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Wayne State University Law School
Gable, Lance

Bioethics – Winter 2014
I. Introduction: Fundamental Relationships between Law, Medicine, Public Health and Ethics
Law provides answers to the question of what can we do and ethics provides answers to what we ought to do
What is “bioethics”? [3-14]  
Definitions of Bioethics
§  “The study of ethical principles in medical and biological sciences”
§  “Ethical inquiry related to biological interventions of the human body or body material or to other interventions of the human body or bodily material aimed primarily at creating, sustaining, or improving human life, as well as ethical inquiry about the just distribution of resources related to the provision of health care.”
Law and Ethics
§  Legal rules build on ethical values
§  Law allows for application of ethical values
§  Ethics may supplement or contradict law
Just because something is legal does not mean it is ethical; law provides a minimum of ethical conduct
History of Bioethics
§  Paternalism: Doctor knows best
§  Rise of patient autonomy
§  Advances in legal and ethical protections for human subjects research
§  Advances in technology
Philosophical principles informing bioethics [14-31]  
§  Bioethics Definitions:
o    Values: judgments of preference
o    Morals: judgment of the goodness of action of responsible agents, their general policies or traits of character
o    Ethical principles: Attempt to articulate and justify principles that serve as guides for evaluating actions or policies; or to assist comprehension or judgment
§  Meta-ethics
o    Comes from:
§  Religion – Divine law
§  Secular sources – Natural law; Social contract
§  Relativist – One’s culture, personal preferences, actual social contract
o    How do we know what is ethical?
§  Religious – revelation, scriptures/texts, traditions, experience
§  Secular – reason, experience/observation, intuition, social agreement or contract
§  Relativist – one’s own thoughts
§  Normative Ethics
o    Consequentialism (Utilitarianism) – Utility ethics…the consequences and utility of an act is what matters.
§  Utilitarianism
·         An action is right if and only if, the action will produce the best consequences as compared to the alternative actions that could be alternatively taken by the agent
·         The consequences and utility of an act are what matter
·         An act is morally right if it maximizes the good: could cause problem of equal good to equal bad
·         A benevolent spectator is the one charged with making determination
·         Classical Utilitarianism – based upon the principle of utility (actions are right in the proportion as they tend to promote happiness; wrong as they tend to promote the reverse of happiness).
·         Act utilitarianism – The principle is judged on its specific utility in the specific circumstance, in the absence of other factors or aggregated considerations
o    Does the act have utility itself? If yes, then ethical
o    Ex: act of giving someone too much medicine to make sure get rid of disease is ethical but under rule: greater chance of resistance or building up tolerance so not ethical under urilitarianism
·         Rule utilitarianism – The general rule is assessed according to its overall utility. This approach may be more useful but also harder to achieve.
o    Deontology/Deontological – Principles and reasons for the act matter, not the consequences.
§  Deontology (Kantianism)
·         An action is right if and only if the action is either
o    A. required by a moral duty, or
o    B. allowed by a moral permission, and NOT
o    C. Forbidden by a moral prohibition
·         Act in a way that you wouldn’t mind that act becoming universal law. (“do unto others as you would have them do unto you.”
·         In other words “Always act so as to treat humanity, either yourself or others, always as an end and never as only a means.”
§  How does Kant Apply in Medical Ethics?
·         No matter what the consequences may be, it is always wrong to lie
·         We must always treat people including ourselves as ends and not as means only
·         An action is right when it satisfies the categorical imperative
·         Perfect and imperfect duties give a basis for claims that certain rights should be recognized.
o    Areataic – Virtue ethics…the qualities of the actor is what matters
§  An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances
§  Virtues are states of character concerned with choice; examples include courage, temperance and justice.
§  Virtues can derive from professional, religious, or secular sources.
o    Summary
§  Utilitarianism: An action is right if and only if the action will produce the best consequences as compared to the alternative actions that could be undertaken by the agent.
§  Deontology: An action is right if and only if the action is either (a) required by a moral duty, or (b) allowed by a moral permission, and not (c) forbidden by a moral prohibition.
§  Virtue Ethics: An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances
§  Bioethic Principles
o    Principlism (none given authority/more importance)
§  Autonomy
·         Notion that person has the ethical right and ability to act as they please
§  Nonmaleficence
·         Duty to do no harm
§  Beneficence
·         Actively doing good to others
§  Justice
·         Equality of opportunity
·         Ethical principles should be made in a veil of ignorance; those decisions will be ethical
·         Each person has an equal right to the most extensive liberty compatible with a like liberty interest for all
·         Inequalities must be arbitrary unless reasonable to think that those inequalities will work out to the benefit of all (difference Principle)
·         Inequalities to be worked out so that:
o    Offices and positions must be open to everyone under conditions of fair equality of opportunity
o    They are to be of the greatest benefit to the least-advantaged members of society (difference principle)
§  Other Theories of Ethics
o    Natural law
o    Liberal individualism
§  Individuals have rights that protect them from intrusion, especially from the government
o    Communitarianism
§  Ethical actions are those that place the good of the community above those of specific individuals
o    Ethics of Care
o    Rules and Rights
§  Rules – duties we owe to others
o    Ex: (Doctor has the duty to protect patient data – confidentiality)
§  Rights – duties owed to use
o    Ex: (Patient has the right to confidentiality)
§  Codes of Ethics
o    Hippocratic oath:
§  AMA Code
§  Ten Commandments
§  Human Rights Treaties
§  CIOMS Research Guidelines
§  Nuremburg Code
§  US Bill of Rights
§  How rigidly do rules apply?
No Rules Apply__________________________________________________________Apply Rigidly
Antinomianism     situationalism     rules of practice     Legalism
                               (rules of thumb)
§  Using individual case examples to discern ethical pronouncements.
o    A case-based comparison system allows ethical principles to emerge.
§  This is a bottom-up rather than top-down approach
Critical Perspectives
§  Central recognition is the reality of existing inequalities along gender, race, ethnicity, class and other lines
§  Ex: Feminist perspectives
Medical ethics and bioethics [31-40]  
Hippocratic Oath
§  I swear by Apollo the physician, and Asclepius, and Hygieia and Panacea and all the gods and goddesses as my witnesses, that, according to my ability and judgement, I will keep this Oath and this contract:
§  To hold him who taught me this art equally dear to me as my parents, t

nfeasible or contraindicated from a medical point of view
§  Michigan uses reasonable physician standard
§  What should be disclosed:
o    Medical alternatives
o    Serious risks and likelihood of those risks
o    Benefits
o    Result if left untreated
§  What is Not Material Information:
o    Things deemed common knowledge
o    Hazards patient has already discovered
o    Hazards that shouldn’t bear on decision
Other Informed Consent Issues
§  Do physicians have to provide additional information about risks and benefits if a patient refuses the test?
o    Truman v. Thomas
§  Patient refused pap smear; got cancer and died; family sued based on lack of informed consent
§  Ct said Dr. should have informed patient more
§  Do physicians have to provide information unrelated to the medical risks of the procedure?
o    Johnson v. Kokemoor
§  Does doctor have to advise of lack of experience?
§  Ct says yes
§  There was a large disparity between what was told to this patient and what was reality
§  Most courts would not require disclosure
Elements of effective informed consent
§  Competency: patient must be competent to grant informed consent
§  Disclosure of Info
§  Comprehension: not enough to just disclose but also disclose in a way that patient can comprehend that information
§  Minimizing External Influence: both parties have pressures
§  Decision: dr. must actually get decision from patient; either written or oral
       Miller-McGee v. Washington Hosp. Center [52] o    Facts: Plaintiff developed medical complications after childbirth
       Culbertson v. Mernitz [54] o    Facts: Plaintiff suffers complications from bladder surgery.
       Greenberg v. Miami Children’s Hospital Research Institute [62] o    Facts: Plaintiff donated bodily materials for disease research. Defendants succeeded in developing a test for the condition and obtained a patient.
o    Issue: Do researchers have to get informed consent on what to do with tissue samples taken? Did the failure to disclose economic interests undermine informed consent? Can plaintiff’s dictate how their bodily materials are used? Do they have other rights?
o    Ct: Not going to extend duty of informed consent to economic consequences of research to participants of the research
§  Don’t want to chill medical researchers; and
§  Don’t want participants to control the research after donation
o    Distinguish this case from Moore v. Regents of California; did research on cells and made him come in more often to get more cells: had cause of action because this was a clinical setting and he was being lied to (told it was to get him better but was really research)
Cause of Action for Informed Consent (Negligence framework)
§  Duty: to provide sufficient info
§  Breach: depends on what standard state uses; reasonable physician or patient
§  Causation: most cts focus on objective determination whether would have changed position
o    A lot of cts will actually instruct a jury on  both objective and subjective determination of whether would have changed position or not if given sufficient informed consent
§  Harm