New cures require new rules

 

Medical advances have required lawmakers to create new laws. For example: HIPAA Privacy ruleswere established in 2003 to protect privacy of electronic medical records, the Patient Self-Determination Act (PSDA) was enacted in 1991 to prevent undesired life- support, California legislators enacted new laws to protect the interests of infertility patients. photo

New questions of law arise unexpectedly. For example: California's "Octomom" caused legislators in at least two states to enact laws limiting the number of embryos that can be implanted in a woman's uterus during in-vitro fertilization procedures.

Lawyers are retained to deal with unforeseen events. Offensive conduct often occurs when there is no existing law or regulation on point. In such cases the courts may seek guidance from ethics policy statements, codes, and guidelines from professional or quasi-governmental bodies. Courts often use "soft law" instruments as the legal standard of care.

Traditional roots of medical ethics

Judges may evaluate the legal concerns and weigh the following six prinipals of medical ethics.

  1. Autonomy

    Patients have the right to make medical decisions according to their own views. California's doctrine of informed consent is well-established by judicial decsions. Justice Benjamin Cardozo explained, in 1914, that "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault...."

  2. Beneficience

    Means that a practitioner should act in the best interest of the patient.This principle could out-weigh interests of autonomy if the patient is incapacitated, or suicidal, or if the child's parent seeks treatment (or non-treatment) adverse to a child's welfare. For example: treatment of Jehovah's Witnesses presents unique challenges for obstetricians and pediatricians when the child's health is at risk. The California court of appeals weighed such conflcting interests in In re Eric B. (1987) 189 Cal. App. 3d. 996 and decided that the parents rights of religious freedom was not infringed when a juvenile court ordered medical treatment for a Jehovah's Witness child despite the mother's instructions

  3. Non-maleficence

    The Hippocratic Oath says physicians should never do harm. This principle affirms the need for medical competence. Breach of this standard is usually the basis of medical malpractice lawsuits according to negligence standards.

  4. Justice

    Concerns the distribution of scarce health resources, and the decision of who gets what treatment, or as Aristotle once said, "giving to each that which is his due." One of the most controversial issues in modern health care is the question pertaining to "who has the right to health care?"

  5. Dignity

    Acknowledges the special status of human beings whether or not they are mentally competent. For example, a young girl, even if she us mentally retarded, should not be deprived of the right to motherhood provided she is given proper support in fulfilling the tasks entailed.

  6. Truthfulness

    The patient should not be lied to, and deserves to know the whole truth about their illness.