Scientific developments stay ahead of the field of bioethics law.
As appears in Northwest Indiana Business Quarterly Fall-Winter 2010 Edition
After teaching medical malpractice for 12 years, I have finally found my niche. For it is only after studying health care from the standpoint of defending professionals that one comes to appreciate the significant and serious bioethical issues posed by modern medical science.
There is a distinct difference between the study of medical malpractice, the study of health law and the study of medical ethics. They are interrelated, to a large degree, but as with any legal subject there has been a tendency toward specialization, and concentration on specific ethical concerns.
Most every college and university now offers courses in medical ethics, with increasing numbers. Indeed, most tertiary care centers, i.e. teaching medical schools or university hospitals, have professionals to deal with these day-to-day issues as they occur during the course of health care.
The topics which we study include the human genome and all aspects of its medical, legal, ethical and social implications. Again, the science seems to outpace the law in addressing these issues.
Ownership of the human body and its parts is another area of interest, along with the developing legal framework in foreign countries allowing for the sale and purchase of organs, and the legal ramifications of organ transplants for their donors and their recipients.
Genetic privacy, genetic exceptionalism and the abuses associated with pharmacogenomics, genetic testing/screening and the selection of human traits is only beginning to receive attention in federal and state legislatures.
The issue of euthanasia is extremely controversial, as are the questions posed by the study of death and dying. Probate and estate planning professionals routinely recommend that their clients prepare health care powers of attorney and documentation to assure compliance with their wishes in the event of catastrophic illness or death.
The issue of competence among patients, mentally as well as physically, has been addressed in numerous court cases, as has the apparent constitutional right to die with dignity. Currently only Oregon and Washington allow for euthanasia in cases of terminal illness, within strict parameters. Soon, legal scholars will need to delineate the rights of patients vis-à-vis health care providers, should this legally recognized option become more widespread.
The U.S. Supreme Court has outlined a framework, especially in cases where patients failed to make their preferences known. The celebrated cases of Nancy Cruzan, Karen Quinlan and Terry Schiavo provide us with the lessons learned; unfortunately, these were learned the hard way.
Overriding an in-depth discussion of bioethics is the principle of respect for human autonomy which we strive to honor, not only as human beings but also as caregivers and care recipients.
Patients must express their preferences either by advance directives or, through reliable documentation. Health care institutions need to honor those preferences. The law needs to allow for these ethical decisions in a clinical context, practically and in conjunction with moral, religious and family values. The principles of beneficence, non-malificence and our legal system must all be applied to satisfy each patient’s personal, cultural and individual beliefs.
We have done a remarkable job addressing these complex issues thus far, but there are “miles to go” all depending upon future discoveries and the continuing evolution of modern medical care. Hopefully, we are preparing the young legal scholars of tomorrow to meet these challenges successfully.
