How Law Killed Ethics

HOW LAW KILLED ETHICS DAVID A. HYMAN* Lawyers, it is said, are best at minding other people's business—and worst at minding their own. Recent years have provided ample evidence of the truth of this observation, as the law has penetrated every aspect of American life. In this lawyers' republic, perhaps this outcome was inevitable . Even professional baseball has been dragged into the legal arena, prompting George F. Will to comment acidly that lawyers are the "plague" of modern life. Medicine, of course, has not been immune to this disease. If anything, medicine is the best example of a field that has been remade and reformulated in response to legal pressure. One can determine almost exactly when the medical profession confronted specific ethical and structural issues by reading legal opinions. Defining death, treatment termination, competency, confidentiality, peer review, organ transplantation, autonomy, malpractice, cost containment, abortion , treatment of children and neonates—all have had their day in court, and most have had more than one. Lawyers have become an almost indispensable party in routine patient care, let alone in cases involving ethical dilemmas. How should onejudge the impact of law on medicine? Measuring the effect of law is extraordinarily difficult because the immediate and dramatic modifications frequently obscure subtler changes. The task is made still more complicated by the unsuitability of the source materials for the task. Legal opinions are incremental works, by their nature dealing only with the facts and issues raised by the parties. Law reviews are written for specialists; comprehension requires knowledge of the very things about which one is trying to learn. Lawyers give only cryptic and guarded opinions about most courses of conduct. A modern Diogenes would probably be looking for a one-armed lawyer, who would not be able to say "on the other hand." Finally, few commentators have at- *Address: Pritzker School of Medicine, University of Chicago, 5841 Maryland Avenue, Chicago, Illinois 60637.© 1990 by The University of Chicago. All rights reserved. 0031-5982/91/3401-0708101.00 1 34 I David A. Hyman ¦ How Law Killed Ethics tempted to articulate a comprehensive account of how the law has affected the practice of medicine. One person who has attempted that daunting task is George Annas. A professor at Boston University, he is probably best known as the author of a monthly column in the Hastings Center Report on legal issues in health care. Annas recently published a book that collects a cross section of those columns, organized according to subject matter, cross-referenced, and updated through 1988. The diversity of topics covered reflects the pervasive influence of medicine, and consequently of health law, on American life. Specific essays are grouped under the headings of "Patients' Rights," "Conception," "Pregnancy and Birth," "Reproductive Liberty," "Medical Practice," "Treatment of the Mentally Retarded and Mentally 111 Patient," "Death, Dying and Refusing Medical Treatment," "Governmental Regulation," and "Transplants and Implants." Annas promises in the preface to give an account of "the law's struggle to engage, control or accommodate medicine through litigation, legislation and regulation," and that is exactly what one gets [I]. These essays provide a unique opportunity to revisit the origins of modern medical ethics and examine the legal underpinnings of our current practices. The tone of Annas's essays is quite variable. Some are reasoned and reasonable, while others are more brutal, if not vicious. Annas is, at least, an equal opportunity critic: doctors, lawyers, legislators, administrators, and judges are all abused for their shortcomings. Many physicians will be offended by the way in which conduct is characterized, and by Annas 's routine second-guessing of those on the spot. It is, of course, an occupational hazard of lawyers (and especially of professors) to "Monday -morning-quarterback" another's efforts. Even so, one goes to a lawyer for legal opinions, not medical ones. For example, Annas baldly states at one point that a lung biopsy was "unnecessary" [1, p. 317]. Without more information, it is impossible tojudge the basis for Annas's conclusion, but I think it unlikely he would take kindly to a physician passing similar judgment on one of his lectures. The tone notwithstanding, the greatest strength of this book is the attention...