Table Of ContentSTRANGE 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
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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,
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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
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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.
