Unit 1: Formation and Termination of Treatment Relationship

DUTY TO TREAT PART 1 - GENERAL PRINCIPLES

Hurley v. Eddingfield (106) Doctor refused to treat patient, patient dies. Suit is dismissed EVEN THOUGH:
The doctor had been her physician in the past He was available to render care (and aware that other physicians were not) He was told she was now seriously ill and relying on an expectation of treatment He gave no reason for his refusal He was offered payment

This is because a physician has no duty to treat a patient unless he undertakes treatment The fact that there was a licensing statute in this case made no difference. The statute changes nothing about the common law rule. Wilmington General Hospital v. Manlove (106) Seminal decision that found in the common law a duty for hospitals to act reasonably in their patient selection decisions. Hospital ER refused to treat a severely ill infant because he was under the care of another physician who was not a member of the hospitals medical staff. As a result the infant died. Court reasons that in cases of unmistakeable emergency, a hospital that maintains an ER which by established custom has been open can properly be held responsible for refusing to treat a patient whose condition worsens as a consequence of time lost pursuing the never-received treatment. Note that the court here rejected the trial courts view that there should be a duty to treat because the hospital is a quasi-public institution. On call at a hospital Courts have resolved the paradox of adding Hurley and Manlove together (hospitals have a duty to treat emergencies, but doctors have no such duty) by holding that a doctor who is on call for a hospital ER voluntarily undertakes the hospitals greater duty of care. See Hiser v. Randolph p. 115. Shepherds ND Law Review Article She states that society has changed in a way to make us more sympathetic to suffering. As society has changed, a feminist ethic of concern has increased -- with a focus on rescue-like behavior.

Wideman v. Shallowford Hospital (110) EMTs refuse to take patient to the hospital of her choice. The delay in treatment allegedly lead to the death of her baby. Rule: There is no US Const right to medical treatment.
The due process clause traditionally has been seen as protecting individuals from improper government interference (negative liberties), rather than generating entitlements to state-conferred assistance or benefits (positive liberties).

But -- if the government exercises coercion, dominion, or restraint over a person (e.g., if they are incarcerated or civilly committed), then there is a special relationship that is created, and the state must provide medical treatment to you. The court dismisses the idea that she was under a special relationship as a result of being under the control of the ambulance drivers -- since she entered the ambulance voluntarily.

DUTY TO TREAT 2: EMTALA, CONSCIENCE

EMTALA Emergency Medical Treatment and Active Labor Act. Applies civil money penalties to hospitals and responsible physicians who have violated the Acts requirements. No private civil damages. Statute applies to all hospitals that accept Medicare and have an ER. It requires . . . 1. that the hospital provide for an appropriate medical screening examination within the capability of the hospitals emergency department, to determine whether there is a medical emergency. 2. If there is an emergency, treatment must be provided to the point of stabilization (defined as provid[ing] such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from [a] transfer). The hospital also may transfer an unstabilized patient in limited circumstances: 1. The patient requests a transfer 2. The physician has certified in writing that the medical benefits of transfer outweigh the increased risks to the patient AND the receiving hospital is capable of providing the needed treatment and has agreed to accept the transfer AND the transfer occurs with appropriate personnel, transportation, and life support measures.

Burditt v. Health and Human Services (121) Lady in labor with high blood pressure. Refused treatment at a small hospital. They give her a magnesium IV, and send her on a 3-hour ambulance ride to another hospital who agreed to take her. While on the way, she delivers the baby. She was clearly in active labor, so the statute applies. Court relies on HHS and experts testimony that she was not stabilized when given a magnesium IV. Doctor and hospital lose this action since the doctor did not certify in writing that the medical benefits of transfer outweighed the increased risks to the patient AND the transfer did not occur with appropriate personnel and transportation. EMTALA Policy It is GOOD because: 1. It helps out people who really need help 2. We dont see people who are bleeding or in labor on the side of the street begging for help It may be BAD because: 1. It incentivizes people to wait until they have an actual emergency to get treatment rather than obtaining preventive care. (This is probably the biggest problem.) 2. It could encourage hospitals to close their ERs (so that EMTALA does not apply to them) 3. It could strain resources of hospitals in poor areas. 4. It interferes with physicians professional expertise. Walker v. Pierce (141) Dr has policy that if you are poor and have 3 kids, you have to be sterilized if you want him to be your doctor. Patients sue under the US Constitution -- but they lose since he is not a state actor. The court notes that the doctor is free to establish and pursue a policy that he has publicly and freely announced. They also note that his patients were made fully aware of his policy, and that on the one occassion where he sterilized a woman -- he obtained 3 formal written consents from her. Sterilizing drug addicts in the UK, by offering them money Sometimes by adding a lot of pressure or coercion -- you turn something that looks voluntary into something that is non-voluntary. [Class Discussion] on "Freedom of Conscience" article:

Article is about pharmacists/doctors/nurses who refuse to provide treatments due to a conscience concern. (E.g., birth control, abortions, inseminating lesbians, circumcisions) What if Dr. Pierce had said that it was against his conscience to bring a 4th baby into an indigent family? Does it matter if it's moral opposition or a religious opposition?

BEGINNING THE TREATMENT RELATIONSHIP

Adams v. Via Christi Regional Medical Center (147) Doctor gives advice to a mother about her daughters ectopic pregnancy. Him doing so begins a treatment relationship. Clanton v. Von Haam (149) Woman in back/leg pain treated in ER, gets pain meds and is discharged. Pain gets worse and she calls defendant (dr she'd seen for unrelated condition), who refused to make house call or meet her at ER. She goes to hospital, is treated, and is now paraplegic. Defendant says he told he to follow the ER doctor's advice, and see him in his office the next morning. Plaintiff interpreted phone call as a total refusal of services. Court: no liability for refusal to treat since no patient-physician relationship. Phone call did not create a "consensual transaction" whereby plaintiff became doctor's patient for the instant condition. Bad lawyering here: physician's saying "see me tomorrow" could have qualified as medical advice -- but ONLY IF the patient had thought there was a doctor-patient relationship. Reynolds v. Decatur Mem. Hosp. (151) Toddler in ER with possible spinal damage. ER doctor calls Neurologist (at home) for advice. Neurologist offers to come to the hospital if needed. No drpatient relationship here. The consulting neurologist DID give medical advice, possibly diagnostic AND treatment advice. No liability for Neurologist because no doctor-patient relationship. (1) Relationship between doctor and patient is a consensual one in which the patient knowingly seeks doctor's assistance and doctor knowingly accepts a person as patient. (2) A doctor who gives informal opinion at the request of the treating doctor does not owe a duty of care to a patient whose case is discussed. Policy concern: Creating a doctor-patient relationship here would create a chilling effect. Doctors would not discuss patients with consulting doctors to

obtain advice. It would stifle communication and education. Lyons v. Grether (153) Blind woman had a doctor's appointment. Dr. refuses to treat her unless her guide dog was removed from the WR. He then kicks her out of the WR refusing to treat and failing to help find her medical attention. Analysis - duty to treat arises only upon the creation of a doctor-patient relationship (a consensual contract). The existence of the relationship depends on whether the patient entrusted his treatment to the doctor and the doctor accepted the case. Holding: Doctor may be liable here (this is at MTD) -- there may be a doctorpatient relationship since patient scheduled an appointment for a specific purpose within the doctor's professional competence. Employment/Insurance Physicals (156 n.3) General rule: no DPR is created when the doctor examines a patient at the request and for the benefit of a third party (so patient has no CoA if the doctor fails to diagnose a disease or disclose abnormalities). EXCEPTIONS: 1. Doctor may have a duty to take reasonable steps to make information available timely to the examinee of any findings that pose an imminent danger to the examinee's physical or mental well-being. (E.g., lung cancer) 2. DPR may be created if the doctor affirmatively advises the patient on how to be treated. (E.g., "you don't need surgery for that") 3. Even if there is no DPR, doctor has duty to not harm patient. (E.g., can't misreport medical condition during examination for promotion) 4. Even where there is no DPR, 3rd party requiring the exam who chooses the physician may have duty of care (E.g., employer liable for failing to disclose TB diagnosed during preemployment exam) Doctor's Duties to 3rd Parties (157 n.4) Courts generally recognize a duty of nonnegligence to 3rd parties, but differ on extent of the duty. SOME -- Duty arises if the injury to the 3rd party is reasonably foreseeable (e.g., cases imposing a duty to warn patients of risks of driving and/or ensure patient was able to drive safely before leaving doctor's office) OTHERS -- Duty arises only when there is a "special relationship" between 3rd Party and the patient or the physician. (E.g., holding physician and hospital liable for prenatal injuries to child from a blood transfusion to the mother 9 years earlier). Can a kidney donor sue a doctor on the ground that the doctor's negligence

caused the recipient's need for the kidney transplant? No. Can a kidney donor sue the donee's surgeon, if his negligence botches the transplant surgery? No.

LIMITING THE SCOPE OF THE TREATMENT RELATIONSHIP

Tunkl v. Regents of Univ. of Calif. (159) Guy sues hospital due to personal injuries resulting from treatment by 2 hospital doctors. When he was admitted he signed a form with an exculpatory clause (releasing hospital from all liability from negligent or wrongful acts of its employees). He was in pain, under sedation, and probably unable to read when he signed the waiver. Court says that exculpatory clauses are against a California statute if they involve "the public interest." Court uses 6 factors (bottom 160) to determine if an activity is in the public interest. The hospital-patient relationship fulfills all 6 factors. Rule: Generally, you cannot limit your liability if you are engaged in a service in the public interest. Note: Partial waivers may be OK. In Madden v. Kaiser Foundation Hospitals (162), a provision in an HMO contract requiring all malpractice claims to be decided by arbitration was upheld - because arbitration does not alter the standard of care, only the process of dispute resolution.

TERMINATING THE TREATMENT RELATIONSHIP

Ricks v. Budge (163) Plaintiff examined by doctor for cut finder. Leaves hospital AMA. Doctor tells him to return if finger gets worse and explains how to treat finger at home. Plaintiff returns to office when finger gets worse - doctor tells him to go to hospital and he'll meet him there. When he gets to hospital, doctor realizes plaintiff has an outstanding bill and he refuses to treat. Plaintiff goes to a different hospital up the road for treatment. Court: DPR was not terminated, so doctor is liable. Court: DPR was not terminated when plaintiff left hospital the first time since he was told to come back if his finger got worse. RULE: A doctor (once he's undertaken a case) is under the duty to continue his attention so long as the case requires attention -- unless there is an agreement limiting his services. There are 3 ways to terminate a doctor's "continuing attention": 1. Termination of the necessity which gave rise to the relationship 2. Patient discharges the doctor 3. Withdrawal from case by doctor after giving patient reasonable notice

so as to enable him to secure other medical attention. Note that adequacy of notice could be different for urban and rural doctors, since there could be no other doctors within a reasonable area in the latter case. Payton v. Weaver (165) Difficult patient (alcohol and drug abuse, refusal to follow doctor's orders like losing weight and seeking counseling) with end-stage renal disease, disrupting services to other patients. Rule: doctor who abandons a patient may do so only after due notice and ample opportunity afforded to secure presence of other medical attendance Court finds that doctor gave patient plenty of written notice (listing other providers), so the DPR was terminated. Policy: Public service enterprise: where public hospital contains unique/scarce medical resources needed to preserve life, a hospital cannot withhold services arbitrarily or without reasonable cause. Collective responsibility: Providers of scarce health resource in a community may have to share the burden of difficult patients over time through the use of a contingency plan.

Unit 2: Confidentiality, Consent, Conflicts of Interest

THE DUTY TO MAINTAIN CONFIDENTIALITY
Doe v. Marselle (175) Nurse tells plaintiff's HIV status to plaintiff's sons (since they are drug users and she thought they should know). Plaintiff sues for breach of duty to maintain confidentiality. Lower court dismissed claim, interpreting "willful disclosure" as requiring intent to injure. Court here: statute's intent is to prevent disclosure only, "willful disclosure" just means that the person intended to disclose information. There are enumerated reasons in the statute for when disclosure is deemed OK, and this is not one of those. Note: NY statute on p. 187 - uses words "willfully" and "knowingly" differently.

THE DUTY TO BREACH CONFIDENTIALITY

Here, a duty to not disclose creates some sort of liability for you. Note the Florida statute on duty to report abuse/neglect/exploitation of vulnerable adults (185).

The statute applies to "any person," and not just health care providers. Why reporting statutes (in particular w/r/t elder abuse) might be bad: 1. They will result in overreporting and mistaken reporting. 2. An abusive caretaker has an incentive to not bring the adult for care at a hospital or nursing home. Also, there are reporting statutes for gunshot and knife wounds. (Arguably health care workers treating gunshot victims are more than passive bystanders -- they may help perpetrators to elude cops.) Bradshaw v. Daniel (188) Guy dies of Rocky Mountain Spotted Fever, which is not contagious but there is a known "clustering effect," where people in the same vicinity frequently contract disease. Doctor spoke to his wife while he was in hospital -- never advised that she may have been exposed, or symptoms. She died 1 week later. Rule: In negligence action, no DPR is required (unlike malpractice). Doctor may owe a duty to 3rd parties for injuries caused by his negligence if the injuries suffered and manner in which they were suffered were reasonably foreseeable. Doctors liable to persons who are foreseeably at risk of exposure to disease. Here -- plaintiff's family was foreseeably at risk because of the clustering effect. Doctor had duty to warn wife of the risks of her contracting RMSF when he knew or should have known that husband had the disease. Rule: There is no duty to warn those endangered by the conduct of another, unless there is a "special relationship" (like the doctor-patient relationship here, and psychotherapist-patient in Tarasoff).

INFORMED CONSENT
Laine & Davidoff: "Information enables patients to participate in medical decisions...As medicine becomes more patient centred, participation begins with the patient helping to decide what the physician will order, and the emphasis shifts from compliance to participation." Schuck: There are IC idealists (judges, ethicists) who advocate an expansive conception of doctor's obligation to disclose information about risks and alternatives. They tend to view IC from the patient's perspective. Then there are IC realists (doctors), who question whether patients actually want all the information the idealists think they do. The two camps argue past one another in the IC debate. The trend over the past 20 years is for increased patient autonomy. Not seeing medicine as "the profession of doctors," but as more participatory.

Policy Issues 1. Patient autonomy. 2. The cost of care. It takes time and energy for the information transfer to occur. 3. Quality of care. It could lead to better (doctor may be able to better understand patient's expectations through dialogue) or worse (give patient the opportunity to decide what treatment to go with, and they may decide the wrong one) decisions.

THE COMPETING DISCLOSURE STANDARDS:

Canterbury v. Spence (204) Patient had surgery. Doctor told his mother the operation was not any more serious than any other operation. Patient falls out of bed while in recovery -partially paralyzed. Court adopts a Reasonable Patient Standard for determining which risks to disclose. Doctor has a duty of reasonable disclosure of the choices w/r/t the proposed therapy and dangers inherently or potentially involved. The scope of the duty of disclosure is measured by the patient's need for information material to the decision. The scope of teh required disclosures is measured using the RPS: A risk is material when a reasonable person, in what the physician knows or should know to be the patient's condition, would be likely to attach significance to that risk or cluster of risks in deciding whether or not to forego the proposed therapy. Topics required to be covered in the disclosure: (1) inherent or potential risks of the proposed treatment; (2) alternatives to the proposed treatment; (3) the likely results of non-treatment. Court notes reasons for not going with the Reasonable physician standard: 1. Going with physician custom is problematic. They are skeptical that there even is a physician custom w/r/t disclosure. And, if there is one, maybe it is just a custom of keeping silent. 2. It is not clear that physicians would be better at making treatment decisions than patients. Court goes with an objective test for causality (since a causal connection exists when disclosure of significant risks would have resulted in a decision against it). Instead of allowing the plaintiff to say "I would not have had the treatment had I known," the jury is to decide whether a RP in plaintiff's position would have declined treatment had the RP been told the risks.

Culbertson v. Mernitz (210) Patient not warned of danger of cervical adhesion involved in surgical procedure. Experienced cervical adhesion and required further surgery. Court goes with the Reasonable Physician Standard for determining which risks to disclose. Doctor is required to disclose information which the reasonably careful, skillful, and prudent physician would disclose under the same or similar circumstances. This standard requires expert testimony to determine whether doctor has violated the duty, unless the situation is clearly within the realm of laymen's comprehension. Elements of a non-disclosure IC Claim 1. The medical procedure carried a specific risk that was not disclosed. 2. Doctor violated the applicable standard of disclosure (either Canterbury or Culbertson) 3. The undisclosed risk at issue materialized (i.e., it caused harm) 4. The failure to disclose the information caused the patient's injury. To prove this, plaintiff must show that the Reasonable Person would not have undergone treatment if the risk had been disclosed.

LIMITING LIABILITY FOR FAILURE TO DISCLOSE

Rizzo v. Schiller (217) Doctor used forceps during delivery, baby gets CP as a result. Doctor did not explain the need for forceps and did not obtain consent. Plaintiff had signed generalized informed consent form to allow the hospital to perform diagnostic or therapeutic medical and surgical procedures. Rule: Generalized consent form will not relieve you of informed consent liability as to any risk of any sort of procedure. Exceptions to the Requirement of Obtaining Informed Consent 1. Common knowledge: No duty to disclose risks of which persons of average sophistication are aware. 2. Patient knowledge: Patient can't recover for the physician's failure to disclose a risk already known by the patient. 3. Emergency: No duty to disclose information in an emergency situation where the patient is not competent, immediate treatment is required to prevent more serious harm, and no substitute decision maker is available. 4. Therapeutic Privilege: No duty to disclose where the disclosure proces would foreclose rational decision or pose psychological damage to the patient.

5. Waiver: No duty to disclose where patient refuses to hear a treatment's risks. Placebos - "The Experiential Future of the Law" See Bonus Notes

FIDUCIARY OBLIGATIONS AND CONFLICT OF INTEREST

Moore v. Regents of the Univ. of Calif. (226) Patient had HCL, doctors knew that his cells were valuable in economic and research terms. Doctor recommended splenectomy and patient consented. Patient returned to hospital several times to have blood and other fluids drawn. Doctur used these to establish call line from patient's cells, worth >$100K. Holding: In order to satisfy his fiduciary duty, a doctor who seeks patient's consent must disclose the personal interests unrelated to patient's health, including research or economic interests that may affect his medical judgment. I.e., conflicts of interest must be disclosed. In the instant case -- plaintiff has a cause of action for informed consent OR breach of fiduciary duty. This case opens the door to using informed consent and fiduciary theories to protect patients from risks created by doctor's financial arrangements with 3rd parties. Note the disagreement w/r/t causation (see 237 n.2): Mosk: Patient now has to prove that NO reasonable patient would NOT undergo the procedure if they knew the doctor stood to gain financially. Broussard: Patient might not have to show this type of causation -- but doesn't say what they would have to show. Howard v. Univ. of Medicine & Dentistry of N.J. (232) Doctor misrepresented credentials and experience when he obtained plaintiff's consent to surgery. Plaintiff sues for fraud and lack of informed consent. Fraud claim is thrown out since the court was concerned that would endrun the requirement of showing causation. But the informed consent claim is allowed to continue: the doctor's misrepresentations induced the plaintiff to consent to a surgical procedure (and its attendant risk of paralysis) that he would not hav eundergone if he had known the truth about the doctor's qualifications. The court notes that the misrepresentations must be SERIOUS in order for informed consent to be rendered invalid.

HUMAN EXPERIMENTATION AND RESEARCH

AK likes the policy perspectives of experimentation. Since there are perhaps millions of people who stand to benefit from research, but there may only be a few dozen upon whom we are testing. Institutional Review Boards They are supposed to evaluate whether the proposed experiment has proper informed consent requirements -- and whether the federal regulations are being followed. Garnet Excerpt (246) He believes we should focus more on the ethics of the experiment itself -- on the welfare of the subject, and on the conduct of the researcher. That we may be focusing too much on the need for the subject's consent. Grimes v. Kennedy Krieger Institute (249) A lead abatement study was conducted in low income housing -- varying levels of abatement (low, medium, high, and 2 controls) -- to determine most economically efficacious method to remove lead. Trial court granted SJ for researchers. This opinion reverses. Therapeutic research: subjects stand to benefit from the research treatment Non-therapeutic research: subjects do not stand to benefit from the research treatment; the benefit is just for "the sake of the advancement of science." Court thinks this is non-therapeutic. One key aspect the court is pissed about: the IRB was "colluding" with the researchers in order to bring the study into the "therapeutic" category. Holdings: (1) Parents could not consent to non-therapeutic research done on the kids where there is any risk of injury or damage; (2) Informed consent agreements in non-therapeutic research trials may create "special relationships" -- the breach of these agreements may arise to breach of contract or breach of duty of care; (3) Other sources of "special relationship" include the researcher-subject relationship and governmental research regulations. Concurrence: Court is going too far here, addressing issues the parties never rose -- such as whether the informed consent agreements are legally-binding contracts. The court greatly retreats from their long-ass opinion in their Motion for Reconsideration (p. 264), where they pretty much agree with what the concurrence said.

Unit 3: Medical Malpractice

BACKGROUND & BIG PICTURE
Marianne Paget Excerpt: focuses on the personal and emotional aspect of med-mal suits. About 100,000 deaths a year are attributable to medical mistakes. Half are medmal. Causes of Medical Errors 1. Human body is an inherently variable/complicated system 2. As there are more people involved in a patient's care, the more opportunity for error. 3. New technology, in general, may increase errors. 4. Time pressures may increase error rates. Baker: The Medical Malpractice Myth Most undeserving claims disappear before trial. Most trial verdicts are for doctors. When doctors lose, they typically don't pay out of their own pocket. Juries are not biased toward plaintiffs. Plaintiffs win 20-30% of the time (50% in general civil litigation). Overarching Paradigms for the Delivery of Health Care 1. The Professional Paradigm Doctors are well trained and can police each other. This view dominated into the 1960s. Insurance companies are not supposed to stand between the doctor and the patient. ADVANTAGES: You may get better quality care since there is less of a bureaucracy. This is not a market that the layman is good at evaluating (like soap), so we defer to professionals. DISADVANTAGES: There is no strong concept of the physician's obligation to serve those who need it. Since there is so much specialization, we might not be getting enough primary care. In the absence of regulation, you might not get the right level of attention to different areas of medicine. Doctors may not know much about running a bureaucratic organization like a hospital. WHERE WE'VE SEEN THIS PARADIGM:

Hurley v. Eddingfield. Cases adopting the reasonable physician standard for risk disclosure. 2. Modest Egalitarian View Became popular in the 1960s through today. Arose out of the Civil Rights Movement. Medical care should be more based on need than ability to pay. Access to health care should be a right. Health care should be more evenly distributed. WHERE WE'VE SEEN THIS PARADIGM: EMTALA 3. Market Competition View Started in the 1970s, and is still around. Health care is nothing special. If you want to get good quality health care at good prices, we should treat it like we treat other kinds of market goods. AK: We do want conscientious health care "shoppers," and we want to fight anti-competitiveness in the profession.

THE CUSTOM-BASED STANDARD OF CARE

McCourt v. Abernathy (300) Pin prick, shoulder gets messed up by horse, she works with manure -- dies of sepsis. Wins jury award. Doctor treated patient conservatively when aggressive treatment was needed. He did not consult with other doctors. Did not give antibiotics until about day 5. Plaintiff's expert says doctor should have treated her with antibiotics the first day he saw her. Court here decides that the jury instructions were not improper (doctor's instructions, stating that a "mere judgment of error" is technically correct but seems to try to make negligence equal to bad faith). Standard of care needed in S. Car.: "ordinary, careful, and prudent physician." Locke v. Pachtman (303) Needle breaks inside patient during hysterectomy. They close her up. Some other doctor gets it out later. Plaintiff sues for malpractice. Plaintiff's expert: needle breakage could result from doctor's incorrect technique or simply as an accident (needle breakage is a risk of surgery). Expert unable to identify any negligent conduct. Doctor said "sorry" to plaintiff and family -- that she knew the needle was too small: Court says that a jury could not reasonably infer that these statements

alone that doctor's actions did not conform to the standard of professional practice for the community as a whole. Dissent - thinks that the doctor's apology should be sent to the jury, that the "sorry" could have meant "I fell below the physician's standard of care" (and not "I fell below my own standard" as the maj thinks). Peters Excerpt "The Role of the Jury in Modern Malpractice Law" Prosser: "the custom-based standard of care gives the medical profession ... the privilege, which is usually emphatically denied to other groups, of setting their own legal standards of conduct, merely by adopting their own practices." This is a bit weird. E.g., we don't let brick layers decide the standard of laying brick, below which is negligence. Lots of states use the Medical Custom standard -- and lots use the Reasonable Physician standard Medical Custom standard: Jury determines what the custom is, then decides whether the defendant-doctor complied with it. (The normative judgment of what the custom ought to be is given to the medical profession.) Reasonable Physician standard: Jury determines what a reasonable physician would have done under similar circumstances. (So the jury makes the normative judgment.) AK points out -- when we drive and see a yellow light, what many do is speed up -- but what we should be doing is slowing down. So our prevailing custom does not always fit with what we should be doing. How do we explain the shift (of state laws moving from MC standard to RP standard)? 1. Maybe we are less confident in doctors' authority and power 2. We think that insurers are pressuring doctors to be more cost-conscious 3. It may be diffifult to determine the prevailing custom of treatment of a particular patient. 4. (Not in CB) It is difficult to tell what the prevailing custom is when there is a new study every day supporting different treatments. Jones v. Chidester (317) Plaintiff had orthopedic surgery on leg done by doctor. Doctor used tourniquet during surgery. Plaintiff had nerve damage and drop foot. Respected Minority doctrine - it is a complete defense to malpractice if defendant proves that a considerable number of doctors (reputable and respected in their field) subscribe to a certain school of thought, even if another group would disagree, then doctor is not liable if he acted in

accordance with this school of thought. Issue in this case -- how many doctors make a "school"? Trial court did not speak in quantity terms, just that a "reputable and respective physicians" must subscribe to the school. This court says that is too easy for doctors -- it needs to be a "considerable number" of physicians who subscribe to the school. Chapel v. Allison (299) Plaintiff treated for severe leg fracture by doctor (GP in small town). Analysis/Holding: A non-board certified GP is held to the standard of care of a reasonably competent GP acting in the same or similar community in the US in the same or similar circumstances. A board-certified GP will be held to a national standard of care because (1) he has been tested nationally to get the certification and (2) he is holding himself out to a national standard of care by presenting himself as being board-certified. The above rule (for non-board certified GPs) is a "modified local" standard. It goes against what the trial did (looking only at the same or similar communities in Montana).

ALTERNATIVE THEORIES OF LIABILITY: RES IPSA & NEGLIGENCE PER SE

Locke v. Pachtman (again) (350) Needle breakage case. Plaintiff filed a res ipsa loquitur claim (in addition to negligence). Holding: No prima facie case based on res ipsa because the jury could not conclude on the basis of common knowledge that a needle breakage does not ordinarily occur in the absence of negligence. Plaintiff's expert said that needle breakage is a risk of surgery. Court notes that carelessly leaving a needle inside a patient would be a res ipsa case. Elements of a Res Ipsa claim 1. Event must be of a kind which ordinarily does not occur in the absence of negligence. 2. Event must be caused by an agency/instrumentality within the exclusive control of defendant. 3. Event must not have been due to any voluntary action or contribution by plaintiff. 4. Evidence of true explanation of event must be more readily accessible to defendant than to plaintiff

No expert testimony regarding the deviation from customary practice is required in res ipsa case. "Common Knowledge" Rule: Jury may make simple factual findings from its own experience and knowledge base. It usually requires some expert testimony Negligence Per Se: Stronger than res ipsa. Judge may direct a verdict as a matter of law in extreme cases (e.g., where doctor operates on the wrong limb or leaves a sponge inside patient).

ALTERNATIVE THEORIES OF LIABILITY: ORDINARY NEGLIGENCE

Helling v. Carey (353) Doctor missed glaucoma diagnosis for 9 years. The standard was to give the test only to people over 40 years old, she was only 23 when she first saw doctor. Court took the issue of medical negligence away from the jury, ruling that the customary practice (not giving the glaucoma test to those under 40) was negligent as a matter of law. Case stands for the proposition that, when dealing with these costs/benefits and weighing whether to do a procedure, it is up to courts to decide whether the custom-based standard is negligent -the test is so simple but so important in protecting the patient that judge decides that not giving it is negligence as a matter of law. This case is an aberration. No other court has taken an issue of medical negligence away from the jury without any expert testimony. (p. 361) BUT a rejection of medical norms is not an aberration. The case is also blamed for a lot of defensive medicine (even though a lot of doctors use that term, but they are OK with it because they make more money).

CAUSATION
Herskovits v. Group Health Cooperative (396) Plaintiff's lung cancer diagnosis was missed. We assume his chance of survival is 39% if discovered early -- and that it was 25% when it was actually discovered. Traditional rule: a 51% chance of survival down to 49% chance was compensable -- but a 49% chance of survival down to 1% was not. We do not ordinarily think of increasing chances of harm as compensable harms Holding: medical testimony of reduction of chance of survival from 39% to 25% is sufficient evidence to allow proximate cause issue to go to jury. Rationale: we do not want to give doctors/hospitals blanket release from

liability any time a patient's chance of survival < 50% AKs way of thinking about this case - has to do with how we think about the tort system
If we think of torts as wrongings (doing something bad) -- Maybe damages are not important at all. If we think of torts as deterrents -- we want to give potential defendants reasons to act well should the same circumstances arise again. If we think of torts as compensation (the leading view) -- we give you money to get you back to the status quo ante. Applying the compensation view to Herskovits... To compensate him, you have to find a way to come up with the value of this 14% chance. Problem -- what does this decreased probability mean? Depends on how you view probabilities: Subjective view -- we are saying that, from the info that we have, here are the relevant probabilities (39 and 25) Objective view -- He was either going to die from this cancer or he was not. Applying the deterrence view ... You want doctors to change their diagnostics if we recognize the loss of chance tort. But a problem is that we have a lot more transaction costs. If you can recover for any loss of chance amount -- e.g. 2% reduction n chance, do we now litigate those?

DAMAGES & VALUING HUMAN LIFE

John Harris Excerpt on Anti-Ageism and "Fair Innings" We should not favor the younger over the older just because they may have more time left. This is because everyone has the rest of their life to live. Fair Innings: If one person has had a "fair innings" (he puts it at 70 years) and the other one has not -- then the treatment should be allocated to the one who has not yet had a fair innings. Relationship between Informed Consent and Malpractice (424) Generally, the 2 overlap, but not always. There will be times when doctor will do all the right things, but nevertheless there are unavoidable risks of side effects. There, you could get an IC claim if you did not provide disclosure of that risk. Fein v. Kaiser Permanente (425) Guy with heart attack treated as if it was a muscle spasm. He wins $1M at trial. Damage awards [with reductions by trial judge] as follows: $25,000 in already-lost wages. [Reduced to $5,000 since plaintiff had received disability payments]

$63,000 in future medical expenses. [Changed to the first $63,000 of future medical expenses not covered by employer-provided insurance] $700,000 in lost wages due to shortened life span [Judge keeps this. Defendants argued that it should be less for life necessities that are now not needed to be paid, but they did not raise at trial] $500,000 in non-economic damages (pain and suffering) [Reduces to $250,000 due to statutory cap] Collateral Source Bar/Rule: Generally, a defendant cannot introduce evidence of insurance (disability, medical) money that a plaintiff may have access to -- i.e., that they either were or will be compensated from some "collateral source" other than damages. BUT -- some states have statutes (e.g., Calif. in Fein) where defendant may introduce evidence of these collateral sources, and plaintiff may then introduce evidence of premiums he has paid. (429) Hedonic Damages Generally, future loss of enjoyment is not part of a damage award (e.g., he won't be able to see his daughter graduate from college). Courts don't do this because it is too uncertain and too difficult to measure. Roberts v. Stevents Clinic (429) 2 y.o. dies, malpractice. Jury awards $10 Million. Reduced to $3M due to plaintiff's atty's statements. Defendants argue 2 pieces of evidence and attorney's statements were improper: 1. OK - "Day in the life video" (home movie of child laughing, mom singing to child) Defendant calls it "theatrical" and highlighted child's life in an inaccurate way. Court says that it was not an abuse of discretion to include this (even though another court struck such a tape for distracting jury and unfairly prejudicing defendant) 2. NOT OK - Plaintiff's attorney implied that the jury was to place a value on the child's life He analogizes the child to a $10M race horse -- if doctors killed a race horse the jury would have no problem awarding millions because that's what race horses are worth. He says the child's parents would trade 10 $1M lottery tickets to have child back He references the fact that NASA spends billions on saving just a few

astronauts. Judge says the analogies implying that the jury should value the child's life were improper: "If the measure of damages were the value of a human life then, arguably, no jury verdict could be excessive." Court is trying to impact settlement negotiations with this award reduction (431): They are "cast[ing] a shadow of legal rules within which litigants can craft their own custom-made settlements" This is because there is more likelihood of settling when the jury award can range from $0 to $3M -- as oppose to range from $0 to $10M. Wrongful Birth & Wrongful Life Claims These come about when a doctor negligently performs genetic testing, negligently fails to advise expectant parents that their child will be handicapped, or otherwise fails to act so that expectant parents can make an informed choice about whether to proceed with a pregnancy. Wrongful Birth: Claim made by the parents of a handicapped child on the basis of the emotional distress and medical expenses to them. DAMAGES: Jury assesses, based on impairment of the lives of the parents -- including extraordinary medical bills, disruptions to the family, and emotional distress caused by the negligence. Parents may only recover for harms until their obligation to care for the child ends (usually 18). Wrongful Life: Claim brought by the child who claims that but for the physician's negligence, he would not be impaired, or would not have been born at all. Child often has to prove that not existing is better than existing. Most courts do not allow this type of claim. DAMAGES: Same as wrongful birth (economic costs of managing life), but only from 18+. Wrongful Conception: A healthy child is born, but one that was unintended and occurred as a result of negligence (e.g., negligent performance of a sterilization procedure). DAMAGES: Usually only the medical expenses of birth, NOT the economic costs of raising a child.

MEDICAL MALPRACTICE REFORM

Fein v. Permanente Med. Group (again) (494) Jury had awarded plaintiff $1M in damages MICRA (Medical Injury Compensation Reform Act) decreased damages 3333.2: limited non-economic damages to $250K

 3333.1: modifies trad'l "collateral source" rule (evidence of disability, health insurance came in) Due Process claim: 3333.2 denies DP because it limits plaintiffs' potential recovery without providing them with an adequate quid pro quo (e.g., in WC, awards are capped, but don't have to prove fault) Court: Reject claim. The provision is rationally related to a legitimate state interest (i.e., due to the insurance crisis, they want to get cost savings by limiting non-economic damages). Plaintiffs' potential recovery for economic damages are not limited. Equal Protection claim: 3333.2 violates EP because it discriminates (1) between medical malpractice victims and other tort victims, and (2) within the class of med-mal victims, denying a complete recovery of damages only to malpractice plaintiffs with non-economic damages > $250K. Court: Reject claim. The legislature limited this provision to medical malpractice victims because it was responding to an insurance crisis and the statute is rationally related. It's not unconstitutional. Even though the legislature could have gotten the same cost savings by mandating a fixed % reduction of all non-economic damage awards -- they chose the cap method and court lets it stand. Types of Reforms 1. Arbitration 2. Lower Attorney's Fees 3. Pre-trial Screening Panels (see Culbertson, p. 210) 4. Changes to Statutes of Limitations 5. Limiting the Traditional "Collateral Source Rule" 6. Limiting Ad Damnum Clauses (e.g., "We are seeking $10M dollars") 7. Periodic Payments 8. Changes to Substantive Law (e.g., changing reasonableness standard of informed consent law to the "reasonable physician" standard; requiring expert testimony)

Mini-Unit: Health Law & New Technology

Kolber's Article Excerpt: "The Experiential Future of the Law" Main points of the article 1. The tort system should develop more objective units to describe pain and other forms of suffering.

2. Worker's compensation and other administrative compensation schemes should consider actual amounts of pain and suffering rather than objectively-defined compensation schemes 3. The law of deceptive advertising should at least recognize that placebo's pain relief is real relief, even if there are still good policy reasons to prohibit ads that falsely imply they work better than placebo. 4. Claims for negligent or intentional infliction of emotional distress should rely less on doctrines that limit recoveries to the most extreme cases. 5. The criminal justice system should continue to develop new methods of assessing whether crimes occurred and the nature of the experiential harms they caused. (E.g., childhood physical or sexual abuse, as evidenced by brain markers.) 6. Sentencing should pay greater attention to the amount that offenders suffer as a result of punishment, not only in the context of executions, but in general. 7. Policies against torture should not rely solely on banning particular categories of interrogation but should also consider the amount of experiential distress a particular interrogatee undergoes. Nozick's "Experience Machine" This is Nozick's challenge to the utilitarian view. If all that matters is experiences (and we want to maximize our positive experiences), then why don't people choose to be hooked up to the experience machine? (See p. 104 of article) If we think we will have better measurements of pain and suffering -- then we might not want to have malpractice caps of awards, among other issues weve discussed. [See Class 16 Notes -- but much is just spitballing]

Unit 4: Right and "Duty" to Die

*REFUSAL OF LIFE-SUSTAINING TREATMENT*
Brain Death: You are dead. No control over "vegetative" functions. There is a little bit of brain activity in the stem, and you can only be kept alive with machines (usually only for the purpose of harvesting organs). Persistent Vegetative State (PVS): Brain is still regulating swallowing and breathing -- but you have no awareness and no thoughts. Minimally Conscious: A little bit of thought, but not much.

THE COMPETENT PATIENT

In re Quinlan (519) 22 y.o. in PVS. Father petitioned court for power to authorize discontinuance of all extraordinary medical procedures. Request was opposed by doctors, hospital, state, and daughter's guardian ad litem. Holding 1: If KQ were competent (lucid and perceptive of her irreversible condition), the rule is that she would have a right to decline this treatment. This is grounded in the Constitutional right of personal privacy from Griswold. State's interests here: (1) preservation and sanctity of human life; (2) defending the right of doctors to administer medical treatment according to their best judgment. Holding 2: The state's interests weaken and the individual's right of privacy grows as the degree of bodily invasion increases and prognosis dims. (This is contradicted in subsequent NJ cases -- E.g., In re Conroy, In re Peter (p. 536)) Court lets father discontinue treatment. In re Conroy (522) 84 y.o. minimally-conscious patient. Nephew wants feeding tube removed. Guardian ad litem objects. Holding 1: A patient's right to deny life-saving medical treatment (whether based on constitutional right of privacy or on a common-law right to selfdetermination) is NOT absolute, but the state must show countervailing societal interests. State has 4 interests here, which may trump the individual's right to deny medical treatment: 1. Preserving life (Court: to the extent that the State has an interest in life, it depends upon the particular person's interest in their own life) 2. Preventing suicide (Court: denying treatment is not the same as suicide; it's letting the disease run its course) (AK: this is the whole act vs. omission idea) 3. Safeguarding the integrity of the medical profession (Court: surveys say majority of doctors approve of "passive euthanasia") 4. Protecting innocent third parties (children left orphans, threats to public health) Cruzan v. Director, Missouri Dept. of Health (525) Car accident -- then coma -- then PVS. Parents want to remove treatment, Missouri (paying for her care) and doctors refuse. Rule: A competent person has a liberty interest to refuse unwanted

treatment. This is inferred from the 14th Amendment due process clause. But it must be balanced against the state's interests. Here - whether Cruzan's constitutional rights have been violated must be determined by balancing her liberty interests against the relevant state interests. Scalia's Concurrence: He does not agree with the act/omission distinction, and thinks that removing life-sustaining treatment is suicide (analogy to sitting in front of the ocean, letting the ocean drown you). He'd rather the distinction be between abstaining from "ordinary" care and abstaining from "excessive" or "heroic" care. This is not as clear a line, he says -- but it is a more intelligent distinction. Sources of the Right to Refuse Life-Sustaining Treatment (531 n.3) Informed consent (the right to be free from nonconcensual bodily invasion) Right to privacy (substantive DP right to make decisions of importance to one's destiny). The State's Interest (535 n.1) Justice Brennan (dissenting in Cruzan) felt that the state has no legitimate interest in someone's life, "completely abstracted from the interest of the person living that life, that could outweigh the person's choice to avoid medical treatment." Balancing the Individual and State Interests (535 n.2) Courts have abandoned the weighing of interests -- and almost without exception will permit competent patients to refuse life-sustaining treatment. The Quinlan idea (that the worse a patient's prognosis, the more her individual rights outweighed the state's rights) has also been abandoned. Bouvia v. Superior Court (536): 28 y.o. quadriplegic woman wanted to remove feeding tube. Court says that she alone can decide whether to reject treatment, regardless of how long she has to live. Holding: a competent adult has the right to refuse ANY medical treatment, even that which may save or prolong her life. But she ultimately does not remove the tube. McKay v. Bergstedt (537): 31 y.o. quadriplegic man wanted to remove ventilator since his terminally-ill father was about to die and he didn't want to live without him. Holding: he had the right to withdraw the ventilator - it was his decision as to whether his QOL was worth living. Hedonic Adaptation and the Hedonic Treadmill A person's happiness level does not change that much. Even lottery winner -their happiness goes up for a bit, but then returns to where it was previously.

Our level of happiness is generally fixed. This idea is applicable in the Bouvia and Bergstedt cases. There, we may project how we think it feels to be a quadriplegic -- and think that they are unhappy. And they may be at first. But they slowly get back to where they were before their accident. Protection of Innocent Third Parties In re President & Directors of Georgetown College (543) Woman with 7 m.o. child refuses blood transfusion because she is a Jehovah's Witness. The court forces her to get transfusion -- justifying it by noting that she was at the point of death and hardly of sound mind AND the state had an interest in preventing the abandonment of her child. AK says that the husband had said something like "well, if you say we have to have a transfusion then I guess it's not against our religion" AK: this is a rare case where the state's interest in life trumps religion. Note that recent cases (e.g., Fosmire v. Nicoleau) hold that patients have the right to refuse life-sustaining treatment even if they have young children.

THE PATIENT WHOSE COMPETENCE IS UNCERTAIN

Tests for Competency 1. Whether the patient expresses a preference for or against treatment. E.g., yes, I want you to amputate my foot. 2. Whether the patient's decision is a "reasonable" one. This is vague 3. Is the decision based on "rational" reasons? This is also vague 4. Whether the patient has the ability to understand or has demonstrated actual understanding. Lane v. Candura (546) 77 y.o. woman with gangrenous leg refused surgery because she's been unhappy since her husband died, she does not want to be a burden, she does not believe the operation will cure her, and she does not fear death but welcomes it. Two psychiatrists differ as to her competence. Holding: Patient is competent to refuse treatment. Key fact - the patient's competence was not questioned by doctors until she disagreed with them. Dept. of Human Services v. Northern (546) 72 y.o. woman with gangrenous feet refuses surgery. She believes her feet are black because of soot or dirt and not because of gangrene. Court decides that this belief is a concrete example of her incompetence. She

may not refuse treatment. Adolescents and Mature Minors General Rule: Minors do not have the capacity to decide for themselves, but their parents can usually make decisions for them. Exceptions: 1. Courts often deny parents' authority to refuse life-sustaining treatment for their children (to discuss later (after Jobes/Cruzan). 2. Mature Minor Exception: A minor may be accorded decision-making authority if he can show decision-making capacity despite his age. One court used the "Rule of Sevens" - 0-7: no capacity; 7-14: rebuttable presumption of no capacity; 14-21: rebuttable presumption of capacity. [Body Integrity Disorder Article]

THE INCOMPETENT PATIENT

In re Conroy (552) (again) A competent adult's right to refuse life-sustaining medical treatment remains intact when that person loses competence. Holding 1: Life-sustaining treatment can be withheld or withdrawn from an incompetent patient when it is clear that this particular patient would have refused treatment under the circumstances involved. This is a subjective test. It may be evidenced by: 1. a written document ("living will") stating patient's desire not to have certain life-sustaining treatments under certain circumstances 2. an oral directive given to family member, friend, or health care provider. 3. durable power of attorney or health care proxy Holding 2: Life-sustaining treatment may also be withheld or withdrawn if either of two best interest tests is satisfied: 1. Limited objective test: Satisfied when there is some trustworthy evidence that the patient would have refused treatment, and the decisionmaker is satisfied that it is clear that the burdens of continued treatment outweigh its benefits. 2. Pure objective test: Satisfied when the burdens of treatment outweigh its benefits AND where continued treatment would be inhumane -- unless the patient had clearly expressed a preference to remain alive. Court notes procedures to be followed due to concerns with treatment withdrawal in nursing homes: (1) NJ's Ombudsman must be involved, (2) Two unaffiliated doctors must confirm patient's medical condition/prognosis, (3) Family must agree to withdraw treatment if either objective test is used.

Conroy fails all 3 tests In re Jobes (557) 31 y.o. in PVS. Family wants to remove tube - friends/family testified as to statements she made w/r/t whether she would want life-sustaining treatment like what she is getting. Here the court does not follow the Conroy tests, since this is a PVS case and "by definition such patients ... do not experience any of the benefits or burdens that the Conroy balancing tests are intended or able to appraise." Instead, they follow Quinlan, and do the Substituted Judgment Test Here, the surrogate considers the patient's prior statements about and reactions to medical issues, and all the facets of the patient's personality that the surrogate is familiar with -- with, of course particular reference to his or her relevant philosophical, theological, and ethical values -- in order to extrapolate what course of medical treatment the patient would choose. Procedural requirement: Two independent doctors knowledgeable in neurology must state that the patient is in a PVS. Cruzan v. Director, Missouri Dept. of Health (562) Holding: It is Constitutional for a state to apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person in a PVS. State's 4 interests (at top 563): 1. Safeguarding personal element of the choice between life and death 2. Guarding against potential abuses 3. Declining to make judgments about the "quality" of life that a particular individual may enjoy 4. Societal judgment about how the risk of error should be distributed (state can place an increased risk of a wrong decision on those seeking to terminate an incompetent individual's life-sustaining treatment). Basically -- the majority thinks there should be a thumb on the scale for life. Brennan's Dissent: the state has no interest in life independent of the patient. The nature of the liberty interest is figuring out as best we can what this particular patient wanted. And if that is the case, then all we need is a preponderance of the evidence -- not clear and convincing. AK stresses the difficulties of a person making a decision at (competent) T1 for a judgment to be made at (incompetent) T2. Children and Adolescents (hard cases at 591) Newmark v. Williams (591). Child had 40% chance of a cure, but court upholds parents right to refuse treatment.

Non-religious persons view of the matter -- obviously give it. Hes certain to die.

In re Hamilton. Similar chances of survival. Comes out differently. [Richard Dawkins video]
It is child abuse to label a child with the religion of their parents.

What is the solution to parents deciding on religious reasons, and courts wanting to save the life of a child?
1 way -- let the parents decide based on their religious view. Other way -- let the state decide since they dont have a religion yet.

AK summarizes the rules of thumb in the CB:

Cases more likely to require treatment:
More life saving Less invasive (e.g., if its a blood transfusion)

Cases less likely to require treatment

Less life saving More invasive (e.g., if it involves an extensive surgery)

Review of Substantive Rights of Refusing Treatment Competent Patients Have a Substantive Right (of refusing treatment)
Quinlan - 1976 - NJ
Where you have a dim prognosis and theres a v invasive tx -- then you have a Const priv rt to decline the tx.

Conroy - 1985 - NJ
CL inf consent principles provide a rt to decline tx that does not depend on a pts dim prognosis

Bouvia - 1986 - Ca. App. Ct.

28 yo quadriplegic - ct says she had a rt to refuse tx. It didnt matter that she wasnt terminally ill. Basically, this is the same thing as Conroy.

Jehovahs Witness Cases

General rule: Competent JWs may refuse treatment even if it's not invasive and will save their life (e.g., blood transfusion). Note the Georgetown case is a rare exception. Court said it was OK to force her to get a transfusion. Note also that its different for kids -- courts require transfusion for kids Based on Prince v. Mass. (SCOTUS) - children must be given an opportunity to reach adulthood to decide for themselves which religious tenets they will follow. (590)

Cruzan
Its a bit inconclusive. Court assumes we have a fundamental liberty interest (under the DP of 14th A) to refuse treatment.

Incompetents and where pts wishes are unclear

(Conroy - 1985 - NJ) (pt has some conciousness, but is incompetent)
Where you have clear and convincing evience - we should go with that evidence (this is the subj test). But otherwise, where a pt has some conciousness, you can withdraw

treatment if the burdens of her life markedly outweigh any benefits (this is the obj test).

(Jobes - 1987 - NJ) (PVS pt)

When we dont have clear and convincing evidence -- court says we cant really do the objective test for a PVS patient. So we use a substituted judgment.

These NJ cases are examples of how states might handle these issues Cruzan - 1990
States can Constitutionally require a clear and convincing evidence reqt in order to stop treatment. This will not burden the substantive right mentioned above. A state could have a lower reqt (like NJ with subst judgment) and this case is silent on that decision.

*AID IN DYING*
The above cases deal with DECLINING TREATMENT which is LEGAL The next cases are about PHYSICIAN AID IN DYING which is MOSTLY ILLEGAL and EUTHANASIA which is ILLEGAL and PALLIATIVE SEDATION which is LEGAL Washington v. Glucksberg (597) Holding: Washingtons prohibition against causing or aiding suicide does not violate the 14th Amendment. They must distinguish Cruzan, since that case says we have a Constitutional interest in refusing life-sustaining treatment. SCOTUS distinguishes by focusing on our legal traditions -- we have outlawed physician-assisted suicide for a long time. They give the statute rational-basis review -- and it obviously survives. Vacco v. Quill (602) Holding: New Yorks ban on assisted suicide does not violate equal protection clause of the 14th Amendment. Plaintiffs argument: some terminally ill patients can decide to die by refusing life-sustaining treatment, and terminally ill patients that are NOT connected to a machine CANNOT decide to die. This is an arbitrary distinction. Its not treating people equally under the law. Majority: This is not an arbitrary distinction. There is a difference between the two w/r/t both causation and intent. Top 604. Also, the terminally ill are not a protected class. Arguments upholding the distinction between the withdrawal of lifesustaining treatment and physician aid in dying (614-615) 1. Refusing medical intervention merely allows the disease to take its course. 2. People who refuse life-sustaining treatment may not harbor a specific intent to die (they may wish to live, but free of unwanted technology, drugs, or

surgery). 3. The right to refuse treatment is the right to refuse a bodily invasion. PAID is a right to demand a bodily invasion. 4. If doctors start giving out death-causing agents, patients would develop a distrust of the medical profession. 5. Physicians may start to care less wholeheartedly for patients if they can think of killing them as a therapeutic option. 6. We should first have doctors focus on appropriate palliative care for patients. 7. HMOs will bring about managed death in a setting of managed care. 8 through 11 on p. 615

Mini-Unit: Organ Donation

MANDATES OR INCENTIVES FOR ORGAN DONATION
Statutes requiring donation of corneas, etc. from cadavers undergoing autopsy State v. Powell (663) (cornea) Florida Statute: prohibits the removal of corneas if next-of-kin objects, but does NOT require that the decedents family be notified of the procedure. Decedents Constitutional rights terminate at death. Holding: Floridas statute is constitutional -- it reasonably achieves the permissible legislative objective of providing sight to many of Floridas blind citizens. There is no taking of private property by state action for a non-public purpose. The family does not have a property right, but only a limited right to possess the body for burial purposes. Brotherton v. Cleveland (666) (cornea) Wife told hospital she and her decedent husband did not want his corneas removed. Coroner did it anyway. He did not check to see if the family objected. The statute only required the coroner to not remove if he was aware of the objection. (This ostrich fact doesnt impact the analysis.) Court recognizes a quasi-property right in the body for the purposes of burial (i.e., they have some of the sticks in the bundle of rights). They dont decide exactly how to classify the right, but they think they have a legitimate claim of entitlement. So -- they were deprived of some sort of property right, and had no process (i.e., no hearing).

CB asks what would a hearing look like? AK says that it would not be a court action, since that would take too long. Maybe the process would just be having to attempt to contact the family or reading the record. McFall v. Shimp (669) (bone marrow) Guy wants bone marrow transplant from his cousin (suitable donor) Holding: McFall had no duty to donate his bone marrow. No human being is under legal compulsion to give aid or to take action to save another human being or to rescue. National Organ Transplantation Act (NOTA): unlawful to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation ... Doesnt apply to human organ paired donation
This is when we have a parent and child -- where P wants to give organ to C but they dont match. Also theres P2 and C2 -- who are not matches to each other, but matches for P and C. The statute explicitly excludes this situation -- even though it seems like P/C and P2/C2 are exchanging organs for valuable consideration.

Directed donation (controversial) This is where person says I want my organ to go to X. But what if they say I want my organ to go to a white person. This is tricky bc (you might say these are bad reasons for people to donate, but they can also be good.) Suppose a person says I want my kidney to go to a Neo-Nazi. The person who is #2 on the general waiting list is a Neo-Nazi. The guy who is #1 on the list is pissed, but the people who are #3 and up are happy.
Note, though, that #1 would be mad only if the donor would have donated anyway, but attached this directed donation rider to the donation. If the donor would only donate bc he knew #2 was a Neo-Nazi, then #1 shouldnt actually care.

Unit 5: Reproductive Rights

REPRODUCTION RIGHTS
Buck v. Bell (713) Woman in state psych facility (for epileptics and the feeble-minded) was going to be sterilized Court: health and benefit of society would be better off with the feeble-minded being sterilized. Because there are strong heritable characteristics of insanity and feeble-mindedness.

Holmes was affected by eugenics and the idea of social darwinism Follw-up on Carrie Buck -- she wasnt actually retarded, but was the daughter of a promiscuous woman. And Carrie was raped at 17, and her daughter was deemed not quite normal at 6 months, mainly bc of the proceedings in this case. In re Valerie N (p 720) - court says that you have a rt to sterilization Equal Protection argument
People who are at risk of sterilization are the people who are institutionalized. Court addressed this in a crazy way -- well theyll get sterilized in the institution, and be allowed to leave. Then people who are outside of the institution can be admitted and sterilized. This is a limited rational basis review.

Skinner v. Oklahoma (715) Require thrice convicted felons to get sterilized, but only if the crime was one of moral terpitude. EP clause basics -- we dont want laws to apply to different groups of people w/o a good reason. Distinguishing Buck v. Bell:
Defendants here dont get an opportunity to be heard on the issue as to whether he is the probable parent of socially undesirable offspring. Also, bottom of 717 -- there is no EP justification for the discrepancy in treatment of groups (white collar type felonies vs other felonies) as there was in Buck v. Bell.

Sterilization Problem on p. 722. Genetic trait D. Note that men are 90% more likely to commit violent crimes. Chemical and Surgical Castration Chemical -- drugs that decrease libido and erection ability. Abortion Roe v. Wade (732) Opinion begins by noting some harms of an unwanted pregnancy. (E.g.,
AK says that something is missing: an invasion of your bodily autonomy, even putting aside any direct harm medically diagnosable.

States interest -- health of mother, and protecting the potential life of the fetus. Court notes that a fetus is not a person for the purpose of the 14th Amendment. Courts compromise:
1st Tri -- ab decision left to mother and doctor 2nd Tri -- state can regulate in ways related to maternal health 3rd Tri -- state now has an interest in the potential for life, and can

prohibit/regulate abortion (except where the ab is necessary for the life of the mother)

Rehnquist:
We should give this rational basis review. This

Abortion discussion 2 famous articles:

Judith Jarvis Thomson - women have a right to not be invaded by a fetus
So much of the debate about ab has much to do with w/ the fetus has a right to life. Lets just assume it has a right to life, and then presents a thought experiment: the concert violinist. One day you wake up and theres a violinist strapped to you. Do you need to have this person strapped into you for 9 months, even if s/he has a right to life? Weak aspects of this analogy: 1. In the abortion context, the person is having sex and is on notice that they might become pregnant. Seems like the CV analogy would only apply to rape victims.
Thomsons counter-argument: if its a situation where contraception doesnt work -we dont normally say that a person who put an alarm system, locks, bars on windows, when they get robbed, that theyve assumed the risk. Her counter does not really address someone who does not protect.

2. This is an intuition pump. ??

Don Marquis
What makes killing someone bad is the loss of a future like ours. This is a deprivation argument. If we think about this generally, then whats wrong with applying this to a fetus? AK: do we think that what makes killing wrong is depriving them of a future?

Recap Buck v Bell - used what wed now call rational basis. No fundamental right to not be sterilized. Skinner - uses what wed now call strict scrutiny. Doesnt explicitly overrule Buck, but its probably safe to say that Buck is not good law. Roe v Wade - fairly rigid 3 tri framework Scholarly literature on abortion and whether we should have this right.
JJ Paper (pre Roe) - though most of the debate is about whether a fetus has a right to life. She says that even if we concede that the fetus does have a right to life, the mothers right should trump the fetuss.

Don Marquis What makes killing wrong?

The conscious pain and suffering of dying Missing out on the pleasures of life Saddens others, creates a social loss Frustrates preferences of person who dies

Marquis comes out on the second one. Whats bad about death is the loss of a future Is he wrong about that? Does it apply to a fetus? Well, the loss of a fetus is the loss of the potential for life, not necessarily Reason Magazine article - abortion and half of who is in heaven are fertilized eggs that either do not attach, or that are miscarried. Frustrates preferences of person who dies Desire account. In order to have an interest in your future preferences, you have to have a desire to have that interest.
Analogy to animal rights. Sure, it may be OK to say that a chicken has an interest in not feeling pain, but it may not have an interest in its own life, since it is unable to have an interest like this. But note that a 1 month old baby doesnt really have a desire account. But its never OK to kill a 1 month old.

Planned Parenthood v Casey Plurality is not overruling the central holding of Roe, they say, but it kind of does eviscerate it. Is this a broader right to abortion or constricted right to abortion than Roe?
It contracts the right, for sure. Because there are all of these restrictions in the statute that the court upholds. And it rejects the trimester framework. Also, Roe had a clear strict scrutiny test. Here, theres an undue burden test.
You could say that UB test is just strict scrutiny in the ab context -- or you could say that this is different from strict scrutiny.

This case allows for a lot more regulation pre-viability than did Roe
The viability issue. See 739-740.
Some think viability should not matter. You should still be able to abort. AK - well if its not viability, then why is it the birth canal? (Killing a 2 week old is definitely wrong) AK - doesnt see whats significant about viability, but then its hard to say why the birth canal is different.

This case is different from Roe, since there is a precedent here.

Stare decisis interests
If a decision has become workable The reliance interests of people ont he decision If its anahcronistic (like Buck v Bell) If facts have changed

But underlying the opinion is that we want to maintain the essential holding of Roe.

Medical Emergency idea (p 742)

Its OK, not an undue burden

Information, Informed Consent, 24 hour Waiting Period (742)

Its not an undue burden. It invalidates prior precedent (Akron).

Spousal Notification (p 743)

This is an undue burden.

Parental Consent Reqd - but with Judicial Bypass

Not an undue burden

BLACKMUN concurrence
He thinks that unde burden is just explaining what is meant by strict scrutiny

REHN
Thinks that the undue burden test is rejecting the right to an abortion as a fundamental right. He criticizes the majority opinion for lauding stare decisis -- and then eviscerating most of Roe.

Questions/Discussion Gonzalez v. Carhart Background:

Partial-Birth Abortion Ban Act. Rather than calling it that, the case calls it intact D&E.

Preliminary issues
1. Its NOT void for vagueness. They explicitly define when a dr has delivered a fetus too far for it to be illegal. 2. The statute is not written so broadly as to apply to regular D&E

Main iissue -- Is this act an undue burden?

1. 2. Effects on the medical community 3. Slippery slope concern -- if we allow IDE, we blur the lines between infanticide and abortion 4. Drs will be reluctant to tell women about the procedure (bc its gruessome) and then the women will be upset after they hear about it

What about the Effects of the act?

1. Theres no exception for maternal health.
Court: theres facts either way, Congress did a good enough job in writing this statute.

GINSBERG dissent
This doesnt save fetuses since therere other procedures The talk about women regretting their choices is ridiculous.

Imagine a world where we gestate fetuses in a laboratory setting. Just donate sex cells and put intot a tube, and they grow for 9 months.

Unit 6: Public Health

The Source and Limit of Authority to Protect Public Health Jacobson v. Mass. (889) This goes back to the ida of refusing medical treatment, which we discussed during competency. The state has a police power -- general power to protect the health, safety, and welfare of the people.
This is contrasted with the federal govts limited, enumerated powers.

There are limits to the state police power -- like when they violate the Constitution. This is what Jacobson thinks is the case here.
Bottom 889

Court sympathizes with Jacobsons argument -- but they uphold the law.
See bottom 890. Also -- they say that the state has a right to self-defense.
A person is attcking you with their potential riskiness of having smallpox. Interesting idea, says AK.

What standard of review here?

AK: it seems to be a kind of rational basis review. And this should be unsettling bc cases like Casey and Cruzan seem to suggest that the right to be free from bodily invasion is a pretty weighty right. AK says that SCOTUS today would give a statute like this strict scrutiny.

The court reads in an exception in the statute -- so long as the vaccine does not harm your health, then the statute is OK. Wong Wai v. Williamson (942) City ordinance, from health board in SF, requiring Chinese to get bubonic plague vaccine and that anyone who does not may not travel outside the city. There is an issue as to whether the board had authority to pass the ordinance.
They say that its something that the board of supervisors should have passed.

Even if there were this power, they still strike down the ordinance:
1. No factual support that asians are susceptible to the plague (except for a naked assertion at oral argument). See bracket at 944

AK: this is a rare instance of a public health statute being struck down. Today, this ordinance would be evaluated using strict scrutiny review. Addington v. Texas (948) Mom seeking indefinite commitment of her son. Hes found to be mentally ill and need commitment under clear, unequivocal

and convincing evidence. Plaintiff wants beyond a reasonable doubt standard.

Court looks at interests here:
1. Deprivation of liberty associated with it 2. Stigma associated with the commitment

And the other sides interests:

1. parens patriae interest (protecting from self) 2. protecting interests of others

They come up with a requirement for clear and convincing evidence standard.
AK calls this a Goldilocks legal standard.

The criminal std is too stringent, says Court, bc that is limited to punishment. Also, the error issues are different -- layers of patient review and observation of the patients condition allow for an erroneous commitment to be corrected.
Also, if a mentally ill person is wrongly found out to be sane -- it may not be worse for them to be committed than to be free.

Rule in this case: Constitutionally, c&C evidence is tough enough for involuntary commitment Also, Court says that the evidence in psychiatry is not in a way that most evidence is hard facts. In re J.A.D. (950) State wanted to commit a homeless man, according to the N. Dak. statute.
They were most concerned with the guys danger to himself. Note that the law in this case: there is no distinction between the evidentiary standard for danger to others or danger to self.
See 952 n.2 AK: this is interesting, shouldnt they be different. A person going around and beating everyone up - we think about it differently than someone who does lots of graffiti, or someone who is suicidal. AK: a lot of it has to do with whether the person has agency, and whether they are responsible for others.

The statutory language here:

Section 25-03.1-02(10):
A person requiring treatment is BOTH: 1. mentally ill or chemically dependent 2. there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property.

Might mentally ill be too vague a term?

Kansas v. Hendrix -- notes case that held that sexual predators could be construed as mentally ill

Court decides that there was NOT C&C evidence in this case to commit him (that he was mentally ill OR that he was reasonably expected to be

dangerous).
Evidence: He sought out shelter, he threw out food that he did not know where it came from, there is no evidence that he would not seek out shelter in the winter time.

AK: Why not just focus on the second prong? Why require that they be mentally ill?
Well, that is for inchoate criminal law.

AK draws a graph about de-institutionalization. Lots of people who were committed were released, partly having to do with drug treatment.
As the number of people institutionalized decreases -- the number incarcerated has increased. Also -- a large percentage of prisoners are mentally ill.

Atkins v. Virginia - you cant be capitally punished if, at the time you commited the crime, you were mentally retarded.