Strange Bedfellows: How Medical Jurisprudence Has Influenced Medical Ethics And Medical Practice

STRANGE BEDFELLOWS This page intentionally left blank. STRANGE BEDFELLOWS How Medical Jurisprudence Has Influenced Medical Ethics and Medical Practice Ben A. Rich, J.D., Ph.D. University of California, Davis Sacramento, California Kluwer Academic Publishers New York / Boston / Dordrecht/ London / Moscow eBook ISBN: Print ISBN: 0-306-46849-2 0-306-46665-1 ©2002 Kluwer Academic Publishers New York, Boston, Dordrecht, London, Moscow All rights reserved No part of this eBook may be reproduced or transmitted in any form or by any means, electronic, mechanical, recording, or otherwise, without written consent from the Publisher Created in the United States of America Visit Kluwer Online at: and Kluwer's eBookstore at: http://www.kluweronline.com http://www.ebooks.kluweronline.com To my wife, Kathleen Mills, and my parents, Ben and Betty Rich This page intentionally left blank. PREFACE The pervasive influence of law on medical practice and clinical bioethics is often noted with a combination of exasperation and lamentation. Physicians and non-physician bioethicists, generally speaking, consider the willingness of courts, legislatures, and regulatory agencies to insinuate themselves into clinical practice and medical research to be a distinctly negative aspect of contemporary American society. They are quick to point out that their colleagues in other Western developed nations are not similarly afflicted, and that the situation which obtains elsewhere is highly preferable to the legalization and purported over-regulation of medicine that has taken place in the United States during the last fifty years. In this book I offer a decidedly different perspective. It is, admittedly, not entirely without personal and professional bias. Prior to becoming a fulltime academic, teaching bioethics in the setting of an academic medical center, I was, for nearly 20 years, an attorney specializing in health law. Even after earning a doctorate in philosophy, I was frequently considered to be the “resident lawyer” on the bioethics faculty, much more frequently looked to for my insights on the law than my perspective as one who had formally studied moral philosophy and applied ethics. I note this not out of a sense of frustration or disappointment, but as confirmation that even among physicians and nonphysician bioethicists, there is widespread recognition that the law does have important contributions to make in assessing the practice of medicine and the conduct of medical research. Prominent bioethics journals recognize the important role that law has played in bioethical decision making by including legal sections in each issue, e.g., The Cambridge Quarterly of Healthcare Ethics has “The Caduceus in Court,” and the Hastings Center Report has “At Law.” The perspective of this book is that, at least from the standpoint of the patient and the research subject, the law has had a decidedly positive influence on medical practice