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Bioethics and the Law
Wayne State University Law School
Gable, Lance

Gable_Bioethics and the Law_Winter 2011


o What is bioethics?

§ Relationship of patient to health care provider

§ Inquiry into related interventions into the human body or body material

§ Definition: systematic study of moral dimensions of the life sciences and health care

o History

§ Hippocrates

· Paternalistic

· Beneficence

· Nonmaleficence

§ 20th c.

· 70’s brought more patient participation

· Coincided with civil rights

· National Research Act of 1974

· Belmont Report

· Piecemeal, case-by-case analysis

· 90’s more about managed care issues

o Philosophical principles

§ Philosophical ethical theory

· Sensationalism: all men created equal but change by environmental influence

· Humans social animals with moral sense to make sense out of chaos

§ Utilitarianism – the ends justify the means (consequentialism)

· Mill, Bentham

· Hedonistic: results judged by amount of pleasure given

· Rule: utility of rules rather than acts

· Criticism

o Hard to define pleasure

o No standard to measure different utilities. Who does the balancing?

· Cost/benefit analysis

§ Kantianism

· Deontological – principles and reason for the act matter, not consequences

· One should follow a general principle of moral action

· Golden rule

· People should be treated as ends, never as means to an end

§ Areatic (virtue ethics)

· Temperance, justice, prudence, courage

· Quality of actor is what matters

§ Liberal individualism

· Focus on rights of individual

· Favors liberty over welfare

§ Communitarianism – Focus on good of the community

§ Ethics of care – Focus on maintenance of relationships

§ Principilism

· Autonomy – ability to make decision about oneself

· Nonmaleficence – do no harm

· Beneficence – do good

· Justice – be fair

§ Critical perspectives

· Focus on inequalities (race, gender, status)

· Challenging of existing power structure

§ Casuistry

· Use of individual cases to discern ethical pronouncements

· Bottom-up

· Case law precedent is example

o Religion – pluralism minimizes role in bioethics

o Medical ethics and bioethics

§ Hippocratic oath

§ AMA Principles of Medical Ethics

· Similar to ABA Model Rules

· Difficulty applying to dr’s in research

o Medicalization of bioethics

§ Interpretations of disease are often culturally constructed

§ Shape of human body


o Informed consent

§ The ethical and legal requirement that health care providers give a patient information prior to patient agreement to procedure and that patient grant consent to undertake the procedure

§ Three versions

· Letter and spirit developed by courts – law in books

· As imagined by dr’s – law in mind

· As practiced – law in action

§ Two camps

· Idealists

o Judges and ethicists

o Expansive of dr obligation to disclose

o Broad and subjective; from patient perspective

o Narrow exceptions

o Action falls short of law in books; law in books should be stricter

· Realists

o Dr’s

o Law in mind

o Gap between books and action shows impractical books

o From dr’s perspective

· Cases (50-63)

o Schloendorff v. Society of NY (1914) – Recognition of right to patient self determination in medical care

o Salgo v. Stanford (1958) – First use of term “informed consent”

o Canterbury v. Spence (1972) – Reasonable patient standard

o Miller-McGee v. Washington (2007) – patient based

o Culberson v. Mernitz – physician based

o Truman v. Thomas – dr must disclose for refused procedures

o Johnson v. Kokemoor – dr must disclose shortcomings

o Duffy v. Flagg/Duttry v. Patterson – dr does not need to disclose shortcomings

o G

o bodily invasion increases and

o prognosis dims

§ in re Martin (MI)

· recognizes right to refuse treatment

· surrogate must have C&C evidence that patient would refuse treatment in that particular situation (subjective standard)

· other standards too far removes

§ Bouvia and Ms. B – where is the line between refusal of treatment and assisting suicide?

o Advance health care directives

§ Types

· Appointment of health care surrogate

· Living will

· Power of atty

§ Scheible

· For action to lie, person’s death must result from deprivation or infringement of the decedent’s rights

· Violation of living will was not cause of death

o Assisted suicide

§ Kevorkian

· Believed people had right not to suffer

· Law against PAS in 1992

§ Case development

· Griswold recognized right to privacy in contraception

· Roe v. Wade extended that right to abortion

· Cruzan extended to right to refuse treatment

· Glucksburg (appellate) recognized right to die; s.ct. overturned

o S.ct found meaningful difference between refusal to being maintained and active ending of life

o Not rooted in tradition

§ Terminal sedation – what’s the difference?

§ AMA changed position to support PAS in 1994

§ Advancement

· Less constroversial than abortion

· Growth of hospice and palliative care movement

§ States

· Oregon has approved (1994)

o Must have terminal illness

o Written request witnessed by two others

o Attending dr

o Consulting dr

o Waiting period