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Strange Bedfellows: How Medical Jurisprudence Has Influenced Medical Ethics and Medical Practice PDF

203 Pages·2002·1.041 MB·English
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STRANGE BEDFELLOWS STRANGE BEDFELLOWS How Medical Jurisprudence Has Influenced Medical Ethics and Medical Practice Ben A. Rich, J.D., Ph.D. University of California, Davis Sacramento,California Kluwer AcademicPublishers New York/Boston/Dordrecht/London/Moscow eBookISBN: 0-306-47110-8 Print ISBN: 0-306-46549-3 ©2002 Kluwer Academic Publishers New York, Boston, Dordrecht, London, Moscow All rights reserved No part of this eBook may be reproduced or transmitted in any form or by any means, electronic, mechanical, recording, or otherwise, without written consent from the Publisher Created in the United States of America Visit Kluwer Online at: http://www.kluweronline.com and Kluwer's eBookstore at: http://www.ebooks.kluweronline.com Tomy wife, Kathleen Mills, and my parents, Ben and Betty Rich PREFACE The pervasive influence of law on medical practice and clinical bioethics is often noted with a combination of exasperation and lamentation. Physicians and non-physician bioethicists, generally speaking, consider the willingness of courts, legislatures, and regulatory agencies to insinuate themselves into clinical practice and medical research to be a distinctly negative aspect ofcontemporary American society. They are quicktopoint outthat their colleagues in other Western developed nations are not similarly afflicted, and thatthe situationwhichobtains elsewhere ishighlypreferable to the legalization and purported over-regulation of medicine that has taken place in the United States during the last fifty years. In this book I offer a decidedly different perspective. It is, admittedly, not entirely without personal and professional bias. Prior to becoming a full- time academic, teaching bioethics in the setting of an academic medical center, I was, for nearly 20 years, an attorney specializing in health law. Even after earning a doctorate in philosophy, I was frequently considered to be the “resident lawyer” on the bioethics faculty, much more frequently looked to for my insights on the law than my perspective as one who had formally studied moral philosophy and applied ethics. I note this not out ofa sense of frustration or disappointment, but as confirmation that even among physicians and non- physician bioethicists, there is widespread recognition that the law does have important contributions to make in assessing the practice ofmedicine and the conduct of medical research. Prominent bioethics journals recognize the important role that law has played in bioethical decision making by including legal sections in each issue, e.g., The Cambridge Quarterly of Healthcare Ethics has “The Caduceus in Court,” and the Hastings CenterReport has “At Law.” The perspective of this book is that, at least from the standpoint of the patient and the research subject, the law has had a decidedly positive influence on medical practice and research. The very concept of informed consent – in clinical practice and human subjects research – was developed and imposed upon those engaged in these medical enterprises bycourts. As aresult, the very model of the physician-patient relationship was transformed from one of paternalism to one of shared decision making. In other words, through the law the patient was given not merely a voice, but the ultimate authority in determining whatmaybe done byhealth care professionals inboth practice and research settings. Informed consent is the handmaiden ofindividual autonomy, vii viii Preface which became a full-fledged principle of medical ethics only after it had become a principle of medical jurisprudence. Similarly, the concept of prospective autonomy, throughwhichanindividual canhaveanauthoritative voice in future health care decisions atatimewhenhe or she has lostdecisional capacity, only became a viable concept once legislatures and courts recognized the moral and legal authority ofadvance directives. Intheearlydecades afterthe formulation of informedconsentasaright ofpatients and the subjects ofmedical research, a curious asymmetry existed. Patients were presumed to have a virtually unqualified right to both give and withhold consent to medical interventions, so long as they were not very important, i.e., not essential to sustaining life or avoiding serious disability. However, in matters of life and death or in the treatment ofgrave illness, there was a lingering presupposition among medical practitioners thatpatients hadno right to refuse treatment. Such refusals were not considered to be legitimate exercisesof individual autonomy, butratherevidenceof mental derangement or suicidal behavior. The wave of so-called “right to die” litigation in the United States in the 1970's and 1980's was necessary in order to definitively establish that patients have the right not only to decide about merely elective medical procedures, but those necessary to, quite literally, save life and limb. While there are those who suggest that such a right was implicit in the bioethical principle ofrespect for patient autonomy, I take the position that not until the courts interceded in case after case, invoking both common law and constitutional principles, did patients actually achieve this final authority over their medical management. Thisaccountof theinfluenceof lawontheethics of medicalpractice is not,however,unmindfuloftheshortcomingsandadversesequelaeof somelegal decisions, statutes, and regulations. There are some common law and constitutional cases in which the sometime admonition of my beloved torts professor in law school, Arno Becht, is particularly apt: “Read it and weep!” But in my judgment, the plight of patients and research subjects would be materially worse if the law had taken ahands off approach. Toward the end of the bookI address the issue of whether, in the new century upon which we have now embarked, the law, as instantiated in court decisions, statutes, andadministrative regulations,mightbewelladvisedtocede moreof aroletoclinicalbioethicsinshapingthe ethical parameters of medicine. WhileIbelievethere is muchtobegainedbyamoresynergistic andcooperative rolebetweenlawandbioethics, Iamquite reluctant toadvocate foradiminution in the role of law. As I explain at greater length in the final chapter, bioethics is not well positioned to vindicate such principles as patient rights. Bioethics, as an emerging profession, has assiduously avoided taking on being shackled with the mantle of “moral police” in the clinical setting, and in some instances it has actually turned a blind eye to major ethical shortcomings. Many Preface ix bioethicists, particularly those without tenured faculty positions, are beholden to institutional administrators and the institutional medical staff for their ability to earn a living. Discretion being the better part of valor, they have, sometimes excessively, soughttoaccommodateprevailingpracticesratherthantochallenge them on ethical grounds. Furthermore, it remains an undisputed fact of the matterthatthe lawhasteethandclinicalbioethics doesnot. Whereas wecan all aspire to change problematic professional attitudes andpractices throughmoral suasion, when time is of the essence or key individuals or groups remain intransigent, nothing short of the force of civil or criminal penalties will suffice. When it comes to those matters about which we as a society will not accept merely episodic orpartial compliance with core principles and values, we look to the law to motivate most persuasively. ACKNOWLEDGMENTS When one comes, as I have in this instance, as circuitously and incrementally to the production of a book, the list of individuals to whom one is indebted in material ways becomes extensive. Because much of the inspiration for this book comes from my experience as a practitioner of the law, the sources of my motivation to pursue the law as my initially chosen career may be worthy of note. I grew up in central Illinois, having been born in Springfield and raised in Peoria. In high school and college I came to recognize a triumvirate of heroes, all of whom were attorneys and each of whom rose to national prominence in Illinois. Perhaps still more importantly, however, these were individuals who inspired me because they exemplified profound moral courage and an unqualified pursuit of truth and justice regardless of the adversity and animosity which that pursuit invariably engendered in many of their fellow citizens. The first of these, both chronologically and in terms of his national stature, was Abraham Lincoln. While time has conferred upon him the status of perhaps the most revered of American presidents, he was also one of the ablest trial lawyers of his time. The second, and probably the most obscure, was Robert Green Ingersoll, who lived and practiced law in Peoria from 1857 until he moved to New York in the 1870's. Although he, too, was in the upper echelon of trial advocates in the last half of the Nineteenth Century, Ingersoll’s fame (or in the eyes of the religious, infamy) derived from his performance on the lecture circuit, where he was known as the “golden tongued agnostic,” and his delivery at the Republican National Convention of 1876 of the “Plumed Knight Speech” nominating James G. Blaine to be the Republican candidate for President. The third member of the triumvirate, and the one best known as a paradigm of trial advocacy, was Clarence Darrow of Chicago. My admiration for Darrow was germinated as a young adolescent when director Stanley Kramer brought the dramatization of the “Scopes Monkey Trial” to the screen in the 1960 production of Inherit The Wind, casting Spencer Tracy as the aging Clarence Darrow, who came to Dayton, Tennessee in the sweltering summer of 1925 to defend James T. Scopes against charges that teaching the theory of evolution in a public school classroom was a crime. Like the other two, Darrow was an individual of unwavering conviction, who achieved greatness in his xi xii Acknowledgments chosen profession without compromising his principles or tempering his views of what justice required by way of commitment and sacrifice. In moving from the pantheon of heroes to the figures in my actual experience, I wish to begin with Edward E. Hollowell, Esq., of Raleigh, N.C. for bringing me into the private practice of law and introducing me to the speciality of health law, with its many fascinating issues. I am also most grateful to Gene Nichol, formerly Dean of the University of Colorado School of Law and now Dean of the University of North Carolina School of Law, and to Rex Perschbacher and Kevin Johnson, Dean and Associate Dean respectively at the University of California, Davis School of Law, for affording me the opportunity to teach health law at these fine institutions during the last 12 years. It was in my early years of teaching that I realized that a second career as an academic had begun to beckon. When I sought to move from the practice of law to full-time university teaching, I was motivated to pursue formal credentials in moral philosophy and applied ethics. I was reassured that such a radical career move, including a return to the role of graduate student, was within the realm of possibility by Professor Frank Marsh, who was then at the University of Colorado Health Sciences Center and now is at the University of Tennessee. Like myself, Frank had been an attorney for many years before pursuing a doctorate in philosophy and embarking upon his second career as an academic bioethicist. My sage mentor and friend in this endeavor was Professor N. Ann Davis, who further encouraged my enrollment in the Ph.D. program of the Department of Philosophy at the University of Colorado-Boulder, and who served as chair of my dissertation committee. By the time I was nearing the completion of my dissertation, I had the good fortune to have become a colleague and friend of Dr. Mark Yarborough, Director of the Program in Health Care Ethics, Humanities and Law at the University of Colorado Health Sciences Center. As that program was expanded through the support and nurturing of Dr. Vincent Fulginiti, Chancellor of the Health Sciences Center, Mark brought me into the academic fold and tolerated with sublime equanimity my eventual status as the “resident curmudgeon.” I also wish to acknowledge the other faculty of that program, Dr. John Armstrong, Dr. Richard Martinez, Dr. Therese Jones, and Dr. Marilyn Coors, for providing a unique admixture of intellectual inquiry, collegiality and friendship that now spans both time and distance. I have recently completed my first year as Associate Professor in the Bioethics Program at the University of California, Davis. I am particularly indebted to my mentor, friend and colleague Dr. Erich H. Loewy, the Alumni Association Endowed Chair of Bioethics, who encouraged me to come to UC- Davis and to complete this book project. I also wish to thank Dean Joe Silva of the School of Medicine, Dr. Faith Fitzgerald, Dr. Fred Meyers, Dr. Scott Acknowledgments xiii Fishman, and Dr. Roberta Springer Loewy for helping me to thrive in my new academic home. There are, ofcourse, thosetowhomexpressions of thanks are woefully inadequatebecausethedegreeof indebtednessistoogreat,hencemydedication of this book to them. My wife, Kathleen Mills, has supported me in the pursuit of my academic dream for these many years in all ofthe ways – tangible and intangible, obvious and subtle – that only a loving and dedicated partner can. Andlast,butcertainlynotleast,tomyparents, BenandBettyRich, who created and sustained a nurturing home in which intellectual inquiry was promoted and dogma disdained.

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