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Ethics and AIDS: A Summary of the Law and a Critical Analysis of the Individual Physician's Ethical Duty to Treat

Published online by Cambridge University Press:  24 February 2021

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Abstract

Persons afflicted with acquired immune deficiency syndrome (AIDS) or its preceding medical conditions face a potential problem with assured access to basic threshold medical care. Subject to certain limitations, there is no guarantee that a physician will fulfill the health care needs of any population of patients. Individuals with AIDS, thus, have a considerable interest in the development of a duty on behalf of physicians to provide treatment. This Note first highlights the limits of the legal duty to treat. It then examines the theoretical impetus propelling an ethical duty to treat. The Note concludes that the grounds for imposing an ethical duty on physicians are too weak to support that result, but the creation of an AIDS-specific legal duty is a viable alternative.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 16 , Issue 1-2: The Harvard Model Aids Legislation Project , 1990 , pp. 249 - 265
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1990

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References

1 Yeats, Sailing to Byzantium, in THE NORTON ANTHOLOGY OF POETRY 886-87 (3d ed. 1983).

2 See, e.g., Fox, The Politics of Physicians’ Responsibility in Epidemics: A Note on History, HASTINGS CENTER REP., Apr.-May 1988, at 5 (special supp.); Zuger, & Miles, , Physicians, AIDS, and Occupational Risk: Historic Traditions and Ethical Obligations, 258 J. A.M.A. 1924 (1987)Google Scholar.

3 Zuger & Miles, supra note 2, at 1924-25.

4 Fox, supra note 2, at 7-8.

5 The “free market” of health care is an appropriate analogy. In exchange for enduring increased risk of contracting disease, doctors historically received inflated salaries, license to subsequently practice medicine in the city and the esteem of the citizens and civic authorities. Id. at 9.

6 Acquired immune deficiency syndrome (AIDS) is currently a fatal medical condition for which there is no cure. Affliction with the AIDS virus is classified in three stages. The first stage is infection with the human immunodeficiency virus (HIV). HIV infection is detected through medical tests to determine the presence of HIV antibodies. This stage of the disease is often asymptomatic. The second stage involves the onset of initial symptoms and is known as AIDS-related complex (ARC). The final stage is full-blown AIDS from which death eventually results. On January 30, 1989, the Centers for Disease Control (CDC) reported 83,592 cases of AIDS in the United States. The definition of AIDS for CDC's purposes includes laboratory evidence of HIV infection. For a general discussion of AIDS’ origin, development, symptomatology, testing and treatment, see 2 M. GUNDERSON, D. MAYO & F. RHAME, AIDS: TESTINC AND PRIVACY 9-36 (1989).

7 Los Angeles, Cal., Ordinance 160,289 (Aug. 16, 1985).

8 Banks, , Aids and the Right to Health Care, 4 ISSUES L. & MED. 151, 156-57Google Scholar nn.37-38 and accompanying text.

9 San Francisco, Cal., Ordinance 49,985 (Dec. 20, 1985).

10 Banks, supra note 8, at 156-57 nn.37-38 and accompanying text.

11 The significance of “like medical circumstances” can be a very important point of contention. The most relevant considerations are the patient's medical problem and the physician's area of expertise. However, factual variations which would under ordinary circumstances allow the physician to transfer or refuse to treat a patient would also permit the physician to transfer or refuse to treat a patient with AIDS, ARC or HIV infection. Some of these other considerations which may justify patient transfer or physician refusal to treat may include the adequacy of the hospital's facilities or the symptoms and characteristics of the specific patient.

12 29 U.S.C. § 794 (1982).

13 School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987).

14 Id. at 282 n.7.

15 See, e.g., Martinez v. School Bd. of Hillsborough County, Fla., 861 F.2d 1502 (11th Cir. 1988); Chalk v. United States Dist. Court Cent. Dist. of Cal., 840 F.2d 701 (9th Cir. 1988). For a general discussion of the potential scope and shortcomings of the Rehabilitation Act of 1973 for purposes of protecting individuals with AIDS, ARC or HIV infection, see Annas, Legal Risks and Responsibilities of Physicians in The AIDS Epidemic, HASTINGS CENTER REP., Apr.- May 1988, at 20, 28-29 (special Supp.).

16 Banks, supra note 8, at 157-58.

17 Annas, supra note 15, at 28; but see IOWA CODE ANN. § 601A.2(11) (West Supp. 1989); WASH. REV. CODE ANN. § 49.60.174 (Supp. 1989).

18 Banks, supra note 8, at 157 n.41 and accompanying text.

19 Zuger & Miles, supra note 2, at 1927; see also Banks, supra note 8, at 154.

20 Physicians operating within the boundaries of their legal duty have nonetheless drawn criticism from their colleagues, see, e.g., Emanuel, , Do Physicians Have an Obligation to Treat Patients with AIDS?, 318 NEW ENG.J. MED. 1686 (1988)Google Scholar, from the American Medical Association, see A.M.A. Rules That Doctors Are Obligated to Treat AIDS, N.Y. Times, Nov. 13, 1987, at A14, col. 1, and from the Surgeon General, see Doctors Who Shun AIDS Patients Are Assailed by Surgeon General, N.Y. Times, Sept. 10, 1987, at Al, col. 4.

21 440 S.W.2d 104 (Tex. Civ. App. 1969).

22 Id. at 105.

23 Id. at 105-06.

24 Id. at 105.

25 Id. at 107.

26 Id. at 108.

27 245 Miss. 185, 146 So. 2d 882 (1962).

28 Id. at 193-95, 146 So. 2d at 885-86.

29 Id. at 197-98, 146 So. 2d at 887.

30 11 A.D.2d 132, 202 N.Y.S.2d 436 (1960).

31 For a summary discussion of undertaking to treat, see Banks, supra note 8, at 155 nn.29-31 and accompanying text.

32 Childs, 440 S.W.2d at 108.

33 Id.

34 Id. at 106.

35 Id. at 107.

36 Annas, supra note 15, at 26; see, e.g., Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (1980) (stating requirement existing in Arizona).

37 The physician implicitly agrees to abide by the by-laws of the institution. See Hiser, 126 Ariz, at 610-11, 617 P.2d at 776-77.

38 Childs, 440 S.W.2d at 106.

39 Annas, supra note 15, at 127.

40 Id.

41 Chipello, FDA Approves Five-minute AIDS Test Developed By Cambridge Bio Science, Wall St. J., Dec. 14, 1988, at B5, col. 1 (reduces test time in emergency situations from three hours to five minutes).

42 For further elaboration of the four methods of termination, see Annas, supra note 15, at 27-28. For an example of application of termination doctrine, see Ricks v. Budge, 91 Utah 307, 64 P.2d 208 (1937).

43 Annas, supra note 15, at 27-28.

44 Id.

45 Id.

46 Id.

47 Id.

48 For application to varying factual circumstances, see Miller v. Greater Southeast Community Hosp., 508 A.2d 927 (D.C. 1986); Norton v. Hamilton, 92 Ga. App. 727, 89 S.E.2d 809 (1955); Capps v. Valk, 189 Kan. 287, 369 P.2d 238 (1962).

49 In Payton v. Weaver, 131 Cal. App. 3d Supp. 38, 182 Cal. Rptr. 225 (1982), the court held that the entire community of qualified local physicians may be obligated under the principles of equity to share in the provision of treatment to a dialysis patient whom no single physician wished to treat. The same burden-spreading technique arguably could apply to treatment of patients with AIDS, ARC or HIV infection, but the argument for this resolution may be fatally weakened where the patient is not in dire need of sustained treatment, as was the patient in Payton.

50 POZCAR, G., LEGAL ASPECTS OF HEALTH CARE ADMINISTRATION 54 (1987)Google Scholar.

51 Id.

52 See, e.g., sources cited supra note 20.

53 Banks, supra note 8, at 167.

54 Id. at 167 n.115.

55 See generally Maclntyre, Why is the Search for the Foundations of Ethics So Frustrating?, HASTINGS CENTER REP., Aug. 1979, at 16.

56 PLATO, THE REPUBLIC 168-72, 240-42 (G.M.A. Grube trans. 1974).

57 Maclntyre, supra note 55, at 21.

58 Id. at 20-21.

59 See infra notes 62-71 and accompanying text.

60 Cf. Joseph, , Civil Liberties in the Crucible: An Essay on AIDS and the Future of Freedom in America, 12 NOVA L. REV. 1083 (1988)Google Scholar (discussing the irrationality of emotion and how it has on past occasions led to poor results).

61 Id. at 1094 (footnote omitted).

62 id. at 1096-99.

63 323 U.S. 214 (1944).

64 Id. at 219.

65 163 U.S. 537 (1896).

66 Id. at 548.

67 U.S. CONST, amend. XII, XIV, XV.

68 478 U.S. 186 (1986).

69 Id. at 196.

70 See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).

71 Callahan, The Role of Emotion in Ethical Decisionmaking, HASTINGS CENTER REP., June-July 1988, at 9.

72 Id.

73 Id. The mutual interactionist posture is adopted by Callahan. His paper is devoted to developing and clarifying this position.

74 Callahan notes the need for “personal equilibrium” but does not suggest how this balance is attained or maintained.

75 Id.

76 See, e.g., Emanuel, supra note 20, at 1686.

77 Id.

78 Arras, The Fragile Web of Responsibility: AIDS and the Duty to Treat, HASTINGS CENTER REP., Apr.-May 1988, at 10, 12 (special Supp.).

79 See supra notes 2-5 and accompanying text.

80 AMERICAN MED. ASS'N, CODE OF ETHICS § 5 (1980) (emphasis added); see Hiser v. Randolph, 126 Ariz. 608, 610 n.l, 617 P.2d 774, 776 n.l (1980) and accompanying text (citing and applying Section Five of the AM A Code of Ethics).

81 Hiser, 126 Ariz, at 610 n. l, 617 P.2d at 776 n.l.

82 See Arras, supra note 78, at 13-14; see also Fox, supra note 2, at 9; Zuger & Miles, supra note 2, at 1924; but cf. Amundson, , Medical Deontology and Pestilential Disease in the Late Middle Ages, 32 J. HIST. MED. ALLIED SCI. 403 (1977)Google Scholar.

83 Arras, supra note 78, at 14.

84 These recent historical surveys are set forth in supra notes 2-4 and accompanying text.

85 Arras, supra note 78, at 14.

86 See, e.g., Zuger & Miles, supra note 2, at 1926; see generally Fox, supra note 2, at 5.

87 Zuger & Miles, supra note 2, at 1927.

88 ARISTOTLE, NICOMACHEAN ETHICS 17 (M. Ostwald trans. 1962).

89 See Arras, supra note 78, at 13; Zuger & Miles, supra note 2, at 1927. 90 Zuger & Miles, supra note 2, at 1927.

91 Id.

92 Arras, supra note 78, at 13.

93 Id.

94 MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 2-25 (1988).

95 For a general discussion, including historical considerations, of the debate over an ethical duty of attorneys to represent indigents without charging a fee, see Scott v. Roper, 688 S.W.2d 757 (Mo. 1985) (en banc).

96 Id. at 763 (citing State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980); State v. Keener, 224 Kan. 10, 577 P.2d 1182 (1978); Penrod v. Cupp, 284 Or. 417, 587 P.2d 96 (1978)).

97 Id.

98 Id. at 769.

99 Id. at 764 (citing Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E. 2d 143 (1966); McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982); Honore v. Washington State Bd. of Prison Terms & Paroles, 77 Wash. 2d 660, 466 P.2d 485 (1970)).

100 Id. at 763-64.

101 Id. at 764-65.

102 28 U.S.C. § 1915(d) (1982).