BEGINNING AND A BETTER ENDING

The fears that arise at the end of life can be better handled if both the physician, patient, and family together make the choices and decisions early and then place them away and enjoy the life and the days given to each.

As physicians we can provide the foundation and the space for our patients to “die well.” We have a role in creating the conditions patients and families need in order to reach closure on important life issues—they need to say “goodbye,” “I love you,” “forgive me” and “I forgive you”. … Contemporary medical practice still has need for the physician to play this role as a true healer.

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The Conversation Project (TCP) “is dedicated to helping people talk about their wishes for end-of-life care.”

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TCP believes that the place to begin a discussion about end-of life decisions should begin figuratively at the kitchen table with family and the people we love and not in the intensive care unit of a hospital. TCP provides the Conversation Starter Kit at its website.

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The TCP does not promote any specific preference for end-of-life care but does encourage families to work together in making such difficult decisions.

The Institute for Healthcare Improvement (IHI) was founded in 1991. Its vision is for everyone to have the best care and health possible and its mission is to improve health and health care worldwide. The IHI supports the mission of the TCP, believing that the successful transformation of the healthcare system requires the engagement of patients, families, and the general public. End-of-life care is something every human will face.

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CHAPTER REVIEW

  1. Euthanasia
    • Mercy killing of the hopelessly ill, injured, or incapacitated.
    • Debate over euthanasia is complex.
      • Legal system must maintain a balance between ensuring the patient’s constitutional rights are protected and protecting society’s interests in preserving life, preventing suicide, and maintaining the integrity of the medical profession.
    • When there is uncertainty regarding a patient’s wishes in an emergency
      • The situation should be resolved in a way that favors the preservation of life.
      • Protect the patient’s right to freedom of religion and self-determination.
    • Active euthanasia is the intentional commission of an act that will result in death.
    • Passive euthanasia is when a potentially lifesaving treatment is withdrawn or withheld.
    • Voluntary euthanasia

      • When a competent adult patient with an incurable condition who has been informed of the possible ramifications and alternatives available gives consent.
    • Involuntary euthanasia

      • When the decision to terminate the life of an incurable person is made by someone other than the incurable person.
    • Supreme Court ruled there is no constitutional right to assisted suicide.
      • Decision allowed the state of Michigan to prosecute Dr. Jack Kevorkian for assisting patients in committing suicide.
  2. Right to self-determination
  3. Assisted suicide
    • Oregon legislates physician-assisted suicide
  4. Patient Self-Determination Act of 1990
    • Healthcare organizations have a responsibility to explain to patients, staff, and families that patients have legal rights to direct their medical and nursing care as it corresponds to existing state law.
  5. Advance directives, in the form of a “living will” or “durable power of attorney,” allow the patient to make end-of-life choices.

    • Living will is the instrument or legal document that describes those treatments an individual wishes or does not wish to receive should he or she become incapacitated and unable to communicate treatment decisions.
    • Durable power of attorney is a legal device that permits one individual, known as the “principal,” to give to another person, called the “attorney-in-fact,” the authority to act on his or her behalf.
    • Guardians
      hip is a legal mechanism by which the court declares a person incompetent and appoints a guardian. The court transfers the responsibility for managing financial affairs, living arrangements, and medical care decisions to the guardian.

    • Healthcare proxy allows a person to appoint a healthcare agent to make treatment decisions in the event that he or she becomes incompetent and is unable to make decisions for him- or herself.
    • Surrogate decision maker is an agent who acts on behalf of a patient who lacks the capacity to participate in a particular decision.
    • Substituted judgment is a form of surrogate decision making where the surrogate attempts to establish what decision the patient would have made if that patient were competent to do so.
  6. Futility of treatment
    • When the physician recognizes further treatment will be of no benefit to the patient.
    • Morally, the physician has a duty to inform the patient when there is little likelihood of success of further treatment.
    • Determination as to futility of medical care is a medical decision based on scientific evidence.
  7. Withholding or withdrawal of treatment
    • Withholding of treatment is a decision not to initiate treatment or medical intervention for the patient.
    • Withdrawal of treatment is a decision to discontinue treatment or medical interventions for the patient.
    • Do-not-resuscitate orders are physician orders not to resuscitate a patient in the event of a cardiac or respiratory arrest.

      • Generally written as the result of a patient’s wishes or at the family’s request
      • Orders must be in written form, signed and dated by the physician.

TEST YOUR UNDERSTANDING

Terminology

  • active euthanasia
  • advance directives
  • appointed decision makers
  • do-not-resuscitate (DNR) order
  • durable power of attorney
  • durable power of attorney for health care
  • euthanasia
  • futility of treatment
  • guardianship
  • healthcare proxy
  • involuntary euthanasia
  • living will
  • Oregon Death with Dignity Act
  • passive euthanasia
  • Patient Self-Determination Act
  • physician-assisted suicide
  • substituted judgment
  • surrogate decision maker
  • voluntary euthanasia
  • withdrawal of treatment
  • withholding of treatment

REVIEW QUESTIONS

  1. Describe why there is such a struggle when addressing end-of-life issues.
  2. Describe the difference between active and passive euthanasia.
  3. Describe the difference between voluntary and involuntary euthanasia.
  4. What are the differences between allowing a patient to die and physician-assisted suicide?
  5. Constitutionally, what gives patients the right to self-determination?
  6. Describe Oregon’s Death with Dignity Act.
  7. What was the purpose of the Patient Self-Determination Act of 1990?
  8. What are advance directives?
  9. Describe how a living will differs from a durable power of attorney for health care.

NOTES

1.
Winkfield v. Rosen FAC, retrieved from
http://thaddeuspope.com/images/mcmath-complaint.pdf (accessed August 8, 2018).

2. amantha Smith, “Jahi McMath, the Calif. Girl in Life-Support Controversy, Is Now Dead,” The Washington Post (June 29, 2018).
https://www.washingtonpost.com/news/morning-mix/wp/2018/06/29/jahi-mcmath-the-calif-girl-declared-brain-dead-4-years-ago-is-taken-off-life-support/ (accessed August 8, 2018).

3. David Debolt, “Jahi McMath: Oakland Girl’s Family Sues Hospital, Surgeon,” The Mercury News (March 2, 2015).
https://www.mercurynews.com/2015/03/02/jahi-mcmath-oakland-girls-family-sues-hospital-surgeon/ (accessed July 13, 2018).

4.
Ibid.

5.
Associated Press, “Jahi McMath, girl declared brain dead three years ago, might still be technically alive, judge says,” The Los Angeles Times (September 7, 2017).
http://www.latimes.com/local/lanow/la-me-brain-dead-girl-20170907-story.html.

6. Institute for Healthcare Improvement, “Respecting End of Life Care Wishes,” Healthcare Executive (September/October 2017), at 68.

7. Andrew MacPherson and Ravi B. Parikh, “Where You Die Can Affect How You Die,” The Washington Post (December 12, 2017).

8. Stanford School of Medicine, “Palliative Care: Where Do Americans Die?”
https://palliative.stanford.edu/home-hospice-home-care-of-the-dying-patient/where-do-americans-die (accessed July 13, 2018).

9. Melanie P. Merriman, “My Aging Mom Didn’t Want to Be a Burden. And That Was a Burden.” The Washington Post (December 9, 2017).
https://www.washingtonpost.com/national/health-science/my-aging-mom-didnt-want-to-be-a-burden-and-that-was-a-burden/2017/12/08/c5bcb598-b446-11e7-a908-a3470754bbb9_story.html?utm_term=.c3973860f917 (accessed July 13, 2018).

10. J. Podgers, “Matters of Life and Death: Debate Grows Over Euthanasia,”
American Bar Association Journal (May 1992), at 60.

11. Ping-Cheung Lo, “Confucian Views on Suicide and Their Implications for Euthanasia,” in Confucian Bioethics, ed. Ruiping Fan (London, UK: Kluwer Academic Publishers, 1999).

12. Somparn Promta and Prakarn Thomyangkoon, “A Buddhist Perspective on Suicide: The Past, the Present, and the Future,” in
Oxford Textbook of Suicidology and Suicide Prevention, ed. Danuta Wasserman and Camilla Wasserman (Oxford, UK: Oxford University Press, 2009).

13.
Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914).

14.
Ibid. at 93.

15.
In re Storar, 438 N.Y.S.2d 266, 272 (N.Y. 1981).

16.
In re Quinlan, 355 A.2d 647 (N.J. 1976).

17. 410 U.S. 113 (1973).

18.
Quinlan, 355 A.2d at 663.

19.
Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977).

20.
Ibid. at 434.

21. Gregory Gelfand, “Euthanasia and the Terminally Ill Patient,” Nebraska Law Review 63 (1984): 741–778.
https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1948&context=nlr (accessed July 13, 2018).

22.
In re Dinnerstein, 380 N.E.2d 134 (Mass. 1978).

23.
In re Spring, 405 N.E.2d 115 (Mass. 1980).

24.
John F. Kennedy Mem’l Hosp. v. Bludworth, 452 So. 2d 921, 925 (Fla. 1984) (citing
In re Welfare of Colyer, 660 P.2d 738 [Wash. 1983], in which the court found prior court approval to be “unresponsive and cumbersome”).

25.
Schmitt v. Pierce, 344 S.W.2d 120 (Mo. 1961).

26. Ben Sarbey, “Definitions of Death: Brain Death and What Matters in a Person,” Journal of Law and the Biosciences 3 (December 2016): 743–752.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5570697/ (accessed July 13, 2018).

27. J. R. Connery, “Prolonging Life: The Duty and Its Limits, Moral Responsibility in Prolonging Life’s Decisions,” in
To Treat or Not to Treat: A Working Document for Making Critical Life Decisions, ed. J.S. Showalter and B.L. Andrew (St. Louis, MO: Catholic Health Association of the United States, 1984).

28. Statement of Medical Opinion Re: “Brain Death,” American Medical Association House of Delegates Res. (June 1974).

29.
People v. Eulo, 482 N.Y.S.2d 436 (1984).

30.
In re Storar.

31.
Ibid. at 425.

32.
Cruzan v. Director of the Mo. Dep’t of Health, 497 U.S. 261 (1990).

33. Pa. S.646, Amendment A3506, Printer’s No. 689, Oct. 1, 1990.

34. 20 Pa. Cons. Stat. Ann. § 5602(a)(9) (1988).

35. “Hospital Wants to Let Wife Die,” Newsday (January 11, 1991) at 13.

36.
Farnam v. Crista Ministries, 807 P.2d 830, 849 (Wash. 1991).

37.
Kevorkian v. Thompson, 947 F. Supp. 1152 (1997).

38. “Dr. Death at Work,”
Newsday, February 7, 1991, at 12.

39. “Kevorkian Charges Dropped,”
Newsday, July 22, 1992, at 4.

40.
Hobbins v. Attorney Gen. of Mich., No. 94–1473 (Mich. 1994); Kevorkian v. Michigan, No. 94–1490 (Mich. 1994).

41. “22nd Death for ‘Dr. Death,’”
USA Today, May 9, 1995, at 2A.

42.
California End of Life Option Act, 2016 Data Report, California Department of Health, 2016, pp. 2–3.
https://www.cdph.ca.gov/Programs/CHSI/CDPH%20Document%20Library/CDPH%20End%20of%20Life%20Option%20Act%20Report.pdf (accessed July 13, 2018).

43. Daniel Doherty, “Sigh: Vermont Legalizes Physician-Assisted Suicide,”

Townhall.com
(May 21, 2013).
http://townhall.com/tipsheet/danieldoherty/2013/05/21/sigh-vermont-legalizes-physicianassisted-suicide-n1602510 (accessed July 13, 2018).

44.
Baxter v. State, 354 Mont. 234, 224 P.3d 1211 (2009).

45.
Patients Rights Council. “Montana.”
http://www.patientsrightscouncil.org/site/montana/ (accessed July 13, 2018).

46.
USLegal.com, “Supreme Court Rulings.”
http://righttodie.uslegal.com/physician-assisted-suicide/supreme-court-rulings/ (accessed July 13, 2018).

47. General Assembly of North Carolina, “Session 2017: House Bill DRH10229-MG-122A (03/23): A Bill to Be Entitled an Act Establishing an End of Life Option Act to Allow Qualified Patients Diagnosed With a Terminal Disease to End Life in a Humane and Dignified Manner.”
https://www.ncleg.net/Sessions/2017/Bills/House/HTML/H789v0.html (accessed July 13, 2018).

48. Nicholas Pugliese, “Assisted Suicide Once Again Pushed by New Jersey Lawmakers; Opponents Raise Fears.”
NorthJersey.com (March 12, 2018).
https://www.northjersey.com/story/news/new-jersey/2018/03/12/right-die-assisted-suicide-once-again-pushed-nj-lawmakers-opponents-raise-fears/416405002/ (accessed August 8, 2018).

49. Bradford Richardson, “Physician-Assisted Suicide Bill Dies in Massachusetts,” The Washington Times (March 27, 2018).
https://www.washingtontimes.com/news/2018/mar/27/physician-assisted-suicide-bill-dies-in-massachuse/ (accessed August 8, 2018).

50.
Quill v. Vacco, 117 S. Ct. 2293 (1997).

51.
Washington v. Glucksberg, 117 S.Ct. 2258 (1997).

52.
Patient Self-Determination Act of 1990 42 U.S.C. 1395cc(a)(1).

53. Legal Information Institute, “42 CFR 489.102 – Requirements for Providers.”
https://www.law.cornell.edu/cfr/text/42/489.102 (accessed July 13, 2018).

54.
John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 432 So. 2d 611 (Fla. 4th DCA 1983).

55.
Ibid. at 620–621.

56.
Ibid. at 164.

57.
Ibid. at 927–928.

58.
http://www.euthanasia.com/vatican.html.

59.
San Juan-Torregosa v. Garcia, 80 S.W.3d 539 (2002).

60.
Ibid. at 546.

61.
Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990).

62. Florida Title XXIX 381.026, Florida Patient’s Bill of Rights and Responsibilities.
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0381/Sections/0381.026.html (accessed July 13, 2018).

63. Alexia M. Torke, G. Caleb Alexander, and John Lantos, “Substituted Judgment: The Limits of Autonomy in Surrogate Decision Making,” Journal of General Internal Medicine 23 (2009): 1514–1517.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2518005/ (accessed July 13, 2018).

64.
In re Jane Doe, 533 A.2d 523 (1987).

65.
In re Martin, 517 N.W.2d 749 (Mich. Ct. App. 1994).

66.
In re Eichner, 420 N.E.2d 64 (N.Y. 1981).

67.
In re Estate of Longeway, 549 N.E.2d 292 (Ill. 1989).

68.
Stolle v. Baylor College of Medicine, 981 S.W.2d 709 (1998).

69.
Spahn v. Eisenberg, 563 N.W.2d 485 (1997).

70.
Barber v. Superior Court, 195 Cal. Rptr. 484 (Cal. Ct. App. 1983).

71.
In re Claire C. Conroy, 486 A.2d 1209 (N.J. Sup. Ct. 1985).

72.
Ibid.

73. U.S. Congress, Off. of Technology Assessment, Pub. No. OTA-BA-306, Life-Sustaining Technologies and the Elderly 48 (1987).

74.
In re Hier, 464 N.E.2d 959 (Mass. 1984).

75.
In re Beth Israel Med. Ctr., 519 N.Y.S.2d 511, 517 (N.Y. Sup. Ct. 1987).

76. Ronald Sullivan, “Ombudsman Bars Food Tube Removal,” New York Times (March 7, 1986), at 82.

77. “AMA Changes Code of Ethics on Comas,” Newsday, March 17, 1986, at 2.

78.
In re Jobes, 529 A.2d 434 (N.J. 1987).

79.
Ibid. at 438.

80. “Man Wins Right to Let Wife Die,”
Newsday, Apr. 24, 1986, at 3.

81.
Ibid. at 790.

82.
Ibid. at 793.

83.
Bouvia v. Superior Court (Glenchur), 225 Cal. Rptr. 297 (Cal. Ct. App. 1986).

84.
Ibid. at 306.

85.
Payne v. Marion General Hospital, 549 N.E.2d 1043 (Ind. Ct. App. 1990).

86. Richard Payne, “Dying Well in America: What Is Required of Physicians?” Virtual Mentor 8 (September 2008): 609–612.
http://virtualmentor.ama-assn.org/2006/09/msoc1-0609.html (accessed July 13, 2018).

87. The Conversation Project, “About Us.”
https://theconversationproject.org/about/ (accessed July 13, 2018).

88. The Conversation Project and the Institute for Healthcare Improvement, “Your Conversation Starter Kit.”
https://theconversationproject.org/wp-content/uploads/2017/02/ConversationProject-ConvoStarterKit-English.pdf (accessed July 13, 2018).

89. The Institute for Healthcare Improvement, “The Conversation Project: Overview.”
http://www.ihi.org/Engage/Initiatives/ConversationProject/Pages/default.aspx (accessed July 13, 2018).

CHAPTER 4

Healthcare Ethics Committee


Coming together is a beginning. Keeping together is progress. Working together is success.”

—Henry Ford

INTRODUCTION

A
healthcare ethics committee is an advisory body whose purpose is to facilitate discussion and consultation on ethical issues arising in the patient care setting. The goal of the ethics committee is to improve patient care and outcomes through recognition of the needs, interests, and rights of each patient and participants in the delivery of each patient’s care. Healthcare ethics committees address legal and ethical issues that arise during the course of a patient’s care and treatment. They serve as a resource for patients, families, and staff. They offer objective counsel when dealing with difficult healthcare issues. Ethics committees provide both educational and consultative services to patients, families, and caregivers. They enhance but do not replace important patient/family–physician relationships; nevertheless, they afford support for decisions made within those relationships. The numerous ethical questions facing health professionals involve the entire lifespan, from the right to be born to the right to die. Ethics committees concern themselves with issues of morality, patient autonomy, legislation, and states’ interests.

Although ethics committees first emerged in the 1960s in the United States, attention was focused on ethics committees as a result of the 1976 landmark
Quinlan case,

1
in which the parents of Karen Ann Quinlan were granted permission by the New Jersey Supreme Court to remove Karen from a ventilator after she had been in a coma for a year. She died 10 years later at the age of 31, having been in a persistent vegetative state the entire time. The Quinlan court looked to a prognosis committee to verify Karen’s medical condition. It then factored in the committee’s opinion with all other evidence to reach the decision to allow withdrawing her life-support equipment. To date, ethics committees do not have sole surrogate decision-making authority; however, they play an ever-expanding role in the development of policy and procedural guidelines to assist in resolving ethical dilemmas.

An ethics committee is not a decision maker but a resource that provides advice to help guide others in making wiser decisions when there is no clear best choice. A unanimous opinion is not always possible when an ethics committee convenes to consider the issues of an ethical dilemma; however, consultative advice as to a course of action to follow in resolving the dilemma is a major role of the ethics committee. Any recommendations for issue resolution reached by the ethics committee need to be communicated to those most closely involved with the patient’s care. Being sensitive to each family member’s values and assisting them in coping with whatever consensus decision is reached are crucial to the success of the committee. Unresolved issues often need to be addressed and a course of action followed. Each new consultation presents new opportunities for learning and teaching others how to cope with similar issues. Guidelines for resolving ethical issues will always be in a state of flux. Each new case presents new challenges and learning opportunities.

Making a decision, suggesting a course of action, recommending a path to follow, and making a choice require accepting the fact that there will be elements of right and wrong in the final decision. The idea is to cause the least pain and provide the greatest benefit.

COMMITTEE STRUCTURE

A hospital-based ethics committee should be composed of a multidisciplinary group of individuals composed of representatives from the hospital (e.g., administrator, chaplain, nurse, physician, patient advocate) and community (e.g., clergy, legal counsel, ethicist). Members may also include those in positions of corporate and political stature, respect, and diversity. Appointment and rotation of new members to the ethics committee should be staggered in order to maintain continuity and stability.

Ethics committee members should be carefully vetted as to their skills in
conflict resolution. Members of the ethics committee should complete a mandatory orientation that includes training and coaching. They should participate in continuing education programs. Committee members are expected to be active participants in committee activities. Self-study interest in the law and ethics should prove helpful. Those members of the committee who participate in consultative services involving patient care dilemmas should have appropriate medical, legal, and ethics training.

COMMITTEE GOALS

The goals of ethics committees often include the following:

  • Provide a forum for review and discussion of ethical and moral issues relative to patient care.
  • Provide information to patients as to the functioning of the ethics committee and how to access the committee at the time of admission. This information is generally provided in patient handbooks and/or informational brochures. The electronic media available through patient room televisions is also helpful in
    educating patients as to their rights and responsibilities including the process for requesting a consultation.
  • Serve as support and resource for hospital staff, families, and patients.
  • Provide consultation, as requested, when there are conflicts in care options.
  • Provide assistance in clarifying situations that are ethical, legal, or religious in nature that extend beyond the scope of daily practice.
  • Clarify issues and discuss alternatives to ethical dilemmas.
  • Promote patient rights.
  • Assist the patient and family in coming to consensus with the options that best meet the patient’s care needs.
  • Review cases for educational purposes.
  • Enhance the ethical tenor of both the hospital and healthcare professionals.

COMMITTEE FUNCTIONS

The functions of ethics committees are multifaceted and include development of policy and procedure guidelines to assist in resolving ethical dilemmas; staff and community education; conflict resolution; case reviews, support, and consultation; and political advocacy. The degree to which an ethics committee serves each of these functions varies in different healthcare organizations.

Policy and Procedure Development

The ethics committee is a valuable resource for assisting in the development of hospital policies and procedures pertinent to addressing ethical dilemmas (e.g., consultation procedures, confidentiality of information, staff and community education, annual review of the committee’s activities and effectiveness). The following box is an example of one hospital’s general policy statement, as it relates to
advance directives and referral to its ethics committee when issues arise as to compliance with advance directives.

Ethics Committee Policy Statement

Policy

  • Kennedy Health System ensures that all adult patients will be provided the opportunity to learn about and/or make a valid advance directive to indicate their decisions about life-prolonging treatment, and/or to appoint a proxy to speak for them, should they lose their decision-making capacity or the ability to communicate choices.
  • Advance directives can protect a patient’s rights and wishes in the event the patient becomes physically or mentally unable to make healthcare decisions. Providers honor a patient’s advance directive as long as it does not violate State and Federal laws. The existence or lack of an advance directive does not determine an individual’s access to care, treatment and services.
  • A valid advance directive is followed regardless of the patient’s race, religion, national origin, sex, sexual preferences, handicap, diagnosis, ability to pay and source of payment. No patient will be discriminated against with regard to the provision of care or based on whether the patient has executed an advance directive.
  • Information for patients, community and associates regarding their rights to make healthcare decisions, options and a summary of the hospital’s advance directive policy shall be provided by Kennedy Health System (Appendix A) in the KHS Patient Guide, and website.
  • The provisions of a valid advance directive (See Appendix B) will be followed.
  • If a healthcare professional, because of personal conviction, declines to participate in withholding or withdrawing of life sustaining treatments, as outlined in a patient’s advance directive, then Kennedy Health System’s “Exclusion from Patient Care Policy” (see Human Resource Manual) should be followed. If necessary, the provider must cooperate with appropriate and timely reassignment of care to a willing provider.
  • When conflicts about compliance with an advance directive arise, associates, physicians, and students are strongly encouraged to contact the system’s Medical Ethics Advisory Committee (M.E.A.C.) for further guidance.

    2

Note: Any printed copy of this policy is only as current as the date it was printed; it may not reflect subsequent revisions. Refer to the online version of the manual for the most current policy.

The following policies are a sampling of those often recommended by ethics committees.

Policy: Requests for Consultations

Ethics consultations are available to caregivers, patients, or family members who request an ethics consult. Ethics consultations are available 24 hours a day by calling the hospital ethics hotline. Consultations shall be requested on a form prepared by the ethics committee and reviewed and approved by the hospital’s administration, legal counsel, and board of directors.

Policy: Confidentiality of Information

Ethics committee information shall be considered confidential and shall not be used in any way except as provided by hospital policy and required by law. Any information or case study developed for use by the committee shall not be required to become part of a patient’s medical record. Committee members shall not make entries in a patient’s medical record unless required by law and/or hospital policy.

Policy: Annual Review of Ethics Committee Activities

An overall review of the ethics committee’s activities will be conducted on an annual basis to determine the effectiveness of the committee and if it is accomplishing its stated goals. This review may take the form of a self-study or external review, preferably by a qualified ethicist.

Policy: Education

The ethics committee typically provides education on current ethical concepts and issues to committee members, staff, and the community at large. Some community hospitals provide ethics education to the staff at ambulatory care facilities, home health agencies, long-term care facilities, and physicians’ offices. Such education helps reduce the need for emergent end-of-life consultations in acute-care settings.

The ethics committee provides resources for educational purposes to support staff in the development of the appropriate competencies for addressing ethical, legal, and spiritual issues, for example, those common to end-of-life issues (e.g., surrogate decision making, the patient’s refusal to accept recommended medical treatment, family conflict). Educational programs on ethical issues are developed for ethics committee members and staff on such topics as moral theories and principles, as well as common ethical dilemmas that occur as they relate to such services common to emergency departments and critical care units. Community education often includes such topics as how to prepare and execute an advance directive.

Policy: Consultation and Conflict Resolution

Ethics consultations are helpful in resolving uncertainty and disagreements over healthcare dilemmas. Ethics committees often provide consultation services for patients, families, and caregivers struggling with difficult treatment decisions and end-of-life dilemmas. Always mindful of its basic orientation toward the patient’s best interests, the committee provides options and suggestions for resolution of conflict in actual cases. Consultation with an ethics committee is not mandatory but is conducted at the request of a physician, patient, family member, or other caregiver.

The ethics committee strives to provide viable alternatives that will lead to the optimal resolution of dilemmas confronting the continuing care of the patient. It is important to remember that an ethics committee functions in an advisory capacity and should not be considered a substitute proxy for the patient.

A representative of the ethics committee is often able to intervene, when requested, in resolving ethical dilemmas. On occasion it may be necessary to request the assistance of one or more additional members of the ethics committee. An on-call roster is generally helpful when a consultation is necessary during evening, night, and weekend hours. Ethics committee members of the hospital staff generally provide on-call services.

Requests for Committee Consultations

Requests for ethics consultations often involve clarification of issues regarding decision-making capacity, informed consent, advance directives, and withdrawal of treatment. Consultations should be conducted in a timely manner considering the following information:

  • Who requested the consultation?
  • What are the issues?
  • Is there is a problem that needs referral to another service?
  • What specifically is being requested of the ethics committee (e.g., clarification of the problem or mediation)?

When conducting a consultation, all patient records must be reviewed and discussed with the attending physician, family members, and other caregivers involved in the patient’s treatment. If an issue can be resolved easily, a designated member of the ethics committee should be able to consult on the case without the need for a full committee meeting. If the problem is unusual, problematic, or delicate, or has important legal ramifications, a full committee meeting may be necessary. Others who can be invited to an ethics committee case review, as appropriate, include the patient, if competent; relatives; agent or surrogate decision maker; and caregivers. Evaluation of a case consultation should take the following into consideration:

  • Patient’s current medical and mental status, diagnosis, and prognosis
  • Patient’s mental status and ability to make decisions, understand the information that is necessary to make a decision, and clearly understand the consequences of his or her choice
  • Benefits and burdens of recommended treatment, or alternative treatments
  • Life expectancy, treated and untreated
  • Views of caregivers and consultants
  • Pain and suffering
  • Quality-of-life issues
  • Financial burden on family (e.g., if the patient is in a comatose state with no hope of recovery, should the spouse deplete his or her finances to maintain the spouse on a respirator?)

Decisions concerning patient care must take into consideration the patient’s:

  • Personal assessment of the quality of life
  • Current expressed choices
  • Advance directives
  • Competency to make decisions
  • Ability to process information rationally to compare risks, benefits, and alternatives to treatment
  • Ability to articulate major factors in decisions and reasons for them and ability to communicate

The patient must have all the information necessary to allow a reasonable person to make a prudent decision on his or her own behalf. The patient’s choice must be voluntary and free from coercion by family, physicians, or others.

Family members must be identified, and the following questions considered when making decisions:

  • Do family members understand the patient’s wishes?
  • Is the family in agreement with the patient’s wishes?
  • Does the patient have an advance directive?
  • Has the patient appointed an agent?
  • Are there any religious proscriptions?
  • Are there any financial concerns?
  • Are there any legal concerns that need to be addressed (applicable state statutes and case law)?

When an ethics committee is engaged in the consulting process, its recommendations should be offered as suggestions, imposing no obligation for acceptance on the part of the patient, family, surrogate decision maker, organization, its governing body, medical staff, attending physicians, or other persons.


FIGURE 4-1

presents an ethics consultation form for documenting an ethics committee consultation.

When conducting a formal consultation, ethics committees should:

  1. Identify the ethical dilemma (e.g., reasons why the consult was requested)
  2. Be sure that the appropriate “Consultation Request” form has been completed
  3. Identify relevant facts:
  1. Diagnosis and prognosis
  2. Patient goals and wishes
  3. Regulatory and legal issues
  4. Professional standards and codes of ethics
  5. Institutional policies and values
  1. Identify stakeholders
  2. Identify moral issues
  1. Human dignity
  2. Common good
  3. Justice
  4. Beneficence
  5. Respect for autonomy
  6. Informed consent
  7. Medical futility
  1. Identify legal issues
  2. Consider alternative options
  3. Conduct consultation
  4. Review, discuss, and provide reasoning for recommendations made
  5. Review and follow up
  6. Ensure committee discussion includes family members
  7. Query family members as to their hopes and expectations
  8. Document consultations


Case Studies

Ethics Committee Serves as Guardian

The Kentucky Supreme Court ruled in
Woods v. Commonwealth

3
that Kentucky’s Living Will Directive, which allows a court-appointed guardian or other designated surrogate to remove a patient’s life support systems, is constitutional. The patient in this case, Matthew Woods, had been placed on a ventilator after having a heart attack. It was generally agreed that he would never regain consciousness and would die in 2 to 10 years. After a recommendation of the hospital ethics committee, Woods’s guardian at the time asked for approval to remove Woods’s life support. The Kentucky Supreme Court affirmed an appeals court decision, holding that: (1) “If there is no guardian,” but the family, physicians, and ethics committee all agree with the surrogate, there is no need to appoint a guardian; (2) “If there is a guardian” and all parties agree, there is no need for judicial approval; (3) “If there is disagreement,” the parties may petition the courts.

Withdrawal of life support from a patient is prohibited absent clear and convincing evidence that the patient is permanently unconscious or in a persistent vegetative state and that withdrawing life support is in the patient’s best interest.

Ethical and Legal Issues

  1. Discuss the ethical issues of this case.
  2. Discuss under what circumstances an ethics committee should serve as a legal guardian.
  3. Discuss the pros and cons of an ethics committee serving as a patient’s guardian.

EXPANDING ROLE OF THE ETHICS COMMITTEE

Typically, hospital ethics committees concern themselves with biomedical issues as they relate to end-of-life issues; unfortunately, they often fail to address external decisions that affect internal operations. The role of an organization’s ethics committee is evolving into more than a group of individuals who periodically gather together to meet a regulatory requirement and address advance directives and end-of-life issues. The organizational ethics committee has an ever-expanding role. This expanded role involves addressing external issues that affect internal operations (e.g., managed care, malpractice insurance, and complicated Health Insurance Portability and Accountability Act regulations that often increase legal and other financial costs). Ethics committees need to review their functions periodically and redefine themselves.

The ethics committee is health care’s sleeping giant. Because of its potential to bring about change, its mission must not be limited to end-of-life issues. Its vision must not be restricted to issues internal to the organization but must include external matters that affect internal operations.

Failure to increase the good of others when one is knowingly in a position to do so is morally wrong. Preventative medicine and active public health interventions exemplify this conviction. After methods of treating yellow fever and smallpox were discovered, for example, it was universally agreed that positive steps ought to be taken to establish programs to protect public health.

The wide variety of ethical issues in which an ethics committee can be involved is somewhat formidable. Although an ethics committee cannot address every issue that one could conceivably imagine, the ethics committee should periodically reevaluate its scope of activities and effectiveness in addressing ethical issues. Some of the internal and external issues facing an organization’s ethics committee are listed here.

Internal Ethical Issues

Ethics committees face a variety of internal issues, including:

  1. Dilemma of blind trials: Who gets the placebo when the investigational drug looks very promising?
  2. Informed consent: Are patients adequately informed as to risks, benefits, and alternative procedures that may be equally effective, knowing that one procedure may have greater risk or be more damaging than another (e.g., lumpectomy versus a radical mastectomy)?
  3. What is the physician’s responsibility for informing the patient of his or her education, training, qualifications, and skill in treating a medical condition or performing an invasive procedure?
  4. What is the role of the ethics committee when the medical staff is reluctant or fails to take timely action, knowing that one of its members practices questionable medicine?
  5. Should a hospital’s medical staff practice evidence-based medicine or follow its own best judgment?
  6. To what extent should the organization participate in and/or support genetic research?
  7. How should the ethics committee address confidentiality issues?
  8. To what extent should medical information be shared with the patient’s family?
  9. To what extent should the organization’s leadership control the scope of issues that the ethics committee addresses?
  10. What are the demarcation lines as to what information should or should not be provided to the patient when mistakes are made relative to his or her care?

External Ethical Issues

Among the external issues the committee may look at are questions such as:

  1. Does the ethics committee have a role in addressing questionable reimbursement schemes?
  2. Should an ethics committee have its own letterhead? What value would this serve?
  3. What role, if any, should an ethics committee play in the following scenario?
Autonomy and the Law Collide

Advance directive statutes can impede the purpose and effective functioning of hospital ethics committees. For example, as described below, the
Texas Advance Directives Act places the ethics committee in an untenable position: on the one hand, it is designed to assist patients in making end-of-life decisions, while at the same time, if the ethics committee disagrees with the patient-family decision for continuation of life support systems, it can supersede and overrule their decision, effectively trampling on the patient’s rights. The decision to remove life support here is effectively based on quality of life and financial considerations. In effect, it would seem the
law, here as described, changes the function of the ethics committee from one of consultative support for patients to that of enforcer of state statutes.

Sec. 166.052(a). STATEMENTS EXPLAINING PATIENT’S RIGHT TO TRANSFER.

When There Is A Disagreement About Medical Treatment: The Physician Recommends Against Certain Life-Sustaining Treatment That You Wish To Continue

You have been given this information because you have requested life-sustaining treatment* for yourself as the patient or on behalf of the patient, as applicable, which the attending physician believes is not medically appropriate. This information is being provided to help you understand state law, your rights, and the resources available to you in such circumstances. It outlines the process for resolving disagreements about treatment among patients, families, and physicians. It is based upon Section 166.046 of the Texas Advance Directives Act, codified in Chapter 166, Texas Health and Safety Code.

When an attending physician refuses to comply with an advance directive or other request for life-sustaining treatment because of the physician’s judgment that the treatment would be medically inappropriate, the case will be reviewed by an ethics or medical committee. Life-sustaining treatment will be provided through the review.

You will receive notification of this review at least 48 hours before a meeting of the committee related to your case. You are entitled to attend the meeting. With your agreement, the meeting may be held sooner than 48 hours, if possible.

You are entitled to receive a written explanation of the decision reached during the review process.

If after this review process both the attending physician and the ethics or medical committee conclude that life-sustaining treatment is medically inappropriate and yet you continue to request such treatment, then the following procedure will occur:

  1. The physician, with the help of the healthcare facility, will assist you in trying to find a physician and facility willing to provide the requested treatment.
  2. You are being given a list of healthcare providers, licensed physicians, healthcare facilities, and referral groups that have volunteered their readiness to consider accepting transfer, or to assist in locating a provider willing to accept transfer, maintained by the Department of State Health Services. You may wish to contact providers, facilities, or referral groups on the list or others of your choice to get help in arranging a transfer.
  3. The patient will continue to be given life-sustaining treatment until the patient can be transferred to a willing provider for up to 10 days from the time you were given both the committee’s written decision that life-sustaining treatment is not appropriate and the patient’s medical record. The patient will continue to be given after the 10-day period treatment to enhance pain management and reduce suffering, including artificially administered nutrition and hydration, unless, based on reasonable medical judgment, providing artificially administered nutrition and hydration would hasten the patient’s death, be medically contraindicated such that the provision of the treatment seriously exacerbates life-threatening medical problems not outweighed by the benefit of the provision of the treatment, result in substantial irremediable physical pain not outweighed by the benefit of the provision of the treatment, be medically ineffective in prolonging life, or be contrary to the patient’s or surrogate’s clearly documented desires.
  4. If a transfer can be arranged, the patient will be responsible for the costs of the transfer.
  5. If a provider cannot be found willing to give the requested treatment within 10 days, life-sustaining treatment may be withdrawn unless a court of law has granted an extension.
  6. You may ask the appropriate district or county court to extend the 10-day period if the court finds that there is a reasonable expectation that you may find a physician or healthcare facility willing to provide life-sustaining treatment if the extension is granted. Patient medical records will be provided to the patient or surrogate in accordance with Section 241.154, Texas Health and Safety Code.

*“Life-sustaining treatment” means treatment that, based on reasonable medical
judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificially administered nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain.

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In summary, the Texas law appears to take the ethics committee to a new level from a consultative-advisory role by requiring it to be the final arbiter between life and death, thus
expanding the role of the ethics committee from playing a consultative role when addressing end-of life decisions to that of the ultimate decision maker.


Case Studies

Choosing the Right Hospital

Emergency services ambulance personnel regularly transport suspected stroke patients to Hospital A. This hospital has no neurologists or neurosurgeons on its medical staff but does provide coffee and donuts to transport personnel. Ambulance personnel have an option to take the suspected stroke victim to Hospital B, which is within five blocks of Hospital A. Hospital B has a well-trained stroke team with staff neurologists and neurosurgeons readily available.

Ethical and Legal Issues

  1. Describe the ethical issues in this case.
  2. Describe the organizational politics that might come into play.
  3. Discuss how organizational politics may prevent an ethics committee from becoming involved in many of the issues just described.

Although an ethics committee’s serves in an advisory capacity, its value to an organization has yet to be fully realized.

RESOLUTION OF ETHICAL DILEMMAS


The difference between moral dilemmas and ethical ones, philosophers say, is that in moral issues the choice is between right and wrong. In ethics, the choice is between two rights.

—Pamela Warrick

The resolution of ethical dilemmas is a perplexing task at best, especially when two opposite answers both have elements of right and wrong—good and bad, regardless of the ultimate decision made. Finding compromise is no easy task when ethical principles, values, and morals are in conflict and vary from individual to individual. This is no easy task for members of an ethics committee, especially when the mix of opinions of caregivers, family members, and the healthcare entity’s mission of healing collide. Although decision making can be much easier when the patient has executed end-of-life directives, ethics committees often do not have this luxury, thus creating a need for ethics committees to help guide others in making difficult care decisions. With outcomes that often result in the decision maker reflecting back and doubting his or her own decisions, it is important that each committee member reflect on the following thoughts prior to participating in an ethics consultation:

  • I will accept the patient’s wishes, if known.
  • I will accept the dialogue of committee members with varying beliefs, expectations, and values, knowing some will undoubtedly challenge my own sense of right and wrong.
  • I will help the ethics committee seek a morally acceptable resolution to an ethical dilemma.
  • I will not be too fearful to seek clarification of issues and ask questions.
  • I will contribute to making consultations meaningful and not argumentative.
  • My compassion will outweigh my need to be right.
  • The ultimate decision is not mine to make.
  • I will provide guidance, consultation, and education.

An ethical dilemma can arise when, for example, the principles of autonomy and beneficence conflict with one another. The following cases illustrate how one’s right to make his or her decisions can conflict with the principle of doing good and not harm.


Case Studies

Patient Refuses Blood

Mrs. Jones has gangrene of her left leg. Her hemoglobin slipped to 6.4 g/dL. She has a major infection and is diabetic. She has no spouse and no living will but has two adult children. The patient has decided that she does not want to be resuscitated if she should go into cardiopulmonary arrest. She may need surgery. She has agreed to surgery but refuses a blood transfusion, even though she is not a Jehovah’s Witness. The surgeon will not perform the surgery, which is urgent, without Jones agreeing to accept a blood transfusion if it becomes necessary. The attending physician questions the patient’s capacity to make decisions. Her children have donated blood. She says she is not afraid to die.

Ethical and Legal Issues

  1. Should the physician refuse to treat this patient? Explain your answer.
  2. Should the family have a right to override the patient’s decision to refuse blood? Explain your answer.


Case Studies

A Son’s Guilt, a Father’s Wishes

Following a massive stroke, Mr. Smith was transported from the Rope Nursing Facility to a local hospital by ambulance on July 4, 2004. Smith, 94 years of age, had been a resident at the Rope Nursing Facility for the past 12 years. Before being placed in Rope, Smith had been living with Mr. Curry, a close friend, for the previous 8 years. He had an advance directive indicating that he would never want to be placed on a respirator.

Smith’s son and only child, Barry, who now lives in Los Angeles and had been estranged from his father for more than 20 years, was notified by Curry that his father had been admitted to the hospital in a terminal condition. Smith had mistakenly been placed on a respirator by hospital staff contrary to the directions in his advance directive, which had been placed on the front cover of Smith’s medical chart. Curry, who was legally appointed by Smith to act as his healthcare surrogate decision maker, called Barry and explained that, according to his father’s wishes and advance directives, he was planning to ask hospital staff to have the respirator removed. Barry asked Curry to wait until he flew in from California to see his dad. Curry agreed to wait for Barry’s arrival the following day. After arriving at the hospital, Barry told Curry that he would take responsibility for his father’s care and that Curry’s services would no longer be needed. Barry told hospital staff that he objected to the hospital’s plan to remove his father from the respirator. He said that he needed time to say goodbye to his dad, which he did by whispering his message in his father’s ears. Smith, however, did not respond. Barry demanded that the hospital do everything that it could to save his father’s life, saying, “I don’t know if Dad heard me. We have to wait until he wakes up so that I can tell him how sorry I am for not having stayed in touch with him over the years.” Smith’s physicians explained to Barry that there was no chance Smith would ever awaken out of his coma. Barry threatened legal action if the hospital did not do everything it could to keep his father alive. Smith’s physician again spoke to Barry about the futility of maintaining his father on a respirator. Barry remained uncooperative. The hospital chaplain was called to speak to Barry but had little success. Finally, hospital staff requested an ethics consult.

Ethical and Legal Issues

  1. Discuss the ethical dilemmas in this case.
  2. Discuss the issues and the role of the ethics committee in this case.

MAKING BETTER DECISIONS

The study of the ethical and legal issues that arise in a wide variety of patient care settings can be somewhat challenging. However, the rewards in the study of ethics and the law will help the caregiver make
better decisions regardless of the setting in which patient care is rendered. The following are some helpful guidelines to follow when faced with ethical dilemmas:

  • Be aware of how everyday life is full of ethical decisions and that numerous ethical issues can arise when caring for patients.
  • Help guide others to make choices.
  • Ask your patient how you might help him or her.
  • Be aware of why you think the way you do. Do not impose your beliefs on others.
  • Ask yourself whether you agree with the things you do. If the answer is no, ask yourself how you should change.
  • When you are not sure what to do, the wise thing to do is to talk it over with another person, someone whose opinion you trust.
  • Do not sacrifice happiness for devotion to others.
  • Do not lie to avoid hurting someone’s feelings.

CHAPTER REVIEW

  1. Ethics committee serves as a resource for patients, families, and staff, offering an objective counsel when dealing with difficult healthcare dilemmas.
  2. Ethics committee should be structured to include a wide range of community leaders in positions of political stature, respect, and diversity.
  3. The goals of the ethics committee are to:
    • Promote the rights of patients.
    • Promote shared decision making between patients and clinicians.
    • Assist the patient and family in coming to consensus when faced with ethical dilemmas.
  4. The functions of ethics committees are multifaceted and include:
    • Policy and procedure development.
    • Staff and community education.
    • Consultation and conflict resolution.
      • A resource tool in resolving ethical dilemmas.
      • Patients and family should be encouraged to participate in addressing ethical dilemmas.
  5. Decision making is difficult when there are:
    • A variety of value beliefs held by patients, family members, and caregivers.
    • Alternative choices that offer both good and bad outcomes.
    • Limited resources.
  6. The resolution of ethical dilemmas is a perplexing task. Ethics committee members must be prepared to understand the challenge by actively participating in the decision-making process without bias.

TEST YOUR UNDERSTANDING

Terminology

  • advance directives
  • conflict resolution
  • ethical decision making
  • healthcare ethics committee
  • ethics consultation

REVIEW QUESTIONS

  1. What is the purpose of an ethics committee?
  2. Discuss the functions of an ethics committee.
  3. Explain the consultative role of the ethics committee.
  4. Discuss the educational role of the ethics committee.
  5. Discuss the ever-expanding role of ethics committees, including internal operational issues and external influences that affect internal operations.
  6. Discuss what ethics members should take into consideration when addressing ethical dilemmas.

NOTES

1.
In re Quinlan, 355 A.2d 647 (N.J. 1976).

2. Kennedy Health System, “A106 Advance Directive Policy.”
https://www.kennedyhealth.org/sites/default/files/advancedirectivepolicya106.pdf (accessed July 14, 2018).

3.
Woods v. Commonwealth, 1999-SSC0773 (August 24, 2004).

4. State of Texas Health and Safety Code, Title 2. Health, Subtitle H. Public Health Provisions, Chapter 166. Advance Directives, Subchapter A. General Provisions, Sec. 166.001.
http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.166.htm (accessed July 14, 2018).

CHAPTER 5

Development of Law


Laws are the very bulwarks of liberty; they define every man’s rights, and defend the individual liberties of all men.

—J. G. Holland (1819–1881)

INTRODUCTION


In law a man is guilty when he violates the rights of others. In ethics he is guilty if he only thinks of doing so.

—Immanuel Kant

It is appropriate here to provide the reader with a background regarding the law, as it is the law that enables society to uphold what is right and punish those who transgress its intent—to protect the moral fiber upon which this nation was founded. This chapter introduces the reader to the development of American law, the functioning of the legal system, and the roles of the three branches of government in creating, administering, and enforcing the law in the United States. It is important to understand the foundation of the legal system before one can appreciate or comprehend the specific laws and principles relating to health care.

The law is rooted in tradition, culture, customs, and beliefs (e.g., religious influence—the Mosaic law). Laws constantly grow and change to meet the needs of the American culture, which is a mixture of many cultures. Familiarity with the vocabulary enables one to understand the ideas, concepts, and structure of the law. Laws continually evolve because of the ever-changing political, social, religious, and personal values of society, which is composed of many cultures that become more intertwined with each new generation.

Supreme Court Justice Oliver Wendell Holmes said that the law “is a magic mirror, wherein we see reflected not only our own lives but also the lives of those who went before us.”

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One hundred years before Holmes served on the Supreme Court, the court decided
Marbury v. Madison in a decision that declared, “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested right.”

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Most definitions of law define it as a system of principles and processes by which people in a society deal with their disputes and problems, seeking to solve or settle them without resorting to force. Laws are general rules of conduct that are enforced by government, which imposes penalties when prescribed laws are violated. Laws govern the relationships between private individuals and organizations and between both of these parties and government.

Public Law

Public law is the term used to describe the “laws that cover administration, constitutional and criminal acts. It controls the actions between the citizens of the state and the state itself. It deals with the government’s operation and structure.”

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One important segment of public law is criminal law, which prohibits conduct deemed injurious to public order and provides for punishment of those proven to have engaged in such conduct. Public law also consists of countless regulations designed to advance societal objectives by requiring private individuals and organizations to adopt a specified course of action in their activities and undertakings. Public law includes constitutional law, administrative law, and criminal law.

Constitutional law “deals with the fundamental principles by which the government exercises its authority. In some instances, these principles grant specific powers to the government, such as the power to tax and spend for the welfare of the population. Other times, constitutional principles act to place limits on what the government can do, such as prohibiting the arrest of an individual without sufficient cause.”

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Administrative law deals with “the organization, powers, duties, and functions of public authorities of all kinds engaged in administration; their relations with one another and with citizens and nongovernmental bodies; legal methods of controlling public administration; and the rights and liabilities of officials. … One of the principal objects of administrative law is to ensure efficient, economical, and just administration.”

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Criminal law is concerned with maintaining justice and public order. This is accomplished through sanctions that are imposed on individuals and public entities that break the law. The penalties for breaking the law can vary based on the crime committed and the individual(s) affected. Sanctions include fines, restitution for the wrongs committed, and incarceration for the crimes committed.

Private Law

Private law, also referred to as civil law, is concerned with the recognition and enforcement of the rights and duties of and between private individuals and organizations.
Tort and
contract actions are two basic types of private law. In a tort action, one party asserts that the wrongful conduct of another has caused harm, and the injured party seeks compensation for the harm suffered. Generally, a contract action involves a claim by one party that another party has breached an agreement by failing to fulfill an obligation. Either remuneration or specific performance of the obligation may be sought as a remedy.

It is clear that without an organized, clear system of laws that regulate society, anarchy would be the result. The goal of this chapter is to help caregivers
better understand the law and how it affects the difficulties they face while trying to do the right thing by making healthcare decisions that are both morally and legally acceptable.

SOURCES OF LAW

The basic sources of law are: common law, which is derived from judicial decisions; statutory law, which emanates from the federal and state legislatures; and administrative law, prescribed by administrative agencies. In those instances in which written laws are silent, vague, or contradictory to other laws, the judicial system often is called on to resolve those disputes until such time as appropriate legislative action can be taken to clear up a particular legal issue. In the following sections, the sources of law that formed the foundation of our legal system are discussed.

Common Law

The term
common law refers to the body of principles that have evolved and expanded from judicial decisions. Many of the legal principles and rules applied today by courts in the United States have their origins in English common law. Common law has its roots in “reason and justice” for all.

The judicial system is necessary because it is impossible to have a law that covers every potential human conflict that might occur in society. It not only serves as a mechanism for reviewing legal disputes that arise in the written law, but it also serves as an effective review mechanism for those issues on which the written law is silent or, in instances of a mixture of issues, involving both written law and common-law decisions.

During the colonial period, English common law began to be applied in the colonies. According to John Dickinson, in his 1768
Letters from a Farmer in Pennsylvania,

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The common law of England is generally received … but our courts
exercise a sovereign authority, in determining what parts of the common and statute law ought to be extended: For it must be admitted, that the difference of circumstances necessarily requires us, in some cases to
reject the determination of both. … Some of the English rules are adopted, others rejected.

Joseph Story wrote in an 1829 U.S. Supreme Court decision, “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright. But they brought with them and adopted only that portion which was applicable to their situation.”

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The size of the country and the abundance of its natural resources made impossible the importation of the common law exactly as it had been developed in England. Measured by English standards, America had superabundant land, timber, and mineral wealth. American law had to serve the primary need of the new society to master the vast land areas of the American continent. The decisive facts upon which the law had to be based were the seemingly limitless expanses of land and the wealth and variety of natural resources.

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After the American Revolution, each state, with the exception of Louisiana, adopted all or part of the existing English common law. Laws were added as needed. Louisiana civil law is based to a great extent on the French and Spanish laws and especially on the Napoleonic Code. As a result, there is no national system of common law in the United States, and common law on specific subjects may differ from state to state.

Case law—court decisions—did not easily pass from colony to colony. There were no printed reports to make transfer easy, though in the 18th century some manuscript materials did circulate among lawyers. These could hardly have been very influential. No doubt custom and case law slowly seeped from colony to colony. Travelers and word of mouth spread knowledge of living law. It is hard to say how much; thus it is hard to tell to what degree there was a common legal structure.

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Judicial review started to become part of the living law during the decade before the adoption of the federal Constitution. During that time American courts first began to assert the power to rule on the constitutionality of legislative acts and to hold unconstitutional statutes void.

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Cases are tried applying common-law principles unless a statute governs. Even though statutory law has affirmed many of the legal rules and principles initially established by the courts, new issues continue to arise, especially in private-law disputes that require decision making according to common-law principles. Common-law actions are initiated mainly to recover money damages and/or possession of real or personal property.

When a higher state court has enunciated a common-law principle, the lower courts within the state where the decision was rendered must follow that principle. A decision in a case that sets forth a new legal principle establishes a precedent. Trial courts or those on equal footing are not bound by the decisions of other trial courts. Also, a principle established in one state does not set precedent for another state. Rather, the rulings in one jurisdiction may be used by the courts of other jurisdictions as guides to the legal analysis of a particular legal problem. Decisions found to be reasonable will be followed.

The position of a court or agency, relative to other courts and agencies, determines the place assigned to its decision in the hierarchy of decisional law. The decisions of the Supreme Court of the United States are highest in the hierarchy of decisional law with respect to federal legal questions. Because of the parties or the legal question involved, most legal controversies do not fall within the scope of the Supreme Court’s decision-making responsibilities. On questions of purely state concern—such as the interpretation of a state statute that raises no issues under the U.S. Constitution or federal law—the highest court in the state has the final word on proper interpretation. The following are explanations of some of the more important common-law principles:

  • Precedent: A precedent is a judicial decision that can be used as a standard in subsequent similar cases. A precedent is set when a court decision is rendered that serves as a rule for future guidance when deciding similar cases.
  • Res judicata: In common law, the term
    res judicata—which means “the thing is decided”—refers to that which has been previously acted on or decided by the courts. According to
    Black’s Law Dictionary, it is a rule where “a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to subsequent action involving the same claim, demand, or cause of action.”

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  • Stare decisis: The common-law principle of
    stare decisis (“let the decision stand”) provides that when a decision is rendered in a lawsuit involving a particular set of facts, another lawsuit involving an identical or substantially similar situation is to be resolved in the same manner as the first lawsuit. The resolution of future lawsuits is arrived at by applying the rules and principles of preceding cases. In this manner, courts arrive at comparable rulings. Sometimes, slight factual differences may provide a basis for recognizing distinctions between the precedent and the current case. In some cases, even when such differences are absent, a court may conclude that a particular common-law rule is no longer in accord with the needs of society and may depart from precedent. It should be understood that principles of law are subject to change, whether they originate in statutory or in common law. Common-law principles may be modified, overturned, abrogated, or created by new court decisions in a continuing process of growth and development to reflect changes in social attitudes, public needs, judicial prejudices, or contemporary political thinking.

Statutory Law

Statutory law is written law emanating from federal and state legislative bodies. Although a statute can abolish any rule of common law, it can do so only by stating it in specific words. State and local jurisdictions can enact and enforce only laws that do not conflict with federal law. Statutory laws may be declared void by a court; for example, a statute may be found unconstitutional because it does not comply with a state or federal constitution, is vague or ambiguous, or in the case of a state law, is in conflict with a federal law.

In many cases involving statutory law, the court is called on to interpret how a statute applies to a given set of facts. For example, a statute may state merely that no person may discriminate against another person because of race, creed, color, or gender. A court may then be called on to decide whether certain actions by a person are discriminatory and therefore violate the law.

Constitution of the United States


In civilized life, law floats on a sea of ethics.

—Supreme Court Chief Justice Earl Warren

The principles and rules of statutory law are set in hierarchical order. The
Constitution of the United States adopted at the Constitutional Convention in Philadelphia in 1787 is highest in the hierarchy of enacted law. Article VI of the Constitution declares:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

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The clear import of these words is that the U.S. Constitution, federal law, and federal treaties take precedence over the constitutions and laws of specific states and local jurisdictions. Statutory law may be amended, repealed, or expanded by action of the legislature.

Bill of Rights

The conventions of a number of the states, at the time of adopting the U.S. Constitution, expressed a desire to prevent the abuse of its powers. As a result of this concern, Congress ratified amendments to the Constitution of the United States. The
Bill of Rights, which includes the first 10 amendments to the Constitution, was added to protect the rights of citizens. The amendments included the rights to privacy, equal protection, and freedom of speech and religion.

Administrative Law

Administrative law is the extensive body of public law issued by administrative agencies to direct the enacted laws of the federal and state governments. It is the branch of law that controls the administrative operations of government. Congress and state legislative bodies realistically cannot oversee their many laws; therefore, they delegate implementation and administration of the law to an appropriate administrative agency. Healthcare organizations, in particular, are inundated with a proliferation of administrative rules and regulations affecting every aspect of their operations.

The Administrative Procedures Act

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describes the different procedures under which federal administrative agencies

14
must operate. The act prescribes the procedural responsibilities and authority of administrative agencies and provides for legal remedies for those wronged by agency actions. The regulatory power exercised by administrative agencies includes power to license, power of rate setting (e.g., Centers for Medicare and Medicaid Services), and power over business practices (e.g., National Labor Relations Board).

The rules and regulations established by an agency must be administered within the scope of the authority delegated to the agency by Congress. Agency regulations and decisions can be subject to judicial review.

U.S. GOVERNMENT ORGANIZATION

The government of the United States is a national constitutional republic covering 50 states, the nation’s capital, and its territories (e.g., Puerto Rico, Guam). The federal government is organized into three branches. The legislative, executive, and judicial branches of government are illustrated in


FIGURE 5-1

. The powers and duties of the three branches of government are described in the U.S. Constitution.

Separation of Powers

A vital concept in the constitutional framework of government on both federal and state levels is the
separation of powers. Essentially, this principle provides that no single branch of government is clearly dominant over the other two; however, in the exercise of its functions, each may affect and limit the activities, functions, and powers of the others. The concept of
separation of powers—in effect, a system of checks and balances—is illustrated in the relationships among the branches of government with regard to legislation. On the federal level, when a bill creating a statute is enacted by Congress and signed by the president, it becomes law. If the president vetoes a bill, it takes a two-thirds vote of each house of Congress to override the veto. The president also can prevent a bill from becoming law by avoiding any action while Congress is in session. This procedure, known as a pocket veto, can temporarily stop a bill from becoming law and may permanently prevent it from becoming law if later sessions of Congress do not act on it favorably.

The Supreme Court may declare a bill that has become law invalid if the law violates the Constitution. As noted in
Marbury v. Madison, “It is also not entirely unworthy of observation, that in declaring what shall be the Supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.”

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Even though a Supreme Court decision is final regarding a specific controversy, Congress and the president may generate new, constitutionally sound legislation to replace a law that has been declared unconstitutional. The procedures for amending the Constitution are complex and often time consuming, but they can serve as a way to offset or override a Supreme Court decision.

Conflict of Laws

The various states and territories also have their own constitutions that must not be in conflict with the U.S. Constitution. When state and federal laws conflict, resolution can be sought in the appropriate federal court. The legal case
Dorsten v. Lapeer

County General Hospital


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illustrates how federal and state laws can be in conflict. The plaintiff in this case brought an action against Lapeer County General Hospital and certain physicians on the medical board alleging wrongful denial of her application for medical staff privileges. The plaintiff asserted claims under the U.S. Code for sex discrimination, violations of the Sherman Antitrust Act, and the like. The plaintiff filed a motion to compel discovery of peer-review reports to support her case. The U.S. District Court held that the plaintiff was entitled to discovery of peer-review reports despite a Michigan state law purporting to establish an absolute privilege barring access to peer-review reports conducted by hospital review boards.

Legislative Branch

On the federal level, legislative powers are vested in the Congress of the United States, which consists of a Senate and a House of Representatives. The function of the legislative branch is to enact laws that may amend or repeal existing legislation and to create new legislation. It is the legislature’s responsibility to determine the nature and extent of the need for new laws and for changes in existing laws. The work of preparing federal legislation is the responsibility of the various committees of both houses of Congress. There are 16 standing committees in the Senate and 19 in the House of Representatives. “The membership of the standing committees of each house is chosen by a vote of the entire body; members of other committees are appointed under the provisions of the measure establishing them.”

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Legislative proposals are assigned or referred to an appropriate committee for study. The committees conduct investigations and hold hearings where interested persons may present their views regarding proposed legislation. These proceedings provide additional information to assist committee members in their consideration of proposed bills. A bill may be reported out of a committee in its original form or it may be reported out with recommended amendments, or the bill might be allowed to lie in the committee without action. Some bills eventually reach the full legislative body, where, after consideration and debate, they may be approved or rejected.

The U.S. Congress and all state legislatures are bicameral (consisting of two houses), except for the Nebraska legislature, which is unicameral. Both houses in a bicameral legislature must pass identical versions of a legislative proposal before the legislation can be brought to the chief executive.

Judicial Branch


As I have said in the past, when government bureaus and agencies go awry, which are adjuncts of the legislative or executive branches, the people flee to the third branch, their courts, for solace and justice.

—Justice J. Henderson, Supreme Court of South Dakota

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The function of the judicial branch of government is adjudication—resolving disputes in accordance with law. As a practical matter, most disputes or controversies that are covered by legal principles or rules are resolved without resort to the courts.

Alexis de Tocqueville, a foreign observer commenting on the primordial place of the law and the legal profession, stated, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”

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This principle was highlighted in the
Marbury v. Madison decision of the Supreme Court in 1803:

It is emphatically the province and duty of the judicial branch to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules govern the case. This is the very essence of judicial duty.

… [I]t is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take such an oath to support it?

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State Court System

Each state in the United States provides its own court system, which is created by the state’s constitution and/or statutes. The oldest court in the United States, established in 1692, is the Supreme Judicial Court of Massachusetts.

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Most of the nation’s judicial business is reviewed and acted on in state courts. Each state maintains a level of trial courts that have original jurisdiction. This jurisdiction may exclude cases involving claims with damages less than a specified minimum, probate matters (e.g., wills and
estates), and workers’ compensation. Different states have designated different names for trial courts (e.g., superior, district, circuit, or supreme courts). Also on the trial court level are minor courts such as city, small claims, and justice of the peace courts. States such as Massachusetts have consolidated their minor courts into a statewide court system.

There is at least one appellate court in each state. Many states have an intermediate appellate court between the trial courts and the court of last resort. Where this intermediate court is present, there is a provision for appeal to it, with further review in all but select cases. Because of this format, the highest appellate tribunal is seen as the final arbiter in cases that are important in themselves or for the particular state’s system of jurisprudence.

Federal Court System

The trial court of the federal system is the U.S. District Court. There are 89 district courts in the 50 states (the larger states having more than one district court) and one in the District of Columbia. The Commonwealth of Puerto Rico also has a district court with jurisdiction corresponding to that of district courts in the different states. Generally, only one judge is required to sit and decide a case, although certain cases require up to three judges. The federal district courts hear civil, criminal, admiralty, and bankruptcy cases. The Bankruptcy Amendments and Federal Judgeship Act of 1984

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provided that the bankruptcy judges for each judicial district shall constitute a unit of the district court to be known as the bankruptcy court.

The U.S. Courts of Appeals (formerly called Circuit Courts of Appeals) are appellate courts for the 11 judicial circuits. Their main purpose is to review cases tried in federal district courts within their respective circuits, but they also possess jurisdiction to review orders of designated administrative agencies and to issue original writs in appropriate cases. These intermediate appellate courts were created to relieve the U.S. Supreme Court of deciding all cases appealed from the federal trial courts.

The Supreme Court is the nation’s highest court. It is the only federal court created directly by the Constitution.

The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

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Eight associate justices and one chief justice sit on the Supreme Court. The court has limited original jurisdiction over the lower federal courts and the highest state courts. In a few situations, an appeal will go directly from a federal or state court to the Supreme Court, but in most cases today, review must be sought through the discretionary writ of certiorari, an appeal petition. In addition to the aforementioned courts, special federal courts have jurisdiction over particular subject matters. The U.S. Court of Claims has jurisdiction over certain claims against the government. The U.S. Court of Appeals for the Federal Circuit has appellate jurisdiction over certain customs and patent matters. The U.S. Customs Court reviews certain administrative decisions by customs officials. Also, there is a U.S. Tax Court and a U.S. Court of Military Appeals.

Executive Branch

The primary function of the executive branch of government on the federal and state levels is to administer and enforce the law. The chief executive, either the president of the United States or the governor of a state, also has a role in the creation of law through the power to approve or veto legislative proposals.

The U.S. Constitution provides that “the executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years … together with the Vice President, chosen for the same Term.”

24
The president serves as the administrative head of the executive branch of the federal government, which includes 15 executive departments, as well as a variety of agencies, both temporary and permanent.

The Cabinet, a creation of custom and tradition dating back to George Washington’s administration, functions at the pleasure of the president. Its purpose is to advise the president on any subject on which he requests information (pursuant to Article II, section 2, of the Constitution).

The Cabinet is composed of the 15 executive departments.

25
Each department is responsible for a different area of public affairs, and each enforces the law within its area of responsibility. For example, the Department of Health and Human Services (DHHS) administers much of the federal health law enacted by Congress. Most state executive branches also are organized on a departmental basis. These
departments administer and enforce state law concerning public affairs.

On a state level, the governor serves as the chief executive officer. The responsibilities of a state governor are provided for in the state’s constitution. The Massachusetts State Constitution, for example, describes the responsibilities of the governor as follows:

26

  • To present an annual budget to the state legislature
  • To recommend new legislation
  • To veto legislation
  • To appoint and remove department heads
  • To appoint judicial officers
  • To act as commander-in-chief of the state’s military forces (the Massachusetts National Guard)

DEPARTMENT OF HEALTH AND HUMAN SERVICES

The Department of Health and Human Services was created on April 11, 1953, to strengthen “the public health and welfare of the American people by making affordable and quality health care and childcare accessible, ensuring the safety of food products, preparing for public health emergencies, and advancing the diagnosis, treatment, and curing of life threatening illnesses.”

27

The Department of Health and Human Services (DHHS) is a cabinet-level department of the executive branch of the federal government (


FIGURE 5-2

)
responsible for developing and implementing appropriate administrative regulations for carrying out national health and human services policy objectives. It is also the main source of regulations affecting the healthcare industry. The secretary of the DHHS, serving as the department’s administrative head, advises the president with regard to health, welfare, and income security plans, policies, and programs. The DHHS also is responsible for the various health programs designed through its operating divisions and agencies to meet the health needs of the people.

28

Administration on Aging

The Administration on Aging (AOA) is the principal agency designated to carry out the provisions of the Older Americans Act of 1965, which, as amended, focuses on improving the lives of senior citizens in areas of income, housing, health, employment, retirement, and community services. The AOA develops policies, plans, and programs designed to promote the welfare of the aging population. It promotes their needs by planning programs and developing policy, procedural direction, and technical assistance to states and Native American tribal governments.

29
“The Act also empowers the federal government to distribute funds to the states for supportive services for individuals over the age of 60.”

30

Chapter 35 of the U.S. Code “Programs for Older Americans” provides in part:

The Congress hereby finds and declares that, in keeping with the traditional American concept of the inherent dignity of the individual in our democratic society, the older people of our Nation are entitled to, and it is the joint and several duty and responsibility of the governments of the United States, of the several States and their political subdivisions, and of Indian tribes to assist our older people to secure equal opportunity to the full and free enjoyment of the following objectives:

(2) The best possible physical and mental health which science can make available and without regard to economic status.

(3) Obtaining and maintaining suitable housing, independently selected, designed and located with reference to special needs and available at costs which older citizens can afford.

(4) Full restoration services for those who require institutional care, and a comprehensive array of community-based, long-term care services adequate to appropriately sustain older people in their communities and in their homes, including support to family members and other persons providing voluntary care to older individuals needing long-term care services.

(5) Opportunity for employment with no discriminatory personnel practices because of age.

(6) Retirement in health, honor, dignity—after years of contribution to the economy.

(7) Participating in and contributing to meaningful activity within the widest range of civic, cultural, education and training and recreational opportunities. …

(9) Immediate benefit from proven research knowledge which can sustain and improve health and happiness.

(10) Freedom, independence, and the free exercise of individual initiative in planning and managing their own lives, full participation in the planning and operation of community-based services and programs provided for their benefit, and protection against abuse, neglect, and exploitation.

31

As the population of older Americans grows, discrimination, neglect, abuse, and exploitation of their vulnerabilities continue to increase; for instance, telemarketing aimed at scamming older Americans continues to flourish unabated by ineffective and inadequate laws, as well as poor enforcement of the laws that do exist. In one study focused on discrimination in healthcare settings, it was found that “[e]vidence-based care models that address the specialized needs of elderly patients exist, but nearly one third of survey respondents say they ‘frequently’ experience age-related discrimination from doctors or hospitals.”

32
Dr. Stephanie Rogers, MD, MPAS, MPH, a clinical geriatric fellow at the University of California San Francisco, stated she found that there doesn’t seem to be much interest in or respect for geriatrics, with only about 7,000 geriatricians in the United States. “‘Why would you want to specialize in older adults?’ other physicians would ask her.”

33
The following reality check illustrates how varying age groups differ in their opinions as to how scarce resources should be allocated to an aging population.

At Fifty, Have You Lived Your Life?

I recall teaching an ethics course to nurses in a master’s degree program in New York. As we were discussing care for the elderly, a young nurse, about 23 years of age, said, “I think we should not be providing expensive tests and treatments for patients over 50 years of age. People at that age have basically lived their lives.” Although most of the nurses in the class were in their late 40s and early 50s, there was silence across the room. My assumption is the nurse was unaware of the age group in the class, as she was the youngest nurse. As to the older nurses, I am not sure as to why they remained so silent. To my surprise, no one uttered a word and the class moved on as though nothing was said. I must say that I, being 33, was speechless.

—Anonymous

Discussion

  1. Discuss the ethical issues here that concern you.
  2. Describe how you might have responded if you were instructing the class.
  3. Discuss how this student might have a difference in opinion once she reaches the age of her classmates.

Centers for Medicare and Medicaid Services

The Centers for Medicare and Medicaid Services (CMS), formerly the Health Care Financing Administration, was created to combine under one administration the oversight of the Medicare program, the federal portion of the Medicaid program, the State Children’s Health Insurance Program, and related quality-assurance activities.

Medicare is a federally sponsored health insurance program for persons older than 65 and certain disabled persons. It has two complementary parts: Medicare Part A helps cover the costs of inpatient hospital care and, with qualifying preadmission criteria, skilled nursing facility care, home health care, and hospice care. Medicare Part B helps pay for physicians’ services and outpatient hospital services. It is funded through Social Security contributions (Federal Insurance Contributions Act payroll taxes), premiums, and general revenue. The program is administered through private contractors, referred to as intermediaries, under Part A and carriers under Part B. The financing of the Medicare program has received much attention by Congress because of its rapidly rising costs.

Medicaid, Title XIX of the Social Security Act Amendments of 1965, is a government program administered by the states that provides medical services (both institutional and outpatient) to the medically needy. Federal grants, in the form of matching funds, are issued to those states with qualifying Medicaid programs. In other words, Medicaid is jointly sponsored and financed by the federal government and several states. Medical care for needy persons of all ages is provided under the definition of need established by each state. Each state has set its own criteria for determining eligibility for services under its Medicaid program.

Public Health Service

The Public Health Service (PHS) is responsible for the protection of the nation’s physical and mental health. The PHS accomplishes its mission by coordinating with the states in setting and implementing national health policy and pursuing effective intergovernmental relations; generating and upholding cooperative international health-related agreements, policies, and programs; conducting medical and biomedical research; sponsoring and administering programs for the development of health resources, the prevention and control of diseases, and alcohol and drug abuse; providing resources and expertise to the states and other public and private institutions in the planning, direction, and delivery of physical and mental healthcare services; and enforcing laws to ensure drug safety and protection from impure and unsafe foods, cosmetics, medical devices, and radiation-producing objects. Within the PHS are smaller agencies that are responsible for carrying out the purpose of the division and DHHS. The PHS is composed of the offices and agencies described next.

National Institutes of Health

The National Institutes of Health (NIH) is the principal federal biomedical research agency. It is responsible for conducting, supporting, and promoting biomedical research. The mission of the NIH is to seek fundamental knowledge about the nature and behavior of living systems and the application of that knowledge
to enhance health, lengthen life, and reduce illness and disability. It is responsible for conducting, supporting, and promoting biomedical research. The goals of the agency are to:

  • foster fundamental creative discoveries, innovative research strategies, and their applications as a basis for ultimately protecting and improving health;
  • develop, maintain, and renew scientific human and physical resources that will ensure the Nation’s capability to prevent disease;
  • expand the knowledge base in medical and associated sciences in order to enhance the Nation’s economic well-being and ensure a continued high return on the public investment in research; and
  • exemplify and promote the highest level of scientific integrity, public accountability, and social responsibility in the conduct of science.

    34
Centers for Disease Control and Prevention

The Centers for Disease Control and Prevention (CDC) is recognized as the lead federal agency for protecting the health and safety of people at home and abroad, providing credible information to enhance health decisions, and promoting health. The CDC serves as the national focus for developing and applying disease prevention and control, environmental health, and health promotion and education activities. To accomplish its mission, “CDC conducts critical science and provides health information that protects our nation against expensive and dangerous health threats, and responds when these arise.”

35

Food and Drug Administration

The Food and Drug Administration (FDA) is responsible for “protecting the public health by assuring the safety, effectiveness, quality, and security of human and veterinary drugs, vaccines and other biological products, and medical devices. The FDA is also responsible for the safety and security of most of our nation’s food supply, all cosmetics, dietary supplements and products that give off radiation.”

36

Although the intention of the FDA is to do good, as noted in the following news clipping, ethical conflicts can arise and be detrimental to the good intent of the agency.

Long Waits for Generics

Brand-name drug makers already pay hefty user fees to help speed their applications through the FDA. That money is expected to provide about a third of the agency’s budget this year.

In general, we oppose user fees that allow a regulated industry to fund the regulators. A government agency can become dependent on the companies it’s supposed to objectively regulate, which can influence decisions. In a 2006 survey … many FDA employees said they felt pressured to hastily and perhaps improperly approve user-fee drugs. And at least one felt the agency viewed industry, not the American public, as its client.

—Jim Guest,
Consumer Reports, November 2010

Discussion

  1. Identify and describe the ethical issues of the FDA’s funding practice.
  2. Do you see any conflict in allowing private for-profit and not-for-profit hospital accreditation programs to accredit hospitals on behalf of Medicare, noting that the hospitals pay the accrediting organization to conduct such surveys? Discuss your answer.
Substance Abuse and Mental Health Services Administration

The agency’s mission is to reduce the impact of substance abuse and mental illness on America’s communities.

Health Resources and Services Administration

Health Resources and Services Administration (HRSA) is the primary federal agency for improving access to healthcare services for people who are uninsured, isolated, or medically vulnerable. Its mission is to improve health and achieve health equity through access to quality services, a skilled health workforce, and innovative programs. HRSA takes a comprehensive approach to addressing HIV/AIDS with activities taking place across multiple bureaus and offices designed to deliver care to people living with HIV, expand and strengthen the HIV care workforce, and improve access to and the quality of HIV care and treatment.

Agency for Healthcare Research and Quality

The Agency for Healthcare Research and Quality (AHRQ) provides evidence-based information on healthcare outcomes, quality, cost, use, and access. Information from AHRQ’s research helps people make more informed decisions and improve the quality of healthcare services.

Agency for Toxic Substances and Disease Registry

The mission of the Agency for Toxic Substances and Disease Registry (ATSDR) is to prevent or mitigate harmful exposures and related disease by applying science, taking responsive action, and providing trustworthy health information.

Indian Health Service

Indian Health Service provides a comprehensive health service delivery system for approximately 2 million American Indians and Alaska Natives (AI/AN) who belong to 566 federally recognized tribes in 35 states.

CHAPTER REVIEW

  1. A law is a general rule of conduct that is enforced by the government. When a law is violated, the government imposes a penalty.
    • Public law deals with the relationships between individuals and the government. Criminal law is a segment of public law.
    • Private law deals with relationships among individuals. Two types of private laws are tort and contract actions.
  2. Common law

    • U.S. common law has as its roots in the English common-law system.
      • The first English royal court was established in the year 1178. There were few written laws at the time, and a collection of principles evolved from the decisions of the court. These principles, known as
        common law, were used to decide subsequent cases.
    • During the colonial period, the United States based its law on English common law, but states had the authority to modify their legal systems.
    • Lower courts must follow common-law principles established in a higher state court.
    • Trial courts or those otherwise on equal footing are not bound by the decisions of other trial courts.
    • A principle of law set in one state does not set precedent for another state.
    • Common-law principles can be modified, overturned, abrogated, or created by new court decisions.
  3. Statutory law is written law that emanates from legislative bodies.

    • The Constitution is the highest level of enacted law.
    • Statutory law can be amended, repealed, or expanded by the legislature.
  4. Administrative law

    • Public law is issued by administrative agencies to administer the enacted laws of the federal and state governments.
    • Administrative agencies implement and administer administrative law.
    • Rules and regulations established by an agency must be administered within the scope of the authority delegated by Congress.
  5. Government organization
    • Three branches of government
      • Legislative branch, composed of the House of Representatives and the Senate, both enacts laws that can amend or repeal existing legislation and creates new legislation.
      • Judicial branch resolves disputes in accordance with the law.
      • Executive branch administers and enforces the law.
      • Separation of powers provides that no one branch of the government will be dominant over the other two.
      • States and local jurisdictions can enact and enforce only those laws that do not
        conflict with federal laws.
      • When state and federal laws conflict, resolution can be sought in an appropriate federal court.
  6. The DHHS develops and implements administrative regulations for carrying out national health and human services policy objectives.

    • DHSS is the main source of regulations that affect the healthcare industry. Operating divisions of DHHS include the:
      • Centers for Medicare and Medicaid Services
      • Public Health Service
      • National Institutes of Health
      • Centers for Disease Control and Prevention
      • Food and Drug Administration
      • Substance Abuse and Mental Health Services Administration
      • Health Resources and Services Administration
      • Agency for Healthcare Research and Quality
      • Agency for Toxic Substances and Disease Registry
      • Indian Health Service

TEST YOUR UNDERSTANDING

Terminology

  • administrative law
  • Bill of Rights
  • common law
  • Constitution of the United States
  • law
  • Medicare
  • precedent
  • private law
  • public law
  • res judicata
  • separation of powers
  • stare decisis
  • statutory law

REVIEW QUESTIONS

  1. Define the term
    law and describe the sources from which law is derived.
  2. Describe and contrast the legal terms
    res judicata and
    stare decisis.
  3. Describe the function of each branch of government.
  4. What is the meaning of separation of powers?
  5. What is the function of an administrative agency?
  6. Describe the various operating divisions and agencies within the DHHS.

NOTES

1. Bernard Schwartz,
Law in America: A History (New York: McGraw-Hill, 1974).

2.
Marbury v. Madison, 5 U.S. (Cranch) 137, 163 (1803).

3. The Law Dictionary [online]. “What Is Public Law?”
http://thelawdictionary.org/public-law/ (accessed July 15, 2018).

4. HG Legal Resources [online]. “What Is Constitutional Law?”
https://www.hg.org/constitutional-law.html (accessed July 15, 2018).

5. William A. Robson and Edward C. Page, “Administrative Law,” Encyclopaedia Britannica [online].
https://www.britannica.com/topic/administrative-law (accessed July 15, 2018).

6. Schwartz,
Law in America, supra note 1, at 29.

7.
Van Ness v. Pacard, 27 U.S. 137 (1829), at 144.

8. Schwartz,
Law in America, supra note 1, at 30–31.

9. Lawrence M. Friedman,
A History of American Law, Revised Edition (New York: Simon & Schuster, 1985), p. 92.

10. Schwartz,
Law in America, supra note 1, at 51.

11.
Black’s Law Dictionary, 6th ed. (New York: Springer, 1990), p. 1305.

12. U.S. Const. art. VI, A4 1, cl. 2.

13. 5 U.S.C.S. A4A4 500–576 (Law. Co-op. 1989).

14. An “agency means each authority of the Government of the United States … but does not include (A) the Congress; the Courts of the United States …” 5 U.S.C.S. A4 551(1) (Law. Co-op. 1989).

15.
Marbury v. Madison, 5 U.S. (Cranch) 137, 180 (1803).

16.
Dorsten v. Lapeer County General Hospital, 88 F.R.D. 583 (E.D. Mich. 1980).

17. Office of the Federal Register, National Archives and Records Administration,
The United States Government Manual 2000/2001 (Washington, DC: U.S. Government Printing Office, 200029.

18.
Heritage of Yankton, Inc. v. South Dakota Dep’t of Health, 432 N.W.2d 68, 77 (S.D. 1988).

19. Alexis de Tocqueville, “Chapter XVI: Causes Which Mitigate the Tyranny of the Majority in the United States,” Democracy in America, Vol. I.
http://xroads.virginia.edu/~hyper/detoc/1_ch16.htm (accessed July 15, 2018).

20.
Marbury v. Madison at 177–180.

21. Mass.gov [state of Massachusetts website], “About the Supreme Judicial Court: History of the Court.”
https://www.mass.gov/service-details/about-the-supreme-judicial-court (accessed July 15, 2018).

22. 28 U.S.C. A4 151.

23. U.S. Const. art. III, A4 1.

24. U.S. Const. art. II, A41, cl. 1.

25. USA.gov [website], “Executive Departments.”
https://www.usa.gov/executive-departments (accessed July 15, 2018).

26. Donald Levitan, and Elwyn E. Mariner,
Your Massachusetts Government, 10th ed. (Newton Center, MA: Government Research Publications, 1984), p. 14.

27. “Executive Branch: Departments—Department of Health and Human Services,” in The United States Government Manual.
https://www.gpo.gov/fdsys/pkg/GOVMAN-2015-07-01/xml/GOVMAN-2015-07-01-117.xml (accessed July 15, 2018).

28.
HHS.gov, “About: HHS Agencies & Offices.”
http://www.hhs.gov/about/foa/opdivs/ (accessed July 15, 2018).

29. Administration for Community Living, “About the Administration on Aging (AoA).”
https://www.acl.gov/about-acl/administration-aging (accessed July 15, 2018).

30.
Ibid.

31. U.S. Code, Title 42 The Public Health and Welfare, Chapter 35 Programs for Older Americans, Subchapter 1 § 3001 Congressional declaration of objectives.
http://uscode.house.gov/view.xhtml?req=(title:42%20section:3001%20edition:prelim) (accessed July 15, 2018).

32. Alexandra Wilson Pecci, “1 in 5 Adults Report Age Discrimination in Healthcare Settings,”

HealthLeadersMedia.com
(April 10, 2015).
http://www.healthleadersmedia.com/quality/1-5-adults-report-age-discrimination-healthcare-settings# (accessed July 15, 2018).

33.
Ibid.

34. National Institutes of Health, “What We Do: Mission and Goals.”
https://www.nih.gov/about-nih/what-we-do/mission-goals (accessed July 15, 2018).

35. Centers for Disease Control and Prevention, “About CDC 24-7: CDC Organization.”
https://www.cdc.gov/about/organization/cio.htm (accessed July 16, 2018).

36. U.S. Food and Drug Administration, “About FDA: FDA Fundamentals.”
http://www.fda.gov/AboutFDA/Transparency/Basics/ucm192695.htm (accessed July 15, 2018).

CHAPTER 6

Introduction to Law


Every instance of a man’s suffering the penalty of the law, is an instance of the failure of that penalty in effecting its purpose, which is to deter from transgression.

—Whately

INTRODUCTION

Laws are enacted to regulate human behavior for the benefit of society. They are designed to prevent harm to others while protecting the rights of individuals. In the law we are taught that we have a duty to care and that if we breach that duty and someone is injured as a result of that breach, there will be a penalty to pay, which could be financial loss, loss of license, and/or jail time to be served. This chapter introduces the reader to tort law, criminal law, contract law, and trial procedures. These are the areas of law that most often affect providers and patients.

TORT LAW

A
tort is a civil wrong, other than a breach of contract, committed against a person or property (real or personal) for which a court provides a remedy in the form of an action for damages. Tort actions touch an individual on both a personal and a professional level, which is why those involved in the healthcare field should be armed with the knowledge necessary for them to be aware of their rights and responsibilities.

The objectives of tort law are as follows: preservation of peace (between individuals by providing a substitute for retaliation); culpability (to find fault for wrongdoing); deterrence (to discourage the wrongdoer [tort-feasor] from committing future torts, as well as dissuade others from committing wrongful acts); and compensation to indemnify the injured person(s) as a result of negligent conduct by the defendant(s).

Negligence

Negligence is a tort, a civil or personal wrong. It is the unintentional
commission or
omission of an act that a reasonably prudent person would or would not perform under given circumstances. Negligence is a form of conduct caused by heedlessness or carelessness that constitutes a departure from the standard of care generally imposed on reasonable members of society. It can occur where a person has considered the consequences of an act and has exercised his or her best possible judgment but fails to guard against a risk that should be appreciated, and engages in certain behavior expected to involve unreasonable danger to others.

Commission of an act includes, for example, the following acts:

  • administering the wrong medication
  • administering the wrong dosage of a medication
  • administering a medication to the wrong patient
  • performing a surgical procedure without patient consent
  • performing a surgical procedure on the wrong patient
  • surgically removing the wrong body part
  • failing to assess and reassess a patient’s nutritional needs

Omission of an act includes the following:

  • failure to administer medication(s)
  • failure to order required diagnostic tests per established hospital protocol for head trauma (e.g., CT scan)
  • failure to follow up on abnormal test results
  • failure to perform a “time-out” to ensure the correct surgical procedure is being conducted on the correct patient at the correct site

Malpractice is the negligence or carelessness of a professional person (e.g., a nurse, pharmacist, physician, or accountant). Criminal negligence is the reckless disregard for the safety of another (e.g., willful indifference to an injury that could follow an act).

Negligence generally involves one of the following acts:

  • Malfeasance (execution of an unlawful or improper act [e.g., performing an abortion in the third trimester when such is prohibited by state law]);
  • Misfeasance (improper performance of an act, resulting in injury to another [(e.g., removal of a healthy kidney instead of the diseased kidney,

    1
    removal of the healthy breast instead of the diseased breast,

    2
    removal of the wrong leg during surgery

    3
    ); and
  • Nonfeasance (failure to act, when there is a duty to act as a reasonably prudent person would in similar circumstances [e.g., failing to order diagnostic tests or prescribe medications that should have been ordered or prescribed under the circumstances]).
Elements of Negligence

The four elements that must be present for a plaintiff to recover damages caused by negligence are (1) duty to care, (2) breach of duty, (3) injury, and (4) causation. All four elements must be present in order for a plaintiff to recover damages suffered as a result of a negligent act.

Duty to Care

1. The first requirement in establishing negligence is that the plaintiff must prove the existence of a legal relationship between himself or herself and the defendant.
Duty is defined as a
legal obligation of care, performance, or observance imposed on one to safeguard the rights of others. This duty may arise from a special relationship such as that between a physician and a patient. The existence of this relationship implies that a physician–patient relationship was in effect at the time an alleged injury occurred. The duty to care can arise from a simple telephone conversation or out of a physician’s voluntary act of assuming the care of a patient. Duty also can be established by statute or contract between the plaintiff and the defendant.

Duty to care is depicted in


FIGURE 6-1

, for example, where the pharmacy manager of General Hospital’s pharmacy, prior to leaving work for the day, assigns responsibility to a recently hired pharmacist behind the counter, telling her, “You’re in charge of the pharmacy, which includes the IV admixture room. Your duties and responsibilities are those as described in the pharmacy’s department policy and procedure manual. I will be leaving in an hour, so you should review the pharmacy’s policies and procedures before I leave. If you have any questions after I leave, you can reach me on my cell phone.”

This assignment established a duty on the part of the pharmacist to adhere to the policies and procedures in the department manual.

Standard of Care Expected

A duty of care carries with it a corresponding responsibility not only to provide care but also to provide it in an acceptable manner. Because of this obligation to conform to a recognized
standard of care, the plaintiff must show that the defendant failed to meet the required standard of care. The mere fact that an injury is suffered is not sufficient for imposing liability without proof that the defendant deviated from the practice of competent members of his or her profession.

The standard of care describes what conduct is expected of an individual in a given situation. The standard of care that must be exercised is that which a reasonably prudent person would adhere to when acting under the same or similar circumstances. A nurse, for example, who assumes the care of a patient, has the duty to exercise that degree of skill, care, and knowledge ordinarily possessed and exercised by other nurses. If a patient’s injury is the result of a negligent act of a physician, the standard of care required would be that degree of skill, care, and knowledge ordinarily possessed and exercised by other physicians. For an injury involving a specific specialty, the treating physician, nurse, pharmacist, etc., would be expected to treat the patient in that same manner as the specialist in the field in which the caregiver is practicing.

The
reasonably prudent person concept describes a nonexistent, hypothetical person who is put forward as the community ideal of what would be considered reasonable behavior. It is a measuring stick representing the conduct of the average person in the community under the circumstances facing the defendant at the time of the alleged negligence. The reasonableness of conduct is judged in light of the circumstances apparent at the time of injury and by reference to different characteristics of the actor (e.g., age, gender, physical condition, education, knowledge, training, and mental capacity).

The actual performance of an individual in a given situation will be measured against what a reasonably prudent person would or would not have done. Deviation from the standard of care will constitute negligence if there are resulting damages.

Ethicists and the Standard of Care

The standard of care required by a caregiver can in part be influenced by the principles of ethics that apply to the caregiver’s profession. For example, a decision concerning termination of resuscitation efforts is an area in which the standard of care includes an ethical component. Under these circumstances, it occasionally may be appropriate for a medical expert to testify about the ethical aspects underlying the professional standard of care. In
Neade v. Portes,

4
a physician expert was allowed to base an opinion on the breach of the standard of care based on violation of an ethical standard established by the American Medical Association.

Standard of Care Set by Statute

Some duties are created by statute, which occurs when a statute specifies a particular standard that must be met. Many such standards are created by administrative agencies under the provisions of a statute. State statutes can be
used in determining the standard of care required in a negligence case. California, for example, describes in part standards for registered nurses working in a hospital:

(a) … Only registered nurses shall be assigned to Intensive Care Newborn Nursery Service Units, which specifically require one registered nurse to two or fewer infants. In the Emergency Department, only registered nurses shall be assigned to triage patients and only registered nurses shall be assigned to critical trauma patients.

• • •

(1) The licensed nurse-to-patient ratio in a critical care unit shall be 1:2 or fewer at all times. “Critical care unit” means a nursing unit of a general acute care hospital which provides one of the following services: an intensive care service, a burn center, a coronary care service, an acute respiratory service, or an intensive care newborn nursery service. In the intensive care newborn nursery service, the ratio shall be 1 registered nurse: 2 or fewer patients at all times.

5

For liability to be established, based on a defendant’s failure to follow the standard of care outlined by statute, the following elements must be present:

  1. The defendant must have been within the specified class of persons outlined in the statute.
  2. The plaintiff must have been injured in a way that the statute was designed to prevent.
  3. The plaintiff must show that the injury would not have occurred if the statute had not been violated.
Duty to Provide Timely Care

The surviving parents in
Hastings v. Baton Rouge Hospital

6
brought a medical malpractice action for the wrongful death of their 19-year-old son. The action was brought against the hospital; the emergency department (ED) physician, Dr. Gerdes; and the thoracic surgeon on call, Dr. McCool. The patient had been brought to the ED at 11:56 p.m. because of two stab wounds and weak vital signs. Gerdes decided that a thoracotomy (an incision into the pleural space of the chest) had to be performed. He was not qualified to perform the surgery and called McCool, who was on call that evening for thoracic surgery. Gerdes described the patient’s condition, indicating that he had been stabbed in a major blood vessel. At trial, McCool claimed that he did not recall Gerdes saying that a major blood vessel could be involved. McCool asked Gerdes to transfer the patient to the Earl K. Long Hospital. Gerdes said, “I can’t transfer this patient.” McCool replied, “No. Transfer him.” Kelly, an emergency department nurse on duty, was not comfortable with the decision to transfer the patient and offered to accompany him in the ambulance. Gerdes reexamined the patient, who exhibited marginal vital signs, was restless, and was draining blood from his chest.

The ambulance service was called at 1:03 a.m., and by 1:30 a.m. the patient had been placed in the ambulance for transfer. The patient began to fight wildly. The chest tube came out, and the bleeding increased. An attempt to revive him from a cardiac arrest was futile, and the patient died after having been moved back to the emergency department. The patient virtually bled to death.

The duty to care in this case cannot be reasonably disputed. Louisiana, by statute, imposes a duty on hospitals licensed in Louisiana to make emergency services available to all persons residing in the state regardless of insurance coverage or economic status. The hospital’s own bylaws provided that no patient should be transferred without due consideration for his or her condition. Hospitals are required to stabilize the patient prior to transfer. In this case, there was a surgeon who was available to treat this patient. McCool decided to practice telephone medicine and made the unfortunate decision to transfer the patient, which resulted in risking the life of an unstable patient, resulting in his death.

Duty to Hire Competent Staff

Texas courts recognize that an employer has a duty to hire competent employees, especially if they are engaged in an occupation that could be hazardous to life and limb and requires skilled or experienced persons. For example, the appellant in
Deerings West Nursing Center v. Scott

7
was found to have negligently hired an incompetent employee it knew, or should have known, was incompetent, thereby causing unreasonable risk of harm to others.

The employee, Ken Hopper, testified that he was hired sight unseen over the telephone by the Deerings director of nursing. Even though the following day he went to the nursing facility to complete an application, he still maintained that he was hired over the phone. In his application, he falsely stated that he was a licensed vocational nurse (LVN) in Texas. Additionally, he claimed that he had never been convicted of
a crime. In reality, he had been previously employed by a bar, was not an LVN, had committed more than 56 criminal offenses of theft, and was on probation at the time of his testimony.

The duty of care in this case is clear. The appellant violated the very purpose of Texas licensing statutes by failing to validate whether or not Hopper had a current LVN license. The appellant then placed him in a position of authority and not only allowed him to dispense drugs but also made him a shift supervisor. This negligence eventually resulted in an inexcusable assault on an older woman.

Breach of Duty

2. After a duty to care has been established, the plaintiff must demonstrate that the defendant breached that duty by failing to comply with the accepted standard of care required.
Breach of duty, the second element that must be present for a plaintiff to establish negligence, is the failure to conform to or the departure from a required obligation owed to a person. The obligation to perform according to a standard of care may encompass either performing or refraining from performing a particular act.

The court in
Hastings v. Baton Rouge Hospital,

8
discussed earlier, found a severe breach of duty. Hospital regulations provide that when a physician cannot be reached or refuses a call, the chief of service is to be notified so that another physician can be obtained. This was not done. It is not necessary to prove that a patient would have survived if proper treatment had been administered—only that the patient would have had a
chance of survival. As a result of Dr. Gerdes’s failure to make arrangements for another physician, and Dr. McCool’s failure to perform the necessary surgery, the patient had no chance of survival. The duty to provide for appropriate care under the circumstances was breached.

Breach of duty is illustrated in


FIGURE 6-2

, where the intravenous (IV) admixture room pharmacist checking the work of a pharmacy technician fails to follow up on his concern as to whether or not the medication in the IV bag had been diluted in the correct dosage. Failure to follow up established a breach of duty.

Injury/Actual Damages

3. A defendant may be negligent yet not incur liability if there is no injury or actual damages suffered by the plaintiff, the third element necessary to establish negligence.
Injury includes more than physical harm. Without harm or injury, there is no liability. Injury is not limited to physical harm but includes loss of income or reputation and compensation for pain and suffering. The mere occurrence of an injury does not necessarily establish negligence for which the law imposes liability, because the injury might be the result of an unavoidable accident or act of God, such as a lightning strike that is the direct cause of an injury.

The third element of negligence—injury—is portrayed in


FIGURE 6-3

, where the death of an infant in General Hospital’s nursery occurred 3 hours following administration of an improper dose of an IV medication.

In
Hastings, the patient’s death was a direct result of the breach of duty.

Causation/Proximate Cause

4.
Causation, the fourth element necessary to establish negligence, requires that there be a reasonable, close, and causal connection between the defendant’s negligent conduct and the resulting damages suffered by the plaintiff. In other words, the defendant’s negligence must be a substantial factor causing the injury.
Proximate cause is a term referring to the relationship between a breached duty and the injury. The breach of duty must be the proximate cause of the resulting injury.

The courts generally apply the
but-for rule to determine if the injury is the direct result of a defendant’s act or omission of an act. A finding that an injury would not have occurred
but for a defendant’s act establishes that the particular act or omission is the proximate cause of the harm. If an injury would have occurred regardless of a defendant’s negligent act, liability cannot be assigned to the defendant. “Thus, in a death case, if a defendant physician, by action or inaction, has destroyed any substantial possibility of the patient’s survival, such conduct becomes a proximate cause of the patient’s death. The law does not require the plaintiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treatment for the condition causing the death.”

9



FIGURE 6-4

portrays a defense attorney successfully arguing that the cause of death of an infant in General Hospital’s nursery was due to the failure of the pharmacist to properly verify that the IV medication had been properly diluted and labeled by the pharmacy technician in the hospital’s pharmacy. The IV solution, containing the medication, was delivered to the nursery, where the nurse checked the label, unaware that the medication left the pharmacy mislabeled and improperly diluted, administered it to the infant, who subsequently died. In this case, the nurse performed her duties according to standard practice in the administration of the medication unaware that it had been erroneously diluted in the pharmacy. The pharmacist’s failure to check the technician’s work was a break in protocol and the causal link between the technician’s negligence and the infant’s death.

Proximate cause means “legal cause,” or one that the law recognizes as the primary cause of the injury. It may not be the first event that set in motion a sequence of events that led to an injury, and it may not be the very last event before the injury occurs. Instead, it is an action that produced foreseeable consequences without intervention from anyone else. In other words, the plaintiff will have to show that the injuries were the natural and direct consequence of the proximate cause, without which the injuries would not have occurred.

10

In this case there was an intervening cause where the defendant nurse could not have reasonably foreseen or been aware of the negligent preparation and mislabeling of the admixture in the pharmacy by the pharmacy technician and failure of the supervising pharmacist to check on the technician’s admixture prior to it leaving the pharmacy to the nursery where it was injected into the newborn. Thus, establishing the element of causation.

Causation in the
Hastings

11
case was well established. In the ordinary course of events, a person does not bleed to death in a hospital emergency department over a 2-hour period without some surgical intervention to save the patient’s life.

Foreseeability and Anticipation of Harm

Foreseeability is the reasonable anticipation that harm or injury is likely to result from an act or an omission of an act. As an aspect of causation in a negligence case, the test for foreseeability is whether a person of ordinary prudence and intelligence should have anticipated the danger to others caused by his or her negligent act. “The test is not what the wrongdoer believed would occur; it is whether he or she ought reasonably to have foreseen that the event in question, or some similar event, would occur.”

12

There is no expectation that a person can guard against events that cannot reasonably be foreseen. Foreseeability involves guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible. In
Hastings, it was highly probable that the patient would die if the bleeding was not stopped. “The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances.”

13

Duty to care involves a responsibility to do the “right thing.” The right thing is based on an acceptable standard of care. If breaching the standard causes harm to the patient, not only is there a legal issue, there are ethical principles that have been violated. Nonmaleficence, for example, requires caregivers to avoid causing harm to patients.


Case Studies

Cursory Exams Are Risky

All of the elements necessary to establish negligence were well established in
Niles v. City of San Rafael.

14
On June 26, 1973, at approximately 3:30 p.m., Kelly Niles, a young boy, got into an argument with another boy on the ball field. He was hit on the right side of his head. Kelly rode home on his bicycle and waited for his father, who was to pick him up for the weekend. At approximately 5:00 p.m., Kelly’s father arrived. By the time they arrived in San Francisco, Kelly appeared to be in a great deal of pain. His father then decided to take him to Mount Zion Hospital, which was a short distance away. He arrived at the hospital emergency department at approximately 5:45 p.m. On admission to the emergency department, Kelly was taken to a treatment room by a registered nurse. The nurse obtained a history of the injury and took Kelly’s pulse and blood pressure. During his stay in the emergency department, he was irritable, vomited several times, and complained that his head hurt. An intern who had seen Kelly wrote “pale, diaphoretic, and groggy” on Kelly’s chart. Skull X-rays were ordered and found to be negative except for soft tissue swelling that was not noted until later. The intern then decided to admit Kelly. A second-year resident was called, and he agreed with the intern’s decision. An admitting clerk called the intern and indicated that Kelly had to be admitted by an attending physician. The resident went as far as to write “admit” on the chart and later crossed it out. A pediatrician who was in the emergency department at the time was asked to look at Kelly. The pediatrician was also the paid director of the Mount Zion Pediatric Out-Patient Clinic. The pediatrician asked Kelly a few questions and then decided to send him home. The physician could not recall what instructions he gave Kelly’s father, but he did give the father his business card.

The pediatrician could not recall giving the father a copy of the emergency department’s
Head Injury Instructions, an information sheet that had been prepared for distribution to patients with head injuries. The sheet explained that patients should return to the emergency department should any of the following signs appear: a large, soft lump on the head, unusual drowsiness (cannot be awakened), forceful or repeated vomiting, a fit or convulsion (jerking or spells), clumsy walking, bad headache, and/or one pupil larger than the other.

Kelly was taken back to his father’s apartment at about 7:00 p.m. A psychiatrist friend stopped by and examined Kelly. He noted that one pupil was larger than the other. Kelly was taken back to the emergency department. A physician on duty noted an epidural hematoma during his examination and ordered that a neurosurgeon be called.

Today, Kelly can move only his eyes and neck. A lawsuit was brought against the hospital and pediatrician for $5 million. The city of San Rafael and its public school district were included in the lawsuit as defendants. Expert testimony by two neurosurgeons during the trial indicated that Kelly’s chances of recovery would have been very good if he had been admitted promptly. This testimony placed the proximate cause of the injury with the hospital. The final judgment was $4 million against the medical defendants, $2.5 million for compensatory damages, and another $1.5 million for pain and suffering.

Ethical and Legal Issues

The many lessons for discussion in
Niles v. City of San Rafael include the following:

  1. An organization can improve the quality of patient care rendered in the facility by establishing and adhering to policies, procedures, and protocols that facilitate the delivery of high-quality care across all disciplines.
  2. The provision of high-quality health care requires collaboration across disciplines.
  3. A physician must conduct a thorough and responsible examination and order the appropriate tests for each patient, evaluating the results of those tests before discharging the patient.
  4. A patient’s vital signs must be monitored closely and documented in the medical record. Corrective measures must be taken when a patient’s medical condition signals a medical problem.
  5. A complete review of a patient’s medical record must be accomplished before discharging a patient.
  6. Review of the record must include review of test results, nurses’ notes, residents’ and interns’ notes, and the notes of any other physician or consultant who may have attended the patient.
  7. Failure to fully review a patient’s record can lead to an erroneous diagnosis, and the premature dismissal of a case can result in liability for both the organization and physician.

INTENTIONAL TORTS

An
intentional tort is one that is committed deliberately. Proof of intent is based on the premise that the defendant intended the harmful consequences of his or her behavior. An individual’s reason to cause harm is irrelevant and does not protect him or her from responsibility for the damages suffered as the result of an intentional act.

Assault and Battery

It has long been recognized by law that a person possesses a right to be free from aggression and the threat of actual aggression against one’s person. The right to expect others to respect the integrity of one’s body has roots in both common and statutory law. The distinguishing feature between assault and battery is that
assault effectuates an infringement on the mental security or tranquility of another, whereas
battery constitutes a violation of another’s physical integrity.

An assault is defined as the deliberate threat, coupled with the apparent present ability to do physical harm to another. No actual contact or damages are necessary. It is the deliberate threat or attempt to injure another or the attempt by one to make bodily contact with another without his or her consent. To commit the tort of assault, the following two conditions must be proven:

  1. The person attempting to touch another unlawfully must possess the apparent present ability to commit the battery.
  2. The person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it.

A
battery is the intentional touching of another’s person, in a socially impermissible manner, without that person’s consent. It is intentional conduct that violates the physical security of another. The receiver of the battery does not have to be aware that a battery has been committed (e.g., a patient who is unconscious and has surgery performed on him or her without consent, either expressed or implied, is the object of a battery). The unwanted touching may give rise to a cause of action for any injuries brought about by the touching. No actual damages need be shown to impose liability. The physician in
Schloendorff v. Society of New York

15
removed a tumor from the abdomen of a patient who had consented only to a diagnostic procedure, not an invasive surgical procedure. Justice Cordoza of the Supreme Court of New York stated, “In the case at hand, the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has the right to determine what shall be done with his own body and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable for damages.” Generally, a suit based on a battery is actionable if a patient has not consented to a procedure. This is the case if the procedure is successful.

Ghost Surgery

Ghost surgery lawsuits occur when a substitute surgeon without the patient’s knowledge and permission performs a patient’s surgery. Ghost surgery has both ethical and legal implications. A patient has a right to expect that the surgeon who consents to perform the agreed procedure does not delegate that procedure to a substitute surgeon. Malice or intent to injure is not required to establish a battery. The New Jersey Supreme Court in
Perna v. Pirozzi “held that such a battery results when a medical procedure is performed by a ‘substitute’ doctor regardless of good intentions.”

16
The Court here took notice of standards published by the Judicial Council of the American Medical Association, which read:

To have another physician operate on one’s patient without the patient’s knowledge and consent is a deceit. The patient is entitled to choose his own physician and he should be permitted to acquiesce in or refuse to accept the substitution. The surgeon’s obligation to the patient requires him to perform the surgical operation: (1) within the scope of authority granted by the consent to the operation; (2) in accordance with the terms of the contractual relationship; (3) with complete disclosure of all facts relevant to the need and the performance of the operation; and (4) to utilize his best skill in performing the operation. It should be noted that it is the operating surgeon to whom the patient grants consent to perform the operation. The patient is entitled to the services of the particular surgeon with whom he or she contracts. The surgeon, in accepting the patient, is obligated to utilize his personal talents in the performance of the operation to the extent required by the agreement creating the physician-patient relationship. He cannot properly delegate to another the duties which he is required to perform personally.

Under the normal and customary arrangement with private patients, and with reference to the usual form of consent to operation, the surgeon is obligated to perform the operation, and may use the services of assisting residents or other assisting surgeons to the extent that the operation reasonably requires the employment of such assistance.

If a resident or other physician is to perform the operation under the guidance of the surgeon, it is necessary to make a full disclosure of this fact to the patient, and this
should be evidenced by an appropriate statement contained in the consent. If the surgeon employed merely assists the resident or other physician in performing the operation, it is the resident or other physician who becomes the operating surgeon. If the patient is not informed as to the identity of the operating surgeon, the situation is “ghost surgery.”

Ghost surgery “remains a battery even if performed skillfully and to the benefit of the patient.”

17

Physician Strikes Nurse

In
Peete v. Blackwell,

18
punitive damages in the amount of $10,000 were awarded to a nurse in her action against a physician for assault and battery. Evidence showed that the physician struck the assisting nurse on the arm and cursed at her when he ordered her to turn on the suction. Dr. Peete appealed the trial court’s decision, asserting the evidence presented was insufficient to show the requisite “insult or other aggravating circumstances” required for an award of $10,000 in punitive damages. He contended that, even if sufficient evidence of aggravating circumstances were presented, the actual assessment of punitive damages was against the weight and preponderance of the evidence submitted. On appeal, the Supreme Court of Alabama upheld the judgment of the trial court.

False Imprisonment

False imprisonment is the unlawful restraint of an individual’s personal liberty or the unlawful restraining or confining of an individual. The personal right to move freely and without hindrance is basic to our legal system. Any intentional infringement on this right may constitute false imprisonment. Actual physical force is not necessary to constitute false imprisonment. All that is necessary is that an individual who is physically confined to a given area experience a reasonable fear that force, which may be implied by words, threats, or gestures, will be used to detain the individual or to intimidate him or her without legal justification. Excessive force used to restrain a patient may produce liability for both false imprisonment and battery.

Defamation of Character

Defamation of character involves communications to someone other than the person defamed that tends to hold that person’s reputation up to scorn and ridicule.

Slander is the oral form of defamation. For example, in
Eli v. Griggs County Hospital & Nursing Home,

19
a nurse’s aide was terminated as the result of an incident in the hospital dining room in which the aide, in the presence of patients and visitors, cursed at her supervisor and complained that personnel were working short staffed. Given the nature of her employment, such behavior justified her termination on a charge of reported breach of patient- and facility-specific information. No defamation finding resulted from the entry of such charges in the aide’s personnel file—the reason behind the court case—because the record established that the charges were true.

Libel is the written form of defamation. Libel can be expressed in the form of signs, photographs, letters, cartoons, and various other forms of written communication. To be an actionable wrong, defamation must be communicated to a third person. Defamatory statements communicated only to the injured party are not grounds for an action. Truth of a statement is a complete defense.

Defamation on its face is actionable without proof of special damages. In certain cases, a court will presume that the words caused injury to the person’s reputation. There are four generally recognized exceptions whereby no proof of actual harm to reputation is required to recover damages:

  1. Accusing someone of a crime
  2. Accusing someone of having a loathsome disease
  3. Using words that harm a person’s profession or business
  4. Accusing someone of sexual misconduct

Invasion of Privacy

Invasion of privacy is a wrong that invades the right of a person to personal privacy. The idea of absolute privacy must be tempered with reality in the care of any patient, and the courts recognize this fact. Disregard for a patient’s right to privacy is legally actionable, particularly when patients are unable to protect themselves adequately because of unconsciousness or immobility.

The
right to privacy is implied in the Constitution. It is recognized as a right to be left alone—the right to be free from unwarranted publicity and exposure to public view, as well as the right to live one’s life without having one’s name, picture, or private affairs made public against one’s will. Healthcare organizations and professionals may become liable for invasion of privacy if, for example, they divulge information from a patient’s medical record to improper sources or if they commit unwarranted intrusions into a patient’s personal affairs.

Patients have a right to personal privacy and a right to the confidentiality of their personal and clinical records. The information in a patient’s medical
record is confidential and should not be disclosed without the patient’s permission. Those who come into possession of the most intimate personal information about patients have both a legal and an ethical duty not to reveal confidential communications. The legal duty arises because the law recognizes a right to privacy. An ethical duty is broader because it applies at all times. There are, however, occasions when there is a legal obligation or duty to disclose information. The law requires, for example, the reporting of communicable diseases, gunshot wounds, and the reasonable suspicion of patient abuse.


Case Studies

The Court Was Appalled

In
Tomcik v. Ohio Dep’t of Rehabilitation & Correction,

20
the plaintiff, Janet Tomcik, was in the custody of the defendant, a penal institution. As part of the institution’s policy of medically evaluating all new inmates, on May 26, 1989, Dr. Evans gave Tomcik a medical examination. He testified that his physical evaluation included an examination of Tomcik’s breasts; however, he stated that his examination was very cursory.

The day after her examination, Tomcik examined her own breasts. At that time, she discovered a lump in her right breast, which she characterized as being about the size of a pea. She then sought an additional medical evaluation at the defendant’s medical clinic. Testimony indicated that fewer than half of the inmates who sign the clinic list are actually seen by medical personnel the next day. Also, inmates who are not examined on the day for which the list is signed are given no preference in being examined on the following day. In fact, their names are simply deleted from the daily list, and their only recourse is to continually sign the list until they are examined.

The evidence indicated that from May 27 on, Tomcik constantly signed the clinic list and provided the reason she was requesting medical care.

A nurse finally examined Tomcik on June 21. The nurse wrote in her nursing notes that Tomcik had a “moderate large mass in right breast.” The nurse recognized that the proper procedure was to measure such a mass, but she testified that this was impossible because no measuring device was available. The missing “measuring device” to which she alluded was a simple ruler. The nurse concluded that Evans, the original doctor who had examined Tomcik, should examine her again.

On June 28, Evans examined Tomcik again. He recorded in the progress notes that she had “a mass on her right wrist. Will send her to hospital and give her Benadryl for allergy she has.”

21
Evans meant to write “breast,” not “wrist.” He again failed to measure the size of the mass on Tomcik’s breast.

Tomcik was transferred to the Franklin County Prerelease Center on September 28. On September 30, a nurse there examined Tomcik; the nurse recorded that she had a “golf ball–sized” lump in her right breast. Tomcik was transported to the hospital on October 27, where Dr. Walker treated her. A mammogram indicated that Tomcik’s tumor was probably malignant. This diagnosis was confirmed by a biopsy performed on November 9. Tomcik was released from confinement on November 13.

On November 16, Dr. Lidsky, a surgeon employed outside of the penal institution, examined Tomcik. Lidsky noted the existence of the lump in her breast and determined that the size of the mass was approximately 4 to 5 centimeters and somewhat fixed. He performed a modified radical mastectomy on the plaintiff’s right breast, removing nearly the entire breast.

Tomcik alleged that it was the delay in her examination that ultimately led to the removal of her right breast; had she been seen in a more timely manner, much of the breast could have been spared. The corrections department, in its defense, contended that even if its employees were negligent, Tomcik’s cancer was so advanced when discovered that it would nevertheless have required removal of her breast.

22

The Ohio Court of Appeals held that the delay in providing treatment to Tomcik fell below the medically acceptable standard of care. The court was
appalled that the physician had characterized his evaluation as a medical examination and that what he described as a
cursory breast examination should be considered medically sufficient. It seemed incredible to the court that a physician would deliberately choose not to take the additional few minutes or seconds to palpate thoroughly the sides of the breasts, which is a standard minimally intrusive cancer detection technique.

Ethical and Legal Issues

  1. Do you agree with the court’s decision? Discuss your answer.
  2. Discuss why the court was appalled.
  3. What ethical values were lacking by the caregivers?

Infliction of Mental Distress

The intentional or reckless
infliction of mental distress is characterized by conduct that is so outrageous
that it goes beyond the bounds tolerated by a decent society. It is a civil wrong for which a tort-feasor can be held liable for damages. Mental distress includes mental suffering resulting from painful emotions such as grief, public humiliation, despair, shame, and wounded pride. Liability for the wrongful infliction of mental distress may be based on either intentional or negligent misconduct. A plaintiff may recover damages if he or she can show that the defendant intended to inflict mental distress and knew or should have known that his or her actions would give rise to it. Recovery generally is permitted even in the absence of physical harm.

CRIMINAL LAW


Laws were made to restrain and punish the wicked; the wise and good do not need them as a guide, but only as a shield against rapine and oppression; they can live civilly and orderly, though there were no law in the world.

—Owen Feltham (1602–1668)

What Went Wrong?

The son of a prominent Boston doctor … was on his way to becoming a leading surgeon in his own right when a bizarre blunder interrupted his climb: he left his patient on the operating table so he could cash his paycheck. A series of arrests followed, exposing a life of arrogance, betrayal, and wasted promise …

—Reproduced from Neil Swidey, “What Went Wrong?”
The Boston Globe, March 21, 2004

Criminal law is society’s expression of the limits of acceptable human behavior. A crime is conduct that unjustifiably and inexcusability inflicts or threatens harm to individual(s) or public interests. The objectives of criminal law are to:

  • maintain public order and safety
  • protect the individual
  • use punishment as a deterrent to crime
  • rehabilitate the criminal for return to society

Crimes are generally classified as misdemeanors or felonies. The difference between a misdemeanor and a felony revolves around the severity of the crime committed and the punishment imposed. A
misdemeanor is an offense punishable by less than 1 year in jail and/or a fine (e.g., petty larceny). A
felony is a much more serious crime (e.g., rape, murder) and is generally punishable by imprisonment in a state or federal penitentiary for more than 1 year.

Peculiar to healthcare organizations is the fact that patients are often helpless and at the mercy of others. Healthcare facilities far too often are places where the morally weak and mentally deficient prey on the physically and sometimes mentally helpless. The very institutions designed to make the public well and feel safe can sometimes provide the setting for criminal conduct.

The topics in this section run counter to the ethics theory of
nonmaleficence—to do no harm—as well as to the codes of professional ethics. For example, as noted in the grand jury indictment in


FIGURE 6-5

, Dr. Gosnell snipped the spinal cords of infants delivered alive during abortion procedures. Crimes like his and others against society are not only legal wrongs, they are also ethically wrong.

The U.S. Department of Justice and state and local prosecutors are vigorously pursuing and prosecuting healthcare organizations and individuals for criminal conduct. Healthcare fraud, patient abuse, and other such crimes have caused law enforcement agencies to establish a zero-tolerance policy for such acts. This reality requires healthcare professionals to be observant in their environments and to report suspicious conduct, as appropriate.

Criminal Procedure

Criminal procedure deals with the set of rules governing the series of proceedings through which the government enforces criminal law as provided by municipalities, states, and the federal government, each of which has its own criminal codes that address and define conduct that constitutes crimes. The following sections provide an overview of criminal procedure and the process for the prosecution of misdemeanors and felonies.

Arrest

Prosecutions for crimes generally begin with the arrest of a defendant by a police officer or with the filing of a formal action in a court of law and the issuance of an arrest warrant or summons. On arrest, the defendant is taken to the appropriate law enforcement agency for processing, which includes paperwork and fingerprinting. The police also prepare accusatory statements, such as misdemeanor information and felony complaints. Detectives are assigned to cases when necessary to gather evidence, interview persons suspected of committing a crime and witnesses to a crime, and assist in preparing a case for possible trial. After processing has been completed, a person is either detained or released on bond.

Arraignment

The arraignment is a formal reading of the accusatory instrument and includes the setting of bail. The accused can appear with counsel or have counsel appointed by the court if he or she cannot afford his or her own. After the charges are read, the defendant pleads guilty or not guilty. A not guilty plea is normally offered on a felony. On a plea of not guilty, the defense attorney and prosecutor make arguments regarding bail. After arraignment of the defendant, the judge sets a date for the defendant to return to court. Between the time of arraignment and the next court date, the defense
attorney and the prosecutor confer about the charges and the evidence in the possession of the prosecutor. At that time, the defense will offer any mitigating circumstances that it believes will convince the prosecutor to lessen or drop the charges.

Indictment

A felony complaint or grand jury indictment commences a criminal proceeding. The accused can be tried for a felony after a
grand jury indictment (
Figure 6-5). The defendant can waive presentment to the grand jury and plead guilty by relinquishing his or her rights to a grand jury hearing and proceed to trial by jury. During a grand jury hearing, the prosecution presents evidence, which may lead to an indictment of the target if the grand jury finds reasonable cause to believe from the evidence presented that all the elements of a particular crime are present. The grand jury may request that witnesses be subpoenaed to testify. A defendant may choose to testify and offer information if he or she wishes. Actions of a grand jury are handed up to a judge, after which the defendant is then notified to appear to be arraigned for any crimes charged in the indictment.

Conference

If the defendant does not plead guilty, both felony and misdemeanor cases are taken to conference, and plea bargaining commences with the goal of an agreed-on disposition. If no disposition can be reached, the case is adjourned, motions are made, and further plea bargaining ensues. Generally, after several adjournments, a case is assigned to a trial court.

Prosecutor

The role of the prosecutor in the criminal justice system is well defined in
Berger v. United States:

23

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice will be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.

The potential of the prosecutor’s office is not always fully realized in many jurisdictions. In many cities, the combination of the prosecutor’s staggering caseload and small staff of assistants prevents sufficient attention being given to each case.

24

Defense Counsel

The defense attorney generally sits in the proverbial hot seat, being perceived as the bad guy. Although everyone seems to understand the attorney’s function in protecting the rights of those represented, a criminal defense attorney is frequently not the most admired individual in the courtroom setting.

There is a substantial difference in the problem of representing the “run-of-the-mill” criminal defendant and one whose alleged crimes have aroused great public outcry. The difficulties in providing representation for the ordinary criminal defendant are simple compared with the difficulties of obtaining counsel for one who is charged with a crime which by its nature or circumstances incites strong public condemnation.

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Trial

Most of the processes of a criminal trial are similar to those of a civil trial. They include jury selection, opening statements, presentation of witnesses and other evidence, summations, instructions to the jury by the judge, jury deliberations, verdict, and opportunity for appeal to a higher court. In a criminal trial, the jury verdict must be unanimous, and the standard of proof is that guilt must be determined beyond a reasonable doubt, whereas in a civil trial the plaintiff need only prove a claim by a preponderance of the evidence.

Healthcare Fraud

Healthcare fraud involves an unlawful act, generally deception for personal financial gain. It “encompasses an array of irregularities and illegal acts characterized by intentional deception.”

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As shown in this section, every pillar of moral strength is shattered in an industry, rampant with fraudulent activities. Healthcare fraud costs the country billion of dollars annually. And it’s a rising threat, with national healthcare spending topping $2.7 trillion and expenses continuing to outpace inflation. As noted in the following news clipping,
medical professionals are more willing to risk patient harm in their schemes.

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National Health Care Fraud Takedown Results in Charges Against Over 412 Individuals Responsible for $1.3 Billion in Fraud Losses

Attorney General Jeff Sessions and Department of Health and Human Services (HHS) Secretary Tom Price, M.D., announced today the largest ever health care fraud enforcement action by the Medicare Fraud Strike Force, involving 412 charged defendants across 41 federal districts, including 115 doctors, nurses and other licensed medical professionals, for their alleged participation in health care fraud schemes involving approximately $1.3 billion in false billings. Of those charged, over 120 defendants, including doctors, were charged for their roles in prescribing and distributing opioids and other dangerous narcotics. Thirty state Medicaid Fraud Control Units also participated in today’s arrests. In addition, HHS has initiated suspension actions against 295 providers, including doctors, nurses and pharmacists.

—Department of Justice,
Justice News, July 13, 2017

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The primary agency for exposing and investigating healthcare fraud is the Federal Bureau of Investigation (FBI) with jurisdiction over both federal and private insurance programs.

The Bureau seeks to identify and pursue investigations against the most egregious offenders involved in health care fraud through investigative partnerships with other federal agencies, such as Health and Human Services-Office of Inspector General (HHS-OIG), Food and Drug Administration (FDA), Drug Enforcement Administration (DEA), Defense Criminal Investigative Service (DCIS), Office of Personnel Management-Office of Inspector General (OPM-OIG), and Internal Revenue Service-Criminal Investigation (IRS-CI), along with various state Medicaid Fraud Control Units and other state and local agencies.

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Moreover, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) provides for criminal and civil enforcement tools and funding dedicated to the fight against healthcare fraud. The Act requires the U.S. Attorney General and the U.S. Secretary of the Department of Health and Human Services (DHHS), acting through the Office of Inspector General (OIG), to establish a coordinated national healthcare fraud and abuse control program. The program provides a national framework for federal, state, and local law enforcement agencies; the private sector; and the public to fight healthcare fraud. Since its establishment in 1976, “OIG has been at the forefront of the Nation’s efforts to fight waste, fraud and abuse in Medicare, Medicaid and more than 100 other HHS programs. HHS OIG is the largest inspector general’s office in the Federal Government, with approximately 1,600 dedicated to combating fraud, waste and abuse and to improving the efficiency of DHHS programs.”

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The Department of Health and Human Services (DHHS) and the Department of Justice (DOJ) in 2009 created the Health Care Fraud Prevention and Enforcement Action Team (HEAT). With its creation, the fight against Medicare fraud became a Cabinet-level priority. The HHS Secretary and the Attorney General direct HEAT’s work. By 2015, HEAT coordinated a national healthcare fraud takedown that uncovered $712 million in fraudulent billing.

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Since 2010, the U.S. Department of Health & Human Services, Office of Inspector General (HHS OIG), the Centers for Medicare & Medicaid Services (CMS), and the U.S. Department of Justice (DOJ) have been using powerful, new anti-fraud tools to protect Medicare and Medicaid by shifting from a “pay and chase” approach toward fraud prevention. … In Fiscal Year (FY) 2015, the government recovered $2.4 billion as a result of health care fraud judgements, settlements and additional administrative impositions in health care fraud cases and proceedings. Since its inception in 1997, the Health Care Fraud and Abuse Control (HCFAC) Program has returned more than $29.4 billion to the Medicare Trust Funds. … Since 2007, the Medicare Fraud Strike Force has charged over 2,536 individuals involved in more than $8 billion in fraud.

• • •

Strike Force teams bring together the efforts of the Office of Inspector General, the Department of Justice, offices of the United States Attorneys, the Federal Bureau of Investigation local law enforcement, and others.

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The victims of healthcare frauds often include those who are physically and neurologically challenged. Senior citizens, at a time in their life in which they may be most vulnerable, are often the targets of perpetrators of fraud.

Investigation and Prosecution of Fraud

The Department of Justice–Health and Human Services Medicare Fraud Strike Force is a multiagency team of federal, state, and local investigators that is designed to combat Medicare fraud. Medicare fraud is estimated to cost the nation $80 billion annually.

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The success of cooperation of agencies on the federal and state levels was evident when in 2018, a Strike Force investigation netted 601 individuals charged with over $2 billion in fraudulent billing of Medicare, Medicaid, TRICARE (a health insurance program for members and veterans of the armed forces and family members), and private insurance companies.

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The message is clear that those involved in healthcare fraud are being vigorously pursued. The federal government’s initiative to investigate and prosecute healthcare organizations for criminal wrongdoing has resulted in the establishment of corporate compliance programs for preventing, detecting, and reporting criminal conduct. An effective corporate compliance program should include:

  1. Developing appropriate policies and procedures
  2. Appointing a compliance officer to oversee the compliance program
  3. Communicating the organization’s compliance program to employees
  4. Providing for monitoring and auditing systems that are designed to detect criminal conduct by employees and other agents
  5. Publicizing a reporting system whereby employees and other agents can report criminal conduct by others within the organization without fear of retribution
  6. Taking appropriate steps to respond to criminal conduct and to prevent similar offenses
  7. Periodically reviewing and updating the organization’s corporate compliance program
  8. Working with state and federal law enforcement and regulatory agencies and insurance companies to detect, prevent, and prosecute healthcare fraud
  9. Developing appropriate policies and procedures
  10. Appointing a compliance officer to oversee the compliance program
  11. Communicating the organization’s compliance program to employees
  12. Providing for monitoring and auditing systems that are designed to detect criminal conduct by employees and other agents
  13. Publicizing a reporting system whereby employees and other agents can report criminal conduct by others within the organization without fear of retribution
  14. Taking appropriate steps to respond to criminal conduct and to prevent similar offenses
  15. Periodically reviewing and updating the organization’s corporate compliance program
  16. Working with state and federal law enforcement and regulatory agencies and insurance companies to detect, prevent, and prosecute healthcare fraud

Healthcare fraud continues to present significant risks to patient health and is a financial drain on the healthcare system, leading to higher costs for legitimate care. As noted in the following remarks by Attorney General Jeff Sessions, healthcare fraud continues to present significant risks to patient health and is a financial drain on the healthcare system.

Health care fraud is a betrayal of vulnerable patients, and often it is theft from the taxpayer. In many cases, doctors, nurses, and pharmacists take advantage of people suffering from drug addiction in order to line their pockets. These are despicable crimes. That’s why this Department of Justice has taken historic new steps to go after fraudsters, including hiring more prosecutors and leveraging the power of data analytics. Today the Department of Justice is announcing the largest health care fraud enforcement action in American history. This is the most fraud, the most defendants, and the most doctors ever charged in a single operation—and we have evidence that our ongoing work has stopped or prevented billions of dollars’ worth of fraud. I want to thank our fabulous partners with the FBI, DEA, our Health Care Fraud task forces, HHS, the Defense Criminal Investigative Service, IRS Criminal Investigation, Medicare, and especially the more than 1,000 federal, state, local, and tribal law enforcement officers from across America who made this possible. By every measure we are more effective at finding and prosecuting medical fraud than ever.

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Schemes to Defraud

Individuals and corporate entities are continuously bombarding the public with fraudulent activities. Fraud has become so rampant that it has led to a decline of trust in corporate leadership. A defendant is guilty of a scheme to defraud when he or she engages in an arrangement establishing a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations, or promises, and so obtains property from one or more of such persons. To show intent in a scheme to defraud, one needs to establish the following elements:

  • That on or about (date), in the county of (county), the defendant (defendant’s name), engaged in a scheme constituting a systematic ongoing course of conduct;
  • That the defendant did so with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations, or promises; and
  • That the defendant so obtained property from one or more of such persons, at least one of whom has been identified.

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Healthcare fraud is committed when a dishonest provider or consumer intentionally submits or causes someone else to submit false or misleading information for use in determining the amount of healthcare benefits payable. Some examples of provider healthcare fraud include the following:

  • Billing for services not rendered
  • Falsifying a patient’s diagnosis to justify tests, surgeries, or other procedures that are not medically necessary
  • Misrepresenting procedures performed to obtain payment for services not covered, such as cosmetic surgery
  • Upcoding services (billing for a more costly service than the one actually performed)
  • Upcoding medical supplies and equipment (billing for more expensive equipment than what was delivered to the patient)
  • Unbundling (billing each stage of a procedure as if it were a separate procedure)

  • Billing for unnecessary services (services that are not medically indicated)
  • Accepting kickbacks for patient referrals
  • Waiving patient copays or deductibles for medical or dental care and overbilling the insurance carrier or benefit plan
  • Billing a patient more than the co-pay amount for services that were prepaid or paid in full by the benefit plan under the terms of a managed care contract
  • Overbilling the insurance carrier or benefit plan

There are many examples of healthcare fraud, and some of the most egregious are described below.

Fraud Results in 45-Year Prison Sentence

The U.S. Supreme Court refused to hear Dr. Farid Fata’s appeal of his conviction for running a scheme that involved billing the government for medically unnecessary cancer and blood treatments. As a result of his scheme to defraud the government and harm patients in the process he will spend the next 45 years in prison.

The defendant, Farid Fata, was a physician who intentionally misdiagnosed no fewer than 553 of his patients with cancer and other maladies they did not have, then administered debilitating treatments, noxious chemicals, and invasive tests—including chemotherapy, intravenous iron, and PET scans—they did not need. For this reprehensible conduct, Fata received no less than $17 million in ill-gotten payments from Medicare and other insurers. The district court accurately described Fata’s conduct as “a huge, horrific, series of criminal acts.”

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The number of healthcare fraud cases seems to have no end as noted in the following headlines on the FBI website.

Wednesday, July 25, 2018

Baldwin County Legislator Charged in Public Corruption Case Related to Diabetes Treatment Clinics

Monday, July 23, 2018

California Doctor and His Assistant Charged in Scheme to Distribute Prescription Drugs and Commit Health Care Fraud

Monday, July 23, 2018

California Doctor and His Assistant Charged in Scheme to Distribute Prescription Drugs and Commit Health Care Fraud

Friday, July 20, 2018

Vice President of Insurance Underwriting Group Charged with Fraudulently Obtaining $13.5 Million in Phony “Matching Deductible” Policies

Friday, July 13, 2018

Oklahoma Orthopedic Company and Physicians Agree to Pay $670,000 to Settle Allegations of False Claims

Tuesday, July 10, 2018

United States Settles False Claims Act Allegations Against Liberty Ambulance for $1.2 Million

Monday, July 9, 2018

Health Quest and Putnam Hospital Center to Pay $14.7 Million to Resolve False Claims Act Allegations

Thursday, July 5, 2018

National Health Care Fraud Takedown Results in Charges Against 601 Individuals Responsible for Over $2 Billion in Fraud Losses

Tuesday, July 3, 2018

Family Practice Doctor Pays $360,000 to Settle False Claims Act Allegations

Friday, June 29, 2018

Former Health Care Chief Executive Sentenced to 9.5 Years in Federal Prison

Friday, June 29, 2018

Houston Pharmacist Sentenced to Federal Prison for Role in Multi-Million Dollar Health Care Fraud Scheme

Thursday, June 28, 2018

Western District of Pennsylvania Participated in Largest Health Care Fraud Enforcement Action in Department of Justice History

Thursday, June 28, 2018

Southern District of Florida Charges 124 Individuals Responsible for $337 Million in False Billing as Part of National Healthcare Fraud Takedown

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Social media is not exempt from criticism as to ongoing fraudulent illegal activities of some advertisers in their efforts to sell bogus drugs. In 2014 Amazon was pressed to make it more difficult for rogue Internet pharmacies to sell counterfeit medications and other illegal drugs. As noted in the
following news clipping, Facebook is included in the fray. Although Google reached a settlement to pay $500 million to avoid prosecution for aiding illegal online pharmaceutical ads, some state prosecutors want to see more from Google in preventing ads from unlicensed pharmacies. “Google acknowledged in the settlement that it had improperly and knowingly assisted online pharmacy advertisers allegedly based in Canada to run advertisements for illicit pharmacy sales targeting U.S. customers.”

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Amazon is not alone in criticism, as Facebook has joined the ranks of those not doing enough to remove posts from sellers of illicit opioids.

Mark Zuckerberg Took Heat from Members of Congress Wednesday Over Illegal Opioid Sales on Facebook

Rep. David McKinley, a Republican from West Virginia, was one of those who pressed Zuckerberg on why Facebook hasn’t done more to remove posts from sellers offering illicit opioids.

“Your platform is still being used to circumvent the law and allow people to buy highly addictive drugs without a prescription. With all due respect, Facebook is actually enabling an illegal activity and in so doing, you are hurting people. You’d agree with that statement?” he asked.

Critics have called out tech companies for not doing enough to crack down on illicit drug sales on their platforms.

—Sara Ashley O’Brien,
CNN Tech, April 11, 2018, 6:03 PM ET

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Home Care Fraud

Today, more Americans are living longer than ever before. A United Nations report states that “the number of people 65 years and older rose from 8% to 12% of the total population between 1950 and 2000.”

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As medicine has advanced, the average life expectancy has been increasing. The average life expectancy of Americans is higher today than in any other period in history.

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This figure is expected to rise to 20% by 2050 and is likely to continue to rise due to improving patient care, research, and improving healthcare coverage.

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An increasing number of older persons receive in-home care, dependent on family and healthcare providers to attend to their physical, financial, emotional, and healthcare needs. Medicare home health benefits allow individuals with restricted mobility to remain home, outside an institutional setting, by providing home care benefits. Home care services and supplies are generally provided by nurses, home nursing aides, speech therapists, and physical therapists under a physician-certified plan of care.

Home care is rapidly being recognized as a breeding ground for abuse. The numerous scams in home care fraud are caused by the difficulty in supervising services provided in the home, Medicare’s failure to monitor the number of visits per patient, beneficiaries paying no copayments except for medical equipment, and the lack of accountability to the patient by failing to explain services provided. “Unscrupulous physicians may also fraudulently certify that a beneficiary is home bound. In exchange, the beneficiary will be offered cash on a monthly basis or provided a home health aide that only prepares meals or cleans.”

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Home care fraud is generally not easy to detect. It involves charging insurers for more services than patients received, billing for more hours of care than were provided, falsifying records, and charging higher nurses’ rates for care given by aides.

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Kickback schemes in which marketers steer potential patients to specific service providers are another form of fraud.

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The trend toward shorter hospital stays has created a multibillion-dollar market in home care services. This new market brings many opportunities for fraud.

Pharmacist Billing Fraud

Pharmacists have a duty to act with honesty and integrity in their professional relationships as noted in the following excerpt from their Code of Ethics for ethical behavior.

IV. A pharmacist acts with honesty and integrity in professional relationships.

A pharmacist has a duty to tell the truth and to act with conviction of conscience. A pharmacist avoids discriminatory practices, behavior or work conditions that impair professional judgment, and actions that compromise dedication to the best interests of patients.

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The following legal cases illustrate how not only did the pharmacists break the law; they also failed to adhere to their own code of professional ethics.

The court of appeals in
State v. Beatty

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upheld a lower court’s finding that the evidence submitted against the defendant pharmacist was sufficient to sustain a conviction for Medicaid fraud. The state was billed for medications that were never dispensed, for more medications than some patients received, and
in some instances, for the more expensive trade name drugs when cheaper generic drugs were dispensed.

The pharmacists in
People v. Kendzia

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were convicted of selling generic drugs in vials with brand name labels. Investigators, working undercover, were provided with Medicaid cards and fictitious prescriptions requiring brand name drugs to be dispensed as written. Between April and October 1979, the investigators had taken the prescriptions to the pharmacy, where they were filled with generic substitutions in vials with the brand name labels.

Manslaughter

Manslaughter is the commission of an unintentional act that results in the death of another person. It can be either voluntary or involuntary. Voluntary manslaughter is the intentional killing of another person in what is commonly referred to as the “heat of passion,” which is caused by the provocation of the victim (e.g., found having an affair with the defendant’s spouse). Involuntary manslaughter is the result of a negligent act (e.g., reckless driving).

Murder

Murder is the unlawful killing of a person. It is a homicide, and it involves malice aforethought and the premeditated intent to kill another human being. First-degree murder involves the deliberate and premeditated killing of another with malice aforethought. Second-degree murder is not deliberate, nor is it premeditated; however, it is the killing of another with malice aforethought. The tragedy of murder in healthcare settings that are dedicated to the healing of the sick has all too frequently occurred, as noted in the following examples.

  • In a highly publicized case, Dr. Kermit Gosnell was convicted of murdering newborn babies by snipping their spinal cords shortly after delivery. Following a 2-month trial and 10 days of deliberation the jury convicted Gosnell of murder. Although it was expected that prosecutors would seek the death penalty, Gosnell made a deal with prosecutors promising not to appeal the jury’s decision in exchange for life in prison without parole.
  • Cullen, a former nurse, pleaded guilty to 16 murders in New Jersey and Pennsylvania.

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    Cullen had refused to cooperate with prosecutors unless they promised not to seek the death penalty. Cullen claimed responsibility for the deaths of 30 to 40 patients over a 16-year nursing career. The case raised concerns about hospital oversight of employees. Cullen worked “at 10 different hospitals in New Jersey and Pennsylvania, over a period of 16 years, despite the fact that at seven of those hospitals, he was investigated, fired or forced to resign…”

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    Cullen had been found violating nursing standards from the beginning of his career. He had problems in every one of the 10 institutions that he worked for in New Jersey and Pennsylvania. As one report noted, “Apparently, not one of those institutions gave Cullen a bad reference, or told other hospitals he was trouble. It amounted to a policy of ‘see no evil, speak no evil’—one that gave Cullen, in effect, a license to kill.”

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  • Richard Angelo, an Eagle Scout and voluntary fireman, gained national attention as the “angel of death.” He was a registered nurse on the cardiac/intensive care unit at a Long Island hospital, where he murdered patients by injecting them with the drug Pavulon. Angelo was ultimately convicted of two counts of depraved indifference murder (second-degree murder), one count of second-degree manslaughter, one count of criminally negligent homicide, and six counts of assault with respect to five of the patients and was sentenced to 61 years to life.

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    Angelo had committed the murders in a bizarre scheme to revive the patients and be thought of as a hero. The attorney for the estate of one of the alleged victims had filed a wrongful death suit against Angelo and the hospital a day before the verdict was rendered by the jury.

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Theft

Theft is the illegal taking of another person’s or organization’s property. Healthcare organizations must be alert to the potential ongoing threat of theft by unscrupulous employees, physicians, patients, visitors, and trespassers. The theft of patient or resident valuables, supplies, drugs, and medical equipment is substantial and costs healthcare organizations millions of dollars each year.

The evidence presented in
People v. Lancaster

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was found to have provided a probable cause foundation for information charging felony theft of nursing home residents’ money by the office manager. Evidence showed that on repeated occasions the residents’ income checks were cashed or cash was otherwise received on behalf of residents; that the defendant, by virtue of her office, had sole responsibility for maintaining the residents’ ledger accounts; and that cash receipts frequently were never posted to the residents’ accounts.

In another case,
Miller v. Dunn,

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there was sufficient evidence to hold that a nurse assistant had misappropriated $15,000 from an 83-year-old nursing home resident. The record indicated that the funds
were taken during those times when the resident made visits to the hospital for respiratory problems. The patient had been diagnosed with dementia, and the resident’s confusion was increasing. The nursing assistant actively procured the check in question, filling in the date, amount, and her name as payee. As a result, the nursing assistant was placed on the Employee Disqualification List for misappropriating funds.

Drug Theft by Employee

One day in October, the night shift charge nurse began to reconcile the narcotics inventory on the patient care unit with the evening charge nurse. All appeared to be okay and the reconciliation sheet was signed off by both charge nurses. An evening shift staff nurse walked over to the two charge nurses and reported suspicious activity as to the usage of Demerol and Percocet during the day shift. She reported that one of the day shift nurses had been signing out two narcotic medications for a 3-day postoperative C-section patient. The patient’s medication record showed that the patient was administered Demerol at 8:30 a.m., 10:30 a.m., and 1:00 p.m. The nurse also had written that Percocet and Tylenol 3 had been administered every 2 hours. The charge nurses recognized that it would be unusual for a patient to be administered both an injection and oral narcotic at the same time and unlikely every 2 hours. When three other evening shift nurses were queried about the suspicion of medication theft, they responded:

  • Nurse 1: “This has been going on for a long time.”
  • Nurse 2: “I am not getting involved.”
  • Nurse 3: “Do you think we should report this?”

The two charge nurses spoke to the hospital’s night supervising nurse, who reported the possibility of medication theft to the VP of nursing. The nurse in question had been suspected of medication theft in the past, but no one ever established sufficient evidence to confront her. The VP for nursing questioned the suspected RN the following day when she arrived for work. She denied involvement in the theft of drugs. The nurse was asked to undergo a drug test, which she refused. She was then suspended for a week. When she returned, she was not permitted to carry the narcotics lock keys for a week. Later, after she regained access to narcotic drugs, she was observed giving a patient two Motrin when Percocet had been prescribed. Although an incident report had been filed against her, she continued to work into January. As other nurses eventually became concerned that they might be implicated in drug theft, they went to the VP of nursing and reported their observations. Finally, the suspected nurse was terminated. Eventually she was listed in the state professional newsletter as having a suspended license.

Sadly, this young nurse (39 years of age) was in a vehicle accident 6 months later with two other passengers. They were speeding 75 mph around a 35-mph curve without seat belts. They hit the embankment and were thrown from the car. The nurse and one passenger died instantly. The nurse had drugs in her possession, and an autopsy confirmed the presence of alcohol and drugs in all three passengers.

If action had been taken sooner, this tragedy may never have occurred. Management had the opportunity to explain the responsibility of nurses to report suspicious activity but failed to do so.

This same scenario was reported to have occurred in another state when an LPN was caught stealing medications. Within 24 hours of being caught, she had a choice of admitting to the theft and her chemical dependency or walking out of the hospital in handcuffs with the police.

Medical Identity Theft

Medical identity theft is the unauthorized use or disclosure of patient information. “Medical identity theft occurs when someone uses another person’s name or insurance information to get medical treatment, prescription drugs or surgery. It also happens when dishonest people working in a medical setting use another person’s information to submit false bills to insurance companies.”

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Thieves often use patient mail (e.g., credit card information, bank statements, patient bills, checking account information) to obtain information about the consumer, which they use to steal their identity for financial gain.

To improve the efficiency and effectiveness of the health care system, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, included Administrative Simplification provisions that required HHS to adopt national standards for electronic health care transactions and code sets, unique health identifiers, and security. At the same time, Congress recognized that advances in electronic technology could erode the privacy of health information. Consequently, Congress incorporated into HIPAA provisions that mandated the adoption of Federal privacy protections for individually identifiable health information.

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Breeding Ground for Crime

The following news clippings illustrate how healthcare fraud has become a national breeding ground for criminals who prey on the sick and disabled for financial gain.

Virginia Court Rules Identity Theft Victim to Get $532,000 from …

Sloane delivered her second child … unaware that her last name would prove too big a temptation for an employee of the hospital’s accounting department, Shovana Sloan.

Sloan, who was hired for the department even though she was a felon, appropriated Sloane’s identification and went on a $35,000 spending spree.

—Alan Cooper,
Daily Record and the Kansas City Daily News-Press, September 23, 2006

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Medical Theft Trend Sweeps Pennsylvania

A slew of hospital thefts nationwide—including close to $75,000 of equipment from Mount Nittany Medical Center in 2005—has opened investigators’ eyes to a black market specializing in the swap of used medical instruments.

—Krystle Kopacz,
The Daily Collegian Online, January 13, 2006

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The Frightening New Frontier for Hackers: Medical Records

As health records have gone digital in the past seven years, they’ve become far more vulnerable to poaching—and far more valuable to thieves, who can sell a complete medical record for more than $1,000 on the darknet. That’s because the records contain not just your insurance info—which can be used for fraudulent billing and prescriptions—but also Social Security, driver’s license and credit card numbers. As a result, the health care industry is scrambling to play catch-up to secure patient and hospital data.

—Brigid Sweeney,
Crain’s Chicago Business, April 10, 2017

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Millions of Patient Billing Records Stolen from UT Hospital

Billing records for about 2.2 million patients and guarantors were stolen last week from the University of Utah Hospitals & Clinics, just one more in what appears to be a rapidly growing flood of identity theft incidents.

—Anne Zieger,
Fierce HealthIT, June 14, 2008

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Grady Hospital Battles Patient Thefts

“It’s got to be clearly 180 degrees from what we expect in an institution of care and shelter,” said Atlanta attorney Mark Spix, who says he represented a man whose wife lost an engagement ring after being flown to Grady in October 2004 with fatal injuries. “I just think that is unacceptable.”

There were 260 thefts involving patients, employees and visitors in 2007, compared with 262 in 2006 and 279 in 2005, Grady spokeswoman Denise Simpson said.

—Tim Eberly,
The Atlanta Journal-Constitution, July 24, 2008

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CONTRACTS

A
contract is a special kind of agreement, either written (


FIGURE 6-6

), or oral, that involves legally binding obligations between two or more parties. A contract can be
implied as well as voidable. An
implied contract can occur when emergency care and treatment is rendered to a comatose patient injured during an automobile accident. A
voidable contract is one in which one party, but not the other, has the right to escape from its legal obligations under the contract. It is considered to be a voidable contract at the option of that party. For example, a minor, not having the capacity to enter into a contract, can void the contract. However, the competent party to the contract may not void the contract. Contracts involving fraud, or where one party to the contract is incapacitated, not legally of sound mind, or under undue influence or duress are voidable contracts. The major purpose of a contract is to specify, limit, and define the agreements that are legally enforceable.

Elements of a Contract

Whether contracts are executed in writing or agreed to orally, they must contain the following elements to be enforceable: (1) offer/communication, (2) consideration, and (3) acceptance.

Offer/Communication

An offer must be communicated to the other party so that it can be accepted or rejected. Unless the offeror specifically requires that the acceptance be received before a contract is formed, communication of the acceptance to the offeror is not necessary.

Consideration

An offer is a promise by one party to do (or not to do) something if the other party agrees to do (or not do) something. Not all statements or promises are offers. Generally, advertisements of goods for sale are not offers but are invitations to the public to come to the place of business, view the merchandise, and be made an offer. An opinion is not an offer. Preliminary negotiations are not offers.

Acceptance

On proper acceptance of an offer, a contract is formed. It involves:

  • Meeting of the minds: Acceptance requires a “meeting of the minds” (mutual assent). The parties must understand and then agree on the terms of the contract.
  • Definite and complete: Acceptance requires mutual assent to be found between the parties. The terms must be so complete that both parties understand and agree to what has been proposed.
  • Duration: Generally, the other party may revoke an offer at any time prior to a valid acceptance. When the offeror does revoke the proposal, the revocation is not effective until the offeree (the person to whom the offer is made) receives it. After the offeree has accepted the offer, any attempt to revoke the agreement is too late and is invalid.
  • Complete and conforming: The traditional rule is that the acceptance must be the mirror image of the offer. In other words, the acceptance must comply with all the terms of the offer.

Employment Contracts

An employer’s right to terminate an employee can be limited by express agreement with the employee or through a collective bargaining agreement to which the employee is a beneficiary. No such agreement was found to exist in
O’Connor v. Eastman Kodak Co.,

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in which the court held that an employer had a right to terminate an employee at will at any time, and for any reason or no reason. The plaintiff did not rely on any specific representation made to him during the course of his employment interviews, nor did he rely on any documentation in the employee handbook, which would have limited the defendant’s common-law right to discharge at will. The employee had relied on a popular perception of Kodak as a “womb-to-tomb” employer.

Exclusive Contracts

An
exclusive contract, in the context of a hospital, is an agreement between two or more entities to deal only with each other regarding a specific area of business (e.g., hospital[s] and radiology physician[s] group). The essential feature of an exclusivity contract is the covenant not to engage in a particular business activity with other parties for a specified period of time.

An organization often enters into an exclusive contract with physicians and/or medical groups for the purpose of providing a specific service to the organization. Exclusive contracts generally occur within the organization’s ancillary service departments (e.g., radiology, anesthesiology, and pathology). Physicians who seek to practice at organizations in these ancillary areas but who are not part of the exclusive group have attempted to
invoke the federal antitrust laws to challenge these exclusive contracts. These challenges generally have been unsuccessful.

Exclusive Contract with Radiology Group

Tennessee code permitted the hospital authority to enter into an exclusive contract with a radiology group. The governing body’s decision to close the staff of the imaging department did not violate medical staff bylaws, and the defendant radiologists were not legally or constitutionally entitled to a hearing if their privileges were terminated on entry of the hospital authority into an exclusive provider contract.

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Commercial Ethics and Noncompetition Agreements

The purpose in allowing noncompetition agreements is to foster “commercial ethics” and to protect the employer’s legitimate interests by preventing unfair competition, not ordinary competition.

The respondent hospital in
Washington County Memorial Hospital v. Sidebottom

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employed the appellant/nurse practitioner from October 1993 through April 1998. Before beginning her employment, the nurse entered into an employment agreement with the hospital. The agreement included a noncompetition clause providing in part that the nurse “during the term of [the] Agreement and for a period of one (1) year after the termination of her employment … will not, anywhere within a fifty (50) mile radius … directly or indirectly engage in the practice of nursing … without the express direction or consent” of the hospital. In February 1994, the nurse requested the hospital’s permission to work for the Washington County Health Department doing prenatal nursing care. Because the hospital was not then doing prenatal care, the hospital gave her permission to accept that employment but reserved the ability to withdraw the permission if the services the nurse was providing later came to be provided by the hospital. In January 1996, the nurse and the hospital entered into a second employment agreement that continued the parties’ employment relationship through January 9, 1998. This agreement included a noncompetition clause identical to the 1993 employment agreement. It also provided for automatic renewal for an additional 2 years unless either party gave written termination notice no less than 90 days prior to the expiration of the agreement.

The hospital’s interest lies in protecting its patient base as a primary source of revenue. The specific enforcement of the nurse’s noncompetition clause is reasonably necessary to protect the hospital’s interest. Actual damage need not be proven to enforce a covenant not to compete. Rather, the employee’s opportunity to influence customers justifies enforcement of the covenant. Thus, the quality, frequency, and duration of an employee’s exposure to an employer’s customers are crucial in determining the covenant’s reasonableness. The nurse had opportunity to influence the hospital’s patients. Before her employment with the hospital, the nurse had never worked in Washington County, nor did she have a patient base there. The nurse helped to establish two rural healthcare clinics for the hospital, one of which she managed during her first year of employment. During almost 5 years of employment with the hospital, the nurse saw more than 3,000 patients. Pursuant to a collaborative practice agreement with a physician, the nurse treated patients, diagnosed illnesses and injuries, prescribed and dispensed medications, and ordered and interpreted laboratory tests. The nurse got to know the patients and families to whom she provided these services. At the clinic, she had her own telephone number, receptionist, appointment book, medical assistant, patient charts, laboratory, and examination rooms. Her offices were physically separated from those of the other medical practitioner at the clinic. Furthermore, during her employment, the hospital promoted the nurse as a nurse practitioner in the community by paying for advertisements with her picture and telephone number in the newspaper. In general, the nurse had a good rapport with her patients, and she had patients who requested her for medical services.

TRIAL PROCEDURE AND THE COURTROOM

This next section presents a brief review of the law as applied in the courtroom (


FIGURE 6-7

). Although many of the procedures leading up to and followed during a trial are discussed in this chapter, civil procedure and trial practice are governed by each state’s statutory requirements. Federal statutes govern cases on the federal level.

Pleadings

The pleadings of a case (e.g., summons and complaint), which include all the allegations of each party to a lawsuit, are filed with a court. The pleadings may raise questions of both law and fact. If only questions of law are at issue, the judge will decide the case based on the pleadings alone. If questions of fact are involved, the purpose of a trial is to determine those facts.

Summons and Complaint

The parties to a controversy are the plaintiff and the defendant. The plaintiff is the person who initiates an action by filing a complaint; the defendant is the person against whom a suit is brought. Many cases have multiple plaintiffs and defendants. Filing an order with a court clerk to issue a writ or summons commences an action.

Although the procedures for beginning an action vary according to jurisdiction, there are procedural common denominators. All jurisdictions require service of process on the defendant (usually through a summons) and a return to the court of that process by the person who served it. When a summons is not required to be issued directly by a court, an attorney, as an officer of the court, may prepare and cause a summons to be served without direct notice to or approval of a court. Notice to a court occurs when an attorney files a summons and complaint in a court, thereby indicating to the court that an action has been commenced.

The first pleading filed with the court in a negligence action is the complaint. The complaint identifies the parties to a suit, states a cause of action, and includes a demand for damages. It is filed by the plaintiff and is the first statement of a case by the plaintiff against the defendant. In some jurisdictions, a complaint must accompany a summons (an announcement to the defendant that a case has been commenced). An example of a complaint for damages by the plaintiff is presented here based on legal issues and violations of professional misconduct.

Complaint for Damages

COMES NOW the plaintiff JESSE BRAVO, by and through his attorneys of record, KIESEL BOUCHER LARSON LLP and PUBLIC COUNSEL, and for cause of action. Against Defendants, and each of them, hereby alleges upon personal knowledge with respect to his own acts, and upon information and belief as to all other matters as follows.

Introduction

1. On February 11, 2011, Defendants White Memorial Medical Center, a California corporation, and Adventist Health System/West, a California corporation; their physicians, nurses, staff members and employees and agents; Michael Hernandez, M.D., Inc., A Professional Corporation, and DOES 1 through 100, inclusive (herein collectively referred to as the “Defendants”), discharged an unstable, paranoid schizophrenic and heavily medicated man without his consent and then physically restrained him and transported him to an unfamiliar location against his will, abandoning and “dumping” him on the sidewalk without the ability to return home. During the two weeks prior to that abandonment and “dumping” Jessie Bravo (hereinafter also referred to as “Mr. Bravo” or “Plaintiff”) had been an inpatient at White Memorial Medical Center. Other than administering multiple prescription psychotropic medications, Defendants provided little care and treatment for him and did not stabilize the acute psychiatric condition that had led to his admission to the hospital. Defendants ignored the fact that Mr. Bravo was a married man who resided with his family, and, instead, treated him as if he were a homeless person by unilaterally deciding to discharge him from White Memorial Hospital Center to a shelter that cares for homeless people. Insofar as Defendants formulated treatment goals for Mr. Bravo, their own stated goal was not to discharge him until 24 hours had passed without any aggressive behavior on his part. At 10:10 p.m. on February 10, 2011, Defendants administered 100 milligrams of Thorazine to Mr. Bravo they determined that his behavior was a threat to his own safety and to the safety of others. Less that 12 hours later, however, they began the process that led to his discharge, abandonment and dumping.

• • •

2. Defendant’s action violate every standard of professional conduct.

• • •

PRAYER FOR RELIEF

  1. For general, special, and compensatory damages in amounts proven at trial; …
  2. For punitive damages. …
  3. For pre Judgment interest. …
  4. For costs and reasonable attorney fees. …

DEMAND FOR JURY TRIAL

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Answer

After service of a complaint, a response is required from the defendant in a document called the answer. In the answer, the defendant responds to each of the allegations contained in the complaint by stating his or her defense and by admitting to or denying each of the plaintiff’s allegations. If the defendant fails to answer the complaint within the prescribed time, the plaintiff can seek judgment by default against the defendant.

Bill of Particulars

A bill of particulars in a civil case is a written demand for more detailed information concerning the alleged claim/s by the defendant/s. A bill of particulars is requested when there is generally insufficient information provided in the complaint to file an answer. If a counterclaim is filed, the plaintiff’s attorney may request a bill of particulars from the defense attorney. In a criminal case the defendant’s attorney may request a bill of particulars in order to prepare their case.

Discovery

Discovery is the process of investigating the facts of a case before trial. The objectives of discovery are to:

  • obtain evidence that might not be obtainable at the time of trial
  • isolate and narrow the issues for trial
  • gather knowledge of the existence of additional evidence that may be admissible at trial
  • obtain leads to enable the discovering party to gather further evidence

The parties to a lawsuit have the right to discovery and to examine witnesses before trial.

Examination before trial (EBT) is one of several discovery techniques used to enable the parties of a lawsuit to learn more regarding the nature and substance of each other’s case. An EBT consists of oral testimony under oath and includes cross-examination. A deposition, taken at an EBT, is the testimony of a witness that has been recorded in a written format. Testimony given at a deposition becomes part of the permanent record of the case. Each question and answer is transcribed by a court stenographer and may be used at the subsequent trial. Truthfulness and consistency are important because answers that differ from those given at trial will be used to attack the credibility of the witness.

Preparation of Witnesses

The manner in which a witness handles questioning at a deposition or trial is often as important as the facts of the case. Each witness should be well prepared before testifying. Preparation should include a review of all pertinent records. Helpful guidelines for witnesses undergoing examination in a trial or a court hearing include the following:

  • Review the records (e.g., medical records and other business records) on which you might be questioned.
  • Do not be antagonistic when answering the questions. The jury may already be somewhat sympathetic toward a particular party to the lawsuit; antagonism may serve only to reinforce such an impression.
  • Be organized in your thinking and recollection of the facts regarding the incident.
  • Answer only the questions asked.
  • Explain your testimony in simple, succinct terminology.
  • Do not overdramatize the facts you are relating.
  • Do not allow yourself to become overpowered by the cross-examiner.
  • Be polite, sincere, and courteous at all times.
  • Dress appropriately and be neatly groomed.
  • Pay close attention to any objections your attorney may have as to the line of questioning being conducted by the opposing counsel.
  • Be sure to have reviewed any oral deposition in which you may have participated.
  • Be straightforward with the examiner. Any answers designed to cover up or cloud an issue or fact will, if discovered, serve only to discredit any previous testimony that you may have given. Do not show any visible signs of displeasure regarding any testimony with which you are in disagreement.
  • Be sure to have questions that you did not hear repeated and questions that you did not understand rephrased.
  • If you are not sure of an answer, indicate that you are not sure or that you just do not know the answer.
  • Remember that lawyers often get the answers they want by how they frame the questions they ask.

The Court

A case is heard in the court that has jurisdiction over the subject of controversy. The judge decides questions of law and is responsible for ensuring that a trial is conducted properly in an impartial atmosphere and that it is fair to both parties of a lawsuit. He or she determines what constitutes the general standard of conduct required for the exercise of due care. The judge informs the jury of what the defendant’s conduct should have been, thereby making a determination of the existence of a legal duty.

The judge decides whether evidence is admissible, charges the jury (defines the jurors’ responsibility in relation to existing law), and may take a case away from the jury (by directed verdict or judgment notwithstanding the verdict) if he or she believes that there are no issues for the jury to consider or that the jury has erred in its decision. This right on the part of the judge with respect to the role of the jury narrows the jury’s responsibility with regard to the facts of the case. The judge maintains order throughout the suit, determines issues of procedure, and is generally responsible for the conduct of the trial.

Mother Loses Custody of Her Children—Because She Has Breast Cancer

A woman with terminal breast cancer says she has lost custody of her children because doctors do not know how long she will live.

A judge ruled that 37-year-old Alaina Giordano, from Durham, North Carolina, must give up both her children to her estranged husband after she was diagnosed with stage four breast cancer.

Durham County Family Court judge Nancy Gordon ruled that Mr. Snyder should get the children after a psychiatrist recommended that they should live with him because of the “deteriorating condition of the mother’s health.”

—John Stevens,
Daily Mail, May 10, 2011

A Facebook account was set up for Alaina, and within several weeks, 18,743 people linked to her page. The following is a sampling of the numerous posts on her Facebook page:

D.D.: MAY GOD HAVE MERCY ON YOU AND I WILL PRAY FOR YOU AND YOUR CHILDREN. NO ONE HAS THE RIGHT TO TAKE WHAT GOD HAS GIVEN YOU … “YOUR CHILDREN”

M.A.B.: she should not lose her family because she feel ill. Falling ill is not a lifestyle choice she made—it is a circumstance she is forced to endure she should not endure it without her children. mothers in prison may have their children with them for God’s sake.

S.X.: Came home to NC after a business trip to see this report. SHAMEFUL that a court and an “expert witness” could have so little compassion and rule like this. I’m shocked. I know the family. These kids belong with Mom!

“We have learned that the North Carolina Supreme Court has denied my motion for a stay—this means that now, my children will be moving to Chicago to start the school year with their father.

As I write today, I deal with the difficult recognition that my children will have to live 800 miles away from me, until my appeal can be heard. In the wake of this legal decision, my children and I now must grieve the pending loss of each other.”

http://www.facebook.com/friendsofalaina

Comments by Danny: Alaina, I have been a hospital administrator and later inspected more than 500 hospitals and 100 ambulatory sites from Alaska to Puerto Rico. I have never experienced such a travesty by a Judge who apparently has little knowledge of the law or an understanding of the horrors you have been put through. Judges of this sort need some major training in ethics. I quote Earl Warren, Chief Justice of the United States (1891–1974), “In civilized life, law floats on a sea of ethics.” The Judge in your case failed to understand and practice the teachings of this most Honorable judge—Earl Warren. I wish you love and happiness always … and know that you are loved.

—Danny

Mother With Terminal Cancer Can Retain Child Custody, Judge Holds

In a case of first impression, a New Jersey judge has refused to strip a divorced mother of primary custody of her children even though she has terminal and inoperable breast cancer.

Ocean County Superior Court Judge Lawrence Jones said granting the father’s motion for an emergency change in the children’s primary residential status could cause them emotional harm.

“It would be fundamentally inequitable and inappropriate for this court to conclude that a person’s illness, disability, or condition, even a condition as serious as Stage IV cancer, automatically renders a person unfit per se to continue serving as a custodial parent. …”

—Michael Booth,
New Jersey Law Journal, November 22, 2013

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Discussion

  1. Make an argument supporting the judge’s decision and one that opposes her decision.
  2. Discuss both the moral and legal issues (e.g., the best interests of the children) you believe the judge may have failed to consider in this case.

The Jury

The right to a trial by jury is a constitutional right in certain cases. Not all cases entitle the parties to a jury trial as a matter of right. For example, in many jurisdictions, a case in equity (a case seeking a specific course of conduct rather than monetary damages) may not entitle the parties to a trial by a jury. An example of an equity case is one that seeks a declaration as to the title to real property. Members of a jury are selected from a jury list. They are summoned to court by a paper known as the jury process. Impartiality is a prerequisite of all jurors. The number of jurors who sit at trial is 12 in common law. If there are fewer than 12, the number must be established by statute.

An individual may waive the right to a jury trial. If this right is waived, the judge acts as judge and jury, becomes the trier of facts, and decides issues of law.

Counsel for both parties of a lawsuit may question each prospective jury member for impartiality, bias, and prejudicial thinking. This process is referred to as the
voir dire, the examination of jurors. After members of the jury are selected, they are sworn in to try the case.

The jury makes a determination of the facts that have occurred, evaluating whether the plaintiff’s damages were caused by the defendant’s negligence and whether the defendant exercised due care. The jury also makes a determination of the particular standard of conduct required in all cases in which the judgment of reasonable people might differ. The jury must pay close attention to the evidence presented by both sides of a suit in order to render a fair and impartial verdict.

The jury also determines the extent of damages, if any, and the degree to which the plaintiff’s conduct may have contributed to any injuries suffered.

Subpoenas

A
subpoena is a legal order requiring the appearance of a person and/or the presentation of documents to a court or administrative body. Attorneys, judges, and certain law enforcement and administrative officials, depending on the jurisdiction, may issue subpoenas.

  • A
    subpoena ad testificandum orders the appearance of a person at a trial or other investigative proceeding to give testimony. Witnesses have a duty to appear and may suffer a penalty for contempt of court should they fail to appear.
  • A
    subpoena duces tecum is a written command to bring records, documents, or other evidence described in the subpoena to a trial or other investigative proceeding. The subpoena is served on a person able to produce such records.

Opening Statements

During the opening statement, the plaintiff’s attorney outlines what he or she intends to prove. The opening statement by the plaintiff’s attorney provides in capsule form the facts of the case, what he or she intends to prove by means of a summary of the evidence to be presented, and a description of the damages to his or her client.

The defense attorney makes his or her opening statement indicating the position of the defendant and the points of the plaintiff’s case he or she intends to refute. The defense attorney summarizes the facts as they apply to the case for the defendant.

Burden of Proof

The
burden of proof requires that the plaintiff’s attorney show that the defendant violated a legal duty by not following an acceptable standard of care and that the plaintiff suffered injury because of the defendant’s breach. If the evidence presented does not support the allegations made, the case is dismissed.

The burden of proof in a criminal case requires that evidence presented against the defendant must be proven beyond a reasonable doubt by the prosecuting attorney. Note the terminology: reasonable doubt—not “all” doubt. The burden of proof in a criminal case lies with the prosecution. The prosecution has the burden of proving each element of a crime beyond a reasonable doubt.

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In a civil suit, the plaintiff has the burden of proving his case by a preponderance of the evidence. In other words, the evidence presented must demonstrate that, in a malpractice case, for example, it is more likely than not that the defendant(s) is (are) the cause of the patient’s alleged injuries. The evidence presented by the plaintiff need only tip the scales of justice.

Evidence

Evidence consists of the facts proved or disproved during a lawsuit. The law of evidence is a body of rules under which facts are proved. To be admitted at trial, evidence must be competent, relevant, and material.

Direct Evidence

Direct evidence is proof offered through direct testimony. It is the jury’s function to receive testimony presented by witnesses and to draw conclusions in the determination of facts.

Demonstrative Evidence

Demonstrative (real) evidence is evidence furnished by things themselves. It is considered the most trustworthy and preferred type of evidence. It consists of tangible objects to which testimony refers (e.g., medical instruments and broken infusion needles) that can be requested by a jury. Demonstrative evidence is admissible in court if it is relevant, has probative value, and serves the interest of justice. It is not admissible if it will prejudice, mislead, confuse, offend, inflame, or arouse the sympathy or passion of the jury. Other forms of demonstrative evidence include photographs, motion pictures, computer-generated information, drawings, human bodies as exhibits, pathology slides, fetal monitoring strips, safety committee minutes, infection committee reports, medical staff bylaws, rules and regulations, nursing policy and procedure manuals, census data, and staffing patterns.

A plaintiff’s injuries are admissible as an exhibit if the physical condition of the body is material to the complaint. The human body is considered the best evidence as to the nature and extent of the alleged injury/injuries. If there is no controversy about either the nature or the extent of an injury, presenting such evidence could be considered prejudicial and an objection can be made as to its presentation to a jury.

Documentary Evidence

Documentary evidence is written evidence capable of making a truthful statement (e.g., drug manufacturer inserts, autopsy reports, birth certificates, and medical records). Documentary evidence must satisfy the jury as to authenticity. Proof of authenticity is not necessary if the opposing party accepts its genuineness. In some instances, concerning wills, for example, witnesses are necessary. In the case of documentation, the original of a document must be produced unless it can be demonstrated that the original has been lost or destroyed, in which case a properly authenticated copy may be substituted.

Examination of Witnesses

After conclusion of the opening statements, the judge calls for the plaintiff’s witnesses. An officer of the court administers an oath to each witness, and direct examination begins. On cross-examination by the defense, an attempt is made to challenge or discredit the plaintiff’s witness. The plaintiff’s attorney may ask the same witness more questions in an effort to overcome the effect of the cross-examination. Re-cross-examination may also take place if necessary for the defense of the defendant.

Expert Witness

Laypersons are quite able to render opinions about a great variety of general subjects, but for technical questions, the opinion of an expert is necessary. At the time of testifying, each expert’s training, experience, and special qualifications are explained to the jury. The experts are asked to give an opinion concerning hypothetical questions based on the facts of the case. Should the testimony of two experts conflict, the jury will determine which expert opinion to accept. Expert witnesses may be used to assist a plaintiff in proving the wrongful act of a defendant or to assist a defendant in refuting such evidence. In addition, expert testimony may be used to show the extent of the plaintiff’s damages or to show the lack of such damages.

Defense of One’s Actions

The defendant’s case is presented to discredit the plaintiff’s cause of action and prevent recovery of damages. Principles of law that may relieve a defendant from liability include assumption of a risk, comparative
negligence, contributory negligence, Good Samaritan laws, ignorance of fact, unintentional wrongs, the statute of limitations, and sovereign immunity.

Assumption of a Risk

Assumption of a risk is knowing that a danger exists and voluntarily accepting the risk by exposing oneself to it, knowing that harm might occur. Assumption of a risk may be implicitly assumed, as in alcohol consumption, or expressly assumed, as in relation to warnings found on cigarette packaging.

This defense provides that the plaintiff expressly has given consent in advance, relieving the defendant of an obligation of conduct toward the plaintiff and taking the chances of injury from a known risk arising from the defendant’s conduct. For example, one who agrees to care for a patient with a communicable disease and then contracts the disease would not be entitled to recover from the patient for damages suffered. In taking the job, the individual agreed to assume the risk of infection, thereby releasing the patient from all legal obligations.

The following two requirements must be established in order for a defendant to be successful in an assumption of risk defense:

  1. the plaintiff must know and understand the risk that is being incurred;
    and
  2. the choice to incur the risk must be free and voluntary.
Comparative Negligence

A defense of
comparative negligence provides that the degree of negligence or carelessness of each party to a lawsuit must be established by the finder of fact and that each party then is responsible for his or her proportional share of any damages awarded. For example, if a plaintiff suffers injuries of $10,000 from an accident and is found to be 20% negligent and the defendant is found to be 80% negligent, the defendant would be required to pay $8,000 to the plaintiff. Thus, with comparative negligence, the plaintiff can collect for 80% of the injuries, whereas an application of contributory negligence would deprive the plaintiff of any monetary judgment. This doctrine relieves the plaintiff from the hardship of losing an entire claim when a defendant has been successful in establishing that the plaintiff has contributed to his or her own injuries.

Contributory Negligence

Contributory negligence can be defined as any lack of ordinary care on the part of the person injured that, combined with the negligent act of another, caused the injury. A person is contributorily negligent when that person does not exercise reasonable care for his or her own safety. As a general proposition, if a person has knowledge of a dangerous situation and disregards the danger, then that person is contributorily negligent.

Good Samaritan Laws

The various states have enacted
Good Samaritan laws that relieve healthcare professionals, and in some instances laypersons, from liability in certain emergency situations. Good Samaritan legislation encourages healthcare professionals to render assistance at the scene of emergencies. Good Samaritan statutes provide a standard of care that delineates the scope of immunity for those persons eligible under the law.

Ignorance of the Law and Unintentional Wrongs


Ignorance of the law excuses no man; not that all men know the law, but because ‘tis an excuse every man will plead, and no man can tell how to confute him.

—John Selden (1584–1654)

The defendant cannot use ignorance of the law to excuse his or her negligent actions; otherwise, pleading ignorance would reward an individual. Arguing that a negligent act is unintentional is no defense. If such a defense were acceptable, all defendants would use it.

Because a defense of ignorance or “I didn’t know what I was doing” is not an acceptable answer in a courtroom, you need to learn and understand the potential consequences of your actions in the healthcare setting. This text lays the foundation for understanding your legal and ethical rights and responsibilities.

Statute of Limitations

The
statute of limitations refers to legislatively imposed time constraints that restrict the period of time after an injury occurs during which a legal action must be commenced. Should a cause of action be initiated later than the period of time prescribed, the case cannot proceed. The statutory period begins when an injury occurs, although in some cases (usually involving foreign objects left in the body during surgery) the statutory period commences when the injured person discovers or should have discovered the injury.

Many technical rules are associated with statutes of limitations. Computation of the period when the
statute begins to run in a particular state may be based on any of the following factors:

  • The date that the physician terminated treatment
  • The time of the wrongful act
  • The time when the patient should have reasonably discovered the injury
  • The date that the injury is discovered
  • The date when the contract between the patient and the physician ended
Sovereign Immunity

Sovereign immunity refers to the common-law doctrine by which federal and state governments historically have been immune from liability for harm suffered from the tortious conduct of employees. For the most part, both federal and state governments have abolished sovereign immunity.

Closing Statements

Closing statements give attorneys an opportunity to summarize for the jury and the court what they have proven. They may point out faults in their opponent’s case and emphasize points they want the jury to remember. “In civil proceedings, either party may receive a directed verdict in its favor if the opposing party fails to present a
prima facie case, or fails to present a necessary defense.”

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Judge’s Charge to the Jury

After the attorneys’ summations, the court charges the jury before the jurors recess to deliberate. Because the jury determines issues of fact, it is necessary for the court to instruct the jury with regard to applicable law. This is done by means of a charge. The charge defines the responsibility of the jury, describes the applicable law, and advises the jury of the alternatives available to it.

The judge will instruct the jury in each separate case as to the law of that case. For example, in each criminal case, the judge will tell the jury, among other things, that a defendant charged with a crime is presumed to be innocent and the burden of proving his guilt beyond a reasonable doubt is upon the Government. Jurors must follow only the instructions of law given to them by the trial judge in each particular case.

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Jury Deliberation

After the judge’s charge, the jury retires to the jury room and deliberates as to whether or not the defendant is liable. The jury returns to the courtroom upon reaching a verdict, and its determinations are presented to the court.

If a verdict is against the weight of the evidence, a judge may dismiss the case, order a new trial, or set his or her own verdict. At the time judgment is rendered, the losing party has an opportunity to motion for a new trial. If a new trial is granted, the entire process is repeated; if not, the judgment becomes final, subject to review of the trial record by an appellate court.

Damages

Damages suffered by plaintiffs can be awarded as compensation for loss or injury as a result of the negligence of the defendants. Damages can be sought for emotional distress, physical pain and suffering, and economic loss.
Punitive damages are sometimes awarded over and above that which is intended to compensate the plaintiff for economic losses resulting from the injury. Punitive damages cover such items as physical disability, mental anguish, loss of a spouse’s services, physical suffering, injury to one’s reputation, and loss of companionship. Punitive damages are referred to as “that mighty engine of deterrence” in
Johnson v. Terry.

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In
Estes Health Care Centers v. Bonnerman, it was found that:

While human life is incapable of translation into a compensatory measurement, the amount of an award of punitive damages may be measured by the gravity of the wrong done, the punishment called for by the act of the wrongdoer, and the need to discourage similar wrongs.

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Appeals

An appellate court reviews a case on the basis of the trial record as well as written briefs and, if requested, concise oral arguments by the attorneys. A brief summarizes the facts of a case, testimony of the witnesses, laws affecting the case, and arguments of counsel. The party making the appeal is the appellant. The party answering the appeal is the appellee. After hearing the oral arguments, the court takes the case under advisement until such time as the judges consider it and agree on a decision. An opinion is then prepared, explaining the reasons for a decision. The appellate court may modify, affirm, or reverse the judgment or may order a new trial on appeal.

CHAPTER REVIEW

  1. Tort is a civil wrong committed against a person or property for which a court provides a correction in the form of an action for damages.

    • Objectives of tort law
      • Preservation of peace (between individuals by providing a substitute for retaliation).
      • Culpability—find fault for wrongdoing.
      • Deterrence—to discourage the wrongdoer (tort-feasor) from committing future torts.
      • Compensation—to indemnify the injured person[s] of wrongdoing.

  2. Negligence is the unintentional
    commission or
    omission of an act that a reasonably prudent person would
    or would not perform under given circumstances.

    • Malpractice

      • Negligence or carelessness of a professional person
    • Forms of negligence
      • Malfeasance, execution of an unlawful or improper act
      • Misfeasance, improper performance of an act that results in injury to another
      • Nonfeasance, failure to act when there is a duty to do so
    • Elements of negligence
      • Duty to care—obligation to conform to a recognized standard of care
      • Breach of duty—failure to meet a prevailing standard of care
      • Injury—actual damages must be established
      • Causation—defendant’s departure from the standard of care must be the cause of the plaintiff’s injury

        • Foreseeability—reasonable anticipation that harm or injury will result from an act or a failure to act
        • The test for foreseeability is whether or not one should have reasonably anticipated that the event in question or a similar event would occur.
  3. Intentional tort involves an act that violates another person’s interests.

    • Assault and battery
      • Assault is the infringement on the mental security or tranquility of another person.
      • Battery is the violation of another person’s physical integrity.
    • False imprisonment
      • The unlawful restraint of an individual’s personal liberty or the unlawful restraint or confinement of an individual
    • Defamation of character
      • A false oral or written communication to someone other than the individual defamed, subjecting that individual’s reputation to scorn and ridicule
        • Libel—written defamation
        • Slander—spoken defamation
    • Invasion of privacy
    • Infliction of mental distress
      • Characterized by conduct that is so outrageous that it goes beyond the bounds tolerated by a decent society
  4. Criminal law is society’s expression of the limits of acceptable human behavior.

    • Crime, a social harm defined and made punishable by law

      • Misdemeanor is an offense punishable by less than 1 year in jail and/or a fine.
      • Felony is generally punishable by imprisonment in a state or federal prison for a period of more than 1 year.
      • Criminal negligence, the reckless disregard for the safety of others and willful indifference to an injury that could result from an act. It differs from tort liability in that it provides for a more specific lack of care commonly characterized as “gross negligence” and “recklessness.”
    • Objectives of criminal law
      • Maintain public order and safety
      • Protect individuals and society from harm
      • Provide punishment as a deterrent to crime
      • Rehabilitate criminals for return to society
    • Criminal procedure
      • Arrest
      • Arraignment
      • Indictment
      • Conference
      • Prosecution
      • Defense
      • Trial
    • Healthcare fraud
    • Manslaughter
    • Murder
    • Theft
  5. Contract, a written or oral agreement that involves legally binding obligations between two or more parties.

    • Elements of a contract
      • Offer/communication
      • Consideration
      • Acceptance
    • Exclusive contracts allow organizations to contract with physicians and/or medical groups to provide specific services to the organization.

      • Employment contracts
      • Exclusive contracts
      • Commercial ethics and noncompetitive agreements
  6. Trial procedures
    • Pleadings
      • Summons and complaint
      • Answer
      • Bill of particulars
      • Discovery
        • Investigation of facts.
        • Examination Before Trial (EBT).
      • Process that allows for witnesses to be examined prior to trial
    • Preparation of witnesses
    • Court
    • Jury
      • Determines the facts in a case
      • Makes a determination of the particular standards of conduct required in which the judgment of reasonable people might differ
    • Subpoenas
    • Opening statements
    • Burden of proof
    • Evidence
      • Direct evidence, proof offered via direct testimony
      • Demonstrative evidence, proof offered by objects themselves
      • Documentary evidence, written evidence capable of making a truthful statement
    • Examination of witnesses
      • Expert witness used to resolve issues in a case outside the understanding or experience of the average juror
    • Defending one’s actions in a negligence case
      • Assumption of a risk
      • Comparative negligence
      • Contributory negligence
      • Good Samaritan laws
      • Ignorance of the law and unintentional wrongs
      • Statute of limitations
      • Sovereign immunity
    • Closing statements
    • Judge’s charge to the jury
    • Jury deliberation
    • Damages
      • Nominal damages
      • Compensatory damages
      • Punitive damages
    • Appeals process

TEST YOUR UNDERSTANDING

Terminology

  • assault
  • assumption of a risk
  • battery
  • breach of duty
  • burden of proof
  • causation
  • commission
  • comparative negligence
  • contract
  • contributory negligence
  • damages
  • defamation of character
  • demonstrative evidence
  • direct evidence
  • documentary evidence
  • duty to care
  • evidence
  • exclusive contract
  • false imprisonment
  • felony
  • foreseeability
  • Good Samaritan laws
  • infliction of mental distress
  • injury
  • intentional tort
  • invasion of privacy
  • libel
  • malfeasance
  • malpractice
  • manslaughter
  • misdemeanor
  • misfeasance
  • murder
  • negligence
  • nonfeasance
  • nonmaleficence
  • omission
  • proximate cause
  • punitive damages
  • reasonably prudent person
  • right to privacy
  • slander
  • sovereign immunity
  • standard of care
  • statute of limitations
  • subpoena
  • theft
  • tort

REVIEW QUESTIONS

  1. Describe the objectives of tort law.
  2. Discuss the distinctions among negligent torts, intentional torts, and strict liability.
  3. Explain the difference between a
    commission and
    omission of a negligent act.
  4. Explain the difference between negligence and malpractice.
  5. What are the elements that must be proven in order to be successful in a negligence suit? Illustrate your answer with a case. (The facts of the case can be hypothetical.)
  6. Describe the categories of intentional torts.
  7. How does slander differ from libel? Give an example of each.
  8. Describe the objectives of criminal law.
  9. Describe the difference between a misdemeanor and a felony. Give an example of each.
  10. Discuss why physicians have been so reluctant to remove a patient’s life-support systems.
  11. Describe a scheme to defraud.
  12. Explain the elements of a contract.
  13. Describe why exclusive contracts are so controversial.
  14. Describe the trial process, including pretrial motions and the functions of the judge, jury, and attorneys.
  15. Describe the kinds of evidence that a plaintiff can present in order to establish a negligent act.
  16. What defenses can a defendant present in order to refute a plaintiff’s evidence?
  17. Describe how statutes of limitations favor defendants in a lawsuit.
  18. Describe the various types of damages that can be awarded a plaintiff.
  19. Explain why either the plaintiff or defendant may wish to appeal a jury’s verdict.

NOTES

1. Claire Kitchen, “‘You’re Taking Out the Wrong Kidney,’ Surgeon Was Told,” The Daily Mail.
http://www.dailymail.co.uk/health/article-123005/Youre-taking-wrong-kidney-surgeon-told.html (accessed July 17, 2018).

2. Claire Withycombe, “Lawsuit Alleges Incorrect Breast Removed,” The Bend Bulletin.
https://www.bendbulletin.com/localstate/bend/4421402-151/lawsuit-alleges-incorrect-breast-removed (accessed July 17, 2018).

3. “Doctor Who Cut Off Wrong Leg Is Defended by Colleagues,” The New York Times (September 17, 1995).
http://www.nytimes.com/1995/09/17/us/doctor-who-cut-off-wrong-leg-is-defended-by-colleagues.html (accessed July 17, 2018).

4.
Neade v. Portes, 710 N.E.2d 418 (Ill. App. Ct. 1999).

5. California Code of Regulations, Title 22, section 70217.

6.
Hastings v. Baton Rouge Hospital, 498 So. 2d 713 (La. Ct. App. 1986).

7.
Deerings West Nursing Center v. Scott, 787 S.W.2d 494 (Tex. Ct. App. 1990).

8.
Hastings v. Baton Rouge Hospital.

9.
Brown v. Koulizakis, 229 Va. 524, 331 SE.2d 440 at 446 (1985).

10.
Justia.com, “Actual and Proximate Cause”.
https://www.justia.com/injury/negligence-theory/actual-and-proximate-cause (accessed August 1, 2018).

11. 498 So. 2d 713 (La. Ct. App. 1986).

12.
Clark v. Wagoner, 452 S.W.2d 437, 440 (Tex. 1970).

13. 57A Am. Jur.2d Torts § 134 (1989).

14.
Niles v. City of San Rafael, 116 Cal. Rptr. 733 (Cal. Ct. App. 1974).

15.
Schloendorff v. Society of New York, 105 N.E. 92 (1914).

16.
Perna v. Pirozzi, 92 N.J. 446, 457 A.2d 431 (1983).

17.
Ibid.

18.
Peete v. Blackwell, 504 So.2d 22 (Ala. 1986).

19.
Eli v. Griggs County Hospital & Nursing Home, 385 N.W.2d 99 (N.D. 1986).

20.
Tomcik v. Ohio Dep’t of Rehabilitation & Correction, 598 N.E.2d 900 (Ohio Ct. App. 1991).

21.
Ibid. at 904.

22.
Ibid.

23.
Berger v. United States, 295 U.S. 78, 88 (1935).

24. John Kaplan,
Criminal Justice Introductory Cases, and, Materials (Frederick, MD: Aspen Law, 1973).

25.
Ibid. at 259.

26. Steven J. Hancox, “Red Flags for Fraud.”
http://www.osc.state.ny.us/localgov/pubs/red_flags_fraud.pdf (accessed July 17, 2018).

27.
FBI.gov, “What We Investigate: White-Collar Crime.”
http://www.fbi.gov/about-us/investigate/white_collar/health-care-fraud/ (accessed July 17, 2018).

28. U.S. Department of Justice, “National Health Care Fraud Takedown Results in Charges Against Over 412 Individuals Responsible for $1.3 Billion in Fraud Losses [press release].”
https://www.justice.gov/opa/pr/national-health-care-fraud-takedown-results-charges-against-over-412-individuals-responsible (accessed July 17, 2018).

29.
FBI.gov, “White-Collar Crime.”

30. U.S. Department of Health and Human Services, Office of the Inspector General, “About Us.”
https://oig.hhs.gov/about-oig/about-us/index.asp (accessed July 17, 2018).

31. U.S. Department of Justice, “Fact Sheet: The Health Care Fraud and Abuse Control Program Protects Consumers and Taxpayers by Combating Health Care Fraud.”
https://www.justice.gov/opa/pr/fact-sheet-health-care-fraud-and-abuse-control-program-protects-conusmers-and-taxpayers (accessed July 17, 2018).

32. U.S. Department of Health and Human Services, Office of the Inspector General, “Medicare Fraud Strike Force.”
https://oig.hhs.gov/fraud/strike-force/ (accessed July 17, 2018).

33.
Ibid.

34.
FBI.gov, “National Health Care Fraud Takedown.”
https://oig.hhs.gov/fraud/strike-force/ (accessed July 17, 2018).

35. U.S. Department of Justice, Office of Public Affairs, “National Health Care Fraud Takedown Results in Charges Against 601 Individuals Responsible for Over $2 Billion in Fraud Losses.”
https://www.justice.gov/opa/pr/national-health-care-fraud-takedown-results-charges-against-601-individuals-responsible-over (accessed August 1, 2018).

36. New York State Unified Court System, “Scheme to Defraud in the Second Degree.”
http://www.nycourts.gov/cji/2-PenalLaw/190/190.60.pdf (accessed July 17, 2018).

37.
USA v. Farid Fata, No. 15-1935 (6th Cir. 2016).

38.
FBI.gov, “What We Investigate: Health Care Fraud News.”
https://www.fbi.gov/investigate/white-collar-crime/health-care-fraud/health-care-fraud-news (accessed August 1, 2018).

39. Thomas Catan, “Con Artist Starred in Sting That Cost Google Millions,” The Wall Street Journal (January 25, 2012).
https://www.wsj.com/articles/SB10001424052970204624204577176964003660658 (accessed July 17, 2018).

40. Sara Ashley O’Brien, “Mark Zuckerberg Takes Heat over Illegal Opioid Sales on Facebook,” CNN Tech (April 11, 2018).
https://money.cnn.com/2018/04/11/technology/mark-zuckerberg-questioned-over-facebook-opioid-sales/index.html.

41. USC Leonard Davis School of Gerontology, “Infographics: Americans Are Living Longer.”
https://gerontology.usc.edu/resources/infographics/americans-are-living-longer (accessed August 1, 2018).

42.
Ibid.

43.
Ibid.

44. Senior Medical Patrol, “Home Health Care Fraud.”
https://www.smpresource.org/Content/Medicare-Fraud/Fraud-Schemes/Home-Health-Care-Fraud.aspx (accessed July 17, 2018).

45. U.S. Department of Justice, “Home Health Agency Administrator Pleads Guilty in $7.8 Million Medicaid Fraud.”
https://www.justice.gov/opa/pr/home-health-agency-administrator-pleads-guilty-78-million-medicaid-fraud (accessed July 17, 2018).

46. U.S. Department of Justice, “Palm Beach, Florida Home Health Care Company and Its Owner Agree to Resolve False Claims Act Allegations for $1.5 Million.”
https://www.justice.gov/usao-sdfl/pr/palm-beach-florida-home-health-care-company-and-its-owner-agree-resolve-false-claims (accessed July 17, 2018).

47. American Pharmacists Association, “Code of Ethics.”
http://www.pharmacist.com/code-ethics (accessed July 17, 2018).

48.
State v. Beatty, 308 S.E.2d 65 (N.C. Ct. App. 1983).

49.
People v. Kendzia, 478 N.Y.S.2d 209 (N.Y. App. Div. 1984).

50. Janon Fisher, “Former Nurse Pleads Guilty in Killings of Another 3,” The New York Times (May 20, 2004).
https://www.nytimes.com/2004/05/20/nyregion/former-nurse-pleads-guilty-in-killings-of-another-3.html (accessed July 17, 2018).

51. Rebecca Leung, “Did Hospitals ‘See No Evil’? A Policy May Have Given One Nurse a License to Kill,” CBS News–60 Minutes (August 13, 2004).
http://www.cbsnews.com/stories/2004/08/13/60minutes/main635860.shtml (accessed July 17, 2018).

52.
Ibid.

53. Charles Montaldo, “Profile of Serial Killer Richard Angelo,” ThoughtCo.com (March 17, 2017).
http://crime.about.com/od/serial/a/richardangelo.htm (accessed July 17, 2018).

54. Carolyn Collwell, “The Verdict on Angelo: Murder Found in 2 Deaths,” Newsday 50 (December 15, 1989).
https://www.newsday.com/long-island/serial-killer/the-verdict-on-angelo-murder-found-in-2-deaths-1.1875478 (accessed July 17, 2018).

55.
People v. Lancaster, 683 P.2d 1202 (Colo. 1984).

56.
Miller v. Dunn, 184 S.W.3d 122 (Mo. App. 2006).

57. Federal Trade Commission, “Medical Identity Theft: FAQs for Health Care Providers and Health Plans.”
https://www.ftc.gov/tips-advice/business-center/guidance/medical-identity-theft-faqs-health-care-providers-health-plans (accessed July 17, 2018).

58.
HHS.gov, “HIPAA for Professionals.”
https://www.hhs.gov/hipaa/for-professionals/index.html (accessed July 17, 2018).

59. Alan Cooper, “Virginia Court Rules Identity Theft Victim to Get $532,000 from Credit Agency,” CBS Interactive Business Network Resource Library.

60. Krystle Kopacz, “Medical Theft Trend Sweeps Pennsylvania,” The Daily Collegian Online (January 13, 2006).
http://www.collegian.psu.edu/archives/article_a90522a0-e00a-57bc-9c67-2eb64b1018ba.html (accessed July 17, 2018).

61. Brigid Sweeney, “The Frightening New Frontier for Hackers: Your Medical Records,” Crain’s Chicago Business (April 10, 2017).
http://www.chicagobusiness.com/article/20170408/ISSUE01/170409897/hacking-of-medical-records-health-data-on-the-rise-it-experts-warn (accessed August 1, 2018).

62. Anne Zieger, “Millions of Patient Billing Records Stolen from UT Hospital,” FierceHealthIT, June 14, 2008;
https://www.fiercehealthcare.com/it/millions-patient-billing-records-stolen-from-ut-hospital (accessed July 17, 2018).

63. Tim Eberly, “Grady Hospital Battles Patient Thefts,” Atlanta Journal-Constitution, July 24, 2008.

64.
O’Connor v. Eastman Kodak Co., 492 N.Y.S.2d 9 (N.Y. 1985).

65.
City of Cookeville, No. M2001-00695-SC-R11-CV (Tenn. 2004).

66.
Washington County Memorial Hospital v. Sidebottom, 7 S.W.3d 542 (Mo. App. 1999).

67. Public Counsel [sample complaint],
http://www.publiccounsel.org/tools/assets/files/Jesse-Bravo-v-White-Memorial-et-al_Complaint_2-3-12.PDF (accessed July 17, 2018).

68. Michael Booth, “Mother with Terminal Cancer Can Retain Child Custody, Judge Holds,” New Jersey Law Journal (November 22, 2013).
https://www.law.com/njlawjournal/almID/1202629427960/ (accessed July 17, 2018).

69. Micah Schwartzbach, “What Are the Elements of a Crime?”

NOLO.com
.
http://www.nolo.com/legal-encyclopedia/what-the-elements-crime.html (accessed July 17, 2018).

70. Stephen H. Gifis, Law Dictionary, 1996 at 145.

71. U.S. District Court – Southern District of New York. Handbook for Trial Jurors.
http://www.nysd.uscourts.gov/jury_handbook.php (accessed July 17, 2018).

72.
Johnson v. Terry, No. 537-907 (Wis. Cir. Ct. Mar. 18, 1983).

73.
Health Care Centers v. Bonnerman, 411 So. 2d 109, 113 (Ala. 1982).

CHAPTER 7

Government Ethics and the Law


Nothing is politically right which is morally wrong.

—Daniel O’Connell (1775–1847)

INTRODUCTION


Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor—let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs—let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.

1

—Abraham Lincoln

Ethics and the law are not mutually exclusive—they are intertwined. Without the two, we would become a lawless land. The words of Abraham Lincoln, so passionately spoken, resonate true today. Political corruption, antisocial behavior, declining civility, lack of integrity and transparency, and rampant unethical conduct have heightened discussions over the nation’s moral decline and decaying value systems. The numerous instances of questionable political decisions, executives with shocking salaries, dishonesty at work and school, sexually explicit websites, and the entertainment media have contributed to this decline. Legislators, investigators, prosecutors, and the courts have been quick to speak moral truths but continue to be slow in action. Can this boat be turned around, or are we just plugging the holes with new laws and creating more leaks in a misguided sinking ship?

The question remains: Can the decline in ethical behavior be reversed as citizens struggle with a broken legal system inundated with new laws? The answer is more likely to be a return to practicing the virtues and values upon which this nation was founded. Ethics and the law are not mutually exclusive—they are intertwined throughout the text, providing an overview of government agencies designed to protect each individual’s rights (e.g., the right to privacy and self-determination).

U.S. OFFICE OF GOVERNMENT ETHICS

The
Office of Government Ethics (OGE) is an agency within the executive branch of government whose mission and goals are to foster high ethical standards for employees in the executive branch of government. Common ethical issues that come under the committee’s purview include gifts from outside sources, gifts between employees, conflicting financial interests, remedies for financial conflicts of interest, impartiality in performing official duties, seeking other employment, misuse of position, outside activities, postemployment, representation to government agencies and courts, supplementation of salary, financial disclosure, informal advisory letters and memoranda and formal opinions, DAEOgrams (memoranda to Designated Agency Ethics Officials providing guidance on how to interpret and comply with modifications or new issuances of ethics laws, policies, and procedures; copies of the memoranda released since 1992 are available in the DAEOgrams section of the OGE website), and contractors in the workplace.

2

The public may lose confidence in the integrity of Government if it perceives that an employee’s Government work is influenced by personal interests or by payments from an outside source. An executive branch employee’s Government work may have the potential to benefit the employee personally, affect the financial interests of the employee’s family, or involve individuals or organizations with which the employee has some past, present, or future connection away from the employee’s Government job. Separately, an employee might be offered a payment from a non-Federal source, such as a former employer, either before or after entering Government. Accordingly:

  • An employee may be disqualified from working on a particular Government matter.
  • An employee may be prohibited from holding specified property.
  • An employee may be prohibited from accepting a payment from a non-Federal source.

    3

HOUSE OF REPRESENTATIVES COMMITTEE ON ETHICS


I weep for the liberty of my country when I see at this early day of its successful experiment that corruption has been imputed to many members of the House of Representatives, and the rights of the people have been bartered for promises of office.

—Andrew Jackson

The Committee on Ethics is designated the “supervising ethics office” for the House of Representatives. The jurisdiction of the Committee on Ethics is derived from authority granted under House Rules and federal statutes.

The Committee on Ethics is unique in the House of Representatives. Consistent with the duty to carry out its advisory and enforcement responsibilities in an impartial manner, the Committee is the only standing committee of the House of Representatives with its membership divided evenly by party. These rules are intended to provide a fair procedural framework for the conduct of the Committee’s activities and to help ensure that the Committee serves the people of the United States, the House of Representatives, and the Members, officers, and employees of the House of Representatives.

4

The scope of the committee’s jurisdiction under the various authorizing rules and statutes involves duties and responsibilities related to:

  • Jurisdiction over all bills, resolutions, and other matters relating to the Code of Official Conduct.
  • Recommendations of administrative actions to establish or enforce standards of official conduct.
  • Investigation of alleged violations of the Code of Official Conduct or of any applicable rules, laws, or regulations governing the performance of official duties or the discharge of official responsibilities.
  • Reports to appropriate federal or state authorities substantial evidence of a violation of any law applicable to the performance of official duties that may have been disclosed in a committee investigation.
  • Consideration of requests for written waivers of the gift rule.
  • Oversight over foreign gifts and gifts to superiors and other federal employees.
  • Prohibition of members, officers, and employees of the House of Representatives from soliciting or receiving gifts.

    5

The official Code of Conduct for the House of Representatives can be found on the
Committee on Ethics website.

6

SENATE SELECT COMMITTEE ON ETHICS

(a) The ideal concept of public office, expressed by the words, “a public office is a public trust,” signifies that the officer has been entrusted with public power by the people; that the officer holds this power in trust to be used only for their benefit and never for the benefit of himself or of a few; and that the officer must never conduct his own affairs so as to infringe on the public interest. All official conduct of Members of the Senate should be guided by this paramount concept of public office
.

7

The U.S. Senate Select Committee on Ethics consists of six members of the Senate, of whom three are selected from members of the majority party and three from members of the minority party.

8
The committee is responsible for investigating complaints involving a violation of the Franking statute, financial disclosure statements, and for outside employment with respect to members, officers, and employees of the Senate, foreign gifts and decorations, gifts to an official superior or receiving gifts from employees with a lower salary level, prohibitions against members, officers, and employees of the Senate soliciting or receiving gifts.

9

Poll: Americans Have Highest Trust in Military, While Congress and Media Fall Last

The American people have less confidence in Congress and the media than any other U.S. institutions, while trust in the military ranks the highest, according to a Gallup poll.

• • •

On the other end of the spectrum, Congress, television news, and newspapers fell to the bottom of the list.

Congress came in dead last with only 6 percent of Americans having significant confidence in the institution.

—Madeleine Weast,
The Washington Free Beacon, April 7, 2017

11

The Senate Select Committee on Ethics is authorized to receive and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct, and violations of rules and regulations of the Senate; recommend disciplinary action; recommend additional Senate rules or regulations to insure proper standards of conduct; and report violations of law to the proper federal and state authorities.

10

OFFICE OF CONGRESSIONAL ETHICS

The Office of Congressional Ethics (OCE) was created in March 2008 as an independent, nonpartisan office governed by a board composed of private citizens that provides more public review and insight into the ethical conduct of members of the House of Representatives. The OCE reviews allegations of misconduct against members, officers, and staff of the House and, when appropriate, refers matters to the House Committee on Ethics. The OCE is not authorized to determine if a violation occurred nor it is it authorized to sanction members, officers, or employees of the House or to recommend sanctions. The OCE is unable to provide advice or education on the rules and standards of conduct applicable to members, officers, and employees of the House.

12

The mission of the OCE and its board is to assist the House in upholding high standards of ethical conduct for its members, officers, and staff and, in so doing, to serve the American people. The board of directors consists of eight members, which are private citizens and cannot serve as members of Congress or work for the federal government.

13
As the reader will note, there are a variety of laws and agencies that provide oversight and regulations that are designed to protect the rights and safety of all citizens. Government is a reflection of the people it serves. Failure of the many to participate in the political process leads to government for the few who do. Additional information as to the work of the Office of Congressional Ethics is available at its website.

14

U.S. JUDICIAL CODE OF CONDUCT

As with other branches of government federal judges are expected to abide by a code of conduct that includes ethical principles and guidelines. “The Code of Conduct provides guidance for judges on issues of judicial integrity and independence, judicial diligence and impartiality, permissible extra-judicial activities, and the avoidance of impropriety or even its appearance.”

15

The Code of Conduct for United States Judges includes the following ethical canons:

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently

Canon 4: A Judge May Engage in Extrajudicial Activities That Are Consistent with the Obligations of Judicial Office

Canon 5: A Judge Should Refrain from Political Activity

16

STATE ETHICS COMMITTEES

Many states have legislative ethics committees that hear complaints of ethics violations by legislators. They often investigate complaints and impose penalties for ethics-related violations. Duties vary among the state committees. A state-by-state review can be found at
http://www.ncsl.org/research/ethics/table-of-legislative-ethics-committees.aspx. “State legislatures pass ethics laws that impose restrictions on themselves and lobbyists. To ensure these laws are kept, legislatures establish oversight entities that include ethics committees, ethics commissions or a combination of both. Internal ethics committees are an important way for legislatures to solidify their credibility with the public.”

17

PUBLIC POLICY

Public policy is the principle of law that holds that no one can lawfully do that which tends to be injurious to the public or against the public good. The sources of public policy “include legislation; administrative rules, regulations, or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy.”

18

Ethics and the law are not mutually exclusive—they are intertwined and resonate the history of our land. The following pages present an overview of laws, influenced by ethical principles, designed to protect each individual’s rights (e.g., the right to privacy and self-determination).

Veterans Administration

The House Committee on Veterans’ Affairs reviews veteran programs, examines current laws, and reports bills and amendments to strengthen existing laws concerning veterans and the Department of Veterans Affairs (VA), such as health care and disability compensation. Phil Roe, M.D. (R-TN), chairs the committee.

19
The news clippings below describe a variety of concerns with care veterans are receiving in Veterans Hospitals. Although there is undoubtedly excellent care in the VA system, there is a need to improve the care for every veteran, as noted by committee chairman Phil Roe:

Saturday marks one year since [the Department of Veterans Affairs (VA) Accountability and Whistleblower Protection Act] was signed into law, and as a result we’ve seen major changes at the VA. Before this law, veterans were not receiving the level of service they have earned, and many VA employees were not held accountable for failing to live up to the standards America’s veterans deserve. While we have much work to do to continue our efforts to fully transform the department, this law provides the secretary the tools he needs to bring real accountability to poor performers. It also provides important protections for whistleblowers. While disciplinary actions are up at VA, as I said time and time again, this law was never intended to simply increase the number of firings without truly changing the culture of the department. If the authority under this law is not used properly, VA will never live up to its full potential, which is why I am holding an oversight hearing later this summer to examine the implementation of this important law.

20

As of this writing, the Veterans Administration is led by Acting Secretary Peter O’Rourke,

21
pending Senate approval of President Trump’s nominee, Robert Wilkie, a longtime Pentagon staffer.

22

VA, Heal Thyself, Agency is Told at Hearing Filled with Pained Testimony

The House Committee on Veteran’s Affairs met in Pittsburgh on Monday to hear testimony about problems with health care at agency facilities in that city and others.

• • •

Miller said the “the vast majority of the department’s more than 300,000 employees are dedicated and hard-working, and many veterans are satisfied with the medical care they received from the VA.”

But he and others sharply doubted the ability of the department’s leadership to avoid “heartbreaking situations” like those reported to the committee.

“By now,” he said, “It’s abundantly clear to most people that a culture change at VA is in order.”

—Joe Davidson,
The Washington Post, September 13, 2013

Atlanta VA Exec Scored Bonuses While Audits Found Lapses

The former top administrator at the Atlanta VA Medical Center received $65,000 in performance bonuses over a four-year span as internal audits revealed lengthy wait times for mental health care and mismanagement that led to three deaths.

—Daniel Malloy,
The Atlanta Journal – Constitution, April 26, 2013

“Too Trapped in a War to be at Peace”

Shortly before his death on June 10, Army veteran Daniel Somers wrote a note for his family, asking his wife, Angel, to share it as she saw fit.

“I am left with basically nothing,” he typed on his laptop at their Phoenix townhouse. “Too trapped in a war to be at peace, too damaged to be at war.”

His service in Iraq, including multiple combat missions as a turret gunner, left him with severe post–traumatic stress disorder and traumatic brain injury. But the government, he wrote, had “turned around and abandoned me.”

—Steve Vogel,
The Washington Post, August 24, 2013

Daniel Somers eventually saw a caregiver. Unfortunately for Daniel, the caregiver retired. He attempted to make a new appointment. That is when he ran into the all too common roadblock, being told that there was a shortage of caregivers and that he would be notified when he could be scheduled for his next appointment.

The following
reality check is believed by some to be an all too common experience by inspectors of not only VA hospitals but many hospitals across the country.

VA Hospital

And so there we were in a VA hospital, sent to survey the quality of patient care services provided to veterans. During the survey