Bioethics and Law Midterm 1

anencephalic baby, hospital rescues for respiratory problems, seeks court opinion about declining to reat

trial court: disability discrimination under ADA 2 statutes (refusing to treat bc disability, disability doesn’t interfere w treatment), EMTALA, Roe v. Wade parental medical choices for children

appellate court: narrow stance of EMTALA based on wording

1970

1. medicine can keep you alive even if you don’t want to

2. doctors eager to use all tools, patient death as failure

left to state laws, safety of citizens includes public health

bioethics as mostly a matter of state law

“laboratory of states” mean better approaches often come to dominant, but not always the case; states express moral character

human subjects research as exception

congress can frame health issues federally, but policy freeze and election cycles

uniform law commission: group of attorneys drafting uniform laws and lobbying states to adopt

government owned healthcare, doctors employed by country, free service via taxpayers

older people use more healthcare, intergenerational service comes around

UK

US: gov. owned hospitals include veterans administration, native reservations, military hospitals

private doctors and hospitals compete for patients but paid by government run insurance company funded by taxes

Canada

US: Medicare for everyone over 65, doesn’t cover long term nurisng care

insurance supplied by corporate entities e.g. employers, regional suppliers. often gov. mandated

Germany, Japan, many wealthy countries

private insurance entities are heavily regulated and subsidized to ensure access

more expensive to seek independent insurance than provide; cheaper as group

US: companies, unions, covers majority of Americans, tax codes allow insurance as deductible business expense

inexpensive healthcare insurance for poor populations, wealthiest citizens must seek private or pay

often seen in poorer countries

US: medicaid

insufficient resources to subsidize healthcare access

US: undocumented immigrants, people above medicaid threshold that gamble not to pay

working for small companies → no corporatist insurance, rates go up for small groups

even with insurance, drugs and procedures not necessarily free

copayments uninsured, deductibles mean insurance only kicks in with sufficient spending

healthcare costs account for 1/4 of personal bankruptcies

corporatist insurance: tax penalty for larger uninsured firms

Medicaid

• previously; state determined % of poverty threshold where medicaid applies, red states less generous

• original prop: cover 125% of state poverty line, or take away federal subsidy for existing Medicaid

• SCOTUS ruled taking away federal assistance is unconstitutional

subsidized private insurance

• large subsidies for people just above 125%, diminishing up to 140%

• would have been continuous coverage if not for SCOTUS holding, gap between state threshold

state exchanges

• accessible page for minimal health insurance packages at clear price, all on one page

individual mandate

• controversial; uninsured people pay a relatively unthreatening tax, much less than health insurance

• SCOTUS upheld, incentivized many to purchase

most popular provision; stay on parents health insurance till 26

1/2 states didn’t adopt at first, but many folded due to pressure from doctors/hospitals lobbying

healthy people dropping out of insurance plan leaves sick people in the pool, causing insurance company to raise rates

implication: making healthy people buy insurance is good even though they get little return

spending per capita highest in the world, double OECD average of 38 wealthiest countries

procedural problems

• see doctors less often

• birth and pregnancy related illness/death on par w sub-saharan African countries

• lower life expectancy and disease outcomes

• good medical education and tertiary care

social factors

• lack of vacation, family leave, exercise, obesity

healthcare costs

• American doctors paid more, higher % of specialists, insurance never pays full medical charges

• bureaucratic/administrative overload from many systems

• cost of prescriptions; pharma lobbies for high prices to fund R&D, funding comes disproportionately from US

voluntary relationships and contract, doctors generally have no duty to treat the sick unless agreed

• Hurley v. Eddingfield, doctor refused to treat and patient died at home

• Obstetrician that only delivered children of poor patients if sterilized

commercial relationships can be stopped for any reason except for legally prohibited reasons (race, sexuality, religion)

an agent acts on behalf of a principle, e.g. yale professor, doctor, lawyer, therapist

owes particular duties and acts on their behalf/best interests

duty of competence:

• standard of care varies regionally, medical malpractice cases define precedent

• different from whether patient is harmed

duty of obedience:

• patients must give informed consent

duty of confidentiality:

• not divulging things learned during course of agency

• illegal behaviors, sexual, violence/abuse

• exception: money if patient isn’t paying enough

• mandatory reporting: child abuse, elderly unfit to drive, intent to harm/self harm

duty of loyalty:

• avoiding conflicts of interest

• e.g. lending patients money, treating family members

unique constraints for doctors:

• no sexual regard for patients, no moral judgements that would affect care

“common carrier”

• someone having something available e.g. innkeeper has limited ability to deny entrance to relationships

• hospital ER

• ER doctor cannot deny patients, recognized specialty with hospitals contracting ER docs

EMTALA

• Burditt v US Dept of Health

specialists contract hospitals to oversee patients, e.g. anesthesiologists, radiologists

hospitalist specialty cares for wards full time, instead of physicians dropping by

most US hospitals are non-profit, no shareholders take home profit

money reinvested into mission; lowering prices, improving facilities

doctors generally not employed but have admitting privileges; hospital as workshop for procedures

if you have given level of healthcare training and help someone w/ emergency, relieved of legal liability from care

encourages people to help by removing threat of lawsuit

federal anti discrimination laws: race, religion, sexuality, disability

Bragdon v. Abbott

• dentist afraid to treat HIV+ patient; cultural climate of HIV fear, homophobia

• courts held HIV+ as disability, disability discrimination, no appreciable risk given standard procedures

• doctors can refuse patient care if legitimate risk of contracting

Glanz v. Vernick

• established you can’t discriminate against someone otherwise qualified for treatment, applied in Bragdon case

duty of obedience entails giving patient what they want; notably different than patient dictating treatment

general information

• diagnosis, prognosis

• risks and benefits of procedure

• alternative interventions

• consequences of doing nothing

surveys indicate patients aren’t interested in many of these details, but still required by law

doesn’t have to be disclosed: health status, experience level, malpractice history

assent doesn’t require actual understanding

sliding scale of informed consent based on procedure, age, maturity

standard of care is best interest for the child, doctors can override parent in many states e.g. vaccines

Jehova’s witnesses; religion loses in court until child old enough to claim religion as their own

age of maturity; circumstances for minors to make adult decisions; homeless/independent of parents, teen parents, abortion/STDs without parental

Berberi linked to diet in chickens, British physician conducted human experiment using Malaysian mental asylum patients

published in Lancet in 1905 w tremendous reception, none attacked Dr. Fletcher for killing his patients

mostly Jewish subjects, gratuitous “experiments”

some useful data e.g. physiological response to cold and revival process

• debate over whether data could be published, eventually used to resuscitate people

Nuremberg; Nazi doctors jailed and executed

• declaration of Nuremberg; no human research without “voluntary knowing consent”

• human experimentation continued in America though; US military, intentional infection

Henry Beecher

• gathered info on 50 ongoing studies without patient consent, included from each leading medical institution

study of untreated syphilis in black men, belief in racialized differences in pathology

physicians told to avoid treating subjects, even after advent pf penicillin as permanent cure

study not secret; publications, conferences, US health service recruits participate in annual roundup

sudden whistleblowing in post civil rights era climate, Kennedy hearings

concurrent study of intentionally infected Guatemalan prisoners

commission of scientists, philosophers

articulating ethical principles as part of public report without higher ethical framework using “mid level principles”

• beneficence/non-maleficence

• justice: draw members from community that benefits

• respect for autonomy

expanded to encompass all biomedical ethics

bioethics regarded as low class by phil departments since no meta-ethics or theory

adopted by most agencies within federal government that conduct or fund human research (except US military)

reaches three categories of research

• federally funded

• data presented for FDA approval

• major research universities contractually agree

exceptions: food, cosmetic, electronic devices, quality improvement initiatives

applies to all human subjects; any living person that had data gathered, whether drug trials or questionaries

common rule decentralizes obligations onto people/fields performing the research

members: researchers, lawyers, non-scientists, community

occasional review by gov. to ensure proper functioning

factors considered

• quality of science/experimental design

• benefits to research

• risks to patient

payment allowed, but not considered benefit

prisoners as ideal subjects due to controlled environment

• problematic power dynamic when giving consent

• new regulations; no research on prisoners unless it regards being imprisoned

children

• need adult to consent

• below minimal risk faced in ordinary life or wellness visit

• above that, only studies where children may directly benefit

• Kennedy Krieger Institute v. Grimes; lead paint

socioeconomically disadvantaged

• payment to participants clouds judgement? permissible risk prerequisite for improvement

race missing?

“minimal risk” for who’s everyday life? who benefits from the research?

Burditt v. US Dept of Health (EMTALA)

Bragdon v. Abbott

• Glanz v. Vernick

Baby K

Hurley v. Eddingfield

Kennedy-Krieger Institute v. Grimes

Strunk v. Strunk

Lausier v. Perscinski

McFall v. Shimp

Moore v. Regents of the UC

donating live kidneys, liver lobe, uterus

informed consent rules apply, but balancing benefits to recipient

parents can consent to their children donating organs if best interest (Strunk v. Strunk)

renewable tissues/cells (blood, eggs/sperm, bone marrow) done through different procedures than organ transplant

man with mental disability have parents consent to donating his kidney for brother

court ruling: donating to save his brother is in his best interest; trauma if brother died

dissenting: gov did not have the authority to remove a healthy organ from incompetent ward of the state

sibling match, but the potential donor was in a catatonic schizophrenic state

court ruling: the court cannot order the incompetent person to make an organ donation without any benefit to themself, not in best interest

McFall needed bone-marrow transplant from cousin, but Shimp did not agree

plaintiff: infringing on bodily security to save another’s life

ruling: a person could not be legally compelled to participate in medical treatment to save another person's life

parents that anticipate their child will need a future organ transplant have another child to match the first

MA court case of whether clinic can perform IVF to ensure match; ruled that nothing was illegal about savior sibling, donation was a later question

Moore v. Regents of the UC

• while treated for hairy cell leukemia, doctors harvested Moore’s cells for research without his knowledge

• intentional misleading into additional appointments and screenings, e.g. spinal tap

• developed a drug and made millions

ruling: Moore to be compensated for harms from informed consent violation (missing work, pain from procedures)

no property interest in tissues outside the body

shortage of kidneys due to poor matches, even when considering family members

immunosuppressant drugs reduce rejection, but downsides

circuit of donors coordinating to incentivize donation

paying people; ethical concerns, poor people, etc.

urgency of getting organs to avoid organ hypoxia

Harvard group brain death standard; if brain stops functioning, other organs will naturally fail

verify brain death through tests, then keep organs oxygenated via ventilator

“dead donor rule” as policy

objections to donation after cardiopulmonary death (DAC), arteries to brain clamped off to keep dead while organs revived

uniform law adopted across states; “complete irreversible cessation of all function in the whole brain”

occasional neuron sparks, glandular activity, anencephaly don’t indicate consciousness but violate definition

DNR example; new technology for reversing brain death, legal perspective

T.A.C.P. case; anencephalic babies cannot be donors

bodies can persist on life support for a while even after brain death

consent in advance: online sites, organizations, drivers license

State v. Powell and Brotherton v. Cleveland establish quasi-property right to body of loved one

• can’t take tissues/organs without hearing, common law to handle body for purposes of burial

US soft opt-in: family members can still object post-mortem

soft opt-out: sweden, brazil, spain, UK

• UK recently shifted, though previously expert group determined cheaper to run publicity than convert whole system

• opt-out requires good medical records available all the time to ensure the donor didn’t opt-out

hard opt-out: austria

UNOS

• expert committees for different organs, varied criteria

• life years saved, likelihood of success, urgency of rescue, compensatory justice

organ transplant clinics

• decides patient eligibility at own discretion

• Steve Jobs preferentially received liver transplant

• incentive to get best possible survival %s even though partial liver or one lung transplants could save more people