Brief Review of Ethical - Legal Issues

I. Selected important court cases A. Karen Ann Quinlan – Substituted Judgment Standard 1. In the Quinlan case, Karen Ann was in a persistent vegetative state, being kept alive only by life support. Karen’s father, drawing on her life as a competent person asked to have her life support terminated as a his understanding of what Karen Ann would want. The court then found that “if Karen herself were miraculously lucid for an interval…and perceptive of her irreversible condition, she could effectively decide upon discontinuance of the life support apparatus, even if it meant the prospect of natural death.” 2. The court allowed termination of life support, not because the father said so, but because it held that the father’s request was most likely the expression of Karen Ann’s own wishes. 3. Substituted judgment begins with the premise that decisions belong to the incompetent patient by virtue of the rights of autonomy and privacy. However, in this case, the patient is unable to decide and another decision maker must be substituted. In legal terms, the patient has the right to decide, but is incompetent to do so. Therefore, the decision is made for the patient based on the best estimate of their subjective wishes. 4. Note the key here is not who is the closest next of kin, but who is most likely to represent the patient’s own wishes. B. Brother Fox (Eichner v Dillon) – Best Interest Standard 1. The New York Court of Appeals, in its decision of Eichner v. Dillon (the Brother Fox case a Quinlanlike case), held that trying to determine what a never-competent patient would have decided if competent is like asking if it snowed all summer, would it then be winter? Obvious is the difficulty of ascertaining the actual (subjective) wishes of the incompetents. 2. Therefore if the patient has always been incompetent, or no one know the patient to render substituted judgment, the use of substituted judgment standard is questionable , at best. 3. Under these circumstances, decisions are made for the patient using the Best Interest Standard. The object of the standard is to decide what a hypothetical reasonable person would decide to do after weighing the benefits and burdens of each course of action. 4. Note here the issue of who makes the decision is less important. All persons applying the best interests standard should come to the same conclusions. C. Infant Doe: Foregoing Lifesaving Surgery – Parents Withholding Treatment 1. As a general rule, parent can not withhold life or limb saving treatment from their children. Yet, in this exceptional case they did. 2. Baby Boy Doe was born with Down’s Syndrome (trisomy 21) and with a tracheoesophageal fistula. The baby’s parents were informed that surgery to correct his fistula would have “an even chance of success.” Left untreated, the fistula would soon lead to the baby’s death from starvation or pneumonia. The parents, who also have two healthy children, chose to withhold food and treatment and “let nature take its course.” 3. Court action to remove the infant from his parent’s custody (and permit the surgery) was sought by the county prosecutor. Such action was denied by the court, and the Indiana Supreme Court declined to review the lower court’s ruling. Infant Doe died at six days of age, as Indiana authorities were seeking intervention from the U.S. Supreme Court. 4. Note that this case is simply an application of the best interest standard. The court agree with the parents that the burdens of treatment far outweighed any expected benefits. D. Roe v .Wade (1973) – The Patient Decides 1. Know to most people as the “abortion legalizing decision”, the importance of this case is not limited to its impact on abortion. 2. Faced with a conflict between the rights of the mother versus the rights of the putative unborn child, the court held that in the first trimester, the mother’s rights are certainly paramount, and that states may, if they wish, have the mother’s rights remain paramount for the full term of the pregnancy.

3. gives her a right to abort her fetus within certain limits.3. The student subsequently does kill the person he threatened. 4. all patients get to decide about their own bodies and the healthcare they receive. The state may regulate abortions for the protection of maternal health in the second trimester. When he leaves. . All three actions should be taken. next call the police. In the US. E. The court ruled that a woman’s right to privacy. the state may not intervene. Note that courts have held that a pregnant woman has the right to refuse care (e. If the decision is made within the first trimester of the pregnancy. In similar situations: first try to detain the person making the threat. In the third trimester.g. 2. or at least attempted. the locus for decision making about healthcare resides with the patient. Tarasoff Decision: Duty to Warn and Duty to Protect 1. 5. not the doctor. A student visiting a counselor at a counseling center in California states that he is going to kill someone. except in cases of a threat to the mother’s life or health. by extension. The counselor should have called the police but then should also have tried in every way possible to notify the potential victim of the potential danger. Because the mother gets to decide. especially in relation to her physician. blood transfusions) even if it places her unborn child at risk. the counselor is concerned enough to call the police. even in the face of threats to the fetus. The court found the counselor and the center liable because they did not go far enough to they to warn and protect the potential victim. and lastly notify and warn the potential victim. it may even prohibit abortions. but take no further action.

Living will: written document expressing wishes a. You have to have clear evidence to assume that they are not. Subjective standard a. 2. Apply these rules to answer presented question on the exam. assume the patient is competent. The patient does not have to prove to you that they are competent. 3. Clear behavioral evidence would be: a. Protection of ethical standard of health professional 2. Patient is grossly psychotic and dysfunctional c. decision on life support. rarely required. Intractable disagreement: about patients competence. 1. Incompetent patients have the same rights. Decision-making should occur in clinical setting if possible. 4. not preferences of the decision maker. court gives little weight to any of these four arguments. 3. Limitations often put forward are: a. If you are unsure. Actual intent. Consider going to court if: (but often resolved without) a. 2. they should use the following criteria and in this order: 1. Advance directives can be oral. Care facilities must provide information at time of admission. Preserve life. Burdens versus benefits. Substituted judgment a. Interests of patient. Important: None of these limitations is effective. Prevent “the moral equivalent” of suicide. Rule #3: Avoid going to Court. In practice. Patients have almost absolute control over their own bodies. Protect third parties. by itself. Rule #5: If patient is incompetent. Rule #4: When surrogates make decisions for patient. 1. Rule #2: Assume that the patient is competent unless clear behavioral evidence indicates otherwise. physician may rely on advance directives: 1. Competence is a legal. tells you little about a patient’s competence. b. 3. Health power of attorney: Designating the surrogate decision maker. You perceive a serious conflict of interest between surrogate and patient’s interests. No right is absolute. b. Physician can make decisions for patients only if this rule applies. Only courts can decide competence 3. not the physician. This means a competent pregnant woman can refuse treatment even if it endangers the fetus. Court approval of decision to terminate life support is. d. 4.II. “Speaks with the patient’s voice” . therefore. What would patient say if he/she could? 3. Consensus on legal issues related to medical practice This section lays out a set of rules that constitute the general consensus of legal opinion. c. not a medical issue. a. Suicide attempt b. Patient’s physical or mental state prevents simple communication. Who best represents the patient? b. but must be exercised differently (via a surrogate). 1. b. The sicker the patient. the greater the right to refuse treatment. What did the patient say in the past? 2. the less chance of recovery. who should be surrogate. advance directive b. Best interests standard: a. b. Options of talking to legal counsel or the hospital ethics committee are also likely to be wrong. Patients have an almost absolute right to refuse. Responsibility of the institution. Rule #1: Competent patients have the right to refuse medical treatment. 2. A diagnosis. c.

Passive = allowing to die = OK. Exceptions: emancipated minors. Step clear boundaries with the patient as to what is appropriate behavior and continue providing care. a. Availability of alternatives 2. Full informed consent requires that the patient has received and understood five pieces of information. Rule #7: Do nothing to actively assist the patient to die sooner. (e. a. confused. See Cruzan case. On the other hand. Risks e. Have discussions with patients about advance directives early in the relationship. Rule #6: Feeding tube is a medical treatment and can be withdrawn at patient’s request. Rule #8: The physician decides when the patient is dead. 4. If over age 13 and taking care of living by self. Four exceptions to informed consent: a. c.. Lack of financial resources. Rule #11: Special rules apply with children. do all you can to reduce the patient’s suffering. Pregnancy or having a child. Written consent can be revoked orally at any time. Active = killing = NOT OK. 1990. If there are no more treatment options (the patient is cortically dead) and the family insists on treatment? If there are no options. 4. b. Is a patient makes a sexual advance do we cease to be their physician? No. Therapeutic privilege (unconscious. 1989 Rule #9: Never abandon a patient 1. An annoying or difficult patient is still your patient. Gag clauses that allow a physician to discuss only approved treatment options violate informed consent and are illegal. a. Patient is incompetent d. or lack of results are never reasons to stop treatment of a patient. A competent person can refuse even lifesaving hydration and nutrition.g. 7. does not. 2. Rule #10: Always obtain informed consent 1. 1. giving pain medication) but not if it speeds up the time of death. Beats all other decision rules. 1. doctor deprives patient of autonomy in interest of health) 3. Be sure that the information for consent is given to the patient in a language that they can understand. 3. treat as an adult. Emergency b. 2. A signed paper the patient has not read or does not understand does NOT constitute informed consent. 1. Marriage makes a child emancipated as does serving in the military. Benefits d. Purpose or rationale c. 6. Very controversial. 5. 2. 1. b.b. 2. Children younger than 18 are minors and legally incompetent. See Wangley case. Nature of procedure b. If the physician thinks continued treatment is futile (the patient has shown no improvement) but the surrogate insists on continued treatment? Of course the treatment should continue. there is nothing the physician can do. so treatment must stop and patient is declared dead. Active euthanasia and assisted suicide. Get to know their desires. in most cases. Waiver by patient c. . Consent can be oral. Difficult ground. ALL five pieces of information must be conveyed. 2.

not elevator or cafeteria) 3. 1. listen to the parents. this issue will not appear on the exam. 5. Be careful not to be overheard (e. 2. but still critical (e. . Here issue is usually getting the patient to work with you to tell the person who is at risk. Physicians are not required to stop to help 2. a.. children in this age range can make decisions for themselves for four issues only ♦ substance drug treatment ♦ prenatal care ♦ sexually transmitted disease treatment ♦ birth control 4. If you are not sure whether action is required. 4. Note that the child itself cannot give permission. go ahead and treat b. a. c. error on the safe side: act to prevent the harm. If not immediate.3.. Duty to warn and duty to protect (Tarasoff case) b. Best advice: have patient and partner come to your office. juvenile diabetes). physicians are shielded from liability providing: a. e. If parents refuse permission to treat child: a. Rule #14: Good Samaritan Laws limit liability when physicians help in nonmedical settings. d. stay after starting until relieved by competent personnel d. In the case of a STD. Rule #12: Parents can not withhold life or limb saving treatment from their children. only accepted procedures are performed c. regardless of the patient’s wishes.g. but do not divulge information about you patient. If help offered. If immediate emergency. too. If patient is a threat to self or other the physician MUST break confidentiality. generally the child is declared a ward of the court and the court grants permission. b. But be careful. f. like STDs. If you receive a court subpoena.g. Physicians are not to tell anyone anything about their patients without the patient’s permission 2. except where consensus exists. Treat AIDS like you would any STD. Rule #13: Issues governed by laws which vary widely across states can not be tested. A child’s refusal of treatment is irrelevant. Watch the location of the consultation. therefore. c. use the partial emancipation rules. For infectious diseases. 1. Rule #15: Confidentiality is absolute 1. no compensation changes hands 3. Infectious disease should generally be treated as a threat. Oregon’s suicide laws and California’s medical marijuana laws are not relevant for the exam. If answering questions regarding abortion and minors. consultant is bound by confidentiality. the issue is not really whether to inform a sexual partner. Elective abortion: laws governing minors and spousal rights differ by locality. 1.. but how they should be told.g. Even the fact that someone is you patient is confidential information. If you know of a specific harm that might occur to a specific person. show up in court. Important: If not life or limb threatening (e. actions are within physician’s competence b. Partial emancipation Many states have special ages of consent: generally age 15 and older Even if fully dependent on parents. Mandatory reportable disease must be reported to the local Public Health Department. 2. act to prevent the threat and warn the potential victim. Legal age for drinking alcohol: differs by state 3. Public Health generally does a contact tracing to find any other infected individuals. If the issue is the best ethical conduct rather than what the law requires. 1. of course physicians should stop to help. Suicide. Getting a consultation is OK. 2. child needs minor stitches). homicide and abuse are obvious threats.

Incompetence 2. Depression (or other psychological issues) d. They must have treatment available. marriage. The patient. Committed mentally ill adults legally are entitled to the following: a. 2. They are in imminent danger to self and/or others. divorce.” 2. b. Get them into treatment e. Actions: a. Rule #18: Detain patients to protect them or others. 1. c. Should physicians answer questions from the patient’s family without the patient’s explicit permission? (No) 3. Important: the words. With children special rules exist. Substance abuse c. not simply the letter of the law. 3. you should ask a patient’s wishes. 3. DNR discussions should occur early in treatment. The best answers are those that are both legal and ethical Practice Questions: 1. What information can the physician withhold from the patient? (Nothing. Types of risks a. They are unable to care for themselves in daily needs.Rule #16: Patients should be given the chance to state DNR (Do Not Resuscitate) orders and physicians should follow them 1. makes DNR decisions. Rule #20: Focus on what is the best ethical conduct. not professional solidarity comes first. Most physicians are unaware of DNR orders in real life. They can require a jury trial to determine “sanity. Emergency Detention can be affected by a physician and/or a law enforcement person for 48 hours. 1. if patient may react negatively. pending a hearing. but first find out why they don’t want the patient told) . and all medical-psychological studies show that health care professionals cannot reliable and validly predict such dangerousness. but not because the parent are unwilling to discipline a child. b. driving. “sanity” and “competence” are legal. They retain their competence for conducting business transactions. The parents have absolutely no control over the child. DNR Refers to no cardio-pulmonary resuscitation 2. 1. and the child is in danger (for example. Continue with on-going treatments. 3. 4. The committed only lose the civil liberty to come and go. Insist that they take time off a. only a judge can commit. terms. A physician can detain. Contact their superior if necessary b. Should physicians answer questions from insurance companies or employers? (Not without a release from the patient) 2. voting. They refer to prediction of dangerousness. Children can only be committed if: a. On the exam. Rule #19: Separate health care professionals who pose risk to patients from patient contact. c. What if the family requests that certain information be kept from the patient? (Tell the patient. if mechanical ventilation is a standard part of postoperative recovery. 5. it would not be disconnected based on DNR orders. Infectious disease (TB) b. They can refuse treatment. The patient or their surrogate. Rule #17: Committed mentally ill still have rights 1. not psychiatric. For example. fire setter). not the physician. figure out how to tell patient to mitigate negative outcome) 4.

What if mother of a minor consents. Must you get informed consent from a prisoner if the prisoner is brought in for examination by the police? (Yes) .5. If a 16-year-old daughter refuses medication but her mother consents do you write the prescription? (Yes) 7. When should the doctor provide informed consent? (Always) 10. but father refuses? (Yes. What if the 17 year old girl is pregnant? (Her guardian) 5. Patient refuses life-saving treatment on religious grounds? (Don’t treat) 2. but the mother refuses? (No) 8. Can written consent be revoked orally? (Yes) 12. What if the 17 year old girl’s parents are out of the country and the girl is staying with a baby-sitter? (If a threat to health. Can you get informed consent from a schizophrenic man? (Yes. no time to assess substituted judgment) 3. Who do you get permission from to treat a girl who is 17 years old? (Her guardian) From whom does the physician obtain consent in each case? 1. but patient must give access or copy upon request) What should the doctor do in each of these situations? 1. What if the 17 year old girl has a child? (Her guardian) 6. the physician can treat under doctrine of loco parentis) 2. Wife produces card stating unconscious husband’s wish to not be treated on religious grounds? (Don’t treat) 4. What if the 17 year old girl is married? (The girl herself) 4. What if a 17 year old girl has been living on her own and taking care of herself? (The girl herself) 3. What if a 16-year-old daughter consents. Wife refuses to consent to emergency life-saving treatment for unconscious husband citing religious grounds? (Treat. but the risk is not immediate? (Court takes guardianship) 6. 5. only one permission needed) 9. What if the child’s life is at risk. Who owns the medical record? (Health care provider. unless clear behavioral evidence to the contrary) 13. Mother refuses to consent to emergency life-saving treatment for her daughter on religious grounds? (Treat). Must informed consent be written? (No) 11.

2. Getting the patient to talk is generally a better answer than having the doctor talk. not the reverse. what would you like to do?” 1. rather than order. After dealing with the presenting problem. 3. Admit the mistake even if it was corrected and the patient is fine. 3. • Shy away from large desks and tables • Patient and physician should both be sitting if at all possible. always place the interests of the patient first. Rule #7: Trust must be built. 2. 3. reflect. Informed consent requires that the patient be fully informed. 2. not to worry about legal protection for the physician. Treat difficult or suspicious patients in a friendly. Arrange seating for comfortable. Talk to patient. . not colleagues: patient is always the focus. Don’t assume that the patient likes or trusts you 2. say that it is partial. 1. Remember. and tell what you know. Refer to psychiatrist or other specialist when beyond your expertise (but usually not the case). not assumed. but the beginning of the conversation. Important when faced with angry or upset family members Rule #11: Agree on problem before moving to solution 1. 3. 1. that is not the end. not commands by the doctor 2. Family and others are only important to the degree that they provide insight into patient’s wishes. 4. 2. Do not force a patient to hear bad news if they do not want it in that moment. ask if there is anything else. Try to anticipate and answer obvious questions before they are asked. patient make medical decisions from the choices provided by the physician. explore their reasons for saying this. Important when faced with a patient who is grieving or is angry 2. Rule #6: Negotiate. Rule #5: Listen. 1. 1. Make eye contact 2. long-term relationship with the patient 1. Don’t blame it on the nursing staff or medical student 2. Always seek a good. Defined touch: tell them what you are doing 3. but do try to discuss it with them as soon as possible. Answer any questions that are asked. You provide instruction in nutrition. close communication. Take responsibility. General rules for exam questions about physician-patient relationships Rule #1: Patient is number one. Information should flow through the patient to the family. Rule #10: Express empathy. 1. Respond to emotional as well as the factual content of questions. 1. Treatment choices are the result of agreement. then give control: “I’m sorry. When patients say they do not want to hear bad news. 3. encourage. 3. 4. Refer only for Ophthalmology or related specialties. Find out about the content of the patient’s life beyond the presented medical issue. Rule #4: Work on developing rapport on an ongoing basis. use of medications. 2. If you have only partial information. Rule #9: Never “pass off” you patient to someone else. Take time to listen to the patient before you. open manner Rule #8: Admit to the patient when you make a mistake 1. even if they do not ask. The goal is to serve the patient. When a patient says they do not want to hear. 1. 5. Rule #3: Tell the patient everything. Choose the patient’s comfort and safety over anyone else’s. 5. Tell the patient you perceptions and conclusions about their condition before moving to treatment recommendations. even if other patients or colleagues are waiting. Everything that goes wrong is your fault. etc.Physician-Patient Relationship I. Rule #2: Always respond to the patient.

Treat family members with courtesy and tact. or her husband? (the patient) 3. get some details before offering a solution 4. sensitive and put the interests of the patient first. Rule #19: Be an advocate for the patient 1. Ask about a patient’s religions beliefs if you are not sure (but not as a prelude to passing off to the chaplain!) 5. but what the most ideal physician should do. their family.Informed consent requires the patient to fully understand what is wrong with them. Ask “why?” 3. 3. A growing body of research suggests that patients who pray and are prayed for have better outcomes. To patients. A pregnant woman or her unborn child? (the woman) Rule # 15: Never Lie 1. Ask for clarification. offered before the patient understands his or her condition. 3. but put the wishes and interests of the patient come first. Do not assume that everyone who has the same religious faith wants the same thing. Do not deceive to protect a colleague 3. 1. 2. Be careful about having young family members translate for elderly patients.” but “I think I have something better. Patients select treatments. A correct treatment. or the mother who brings him in? (the child) 2. Expect them. 3. as how you do it 1. Seek information about the patient beyond their disease. 2. you will never be expected to do anything directly counter to your own religious beliefs. Patients also do not get to act inappropriately. Religion is a source of comfort to many. Inquire about them. Never refuse to treat a patient because they can not pay Rule #20: The key is not so much what you do. 2. them move to closed-ended Rule #13: Patients do not get to select inappropriate treatments 1. If a patient asks for an inappropriate medication that they heard advertised. Rule #17: Accept patients’ religious beliefs and participate if possible. Be accepting of benign folk medicine practices. “I’m here to help you. Theme: The key is not what physicians actually do. Rule #16: Accept the Health Beliefs of patients 1. explain why it is not indicated and suggest and alternative. Seek information before acting. is a wrong answer. On the other hand. Take the time to talk with patients. Fostering Patient Adherence with Treatment Recommendations 2.” 3. Begin with open-ended questions. but this behavior must stop. The injured child. A long-term patient who is now in a coma. Not all Catholics are against birth control. Communicate clearly and directly if the patient is sexually or aggressively inappropriate. Not all Muslim women will insist on a female physician. Half-truths are still lies. 3. insurance companies 2. Your goal is to make the patient comfortable. but only from presented. 1.” Not “This is wrong. Rule #18: Anything that increases communication is good. Rule #12: Be sure what the patient is talking about before intervening 1. Diagnoses need to be explained in the way patients can understand. appropriate examples 2. even if others are waiting. 2. 2. The right choices are those that are humane. When presented with a problem. . Deal with questionable folk medicine practice by “replacement. even if not technically precise 4. 4.” Rule #14: Be sure who you patient is 1. Work to get the patient what they need 2.

check for these problems: a. h. Patients are less compliant when limited information has been exchanged and when there is dissatisfaction with the interview. 2. Moderate fear level is best for adherence c. equals the less patient compliance. Perceived susceptibility d. Rather. c. e. g. Perceived threat is a function of i. A consistent complaint is that insufficient medical information was made available to the patient (or to the parents). Arrange for periodic follow-up i. It is not enough for a physician to provide information and treatment and leave adherence to the patient. 5. Research has shown that physicians cannot tell which of their patients do and do not adhere. They assume that more of their patients are adhering than actually are. Stress the threat to health of non-adherence. inability to afford medications. d.1. . patient dissatisfaction with the doctor b. External barriers such as finances or lack of access to care can prevent adherence even if perceived threat is sufficient. 4. Note the patient’s affective state. Asking patient to do less gets more compliance. 6. interference by family d. The patient is non-adherent. f. 7. The Health Belief Model: a. For Best Adherence: a. On the USMLE when a patient does fail to adhere. misunderstanding of instructions c. do not blame the patient. Perceived seriousness ii. the physician must present information in ways that will optimize patient adherence. Give instructions both orally and in writing. Attend to the amount of information. Explain its complexity. Adherence is a function of perceived threat. 3. Explain why the particular treatment is being recommended. b. The fewer positive statements by the doctor and the less sought-after information offered by the doctor. Stress the effectiveness of the prescribed regimen. b.

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