WhiteB.GottliebL. E., “Point and Counterpoint: Should an Institution's Risk Manager/Lawyer Serve as HEC Members?”HEC Forum3, no. 2 (1991): 87–89, 91–93; MitchellS. M.SwartzM. S., “Is There a Place for Lawyers on Ethics Committees? A View from the Inside,”Hastings Center Report20, no. 2 (1990): 32–33.
4.
WilsonR. F.Neff-SmithM.PhillipsD.FletcherJ. C., “HECs: Are They Evaluating Their Performance?”HEC Forum5, no. 1 (1993): 1–34.
5.
In re Quinlan, 355 A.2d 647 (NJ, 1976); President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment (Washington, DC: U.S. Government Printing Office, 1983); 49 Fed. Reg. 1622–1654 (January 12, 1984).
American Academy of Pediatrics, “Institutional Ethics Committees,”Pediatrics107, no. 1 (2001): 205–209.
9.
American Medical Association, Code of Medical Ethics: Current Opinions with Annotations (Chicago, IL: AMA Press, 2004): Opinion 9.11, Ethics Committees in Health Care Institutions.
10.
Id.
11.
See American Academy of Pediatrics, supra note 8, at 207.
12.
American Society for Bioethics and Humanities (ASBH), Core Competencies for Health Care Ethics Consultation (Glenview, IL: ASBH, 1998): At 3.
13.
Id. at 11–12.
14.
Id. at 20.
15.
DublerN. N.LiebmanC. B., Bioethics Mediation: A Guide to Shaping Shared Solutions (New York: United Hospital Fund, 2004).
16.
SpielmanB., “Has Faith in Health Care Ethics Consultants Gone Too Far? Risks of an Unregulated Practice and a Model Act to Contain Them,”Marquette Law Review85 (2001): 161–221, at 204–205.
17.
See ASBH, supra note 12, at 3.
18.
Id. at 22.
19.
Id. at 29.
20.
American Bar Association Center for Professional Responsibility (ABA), Model Rules for Professional Conduct (2003): Model Rule 1.13.
21.
See, e.g., ABA, supra note 20, Model Rule 1.13; Restatement (Third) of the Law Governing Lawyers (2000) sec. 96.
22.
Some have suggested that full disclosure of medical error may result in fewer lawsuits, but there is insufficient evidence to support such a conclusion. See, e.g., MazorK. M.SimonS. R.GurwitzJ. H., “Communicating with Patients about Medical Errors: A Review of the Literature,”Archieves of Internal Medicine164 (2004): 1690–1697; MazorK. M., “Health Plan Members' Views about Disclosure of Medical Errors,”Annals of Internal Medicine140 (2004): 409–418. In fact, one study suggests that while the amount of payment may be lower following full disclosure, the number of lawsuits may increase. KramanS. S.HammG., “Risk Management: Extreme Honesty May Be the Best Policy,”Annals of Internal Medicine131 (1999): 963–967.
23.
See ABA, supra note 20, Model Rule 1.7; Model Rule 1.2 (stating that “a lawyer shall abide by a client's decisions concerning the objectives of representation and, … shall consult with the client as to the means by which they are to be pursued”).
24.
See ABA, supra note 20, Model Rule 1.7 (stating that “a lawyer shall not represent a client [here the hospital] if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: … (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” [emphasis added]). If the hospital (client) is committed in ethics consultations to the ethical resolution of cases then the lawyer's representation of the hospital should not be limited by her responsibilities to any of the parties involved in an ethics consultation. However, if the lawyer has corporate authority in a resulting lawsuit, then her representation of the hospital may be compromised by her participation in the ethics consultation, or vice versa.
25.
Many institutions, for example, hire lawyers to serve as compliance officers. This position does not usually require one to engage in the practice of law and in many institutions compliance officers do not have an attorney-client relationship with the institution.
