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Medical Ethics and Personal Doctors: Conflicts Between What we Teach and What we Want

Published online by Cambridge University Press:  24 February 2021

Robert J. Levine
Robert J. Levine*
Affiliation:
Yale University School of Medicine, 333 Cedar Street, New Haven, CT, 06510.
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Extract

As Hippocrates said to one of his students: “Let your best means of treating people be your love for them, your interest in their affairs, your knowledge of their condition, and your recognized attentiveness to them.“ A physician who is guided by this teaching must be a very caring person. He or she must care deeply about people. To care, in this sense, means to be troubled about the troubles of others. He or she must also care about being a good doctor, about being competent in all relevant respects. I believe that all thoughtful people want such women and men as their personal doctors. We want our doctors to be caring persons, to be attentive to our needs and responsive to our concerns. When our doctors talk with us, we hope that they will speak to the unique individuals we each correctly believe ourselves to be.

Type
Articles
Information
American Journal of Law & Medicine , Volume 13 , Issue 2-3: Justice Harry A. Blackmun: The Supreme Court and the Limits of Medical Privacy , 1987 , pp. 351 - 364
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1987

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Footnotes

*

Based on a paper entitled “Caring and Duty” which was presented to the Annual General Meeting of the American Society of Law and Medicine in Boston, MA on October 23, 1987. I thank Nancy R. Angoff, C. Bruce Baker, Jay Katz, Susan L. Katz, Melvin Lewis and Patricia M. Powell for their helpful suggestions based on critical reading of early drafts of this essay.

References

1 Bulger, R., The Search for a New Ideal in IN SEARCH OF THE MODERN HIPPOCRATES 17 (Bulger, R., ed. 1987)Google Scholar.

2 This essay is concerned only with the relationships between patients and their personal doctors, most of whom are what commonly are called “primary care doctors.” Relationships with other types of physicians often are much different from those considered here. For example, the encounter with an anesthesiologist or a diagnostic radiologist typically is so brief that it precludes the formation of a relationship.

3 The ‘reasonable person’ is the general standard for negligence.

4 For reasons discussed below, infra text accompanying notes 4-6, there is no correct answer to problems presented in this case. Unequivocally correct answers are available only to those who believe there is or can be a science of morality. See infra note 29. Moreover, choosing a course of action most likely to achieve a desired state of affairs is dependent upon careful consideraton of all relevant factors, most of which must necessarily be omitted from a brief “case presentation.” Thus, such a brief presentation, although based upon a real case, has more in common with a hypothetical problem than with one encountered in the real world. See infra text accompanying note 13. The primary purpose of presenting this case is to illustrate the tension between what doctors think they ought to do and what they feel compelled to do.

5 C. GILLIGAN, IN A DIFFERENT VOICE (1982)(contains a summary of much of this work).

6 “Justice based reasoning” and “care based reasoning” are terms used in this essay according to definitions stipulated by Gilligan. They are not to be confused with “justice” as this term is commonly used in discussions of law or ethics or with “care” as in “health care” or “care” must be taken to avoid semantic errors. Id. at 26-31.

7 C. Gilligan & G. Wiggin, The Origins of Morality in Early Childhood Relationships, 9-10 (Nov. 1985)(unpublished draft).

8 K. Johnston, Two Moral Orientations, Two Problem-Solving Strategies: Adolescents’ Solutions to Dilemmas in Fables (1985) (unpublished dissertation) cited in C. Gilligan & G. Wiggin, supra note 7, at 10-12.

9 L. KOHLBERG, THE PHILOSOPHY OF MORAL DEVELOPMENT: MORAL STAGES AND THE IDEA OF JUSTICE (1981).

10 C. Gilligan & G. Wiggin, supra note 7, at 14.

11 I. Murdoch, “The Idea of Perfection,” cited in P. Powell, Deciding For Others: Rights and Responsibilities in Medical Ethics 75 (1987)(unpublished dissertation).

12 Id.

13 C. Gilligan, supra note 5, at 26.

14 R. BELLAH, R. MADSEN, W. SULLIVAN, A. SWIDLER & S. TIPTON, HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE 71-75 (1986). “Whereas a community attempts to be an inclusive whole, celebrating the interdependence of public and private life … lifestyle is fundamentally segmental and celebrates the narcissism of similarity. It usually explicitly involves a contrast with others who ‘do not share one's lifestyle.’ For this reason we speak not of lifestyle communities … but of lifestyle enclaves.” Id. at 72. (examples of lifestyle enclaves include residential suburbs and private tennis clubs).

15 Id. at 247.

16 Id.

17 Toulmin, , How Medicine Saved the Life of Ethics, 25 PERSP. BIOLOGY & MED. 736, 737 (1982)CrossRefGoogle Scholar.

18 See, e.g. T. PARSONS, THE SOCIAL SYSTEM 428 (1951); E. FREIDSON, PROFESSION OF MEDICINE: A STUDY OF THE SOCIOLOGY OF APPLIED KNOWLEDGE 185 (1973).

19 It is important to recognize much of this concern was warranted by the empirical realities of the practice of medicine. For example, until the late 1960s few doctors attempted to accomplish the ethical purposes of informed consent. Now most are at least aware of the fact that it is expected of them.

20 Toulmin, , The Tyranny of Principles, 11 HASTINGS CENTER REP. 31, 35 (Dec. 1981)CrossRefGoogle Scholar.

21 Id. at 35.

22 Ladd, , Legalism and Medical Ethics, 4 J. MED. PHIL. 70, 71 (1979)CrossRefGoogle Scholar. “By ‘legalism,’ I mean the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.” Id. at 71.

23 R. LEVINE, ETHICS AND REGULATION OF CLINICAL RESEARCH 69-72, 217-20 (1986).

24 Id. at xii.

25 Id.; see also E. Kay, Legislative History of Title II — Protection of Human Subjects of Biomedical and Behavioral Research — of the National Research Act: PL-93-348, 17 (1974) (unpublished manuscript prepared for the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research); Hearings on Biomedical Research Ethics and the Protection of Human Research Subjects before the Subcomm. on Public Health and Environment of the House Comm. on Interstate and Foriegn Commerce, 93rd Cong., 1st Sess. 194 (1973) (testimony of Dr. Thomas C. Chalmers).

26 The details of the conceptual confusion and its resolution are discussed in R. LEVINE, supra note 23, at 3-4. It is now generally understood that research and medical practice are distinguishable sets of activities.

27 All of the early commentary on the ethics of research involving human subjects reflected an assumption that it was highly perilous to be a research subject. This assumption was largely dispelled by the publication, between 1976 and 1982, of several empirical studies showing that there had been suprisingly few injuries to subjects in most kinds of biomedical research. Id. at 39-40 (contains survey of these studies).

28 That we as society look for technical solutions for social and moral problems is a point emphasized by A. MACINTYRE, infra note 38, at 180-81, and R. BELLAH, R. MADSEN, W. SULLIVAN, A. SWIDLER & S. TIPTON, supra note 14, at 151.

29 L. KASS, TOWARD A MORE NATURAL SCIENCE: BIOLOGY AND HUMAN AFFAIRS 209-10 (1985).

30 For further discussion of this point, see Levine, , Informed Consent in Research and Practice: Similarities and Differences 143 ARCHIVES OF INTERNAL MEDICINE 1229-31 (1983)CrossRefGoogle Scholar. Procedures developed for research cannot be applied to medical practice because the latter, being much more variable in many important respects, cannot be conducted according to standard protocols with generally applicable consent procedures and forms.

31 Some patients receive primary care from doctors with whom their relationships are neither intimate nor enduring. For example, in some institutions multiple health professionals may participate in the provision of primary care for each patient. For another example, some people use hospital emergency rooms for primary care. Such arrangements present problems which are beyond the scope of this paper.

32 Toulmin, supra note 20, at 35.

33 As John Ladd has argued: “To have a right is to have a right against someone …. The natural and normal situation in which a person asserts a right is when the person against whom he asserts it threatens, neglects, or otherwise appears unwilling to accede to his requests, needs, or demands … the concept of rights is most characteristically used in an adversary contest.” Legalism and Medical Ethics, supra note 22, at 74.

34 Ladd, The Good Doctor and the Medical Care of Children, in CHILDREN AND HEALTH CARE: MORAL AND SOCIAL ISSUES (L. Kopelman & J. Moskop eds. 1987).

35 Fletcher, Situation Ethics, ENCYCLOPEDIA OF BIOETHICS 421 (W. Reich ed. 1978)(situation ethics, “a morality without rules … is best classified as act-utilitarianism“)(“act-utilitarians determine what is right by electing that course of action which offers the most beneficent consequences or greatest utility in each act, each particular situation.“). Id.

36 “Respect for persons incorporates at least two basic ethical convictions: first, that individuals should be treated as autonomous agents, and second, that persons with diminished autonomy are entitled to protection.” The National Comm. for the Protection of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects 4 (1978)(DHEW Publication No. (OS) 78-0012).

37 P. Powell, supra note 11, at 70-71.

38 MACINTYRE, A., AFTER VIRTUE: A STUDY IN MORAL THEORY, 181 (1981)Google Scholar.

39 S. Toulmin, supra note 20, at 39.