This essay discusses unlimited insurance subrogation (UIS) as a means of improving the deterrence and compensation results of medical malpractice law. Under UIS, health care insureds could assign their entire potential medical malpractice claims to their first-party commercial and government insurers. UIS should improve deterrence by establishing first-party insurers as plaintiffs to confront liability insurers on the defense side, leading to more effective prosecution of meritorious claims and reducing meritless and unnecessary litigation. UIS should improve compensation outcomes (...) by converting litigation cost- and risk- laden “tort insurance” into cheaper and enhanced first-party insurance. UIS also promises dynamic benefits through further reforms by contract between the first-party and liability insurers that would take charge of system. No UIS-related costs are apparent that would outweigh these benefits. (shrink)
By providing an interdisciplinary reading of advance directives regulation in international, European and domestic law, this book offers new insights into the most controversial legal issues surrounding the debate over dignity and autonomy ...
This book brings together new work by some of the foremost writers in the health care law arena. It presents exciting new insights,drawing on feminist theory and methodology to further our understanding of health care law. Whilst the book makes a real contribution to both feminist debates and the analysis of this area of law, it is also accessible to the undergraduate student who is approaching this area of legal scholarship and feminist jurisprudence for the first time. Its (...) focus is not merely on those issues which have traditionally excited feminist attention, but also includes those subjects which have proved of less apparent interest such as confidentiality, medical research, medical negligence and professional discipline. (shrink)
Introduction -- Historical perspectives of medical ethics -- The medical ethics Renaissance: a brief assessment -- Risk disclosure/'informed consent' -- Consent, control and minors: Gillick and beyond -- Sterilisation/best interests: legislation intervenes -- The end of life: total abrogation -- Medical ethics in government-commissioned reports -- Conclusion.
The authors discuss law and ethics when medical decisions are to be taken by patients who are unable in any valid sense to express their own wishes. The main problem in legal terms is to protect an individual's free will as far as possible and ensure that his or her wishes, if known, are respected. If a patient's independent wishes cannot be known, then we must at least ensure that nothing is imposed which is not in his interest. Legal (...) measures, however, are far from adequate in resolving all the concrete problems that emerge. The field of ethics does bring some better adapted solutions, but none is laid down in law. One such approach, involving a multidisciplinary advisory group in a department of geriatrics, is discussed. (shrink)
This article comments briefly on three specific issues in Shazia Choudhry’s paper “‘Best Interests’ What can healthcare law learn from family law?” The three issues are: (1) the implications of ‘best interests’ and ‘welfare science’ for women within the family law and the health care law context, (2) the risk of capture by the ‘welfare science’ industry, and (3) the proposal that a committee of medical experts and medical ethicists should be set up to provide reports to (...) the Court of Protection on cases brought under the Mental Capacity Act 2005 (MCA). I argue that the risk of capture by ‘welfare science’ is equally large in health care law and that a committee of the kind envisaged by Choudhry is unlikely to contribute significantly to conflict resolution under the MCA. (shrink)
Introduction: making the invisible visible -- The nobility of the material -- Research at war -- The guilded age of research -- The doctor as whistle-blower -- New rules for the laboratory -- Bedside ethics -- The doctor as stranger -- Life through death -- Commissioning ethics -- No one to trust -- New rules for the bedside -- Epilogue: The price of success.
Simon Woods proposes that we ought to re-orientate clinical decisions at the end of life back towards the patient, so as to honour his or her account of their “global” interests. Woods condemns the current medico-legal approach for remaining too closely tethered to the views of doctors. In this response, I trace the story of Mrs Kelly Taylor, who sought to be sedated and have life-sustaining treatment withdrawn, and I do so in order to show not only why Woods is (...) right to detect an asymmetry in the law but also why there is more to the legal landscape than first appears. I argue that patient choice is indeed bounded—most obviously by the views of the doctors (and the judges), but no less significantly by so-called “public interest” concerns. Woods’ proposal implicitly, and rightly, forces reconsideration of these public interest dimensions of medico-legal decision-making. This often invisible boundary is not presently granted the attention it deserves (not least by the judges themselves). However, as soon as we delve into the ethical values at stake, then it becomes apparent that there are many more questions to be asked regarding their meaning and interaction before we can determine the appropriate ethical prism through which to view the health care endeavour in English medical law. (shrink)
There have been serious controversies in the latter part of the 20th century about the roles and functions of scientific and medical research. In whose interests are medical and biomedical experiments conducted and what are the ethical implications of experimentation on subjects unable to give competent consent? From the decades following the Second World War and calls for the global banning of medical research to the cautious return to the notion that in controlled circumstances, medical research (...) on human subjects is in the best interest of the given individual and the broader population, this book addresses the key implications of experimentation on humans. This volume covers major ethical themes within biomedical research providing historical, philosophical, legal and policy reflections on the literature and specific issues in the field of research on human subjects. Focusing on special populations (the elderly, children, prisoners and the cognitively impaired) it represents the most up-to-date review of the special ethical and legal conflicts that arise with relation to experimentation on subjects from these groups. In the light of current initiatives for law reform pertaining to research ethics the world over, this volume provides a timely, comprehensive and provocative exploration of the field. The volume has been carefully organized to present important philosophical perspectives on organizing principles that should underlie any practical application. A forward-looking historical review of the regulatory regimes of principal jurisdictions, including of the legal controls already in place, provides the backdrop for future policy initiatives. Additionally, in the light of global restructuring of health care systems, several chapters have been devoted to epidemiological research and related issues. (shrink)
This new edition of Law and Medical Ethics continues to chart the ever-widening field that the topics cover. The interplay between the health caring professions and the public during the period intervening since the last edition has, perhaps, been mainly dominated by wide-ranging changes in the administration of the National Health Service and of the professions themselves but these have been paralleled by important developments in medical jurisprudence.
This book provides a clear, concise description of medical law; but it does more than that. It also provides an introduction to the ethical principles that can be used to challenge or support the law. It also provides a range of perspectives from which to analyse the law: feminist, religious and sociological perspectives are all used.
Mason and McCall Smith's classic textbook discusses the relationship of medical practice and ethics with the operation of the law. The subjects covered include natural and assisted reproduction, the impact of modern genetics on medicine, medical confidentiality, consent to medical treatment, the use of resources and problems surrounding death in the new medical era. It is of significance to anyone with an interest in the ethical and legal practice of medicine.
This article reviews recent developments in health care law, focusing on controversy at the intersection of health care law and culture. The article addresses: emerging issues in federal regulatory oversight of the rapidly developing market in direct-to-consumer genetic testing, including questions about the role of government oversight and professional mediation of consumer choice; continuing controversies surrounding stem cell research and therapies and the implications of these controversies for healthcare institutions; a controversy in India arising at the intersection of (...) abortion law and the rights of the disabled but implicating a broader set of cross-cultural issues; and the education of U.S. health care providers and lawyers in the theory and practice of cultural competency. (shrink)
It probably should not be surprising, in this time of soaring medical costs and proliferating technology, that an intense debate has arisen over the concept of medical futility. Should doctors be doing all the things they are doing? In particular, should they be attempting treatments that have little likelihood of achieving the goals of medicine? What are the goals of medicine? Can we agree when medical treatment fails to achieve such goals? What should the physician do and (...) not do under such circumstances? Exploring these issues has forced us to revisit the doctor-patient relationship and the relationship of the medical profession to society in a most fundamental way. Medical futility has both a quantitative and qualitative component. I maintain that medical futility is the unacceptable likelihood of achieving an effect that the patient has the capacity to appreciate as a benefit. Both emphasized terms are important. A patient is neither a collection of organs nor merely an individual with desires. Rather, a patient (from the word to suffer ) is a person who seeks the healing (meaning to make whole ) powers of the physician. The relationship between the two is central to the healing process and the goals of medicine. Medicine today has the capacity to achieve a multitude of effects, raising and lowering blood pressure, speeding, slowing, and even removing and replacing the heart, to name but a minuscule few. But none of these effects is a benefit unless the patient has at the very least the capacity to appreciate it. Sadly, in the futility debate wherein some critics have failed or refused to define medical futility an important area of medicine has in large part been neglected, not only in treatment decisions at the bedside, but in public discussions—comfort care—the physician’s obligation to alleviate suffering, enhance well being and support the dignity of the patient in the last few days of life. (shrink)
An anthropologist describes how he found himself at the vortex of a “clash of medical civilizations:” neoliberalism and the international primary health care movement. His involvement in a $6 million social change initiative in medical education became a basis to unlock the hidden tensions, contradictions and movements within the “primary care” phenomenon. The essay is structured on five ethnographic stories, situated on a continuum from “natural” species-level primary care to “unnatural” neoliberal primary care. Food (...) is an element of all tales. Taking the long view of history/prehistory permits us to better recognize ideological distortions in order to more capably transform medicine. (shrink)
Background In neonatal intensive care, a child's death is often preceded by a medical decision. Nurses, social workers and pastors, however, are often excluded from ethical case deliberation. If multiprofessional ethical case deliberations do take place, participants may not always know how to perform to the fullest. Setting A level-IIID neonatal intensive care unit of a paediatric teaching hospital in the Netherlands. Methods Structured multiprofessional medical ethical decision-making (MEDM) was implemented to help overcome problems experienced. Important (...) features were: all professionals who are directly involved with the patient contribute to MEDM; a five-step procedure is used: exploration, agreement on the ethical dilemma/investigation of solutions, analysis of solutions, decision-making, planning actions; meetings are chaired by an impartial ethicist. A 15-item questionnaire to survey staff perceptions on this intervention just before and 8 months after implementation was developed. Results Before and after response rates were 91/105 (87%) and 85/113 (75%). Factor analysis on the questionnaire suggested a four-factor structure: participants' role; structure of MEDM; content of ethical deliberation; and documentation of decisions/conclusions. Effect sizes were 1.67 (p<0.001), 0.69 (p<0.001) and 0.40 (p<0.01) for the first three factors respectively, but only 0.07 (p=0.65) for the fourth factor. Nurses' perceptions of improvement did not significantly exceed those of physicians. Conclusion Professionals involved in ethical case deliberation perceived that the process of decision-making had improved; they were more positive about the structure of meetings, their own role and, to some extent, the content of ethical deliberation. Documentation of decisions/conclusions requires further improvement. (shrink)
German legislation demands that decisions about the treatment of mentally incompetent patients require an ‘informed consent’. If this was not given by the patient him-/herself before he/she became incompetent, it has to be sought by the physician from a guardian, who has to be formally legitimized before. Additionally this surrogate has to seek the permission of a Court of Guardianship (Vormundschaftsgericht), if he/she intends to consent to interventions, which pose significant risks to the health or the life of the (...) person under his/her care. This includes ‘end-of-life decisions’. Deviations from this procedure are only allowed in acute emergencies or cases of ‘medical futility’. On the basis of epidemiological and demographical data it can be shown that the vast majority of surrogate decisions on incompetent patients in Germany is not covered by legally valid consent. Moreover, the data suggests that if consent were to be requested according to the legal regulations, both the legal and medical system could realistically never cope with the practical consequences of this. Additionally, empiric research has revealed serious deficits concerning medical ‘end of life-decisions’ and practical performance in palliative care. As a consequence a multidisciplinary discussion has developed in Germany about the reform of present legislation with respect to key-issues like• the assessment of mental competence• the options for exercising patient self-determination via advance directives and durable powers of attorney• the improvement of palliative care facilities,• the clarification of formal procedures for surrogate decision-making in health care and towards the end of life• and the possibilities and their limitations of controlling these decision-making processes ‘externally’ (e.g., by Guardianship Courts or committees).The authors discuss those proposals, which clearly dominate the present debate: They all aim to comply with the scientific basis of German law, jurisdiction and the European traditions of philosophy of health care and bioethics. (shrink)
The chronic worldwide lack of organs for transplantation and the continuing improvement of strategies for in situ organ preservation have led to renewed interest in elective non-therapeutic ventilation of potential organ donors. Two types of situation may be eligible for elective intensive care: patients definitely evolving towards brain death and patients suitable as controlled non-heart beating organ donors after life-supporting therapies have been assessed as futile and withdrawn. Assessment of the ethical acceptability and the risks of these strategies is (...) essential. We here offer such an ethical assessment using the four principles of medical ethics of Beauchamp and Childress applying them in their broadest sense so as to include patients and their families, their caregivers, other potential recipients of intensive care, and indeed society as a whole. The main ethical problems emerging are the definition of beneficence for the potential organ donor, the dilemma between the duty to respect a dying patient's autonomy and the duty not to harm him/her, and the possible psychological and social harm for families, caregivers other potential recipients of therapeutic intensive care, and society more generally. Caution is expressed about the ethical acceptability of elective non-therapeutic ventilation, along with some proposals for precautionary measures to be taken if it is to be implemented. (shrink)
This article reviews recent developments in health care law, focusing on the engagement of law as a partner in health care innovation. The article addresses: the history and contents of recent United States federal law restricting the use of genetic information by insurers and employers; the recent federal policy recommending routine HIV testing; the recent revision of federal policy regarding the funding of human embryonic stem cell research; the history, current status, and need for future attention to advance (...) directives; the recent emergence of medical–legal partnerships and their benefits for patients; the obesity epidemic and its implications for the child’s right to health under international conventions. (shrink)
How is the concept of patient care adapting in response to rapid changes in healthcare delivery and advances in medical technology? How are questions of ethical responsibility and social diversity shaping the definitions of healthcare? In this topical study, scholars in anthropology, nursing theory, law and ethics explore questions involving the changing relationship between patient care and medical ethics. Contributors address issues that challenge the boundaries of patient care, such as: · HIV-related care and (...) research · the impact of new reproductive technologies · preventative healthcare · technological breakthroughs that are changing personal-caring relationships. Chapters range from a consideration of the practicalities of nursing and family healthcare to a debate about ‘universal human needs’ and patients’ rights. This book is a provocative exploration of the ways in which healthcare models are socially constructed. It will be of interest to policy-makers, medical practitioners and administrators, as well as students of sociology, anthropology and social policy. (shrink)
This interactive independent teaching and learning tutorial can be used by individuals or small groups and takes a problem-based-learning approach to the complex legal and ethical issues raised by six scenarios. Based on real cases clearly demonstrating the problems arising from recent medical advancements, the cases cover reproductive technology, consent, genetic screening, participation in research trials, paternity and confidentiality. Additional features of the CD-ROM are a comprehensive glossary, cross-references to The Cambridge Medical Ethics Workbook and definitions from the (...) Dictionary of Medical Ethics. (shrink)
In this paper, I discuss the role of care and competence, as well as their relationship to one another, in contemporary medical practice. I distinguish between two types of care. The first type, care1, represents a natural concern that motivates physicians to help or to act on the behalf of patients, i.e. to care about them. However, this care cannot guarantee the correct technical or right ethical action of physicians to meet the bodily and existential (...) needs of patients, i.e. to take care of them—care2. To that end, physicians must be competent in the practice of medicine both as evidence—based science (technical competence) and as patient—centered art (ethical competence). Only then, I argue, can physicians take care of (care2) patients’ bodily and existential needs in a compassionate and comprehensive manner. Importantly, although care1 precedes competence, competence—both technical and ethical—is required for genuine care2, which in turn reinforces an authentic care1. I utilize the play Wit, especially the character Jason Posner, and Francis Peabody’s exposition on caring for patients, to illustrate the role of care and competence in contemporary medical practice. (shrink)
Providing health care in the most cost-effective way has become a priority in recent years. This book tackles the important issue of the potential conflict between economic expediency and the welfare of individual patients. Contributors examine different attitudes to this complex problem, along with a variety of legal and historical perspectives. The book addresses particular aspects of health care, such as medical expert systems, general practice, medical education, and clinical decision-making where the direct involvement of doctors (...) in allocating scarce and expensive resources is perhaps most obvious. (shrink)
George, B. J. Jr. The evolving law of abortion.--Guttmacher, A. F. The genesis of liberalized abortion in New York: a personal insight.--Callahan, D. Abortion: some ethical issues.--Jakobovits, I. Jewish views on abortion.--Drinan, R. F. The inviolability of the right to be born.--Schwartz, R. A. Abortion on request: the psychiatric implications.--Fleck, S. A psychiatrist's views on abortion.--Niswander, K. R. Abortion practices in the United States: a medical viewpoint.--Macintyre, M. N. Genetic risk, prenatal diagnosis, and selective abortion.--Messerman, G. A. Abortion counselling: (...) shall women be permitted to know?--Pilpel, H. F. and Zuckerman, R. J. Abortion and the rights of minors. (shrink)
Background -- Overview of legal sources -- Summary of recent prosecutions and investigations -- Applications of law and professional and trade association standards to physician relationships with industry -- Legal and ethical aspects of specific physician's industry financial relationships -- Approaching and adopting effective compliance plans.
Next SectionObjectives A statute enacted in 2005 modified the legislative framework of the rights of terminally ill persons in France. Ten years after the EURONIC study, which described the self-reported practices of neonatal caregivers towards ethical decision-making, a new study was conducted to assess the impact of the new law in neonatal intensive care units (NICU) and compare the results reported by EURONIC with current practices. Setting and design The study was carried out in the same two NICU as (...) in the EURONIC qualitative study. A third centre was added to increase the sample size. From February to October 2007, 19 physicians and 17 nurses participated in semistructured interviews very similar to those for EURONIC. Content analysis identified the recurring themes emerging from the interviews. Results Compared with the EURONIC results, the caregivers reported that they pay greater attention to the views of parents and provided respectful support to the neonates when life-sustaining treatment is withdrawn. Active termination of life has become exceptional. The possibility of withdrawal of treatment, the administration of sedatives to control pain even at the risk of hastening death, the emphasis on sparing parents the burden of decision, and the relative ignorance of the law were very similar to the EURONIC findings. Conclusion Both the medical and the legal regulation of practices has allowed more dialogue with the parents and more humane care for dying newborns. A new European study is necessary to investigate the possible changes in practices and attitudes also in other countries. (shrink)
The case of Terri Schiavo, a young woman who spent 15 years in a persistent vegetative state, has emerged as a watershed in debates over end-of-life care. While many observers had thought the right to refuse medical treatment was well established, this case split a family, divided a nation, and counfounded physicians, legislators, and many of the people they treated or represented. In renewing debates over the importance of advance directives, the appropriate role of artificial hydration and nutrition, (...) and the responsibilities of family members, the case also became one of history's most extensively litigated health care disputes. The Case of Terri Schiavo assembles a team of first-hand participants and content experts to provide thoughtful and nuanced analyses. In addition to a comprehensive overview, the book includes contributions by Ms. Schiavo's guardian ad litem, a neurologist and lawyer who participated in the case, and scholars who examine issues related to litigation, faith, gender, and disability. The volume also includes a powerful dissent from the views of many scholars in the bioethics community. The book is intended for students, health care professionals, policy makers, and other in search of carefully reasoned analyses of the case that will shape our view of death and end-of-life medicalcare for decades. (shrink)
Whether we should respect international law is in dispute. In the United States, international law is dismissed by the left as merely promoting the interests of powerful states. It is attacked by the right as irrelevant and an interference with the interests and mission of the United States. And it follows from the arguments of many liberals that in the absence of world government the world is in a Hobbesian state of nature and international law inapplicable. This article reviews the (...) thinking of Kant, Locke, and Rawls, among others and shows how arguments against respect for international law can be answered. It questions arguments based on the analogy between states and individuals, and between international law as it has developed and law based on an ideal social contract between individuals. It then turns to the ethics of care, a recent addition to moral theory, and examines its major characteristics and recommendations. It considers how the ethics of care would view international law and the guidance this moral approach could provide for international relations. The article shows how the ethics of care is compatible with various current trends, and how thinking about globalization and greater international interdependence would benefit from greater attention to it. The article argues that the ethics of care would clearly support respect for international law as it has developed, but that it would even more strongly support addressing current problems in ways that would, in the longer term, make appeals to law and its enforcements ever less necessary. Keywords: international law; the ethics of care; moral theory; political theory; social contract; states; groups; Hobbes; Kant; Locke (Published: 16 September 2011) Citation: Ethics & Global Politics, Vol. 4 , No. 3, 2011, pp. 173-194. DOI: 10.3402/egp.v4i3.8405. (shrink)
Although the teaching of medical ethics and law in medical education is an old story that has been told many times in medical literature, recent studies show that medical students and physicians lack confidence when faced with ethical dilemmas and medico-legal issues. The adverse events rates and medical lawsuits are on the rise whereas many medical errors are mostly due to negligence or malpractices which are preventable. While it is true that many medical (...) schools teach their students medical law and ethics, there are wide variations in what is being taught because there is no universally agreed syllabus. Yet the knowledge of medical law and ethics is closely relevant to the medical profession and that failure in abiding the law may result in serious civil or even criminal consequences. While this paper does not propose to lay detailed analysis of the relevant areas of law or ethics, it proposes to cover some legal areas so as to highlight and bring to attention the need for a medical law and ethics course. This article also considers the problems faced and recommendation as to future directions to be taken with respect to teaching medical law and ethics. It concludes with a suggested course outline for the teaching of medical law and ethics. (shrink)