Hostname: page-component-848d4c4894-nmvwc Total loading time: 0 Render date: 2024-06-25T00:04:47.815Z Has data issue: false hasContentIssue false
  • English
  • Français

Patients' Interests and Clients' Wishes: Physicians and Lawyers in Discord

Published online by Cambridge University Press:  28 April 2021

Bernard M. Dickens
Get access Rights & Permissions [Opens in a new window]

Extract

It is intended that this exploration of different interfaces of law and medicine will present a general overview. These reflections on some comparisons of and, particularly, contrasts between the health professions and the legal profession do not aspire to the profundity, moderation, or elegance of, for instance, Prof. William Curran's recent learned discourse. They are self-consciously more polemical than a truly scholarly study should be, and include some crude or simplistic characterizations. Their purpose is to provoke reaction, however, and thereby to contribute to health professionals' and lawyers' consideration of their experience of each other.

It is trite to observe that the two inevitabilities of modern existence are death and taxes. It is more interesting to observe the consequence, however: that the professional mediators of death and taxes—namely, health professionals and lawyers—are equally inescapable. Members of these professions are not necessarily propelled into each other's arms, but in their professional and personal lives they cannot extricate themselves from each other's disciplines.

Type
Article
Information
Law, Medicine and Healthcare , Volume 15 , Issue 3 , Fall 1987 , pp. 110 - 117
Copyright
Copyright © American Society of Law, Medicine and Ethics 1987

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

This paper is based on a talk given at the Annual General Meeting of the American Society of Law & Medicine in Cambridge, Massachusetts, October 1986.Google Scholar
Curran, WJ, Keynote address, Annual General Meeting of the American Society of Law & Medicine, Cambridge, Massachusetts, October 1986.Google Scholar
519 P.2d 981 (Wash. 1974).Google Scholar
Title 7, ch. 7 §40 of the Revised Code of Washington 1985 provides:Google Scholar
The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care: (i) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances.Google Scholar
Rosenberg, L, Calabresi, G, Law and medicine in confrontation: A deans' dialogue, Yale Law School Program in Civil Liability, Working Paper #45, 1986.Google Scholar
The Baby Doe regulations were invalidated by the U.S. Supreme Court in Bowen v. American Hospital Association, 106 S.Ct. 2101 (1986). Legislative proposals that parents of minors seeking contraceptive care be informed were similarly attacked and defeated through, for instance, successful applications for injunctions.Google Scholar
The celebrated Quinlan case is an instance of a health care facility compelling litigation to resolve an important question of a patient's rights; see In re Quinlan, 355 A.2d 647 (N.J. 1976), cert. denied sub nom. Granger v. New Jersey, 429 U.S. 922. (1976). See also Jefferson v. Griffin Spalding County Hospital, 274 S.E.2d 457 (Ga. 1981) on judicially ordered Cesarean delivery to save an unborn child from stillbirth or life with injury.Google Scholar
See Dworkin, RM, Taking rights seriously, London: Butterworth, 1977.Google Scholar
383 U.S. 541 (1966).Google Scholar
387 U.S. 1 (1967).Google Scholar
343 F.2d 247 (App. D.C. 1964).Google Scholar
Supra note 8, at 560.Google Scholar
407 P.2d 760 (Ariz. 1965); see also Stewart J, dissenting in the Supreme Court, supra note 9 at 78.Google Scholar
The description “health care professionals” in this essay is not self-conceit because it is used by a lawyer; it is employed as a courtesy.Google Scholar
See Katz, J, The silent world of doctor and patient, New York: Free Press, 1984, at 93.Google Scholar
Id.: 94.Google Scholar
See, e.g., American Medical Association, Physician-hospital joint ventures, 1987, developed by the AMA Committee on Medicolegal Problems and the Council on Ethical and Judicial Affairs.Google Scholar
The history of this provision is considered in Katz, supra note 14, at 23.Google Scholar
A court-appointed lawyer may obtain instructions from the party to be represented, but when the lawyer cannot, the court should be informed; the lawyer may then act as amicus curiae (a friend of the court) to assist it in dealing with a personally unrepresented parry.Google Scholar
Supra note 14.Google Scholar
A refusal of treatment must be as informed as a decision to accept treatment; see Truman v. Thomas, 611 P.2d 902 (Cal. 1980).Google Scholar
See Bouvia v. Superior Court (Glenchur), 225 Cal. Rptr. 297 (Cal.App. 2 Dist. 1986) at 305; and the New Jersey Supreme Court Jobes, Peter, and Farrell cases, New York Times, June 25, 1987.Google Scholar
Applebaum, PS, Gutheil, TG, Rotting with their rights on: Constirutional theory and clinical reality in drug refusal by psychiatric patients, Bulletin of the American Academy of Psychiatry & Law 1979, 7: 308–17; Rachlin, S, With liberty and psychosis for all, Psychiatric Quarterly 1974, 48: 410-27.Google Scholar
Mills, MJ, Gutheil, TG, Legal approaches to treating the treatment-refusing patient, in Doudera, AE, Swazey, JP, eds., Refusing treatment in mental health institutions: Values in conflict, Ann Arbor: AUPHA Press, 1982: 100–106.Google Scholar
Supra note 2.Google Scholar
Supra note 6.Google Scholar
Brophy v. New England Sinai Hospital, 497 N.E.2d 626 (Mass. 1986); and see the New Jersey cases, supra note 21.Google Scholar
Some courts have further refined the objective test to distinguish a “limited objective” test from a “pure objective” test; see In re Conroy, 486 A.2d 1209 (N.J. 1985).Google Scholar
See the sterilization case Matter of Eberhardy, 307 N.W.2d 881 (Wis. 1981), applied in the Supreme Court of Canada in Eve v. E [1986], 2 S.C.R. 388.Google Scholar
See In re Hier, 464 N.E.2d 959 (Mass. App. 1984), reflecting the “limited objective” test applied in the Conroy case, supra note 27.Google Scholar
See In re Storar, 420 N.E.2d 64 (N.Y. 1981) cert. denied 454 US. 358 (1981).Google Scholar
See supra note 17.Google Scholar
See supra note 6.Google Scholar
See for instance In re Hier, supra note 29.Google Scholar
Roe v. Wade, 410 U.S. 113 (1973).Google Scholar