Our Hands Are Tied: Legal Tensions and Medical Ethics

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).

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