Patients' Interests and Clients' Wishes: Physicians and Lawyers in Discord

This paper is based on a talk given at the Annual General Meeting of the American Society of Law & Medicine in Cambridge, Massachusetts, October 1986.

Curran WJ , Keynote address, Annual General Meeting of the American Society of Law & Medicine, Cambridge, Massachusetts, October 1986.

519 P.2d 981 (Wash. 1974).

Title 7, ch. 7 §40 of the Revised Code of Washington 1985 provides:

The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care: (i) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances.

Rosenberg L Calabresi G , Law and medicine in confrontation: A deans' dialogue, Yale Law School Program in Civil Liability, Working Paper #45, 1986.

The Baby Doe regulations were invalidated by the U.S. Supreme Court in Bowen v. American Hospital Association, 106 S.Ct. 2101 (1986). Legislative proposals that parents of minors seeking contraceptive care be informed were similarly attacked and defeated through, for instance, successful applications for injunctions.

The celebrated Quinlan case is an instance of a health care facility compelling litigation to resolve an important question of a patient's rights; see In re Quinlan, 355 A.2d 647 (N.J. 1976), cert. denied sub nom. Granger v. New Jersey, 429 U.S. 922. (1976). See also Jefferson v. Griffin Spalding County Hospital, 274 S.E.2d 457 (Ga. 1981) on judicially ordered Cesarean delivery to save an unborn child from stillbirth or life with injury.

See Dworkin RM , Taking rights seriously, London: Butterworth, 1977.

383 U.S. 541 (1966).

387 U.S. 1 (1967).

343 F.2d 247 (App. D.C. 1964).

Supra note 8, at 560.

407 P.2d 760 (Ariz. 1965); see also Stewart J, dissenting in the Supreme Court, supra note 9 at 78.

The description “health care professionals” in this essay is not self-conceit because it is used by a lawyer; it is employed as a courtesy.

See Katz J , The silent world of doctor and patient, New York: Free Press, 1984, at 93.

Id.: 94.

See, e.g., American Medical Association, Physician-hospital joint ventures, 1987, developed by the AMA Committee on Medicolegal Problems and the Council on Ethical and Judicial Affairs.

The history of this provision is considered in Katz, supra note 14, at 23.

A court-appointed lawyer may obtain instructions from the party to be represented, but when the lawyer cannot, the court should be informed; the lawyer may then act as amicus curiae (a friend of the court) to assist it in dealing with a personally unrepresented parry.

Supra note 14.

A refusal of treatment must be as informed as a decision to accept treatment; see Truman v. Thomas, 611 P.2d 902 (Cal. 1980).

See Bouvia v. Superior Court (Glenchur), 225 Cal. Rptr. 297 (Cal.App. 2 Dist. 1986) at 305; and the New Jersey Supreme Court Jobes, Peter, and Farrell cases, New York Times, June 25, 1987.

Applebaum PS Gutheil TG , Rotting with their rights on: Constirutional theory and clinical reality in drug refusal by psychiatric patients, Bulletin of the American Academy of Psychiatry & Law 1979, 7: 308–17; Rachlin S , With liberty and psychosis for all, Psychiatric Quarterly 1974, 48: 410–27.

Mills MJ Gutheil TG , Legal approaches to treating the treatment-refusing patient, in Doudera AE Swazey JP , eds., Refusing treatment in mental health institutions: Values in conflict, Ann Arbor: AUPHA Press, 1982: 100–106.

Supra note 2.

Supra note 6.

Brophy v. New England Sinai Hospital, 497 N.E.2d 626 (Mass. 1986); and see the New Jersey cases, supra note 21.

Some courts have further refined the objective test to distinguish a “limited objective” test from a “pure objective” test; see In re Conroy, 486 A.2d 1209 (N.J. 1985).

See the sterilization case Matter of Eberhardy, 307 N.W.2d 881 (Wis. 1981), applied in the Supreme Court of Canada in Eve v. E [1986], 2 S.C.R. 388.

See In re Hier, 464 N.E.2d 959 (Mass. App. 1984), reflecting the “limited objective” test applied in the Conroy case, supra note 27.

See In re Storar, 420 N.E.2d 64 (N.Y. 1981) cert. denied 454 US. 358 (1981).

See supra note 17.

See supra note 6.

See for instance In re Hier, supra note 29.

Roe v. Wade, 410 U.S. 113 (1973).

On the District of Columbia guardianship statute operative from March 1987, for instance, Dr. Joanne Lynn has observed: