Case example

Dr. Ames, a psychiatrist in private practice in a medium-sized California city, is caring for Ms. Warren, a 25-year-old single woman who was diagnosed four years ago with bipolar disorder. Dr. Ames and Ms. Warren have had monthly outpatient appointments over the past six months. At her first visit, Dr. Ames prescribed one of the standard medications for this condition, and he has been monitoring his patient’s progress since then. At today’s visit, Ms. Warren reports that she has felt very sad for the past week and has started to think that her condition is hopeless and that her life may not be worth continuing. This is the first time that she has mentioned any thoughts of suicide in her sessions with Dr. Ames.

Dr. Ames knows that it is not unusual for a depressed patient to have suicidal thoughts and that it is very difficult to predict whether a patient who expresses such thoughts will actually commit suicide. He also knows that if Ms. Warren does commit suicide while under his care, he may be at significant risk of malpractice liability for failing to prevent her suicide. Dr. Ames could prevent her from committing suicide, at least in the short term, by involuntarily committing her to a psychiatric hospital, but commitment may not improve her longer-term prospects for survival and control of her illness. Involuntary commitment would be a major disruption of Ms. Warren’s life, and she would likely view this action as a betrayal of her trust by Dr. Ames. Taking this action, therefore, would very likely undermine their therapeutic relationship. Should he nevertheless commit her, to reduce her risk of suicide and his risk of liability?

When confronted with difficult questions about what to do, health care professionals may look both to ethics and to the law for guidance. Professor Kenneth de Ville, in fact, reports that the most common and often the first question asked by physicians and medical students in ethics discussions is “What does the law say?”¹ Clinicians may inquire about their legal responsibilities for many reasons. Like Dr. Ames in the case above, they presumably want to avoid malpractice liability, and so they may seek information about the law in order to protect themselves from an adverse judgment. They may also view the law as offering clear direction about how to resolve complex problems. Despite the inclination of health care professionals to inquire about their legal rights, duties, and risks, de Ville concludes that primary reliance on the law is not a reliable approach to addressing the moral issues that confront them.

What, then, is the optimal relationship between legal and ethical reasons as a guide to health care professional practice? This chapter will consider two simple, initially tempting, and very different ways to understand the roles of law and ethics in health care. I will argue that both of these options are ultimately misguided and then offer a more defensible alternative approach.

Option 1: sole reliance on the law

Physicians and medical students whose first question about a difficult situation is “What does the law say?” might describe their decision-making strategy as follows: “Just tell me what the law requires, or what the legally safest course of action is. That’s what I will do, and that’s all I need to know!” The fact that many health care professionals are quick to inquire about the legal implications of different courses of action suggests that sole or primary reliance on the law is a tempting guide to action. Why is this option initially tempting, and why is it ultimately unsatisfactory?

The option of sole reliance on the law is attractive to health care professionals for several reasons. When they confront an important and difficult decision, clinicians naturally seek to minimize uncertainty and cognitive dissonance about what to do. In such situations, however, there is often unavoidable uncertainty about the consequences of different possible courses of action, and there are often conflicting moral considerations, without any definitive way to resolve the conflicts among them. In contrast, clinicians may view legal rules as giving clear and unambiguous direction, for example, “You must obtain the patient’s informed consent to treatment,” or “You may not euthanize a patient.” Moreover, professionals may see legal rules as an expression of the social will, at least in a state with a fundamentally just system of government. Finally, they may recognize that the law demands obedience and punishes those who disobey. Thus, understanding legal rules and carefully adhering to them gives clinicians maximal protection against criminal and civil liability.

Despite the above-described attractive features of exclusive reliance on the law as a guide to action for health care professionals, this option is ultimately unsatisfactory, for several other persuasive reasons. First, although the law provides clear direction in some circumstances, it does not offer any explicit guidance about how to address many other morally significant decisions in health care. Enacting a law typically requires strong social support for a particular course of action. When a moral issue is in dispute, as is often the case in health care, the law is typically silent, allowing individuals to choose and act in multiple different ways. In fact, some laws explicitly protect the rights of both patients and health care providers to make their own health care choices without legal infringement. To take just one notable example, both the common law and statutory law in the United States protect both a woman’s right to choose abortion and a health care professional’s right not to provide or participate in abortion procedures. When the law does not dictate a course of action, both patients and professionals must turn to other sources of guidance to decide what to do in specific circumstances.

Second, even if the law does provide specific direction, it is not always the best guide to action, in health care or in other contexts. History offers multiple examples of unjust laws, as, for example, laws permitting involuntary sterilization for eugenic purposes and laws denying voting rights to women. Laws whose purposes are beneficent may have unintended harmful consequences. For example, legal rules requiring life-sustaining treatment of newborns with critical illnesses were enacted in the United States in the 1980s to prevent medical neglect of some vulnerable patients, but had the unintended consequence of preventing professionals and parents from choosing to forgo harmful treatment for other infants.² When laws are flawed, so also is simple reliance on them as guides to action. Rather, conscientious health care professionals may have a moral responsibility to participate in efforts to revise or repeal such laws and may also have a responsibility to engage in civil disobedience in order to protect their patients from harm.

Finally, although health care professionals have a justifiable interest in protecting themselves from malpractice liability, self-protection is not always an appropriate or overriding goal. In many situations, absolute self-protection from liability is impossible, because all of the reasonable treatment options pose some legal risk. If an orthopedic surgeon treating a patient with a severe fracture of the leg decides against an operation to repair the fracture, and the fracture does not heal properly, the patient may claim that her poor outcome is the result of the surgeon’s mistaken decision not to operate. If the surgeon does decide to operate, and the patient suffers a significant complication from the surgery, the patient may claim that her injury was caused by the surgeon’s failure to perform the procedure correctly. In this situation, then, the surgeon can choose the course of action that he or she believes will be less risky, but cannot choose a course of action that will eliminate all malpractice risk.

In a few situations, liability may not be an issue, because all of the reasonable choices have legal protection. Consider, for example, the situation in which a physician faces a decision whether she should report a patient who has a medical condition that might impair his ability to drive to the state Department of Motor Vehicles. In North Carolina, state law grants physicians immunity from liability if they decide to report these patients and also if they decide not to report.³ Thus, the physician in this situation must base her decision on grounds other than minimization of liability risk.

In still other situations, it may be morally appropriate, or even morally required, that health care professionals accept some increased liability risk in order to prevent harms to or secure benefits for patients or others. A pulmonologist, for example, may choose to honor his patient’s prior request not to receive long-term ventilator support near the end of life, despite the fact that the patient can no longer express this request and the patient’s family insists that ventilator support be continued. The pulmonologist may believe that the family will seek damages for his failure to follow their directions, but nevertheless choose the course of action that honors the patient’s wishes and promotes the patient’s best interests.