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Liability of Ethics Consultants: A Case Analysis

Published online by Cambridge University Press:  29 July 2009

Gordon DuVal
Gordon DuVal
Affiliation:
A member of the British Columbia and Manitoba Bars, and is a doctoral candidate at the University of Toronto Faculty of Law and Centre for Bioethics, Ontario, Canada.
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Extract

The practice of nonphysician ethicist-consultants giving ethics advice concerning the appropriate medical treatment of patients in hospitals is a relatively recent development. Although only a minority of hospitals make substantial use of any formal ethics consulting service, the number is growing and apparently will continue to do so. Indeed, at least among urban teaching hospitals, some sort of ethics consulting service is increasingly commonplace.

Type
Special Section: Healthcare Ethics Committees and Consultants: The State of the Art
Information
Cambridge Quarterly of Healthcare Ethics , Volume 6 , Issue 3 , Summer 1997 , pp. 269 - 281
Copyright
Copyright © Cambridge University Press 1997

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References

Notes

1. Self, DJ, Skeel, JD. Legal liability and clinical ethics consultations: practical and philosophical considerations. In: Monagle, IF, Thomasma, DC, eds. Medical Ethics: A Guide for Health Professionals. Rockville, Maryland: Aspen Publishing, 1988:408–16 at 409.Google Scholar

2. However, in Weiss v. Solomon (1989) 48 C.C.L.T. 280 (Que. Sup. Ct.) a hospital was successfully sued in respect of the negligence of, among others, members of its research ethics board.

3. Gramelspacher, GP. Institutional ethics committees and case consultation: is there a role? Issues in Law & Medicine 1991;7(1):73–82.Google ScholarPubMed

4. LaPuma, J. Consultations in clinical ethics—issues and questions in 27 cases. Western Journal of Medicine 1987;146(5):633–7 at 636.Google Scholar Like Grammelspach (see note 3), LaPuma questions the effectiveness of hospital ethics committees doing case consultation.

5. Wolf, SM. Ethics committees and due process. Law, Medicine & Health Care 1992;20(4):278–90Google Scholar suggests that determinations made by institutional ethics committees are inappropriate unless taken in the context of a “patient-centered” due process.

6. See Louisell, DW, Williams, H. Medical Malpractice. New York: Matthew Bender and Co., 1992:¶ 8.04[4][d].Google Scholar

7. See, for example, Burke v. Capello, 520 N.E.2d 439 (Ind. Sup. Ct. 1988).

8. In Canada, see Picard, El. Legal Liability of Doctors and Hospitals in Canada, 2nd ed.Toronto: Carswell, 1984:212ff.Google Scholar

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10. Norton v. Hamilton 89 N.E.2d 809 (Ga. Ct. App. 1955).

11. See also note 6. Louisell, , Williams, 1992:¶ 8.07[1] at 8–104.Google Scholar

12. See note 8. Picard, 1984:4.Google Scholar

13. Hales v. Pittman 576 P.2d 493 (Ariz. 1978).

14. See note 6. Louisell, , Williams, 1992:¶ 9.05[1].Google Scholar

15. See McInerney v. MacDonald (1992) 93 D.L.R. (4th) 415 (Sup. Ct. of Canada).

16. If the action were framed as the intentional tort of abandonment, then it would be alleged that the consultant encouraged, aided, or abetted such abandonment by the physician.

17. Keeton, WP, ed. Prosser and Keeton on the Law of Torts, 5th ed.St. Paul, Minnesota: West Publishing Co., 1984:§ 30.Google Scholar

18. See note 6. Louisell, and Williams, 1992:¶ 8.03.Google Scholar

19. See note 7. Picard, 1984:29, 150.Google Scholar

20. Donoghue v. Stevenson [1932] A.C. 562 at 580 (per Lord Atkin).

21. See note 17. Keeton, 1984:§ 53.Google Scholar

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23. See Skeel, DJ, Self, JD. An analysis of ethics consultation in the clinical setting. Theoretical Medicine 1989;10(4):289–99 at 291.CrossRefGoogle ScholarPubMed

24. Merritt, A. The tort liability of hospital ethics committees. Southern California Law Review 1987;60(5):1239–97 at 1293Google ScholarPubMed, notes that committees which exist only to serve and protect the hospital or physicians are more properly characterized as “risk management” committees, not ethics committees.

25. In Weiss v. Solomon (see note 2), the court held a hospital liable for the acts of its research ethics committee in failing to ensure the safety of one of the subjects of a research study, indicating that it owed a legal duty of care to the subject. It does not appear, however, that the individual members of the committee were named in the lawsuit.

26. See note 13. Hales v. Pittman (1978).

27. See note 6. Louisell, , Williams, (1992):91 9.05[1].Google Scholar

28. See note 15. McInerney v. MacDonald (1992).

29. For example, in the case of Betesh v. United States, the District of Columbia, District Court (1974) found a duty of care owing in a medical malpractice suit even though no physician/patient relationship existed.

30. Veatch, RM. The medical ethicist as agent for the patient. See note 22. Ackerman et al. 1987:59–67Google Scholar, sees the role of the clinical medical ethicist as agent for the patient, with whom he or she is in a relationship of covenant (at 62–63). In some circumstances, the ethicist will be account able also to a healthcare professional giving care, but the primary relationship remains with the patient (at 64–66).

31. Leighton v. Sargent 59 Am. Dec. 388.

32. Plaintiff v. City of Parkersburg 345 S.E.2d 564 (W. Va. Ct. App. 1986).

33. The authoritative Canadian statement of the medical practitioner's standard of care is found in the Ontario Court of Appeal case of Crits v. Sylvester (1956) 1 D.L.R. (2d) 502 (Ont. Ct. of Appeal) at 508, affirmed at (1956) 5 D.L.R. (2d) 601 (S.C.C.). It is sensible to suppose that this defines broadly the obligation also of the ethics consultant.

34. Bouvia v. Glenchur (unreported – Calif. suit no. C583828).

35. In the recent case of Gilgunn v. Massachusetts General Hospital (Mass. Super. Ct. No. 92–4820 – Suffolk County) the hospital, along with the attending physicians, was unsuccessfully sued for the concurrence of its Optimum Care Committee in a decision to withdraw life-sustaining treatment from a patient for whom such treatment was determined to be “futile.”

36. See note 2.

37. Baylis, FE. A profile of the health care ethics consultant. In: Baylis, FE, ed. The Health Care Ethics Consultant. Totowa, New Jersey: Humana Press, 1994:25–44.CrossRefGoogle Scholar

38. La Puma, J, Scheidermayer, DL. Ethics consultation: skills, roles, and training. Annals of Internal Medicine 1991;114(2):155–9 at 156–7.CrossRefGoogle ScholarPubMed

39. LaPuma, J, Toulmin, SE. Ethics consultants and ethics committees. Annals of Internal Medicine 1989;149(5):1109–12, at 1110.CrossRefGoogle Scholar

40. Glover, JJ, Ozar, DT, Thomasma, DC. Teaching ethics on rounds: the ethicist as teacher, consultant and decision-maker. Theoretical Medicine 1986;7:13–32.CrossRefGoogle ScholarPubMed

41. Churchill, LR, Cross, AW. Moralist, technician, sophist, teacher/learner: reflections on the ethicist in the clinical setting. Theoretical Medicine 1986;7:3–12, at 8.CrossRefGoogle ScholarPubMed

42. Thomasma, DC. Why philosophers should offer ethics consultations. Theoretical Medicine 1991;12:129–40.CrossRefGoogle ScholarPubMed

43. Moreno, JD. Ethics consultation as moral engagement. Theoretical Medicine 1993Google Scholar, describes the expertise required of an ethics consultant as “(1) the knowledge of general principles and theories of morality, (2) analytic skills such as discernment and insight, and (3) the strength of will not to take the easy way out” (p. 47).

44. See note 1. Self, , Skeel, 1989:410.Google Scholar

45. Robertson, JA. Clinical medical ethics and the law: the rights and duties of ethics consultants. In: Fletcher, JC, Quist, N, Jonsen, A, eds. Ethics Consultation in Health Care. Ann Arbor, Michigan: Health Administration Press, 1989:157–72Google ScholarPubMed, has suggested that “malpractice suits against ethi cists are so unlikely as to appear fancified …” (at 165–66).

46. Although it may be that Mr. A's prior consent would be required to disclose his identity to the consultant.

47. Johnston v. Ward 344 S.E.2d 166 (S.C. Ct. App. 1986).Google Scholar

48. Longman v. Jasiek 414 N.E.2d 520 (Ill. Ct. App. 1980).Google Scholar

49. See also the British House of Lords case of Whitehouse v. Jordan [1981] 1 All E.R. 267.

50. See note 8. Picard, 1984:239–43.Google Scholar

51. See note 17. Keeton, 1984:§ 32 at 186.Google Scholar

52. Wilson v. Swanson [1956] S.C.R. 804 at 812 (per Rand, J.).Google Scholar

53. Ward v. United States 838 F.2d 182 (6th Circ. Tennessee).Google Scholar

54. Hall v. Hilbun 466 So.2d 856 (Miss. 1985).Google Scholar

55. See note 6. Louisell, , Williams, 1992:¶ 9.05[2].Google Scholar

56. Lowenstein, L, DesBrisay, J. Liability of health care ethics consultants. See note 37. Baylis 1991:133–61 at 148.Google Scholar

57. Zoferell v. Repp 153 N.W. 692 (Mich. 1915).Google Scholar

58. Haines v. Bellissimo (1977) 82 D.L.R. (3d) 215 at 229 (Ont. High Ct.).Google Scholar

59. See note 17. Keeton, 1984:§ 32.Google Scholar

60. See note 6. Louisell, , Williams, 1992:¶ 8.04[3].Google Scholar

61. Borja v. Phoenix General Hospital 727 P.2d 355 (Ariz. 1986).Google Scholar

62. See note 6. Louisell, , Williams, 1992:¶ 9.05[3] (the “respectable minority rule”).Google Scholar

63. Linden, AM. Canadian Tort Law. Toronto: Butterworths Canada Ltd., 1993:172–4.Google Scholar

64. See note 7. Picard, 1984:239–43.Google Scholar

65. Conrad v. St. Clair 599 P.2d 292 (Idaho 1979).Google Scholar

66. See note 17. Keeton, 1984:§ 41.Google Scholar

67. See note 63. Linden, 1993:98–100.Google Scholar

68. Snell v. Farrell (1990) 72 D.L.R. (4th) 289 at 300 (Sup. Ct. Can.).Google Scholar

69. For example, see Fost, N, Cranford, RE. Hospital ethics committees—administrative aspects. JAMA 1985;253(18):2687–92 at 2691.CrossRefGoogle ScholarPubMed

70. This form of consultation service is favored by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research in Deciding to Forego Life-Sustaining Treatment. Washington, D.C.: U.S. Government Printing Office, 1983:164, 440.Google ScholarPubMed

71. Levine, C. Questions and (some very tentative) answers about hospital ethics committees. Hastings Center Report 1984;14(3):9–12 at 11.CrossRefGoogle ScholarPubMed

72. Purtilo, RB. Ethics consultations in the hospital. New England Journal of Medicine 1984; 311(15):983–6, at 984CrossRefGoogle ScholarPubMed suggests that the analogy between an ethics consultation and a clinical consult is not apt. However, Thomasma argues that the differences between ethics and clinical consulting are not so great as might be supposed. See note 42. Thomasma 1991.

73. Fontenot v. Aetna Casualty & Surety Company 166 So.2d 299 (La. Ct. App. 1964).Google Scholar

74. See note 7. Picard, 1984:190.Google Scholar

75. See Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) [1961] A.C. 388 (P.C.).

76. Zamparo v. Brisson (1981) 32 O.R. (2d) 75 (Ont. Ct. of Appeal).Google Scholar

77. See note 17. Keeton, 1989:§ 42.Google Scholar

78. See note 6. Louisell, , Williams, 1992:¶ 8.05[3].Google Scholar

79. Strictly speaking, this is not contributory negligence, but rather a matter of the plaintiff's right to contribution from persons who are also liable in law for the injury suffered. See note 17. Keeton, 1989:§ 50.Google Scholar

80. See note 17. Fleming, 19:255–67 especially at 260–3.Google Scholar

81. In virtually all common law jurisdictions, legislative provision is made for apportioning liabil ity among jointly liable parties.

82. However, the fact that there is insurance will render the consultant more attractive as the target of a lawsuit, particularly if the plaintiff's lawyer is paid on a contingency fee arrangement.

83. See note 17. Keeton, 1984:§ 69.Google Scholar

84. See note 6. Picard, 1984:326.Google Scholar

85. Southwick, AF. The Law of Hospital and Health Care Administration, 2nd ed.Ann Arbor, Michigan: Health Administration Press, 1988:542–6.Google Scholar

86. Jolowicz, JA, Lewis, TE, eds. Winfield on Tort, 8th ed.London: Sweet & Maxwell, 1967:647–9.Google Scholar

87. Atiyah, PS. Vicarious Liability in the Law of Torts. London: Butterworths, 1967:421–8.Google Scholar

88. See note 85. Southwick, 1988:543.Google Scholar

89. Some parallel may be found in the growing literature on the liability of spiritual counselors, including clergy. In Nally v. Grace Community Church of the Valley 763 P.2d 948 (Cal. Sup. Ct. 1988)Google Scholar, a church and its pastoral counselor were sued for malpractice and negligence following the suicide of a 24-year-old man who had been counseled by the pastor.