Our Hands Are Tied: Legal Tensions and Medical Ethics

By Marshall B. Kapp | Go to book overview

litigated in any manner, and between thirty-seven and fifty-five in ten million have been litigated to the point of yielding an appellate decision. These miniscule figures exist despite the fact that a high percentage of these patient deaths have involved conscious, purposeful decisions to withhold or withdraw some form(s) of life-prolonging medical intervention(s).

Nonetheless, however weak their factual foundations, the anxieties felt by physicians and other health care providers about potential criminal, civil, and/or regulatory liabilities are a real and palpable influence on the quality and humanity of medical care actually provided to the most vulnerable patients. This appears true even for physicians who intellectually understand that their own legal exposure is minimal; the very fact that their conduct in this most delicate of areas could conceivably be questioned in a legal context is enough to skew behavior erratically. Physician Jack McCue ( 1995) most assuredly is right when he urges, "The exaggerated fears of liability risks that pressure physicians and nurses to withhold palliative treatment or continue futile therapy in patients near the end of life must be addressed in a forthright fashion" ( McCue, 1995, p. 1041). The American Geriatrics Society ( Ethics Committee, 1995) has taken a formal position:

Administrative and regulatory burdens that may serve as barriers to palliative care should be reduced. . . . Regulations intended to promote adequate nutrition for nursing home residents and laws intended to prevent assisted suicide and euthanasia should be written or revised so that these issues are not confused with proper palliative care decisions and treatment. (p. 578)

Thus, we see that, here as elsewhere within the physician-patient relationship, there is some tension between the physician's fear of undesired legal involvement, on one hand, and sound principles of medical ethics, on the other. Possible strategies for addressing, if not totally resolving, this tension are discussed in Chapter 7. First, though, we turn to the ways in which liability anxieties impinge on patients' prerogatives regarding everyday living (Chapter 5) and to the impact of managed care and a changing health care delivery and financing system on the ways in which physicians are likely to strike a balance between risk management and good medical ethics (Chapter 6).


NOTE
1.
To its credit, the AHA was much more reasonable in the legal advice it provided in the subsequent, post-Cruzan ( 1990) version of these guidelines ( American Heart Association, 1992, p. 2287).

-87-

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Our Hands Are Tied: Legal Tensions and Medical Ethics
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • References xiv
  • Acknowledgments xv
  • 1 - Losing at the Lottery: Physician Perceptions of the Legal Environment 1
  • Notes 22
  • Notes 23
  • 2 - The Lawyer Made Me Do It: from Legal Perception to Medical Practice 27
  • Note 46
  • References 46
  • 3 - Risk Managers and Legal Counsel: Ethical Enablers or Paid Paranoids? 53
  • References 64
  • 4 - Doing Everything: Treating Legal Fears near the End of Life 65
  • Note 87
  • References 88
  • 5 - Who Is Responsible for This? Everyday Patient Intrusions to Protect the Provider 97
  • Note 118
  • References 118
  • 6 - A Dispirited Lot: Malpractice and What Else? 123
  • 7 - Reconciling Risk Management and Medical Ethics: Opportunities and Obstacles 141
  • References 164
  • Index 171
  • Bout the Author 177
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