1 See George J. Annas, Standard of Care: the LAW of American Bioethics 247 ( 1993) [hereinafter Standard of Care]; George J. Annas, Law and Medicine: Myths and Realities in the Medical School Classroom, 1 Am. J.L. & Med. 195 (1975) [hereinafter Myths and Realities]; Alexander Morgan Capron, A ‘Bioethics’ Approach to Teaching Health Law, 38 J. Legal Ed. 505 (1988); Marshall B. Kapp, Teaching Legal Medicine in Medical Schools, 8 J. Legal Med. 94 (1987); Craig M. Lawson, Teaching Legal Medicine: An Interdisciplinary Seminar in Professional Ethics for Medical Students and Law Students, 8 J. Legal Med. 123 (1987); Lorne E. Rozovsky, Teaching Legal Medicine to Health Professionals, 8 J. Legal Med. 115 (1987); American Society of Law and Medicine, Health Law and Professional Education: the Report of the Task Force ON Health Law Curricula of the American Society of LAW & Medicine (1985) [hereinafter Task Force].

2 See Baruch A., Brody, The Baylor Experience in Teaching Medical Ethics,64 ACAD. Med. 715 (1989);Google Scholar Charles M., Culver et al., Basic Curricular Goals in Medical Ethics,312 New Eng. J. Med. 253 (1985);Google Scholar Albert R., Jonsen , Medical Ethics Teaching Programs at the University of California, San Francisco, and the University of Washington,64 Acad. Med. 718 (1989);Google Scholar Erich H., Loewy, Teaching Medical Ethics to Medical Students,61 J. Med. Educ. 661 (1986);Google Scholar Steven H., Miles et al., Medical Ethics Education: Coming of Age,64 Acad. Med. 705 (1989);Google Scholar Edmund D., Pellegrino Teaching Medical Ethics: Some Persistent Questions and Some Responses,64 Acad. Med. 701 (1989);Google Scholar Donnie J., Self et al., Evaluation of Teaching Medical Ethics by an Assessment of Moral Reasoning,26 Med. Educ. 178, 178–84 (1992)Google Scholar [hereinafter Assessment of Moral Reasoning]; Donnie J., Self et al., The Moral Development of Medical Students: A Pilot Study of the Possible Influence of Medical Education,27 Med. Educ. 26 (1993);Google Scholar Donnie J., Self The Effect of Teaching Medical Ethics on Medical Students’ Moral Reasoning, 64 Acad. Med. 755 (1989)Google Scholar [hereinafter Medical Student's Moral Reasoning]; Edward J., Stemmler Teaching Medical Ethics: A Hard-won Beach head, 64 Acad. Med. 704 (1989);Google Scholar Robert M., Walker et al., Development of a Teaching Program in Clinical Medical Ethics at the University of Chicago, 64 Acad. Med. 723 (1989).Google Scholar

3 Professor Healey will hereinafter be referred to as “Jay,” the name by which he was known to his students and colleagues and which he preferred to any formal title.

4 This article focuses on the process of teaching law with a large component of ethics rather than the details of the subject matter.

5 Joseph M. Healey, Course Syllabus: Legal and Ethical Aspects of Medicine and Dental Medicine, The University of Connecticut Schools of Medicine and Dental Medicine (unpublished, on file with authors) [hereinafter Healey Syllabus].

6 632 N.E.2d 326 (III. App. Ct. 1994).

7 Association of American Medical Colleges, 1994-1995 AAMC Curriculum Directory 11, tbl. 6 (23d ed. 1994) [hereinafter AAMC]. A manual count of U.S. medical schools listed in the AAMC Curriculum Directory finds 129 medical schools. However, only 108 of the 129 total schools reported data in table six.

8 Id. The term “medical jurisprudence” is used in the AAMC Curriculum Directory to describe a course in which both law and medicine are taught. Id.

9 See generally id.

10 Kapp, supra note 1, at 102.

11 AAMC, supra note 7, at 11 tbl. 6. This information is also taken from Table Six entitled, “Number of U.S. Medical Schools Teaching Selected Topics as Required Course Material.” It is possible that some schools double-counted courses in medical ethics and medical jurisprudence, resulting in an inaccurate accounting of exactly how many schools may teach ethics without medical jurisprudence and, likewise, how many schools teach medical jurisprudence without stressing ethics. Important to note is the small number of medical jurisprudence courses as compared to those in medical ethics that are a required part of the curriculum. Id.

12 Id. 13 See generally id.

13 American College of Obstetrics and Gynecology Technical Bulletin, No. 136, Ethical Decision-Making in Obstetrics and Gynecology (Nov. 1989).

14 Healey Syllabus, supra note 5.

15 See, e.g., Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990); Schloendorffv. Soc'y of N.Y. Hosp., 105 N.E. 92 (N.Y. 1914), overruled by Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957). See also Fay Adrienne Rozovsky, Consent to Treatment: A Practical Guide, at 1-98 (2d ed. 1990).

16 Task Force, supra note 1, at 23.

17 See generally George J. Annas & Joseph M. Healey, The Patient Rights Advocate: Redefining the Doctor-Patient Relationship in the Hospital Context, 27 Vand. L. Rev. 243 (1974).

18 Task Force, supra note 1, at 20.

19 Myths and Realities, supra note 1, at 202.

20 1 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions: the Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship (1982).

21 Kapp, supra note 1, at 100.

22 Capron, supra note 1, at 509.

23 Culver et al., supra note 2, at 254.

24 See generally Susan M. Wolf, Health Care Reform and the Future of Physician Ethics, 24 Hastings Ctr. Rep. 28 (1994).

25 During the clinical years, the focus should be on the real dilemmas students confront in their clerkships. Students will be better prepared to isolate issues of moral obligation in the ethics education of the clinical experience. See Chris Feudtner et al., Do Clinical Clerks Suffer Ethical Erosion? Students’ Perceptions of Their Ethical Environment and Personal Development, 69 ACAD. Med. 670 (1994); Chris Feudtner & Dimitri A. Christakis, Making the Rounds: The Ethical Development of Medical Students in the Context of Clinical Rotations, 24 Hastings Ctr. Rep. 6 (1994); Dimitri A. Christakis &Chris Feudtner, Ethics in a Short White Coat: The Ethical Dilemmas That Medical Students Confront, 68 ACAD. Med. 249 (1993).

26 Healey Syllabus, supra note 5.

27 Id.

28 Id.

29 Id.

30 Personal communication with Joseph M. Healey.

31 Healey Syllabus, supra note 5.

32 Id.

33 Task Force, supra note 1, at 21.

34 Id. at 22.

35 Id.

36 Joseph M. Healey, Notes on teaching taken at Law, Ethics & Medicine: Contemporary Concerns, Clinical Science Lecture Series, Lawrence and Memorial Hospital, New London, Conn. (Jan. 28, 1986) (unpublished manuscript, on file with authors).

37 For a discussion concerning methods of evaluating the effects of medical ethics education and the benefit of using case studies, see Assessment of Moral Reasoning, supra, note 2; Medical Students’ Moral Reasoning, supra note 2; Johanna, Shapiro & Ron, Miller How Medical Students Think About Ethical Issues, 69 ACAD. Med. 591 (1994).Google Scholar

38 Healey Syllabus, supra note 5.

39 Id. The four principle legal aspects of the doctor-patient relationship are outlined in the course syllabus. Id. The contractual aspect refers to the fact that “[t]he relationship is essentially voluntary and involves the completion of certain tasks in a relationship regulated by the law.” Id. at 5. The relationship is consensual in that “[c]are may be provided only with the informed, voluntary, and competent consent of the patient.” Id. The quality assurance aspect of the relationship is that “[t]he provider owes the patient a duty of reasonable care consistent with appropriate professional standards.” Id. Finally, “[b]oth [the] health care provider and the patient possess important constitutional rights affecting their relationship.” Id.

40 Tom L. Beauchamp & James F. Childress, Principles of Biomedical Ethics (4th ed. 1994).

41 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment: A Report on the Ethical, Medical, and Legal Issues in Treatment Decisions (1983).

42 Additional topics included in case discussions but not delineated in session titles are: goals and models of the doctor-patient relationship; self-determination and paternalism; truth telling; confidentiality; alcohol and drug abuse; domestic violence; access to health care; cost containment; rationing; occupational and environmental decision-making; and experimentation with human subjects. Healey Syllabus, supra note 5. Continuing changes in technology and health care mandate that this list remain open-ended and that it continue to evolve. Issues and materials are periodically updated to include topics appropriate to the changing health care environment.

43 See Myths and Realities, supra note 1, at 207.

44 Joseph M. Healey, Decision-Making Worksheets (unpublished classroom materials, on file with authors) [hereinafter Worksheets].

45 The first worksheet states:

46 The second worksheet states:

47 The third worksheet states:

48 The fourth worksheet states:

49 The following are representative of comments from students enrolled in Legal and Ethical Aspects of Medicine and Dental Medicine, Spring 1994, as reported on the fourth worksheet:

50 The two-hour written examination consists of two parts. The first part requires students to perform an ethical and legal analysis of a case similar to those analyzed throughout the LEA program. The second part consists of short answer essay questions taken from the collection of focal questions included in the LEA syllabus. The two parts of the examination are graded separately, and a combined score is calculated. To receive a satisfactory grade for the course, a student must take the examination and receive a passing combined score.

The oral exam, offered to approximately 50 students, is a response to the desire of LEA classes of several years ago to be able to present and explain their answers to faculty and other students. The oral exam has become a significant aspect of the LEA experience, and students find it outstanding. Examiners consist of the six core faculty members, each paired with two students from the second-year class who are appointed as co-faculty. These student examiners, who also act in an advisory role during the LEA program and assist in the construction of the examination, performed in an exceptional manner on the LEA examination of the preceding year. The oral exam consists of a half-hour for each student to choose and prepare a case from two that are offered, and to choose to answer two of five focal questions. Students then spend 20 to 30 minutes with the examination team discussing the significant issues of the case and answering questions.

51 632 N.E.2d 326 (III. App. Ct. 1994). The Appellate Court of Illinois relied upon the authority of the Illinois Supreme Court's decision in Stallman v. Youngquist, 531 N .E.2d 355 (III. 1988) (holding that no cause of action exists by or on behalf of a fetus, subsequently born alive, against its mother for the unintentional infliction of prenatal injuries). 632 N.E.2d at 326. The Stallman court also stated that it could not be the law of the state that a fetus has rights superior to its mother's. 531 N.E.2d at 361.

52 Students are assigned a number of readings in conjunction with Baby Boy Doe, including: Veronika Kolder et al., Court-Ordered Obstetrical Interventions, 316 New Eng. J. Med. 1192 (1987); George J. Annas, Protecting the Liberty of Pregnant Patients, 316 New Eng. J. Med. 1213 (1987); Letters to the New Eng. J. Med., 317 New Eng. J. Med. 1223 (1987); George J. Annas, Pregnant Women as Fetal Containers, Hastings Ctr. Rep., Dec. 1986, at 13; John F. Jewett, Report from the Committee on Maternal Welfare: Total Exsanguination, 305 New Eng. J. Med. 1216 (1981). Supplementary readings include: Susan S. Mattingly, The Maternal-Fetal Dyad: Exploring the Two Patient Obstetric Model, Hastings Ctr. Rep., Jan.-Feb. 1992, at 13 (concluding that the two-patient framework does not warrant permitting or requiring physicians to move toward stronger fetal protection than under one-patient model); Lawrence J. Nelson & Nancy Milliken, Compelled Medical Treatment of Pregnant Women: Life, Liberty, and Law in Conflict, 259 JAMA 1060 (1988).

53 632 N .E. 2d at 326.

54 In its own analysis of these facts, the court stated that there was no requirement that it conduct a balancing test between the rights of a fetus and the rights of its competent mother. 632 N .E. 2d at 334. Nevertheless, it went on to discuss generally accepted state interests against which it might balance the interests of Mother Doe. Id. In so doing, the court cited a number of other cases in which such interests were weighed, including: In re Estate of Longeway, 549 N.E.2d 292 (Ill. 1989); In re A.C., 573 A.2d 1235, 1246 (D.C. 1990); Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977); Satz v. Perlmutter, 379 So. 2d 359 (Fla. 1980), aff'd 362 So. 2d 160 (Fla. Dist. Ct. App. 1978).

The Appellate Court of Illinois considered four separate state interests, concluding that the woman's interest was not outweighed by any of them. 632 N.E.2d at 335. The first state interest considered by the court was the preservation of life. Id. Tht! court focused on the interest in preserving the life of the mother, rather than in preserving the life of the fetus. Id. The court pointed out that at no time was the cesarean section suggested to preserve the life of the mother. Id. In fact, the court suggested, the operation puts the mother at increased risk during childbirth. Id. Likewise, the court dismissed as irrelevant the state's interest in the prevention of suicide. Id. The third state interest examined by the court, the protection of third parties, was considered irrelevant as well. Id. The court reached this conclusion on the basis that there was no third party to protect. Id. at 336. There was no “already-born child” to be orphaned. Id. The fourth, and final, state interest considered by the court was the “ethical integrity of the medical profession.” Id.

55 Other issues raised by the court are also integrated into the discussion. For example, the court found that seeking a judicial ruling to force immediate delivery was “inconsistent with the ethical position taken by the profession” that a patient should not be coerced or forced into medical treatment, but rather informed of all options and allowed to choose. 632 N.E.2d at 335. The court stated that there was no case “where a court has forced medical care on an objecting, competent adult” in a situation similar to that before it. Id. at 329.

The court reached this conclusion on the authority of the statement made by the American Medical Association Board of Trustees. Id. at 334-35. See also infra note 59. Another source for the ethical position of the profession which was not cited by either the Illinois Supreme Court or by Mother Doe is, American College of Obstetrics and Gynecology Committee on Ethics, ACOG Committee Opinion no. 55, Patient Choice: Maternal-Fetal Conflict (Oct. 1987).

57 Once the medical issues are clarified the class proceeds to identify and discuss ethical issues. These include the interaction of beneficence, nonmaleficence, autonomy, and justice; aspects of the maternal-fetal conflict; and the basis for acknowledging religious beliefs as a factor in medical decision- making. In addition, issues of the doctor-patient relationship and models of shared decisionmaking are discussed when analyzing ethical issues in this case. Discussion includes examining often-cited legal issues and legal precedent, such as the state's interests in preserving life, protecting innocent third parties, preventing suicide, and protecting the integrity of the medical profession. Whether these interests are great enough to outweigh Mother Doe's right to autonomy is the focus of the discussion. An additional issue is ensuring that Mother Doe is sufficiently informed to refuse treatment. If there are clear legal boundaries and existing pertinent law, they are noted and examined. It is also valuable to acknowledge where the law is not clear, and to give the physician-in-training a basis for determining behavior in these situations.

58 In re A.C., 573 A.2d 1235 (D.C. 1990). In re A. C. and Baby Boy Doe are contrasted and compared in class discussion to illustrate other persuasive evidence for the point of view that the woman's autonomy is foremost in decisions about cesarean sections to save the fetus. In In re A. C. the court acknowledged the graphic potential for force in implementing a court order on an unconsenting patient who physically resisted treatment. “A.C. would have to be fastened down with restraints to the operating table, or perhaps rendered unconscious by forcibly injecting her with anesthetic, and then subjected to unwanted major surgery. Such actions would surely give one pause in a civilized society, especially when A.C. had done no wrong.” Id. at 1224, n.8. The court saw no way for the state to enforce any such order, and thus refused to enter one, “as a simple matter of policy.” Id. Class members or panel members are asked what they would do ifthe patient refused treatment. They are directed to reflect upon their options and asked if, in a situation similar to that in In re A.C., they would tie the patient down to force delivery. Additional questions require students to consider what a health care provider should do when the pregnant woman's life style or behavior (i.e., substance abuse) endangers the fetus.

59 Although the court opinion is only referred to after the class has fully articulated its view, the issues raised in the opinion are a significant part of the class discussion. The class discussion centers on whether any of the state interests, particularly that in maintaining the integrity of the medical profession, are greater than a mother's right to autonomy. Again, majority and minority opinions exist.

In Baby Boy Doe, the state called the woman's physician as its sole witness in the proceedings. 362 N.E.2d at 328. He testified regarding the recommended cesarean section and the risks this procedure would present for the woman and her fetus, stating that a cesarean section is major surgery and therefore poses serious risk of harm. Id. It was his opinion that the procedure should not be performed against the wish of the patient. Id. Mother Doe called no witnesses, but rather stated that she “received the recommendation from the physicians,” understood the risks and benefits of the proposed procedures, and, in consultation with her husband, decided to await natural childbirth.” Id. The court distinguished the facts before it from a situation in which the welfare of an alreadyborn child would be considered. Id. at 334 (citing In re Brooks Estate, 205 N .E.2d 435 (III. 1965); Wons v. Pub. Health Trust, 500 So. 2d 679 (Fla. App. 1987), aff’ d, 541 So. 2d 96 (Fla. 1989); Winthrop Univ. Hosp. v. Hess, 490 N.Y.S.2d 996 (1985)). In support of her position, Mother Doe submitted to the Appellate Court an article by the American Medical Association Board of Trustees entitled, Legal Interventions During Pregnancy: Court Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women, 264 JAMA 2663 (1990). 362 N.E.2d at 334-35. That article suggests that “[p]erforming medical procedures against the pregnant woman's will violates her right to informed consent and her constitutional right to bodily integrity” and that “preservation of these rights may come at the risk of preventable fetal impairment or death.” American Medical Association Board of Trustees, supra at 2663. The court relied upon this document as authority for the standard of medical practice and as evidence of the medical profession's ethical posture in passing on the facts before it. 632 N.E.2d at 334-35.

60 Standard of Care, supra note 1, at 35-46; American College of Obstetrics and Gynecology Committee on Ethics, supra note 56 (“The use of judicial authority to implement treatment regimens in order to protect the fetus violates the pregnant woman's autonomy.“).

61 In Baby Boy Doe the hospital sought to have the mother found negligent and thus unfit to care for her fetus. 632 N.E.2d at 327. The juvenile court, however, questioned its jurisdiction over a fetus and remanded the case to the appellate court. Id. An emergency hearing was held in the appellate court. Id. The state petitioned the court to order Mother Doe to have a cesarean section immediately. Id. A panel of three judges “suggested that an order compelling a pregnant woman to submit to an invasive procedure such as a cesarean section would violate her constitutional rights.” Id. The court also held that the juvenile court did not have jurisdiction over a fetus. Id. at 327-28. By this time, the woman was no longer able to be present at the proceedings. Id. at 327.

The circuit court then proceeded on the state's petition, entitled, “Petition for Hearing on Whether a Temporary Custodian Can Be Appointed to Consent to a Medical Procedure.” Id. at 328. Despite opposition from counsel for Mother Doe, the court granted the public guardian's request to be appointed guardian ad litem for the fetus. Id.

After hearing arguments on both sides, the court held in favor of Mother Doe. The court cited lack of precedent as persuasive in its findings and stated that it had “seen no case that suggests that a mother or any other competent person has an obligation or responsibility to provide medically for a fetus, or for another person for that matter.” Id. at 329. Further, the court found no authority which “mandate[s] balancing tests by which a court balances, as in this case, the right to life of a viable person versus the right of the mother to choose a medical procedure which may cause death or other injury.” Id. The court found that a competent woman could not be forced to undergo a lifethreatening procedure to save a viable fetus. Id.

The state and the public guardian appealed the circuit court's decision to the Appellate Court of Illinois, whereupon the decision of the circuit court was affirmed. Id. They then appealed to the Illinois Supreme Court and were denied. Id. Frustrated in attempts to be able to argue the case before Illinois’ highest court, the public guardian appealed to the United States Supreme Court which also refused to hear the case. Id.

Mother Doe gave birth to a healthy, underweight baby boy almost two weeks to the day from the state's unsuccessful attempt to have the case reheard by the Illinois Supreme Court. Id. Despite the fact that the case had become moot as to Mother Doe and her fetus, the American Civil Liberties Union petitioned the court to issue a written opinion in response to the important and potentially recurrent issues involved in this case. Id. at 329-30. In perhaps the most important sentence of its opinion, the court stated that “Illinois courts should not engage in [the balancing of the rights of the unborn viable fetus against the right of the competent woman to choose her own medical care] and that a woman's competent choice in refusing medical treatment as invasive as a cesarean section during her pregnancy must be honored, even in circumstances where the choice may be harmful to her fetus.” Id. at 330. The court relied, in part, on the authority of Cruzan v. Director, Mo. Dep't Health, 497 U.S. 261, 277 (1990) (holding that “the due process clause of the 14th Amendment confers a significant liberty interest in avoiding unwanted medical procedures” and that “the liberty guaranteed by the due process clause must protect, if it protects anything, an individual's ‘deeply personal’ decision to reject medical treatment.”) Id. at 331.

62 Miles et al., supra note 2, at 709.

63 Id.

64 Kenneth R. Mitchell et al., Assessing the Clinical Ethical Competence of Undergraduate Medical Students, 19 J. Med. Ethics 230 (1993).

65 Dan W. Brock & Norman Daniels, Ethical Foundations of the Clinton Administration's Proposed Health Care System, 271 JAMA 1189 (1994).

66 Wolf, supra note 25, at 37.

67 School of Medicine Undergraduate Curriculum, University of Connecticut School of Medicine, Implementation Plan: Executive Summary 8-9 (Oct. 1, 1994) (unpublished manuscript, on file with authors).