Medical Law, Ethics, & Bioethics for the Health Professions

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2706_fm_i-xvi 11/01/12 11:42 AM Page ii

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Library of Congress Cataloging-in-Publication Data

Lewis, Marcia A.
Medical law, ethics & bioethics for the health professions / Marcia (Marti) Lewis, Carol D.
Tamparo, Brenda M. Tatro. — 7th ed. Proudly sourced and uploaded by [StormRG]
p. cm. Kickass Torrents | TPB | ET | h33t
Medical law, ethics, and bioethics for the health professions
Rev. ed. of: Medical law, ethics, and bioethics for the health professions. 6th ed. c2002.
Includes bibliographical references and index.
ISBN 978-0-8036-2706-2 (pbk. : alk. paper)
1. Medical laws and legislation—United States. 2. Ambulatory medical care—Law and
legislation—United States. 3. Medical ethics—United States. I. Tamparo, Carol D., 1940-
II. Tatro, Brenda M. III. Lewis, Marcia A. Medical law, ethics, and bioethics for the health pro-
fessions. IV. Title. V. Title: Medical law, ethics, and bioethics for the health professions.
[DNLM: 1. Ambulatory Care—legislation & jurisprudence—United States. 2. Ethics, Clinical—
United States. WB 33 AA1]
KF3821.L485 2012
344.7304'1—dc23
2011025925

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2706_fm_i-xvi 11/01/12 11:42 AM Page iii

“The way a book is read—which is to say, the

qualities a reader brings to a book—can have
as much to do with its worth as anything the
author puts into it.”
Norman Cousins
2706_fm_i-xvi 11/01/12 11:42 AM Page iv

PREFACE

It is imperative that any health-care professional have knowledge of medical law, ethics, and bioethics
so that clients are treated with understanding, sensitivity, and compassion. No matter what the pro-
fessional’s education, experience, or position, any client contact involves ethical and legal responsi-
bility. It also is imperative that this knowledge be used to provide the best possible service for the
provider and employer. Our goal is to provide the health-care professional with an adequate resource
for the study of medical law, ethics, and bioethics.
Although the material is applicable to all health-care professionals in any setting, our emphasis
continues to be on the ambulatory health-care setting rather than on the hospital or long-term-care
setting. For example, we do not address such legal and bioethical issues as whether to feed an anen-
cephalic newborn in the neonatal center of the hospital. We realize, however, that all the bioethical
issues affect ambulatory health-care personnel directly or indirectly. Continued enthusiastic feed-
back from instructors, students, and reviewers is gratifying and has resulted in many changes that
will make this Seventh Edition more useful than the first six. We are reminded of the truth, which
comes from our colleagues in community and technical colleges, that no matter how many times a
piece is written, it can always be improved.
The continuing evolution of health care, of legal and, especially, bioethical issues, necessitates
this revision. The material has been updated throughout to reflect the latest developments and
emerging ethical issues. The newest developments in stem cell research for treating disease and for
creating new organs and tissue are included in the Genetic Engineering chapter as the legal and eth-
ical debate “rages.” The chapter introducing the reader to the cultural perspectives of health care
continues to heighten one’s awareness of the importance of culture in health care. The chapter on
reproductive health issues has been greatly enhanced. Abortion is still covered as an important ele-
ment in reproductive health, but many new topics have been added.
The authors and their editors have made every attempt to ensure currency and pertinence of the
material. However, some bioethical issues change almost daily as lawmakers and the public become
actively involved and press for legislation. Even as this edition goes into production, the coauthors
struggle to be current as federal and state legislations clash. Furthermore, funding and morality is-
sues are being addressed in the political arena, sometimes bringing research and advancement in
medicine to a standstill. For ease of reference, pertinent codes of ethics appear in Appendix I.
Appendix II offers samples of some of the legal documents clients may use in implementing deci-
sions about health care, life, and death.
A thought-provoking vignette appears in each chapter. The vignettes are adapted from case law
or from actual situations. Learning outcomes designed for the educational setting precede each
chapter. The Seventh Edition places case studies throughout the chapters. The case studies are for
reflection rather than a test of chapter contents. CAAHEP and ABHES competencies also appear at
the beginning of each chapter to help students and faculty identify competencies necessary for ac-
creditation and certification in the content area of medical law and ethics.
For students’ benefit, we have included questions for review at the end of each chapter for increased
learning. Classroom exercises and Internet activities will whet the appetite, stimulate discussion, and
highlight the most pressing legal, ethical, and bioethical issues faced by ambulatory care employees.
Lastly, Web resources are provided to help the reader in further research on the Internet.
DavisPlus offers many additional resources and exercises for both the student and the instructor.
Videos are available for classroom use or small-group discussions. The videos will require students
to put themselves in the place of making legal and ethical decisions.

iv
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Preface v

“Have a Care!” has been updated. It continues to be one of the most popular pieces of this text-
book. Because nearly every person has a “Have a Care” moment in his or her life and experiences
with the medical community, it is our hope that it will always be a part of any upcoming edition.
However, this particular “Have a Care” ends with the death of Marcia (Marti) Lewis, the primary
person in this story. It took much courage for Marti to agree to its inclusion in the First Edition,
but gradually in subsequent editions she was more comfortable revealing herself as the main char-
acter and allowing the readers to fully experience her frustration and discomfort.
A new author has been added for this edition. It is not easy to come into an already established
author relationship (especially where one is grieving the loss of the other) and make one’s mark.
Brenda Tatro did so with grace, understanding, humor, and the willingness to interject a new di-
mension into the writing.
We hope that from this book you will derive a great sense of pride for your professional position
in health care.
Marti A. Lewis
Carol D. Tamparo
Brenda M. Tatro

OF SPECIAL NOTE
The term “provider” rather than “physician” has been used throughout the text unless the reference
is directly that of a medical doctor (MD) or a doctor of osteopathy (DO) This change is made to re-
flect the increasing numbers of other providers giving primary care. Also, the term “client” continues
to be used in preference to “patient.” The term patient is reserved for an individual receiving care in
a hospital. It is also a term that denotes an “unequal” relationship between two individuals—doctor
and patient or provider and patient. The best of medical care today places emphasis upon the par-
ticipation of the person receiving the care; therefore, “client” becomes the appropriate term. It may
be helpful to recognize that the majority of nursing texts use the term client rather than patient for
the same reasons.
2706_fm_i-xvi 11/01/12 11:42 AM Page vi

REVIEWERS

Jean Cuppet, RN, MSN Marilyn S. Pooler, RN, RMA, MEd

Professor, Department Chair Retired Professor, Medical Assisting
Health Professions Springfield Technical Community College
Pennsylvania Highlands Community College Springfield, Massachusetts
Johnstown, Pennsylvania
Wendy Sammons, CMA(AAMA), LPN, AAT
Dolly Horton, CMA(AAMA), BS, Med Instructor
Chairperson of Medical Assisting, Interim Dean of Medical Assisting Department
Allied Health Lanier Technical College
Allied Health Department Oakwood, Georgia
Asheville Buncombe Technical Community College
Janice Vermiglio-Smith, RN, MS, PhD
Asheville, North Carolina
Division Chair, Health Careers
Christine M. King, AAS, CMA(AAMA) Health and Science Department
Program Chair/Instructor Central Arizona College
Medical Assisting Technology Apache Junction, Arizona
Hinds Community College
Pearl, Mississippi

Sandra Moaney-Wright, BS, Med, RMA(AMT)

CEO, Moaney-Wright & Associates, LLC
Palmetto, Georgia

vi
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ACKNOWLEDGMENTS

It is never possible to acknowledge all the people who make contributions to the authors of a book.
Completing a book requires assistance from so many individuals and sources. We wish to thank,
however, a few who were especially helpful. Without them, the book would have been impossible to
create.
F.A. Davis has a fine cadre of individuals who make a writing project pleasant. Each individual’s
desire for excellence and thoroughness helps to create the final product. Margaret Biblis, Publisher,
and Andy McPhee, Senior Acquisitions Editor, refresh our thoughts and goals with new ideas and
discerning eyes. With the assistance of Julie Munden, Developmental Editor; Yvonne N. Gillam, De-
velopmental Editor; and George W. Lang, Manager of Content Development, our thoughts, ideas,
text, and presentation have all been pulled together into the book you hold in your hands. Elizabeth
Stepchin, Developmental Associate, monitors our budget and provides direction and support as nec-
essary. All these people have been positive, encouraging, and helpful to us in all matters. Our rela-
tionship with F.A. Davis for over 33 years has always been one of high professionalism and integrity.
Students continually offer critical thought and information on legal, ethical, and bioethical issues
and act as a sounding board for all ideas. Their input and comments have influenced this product.
Students continue to be our inspiration and the reason for this book!
The support of families and friends has been an essential ingredient from the inception of the
First Edition to the completion of this Seventh Edition. Thanks to Tom Tamparo, Jayne Bloomberg,
and Duuana Warden and their families. Many thanks to Dick Tatro, Kim Perry, Mike Tatro, Matt
Tatro, and their families. They relinquished their time with us so we could write. Lester and Martiann
Lewis remained supportive throughout the writing of this edition as well. These family members
and dear friends provided encouragement when we were discouraged and celebrated with us when
we were successful. Thanks; we love you all!

vii
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2706_fm_i-xvi 11/01/12 11:43 AM Page ix

CONTENTS IN BRIEF

UNIT 1 Understanding the Basics 1

Chapter 1 Medical Law, Ethics, and Bioethics 2
Chapter 2 Medical Practice Management 14
Chapter 3 The Health-Care Team in the Ambulatory Setting 31

UNIT 2 Law, Liability, and Duties 45

Chapter 4 State and Federal Regulations 46
Chapter 5 Professional Liability 61
Chapter 6 Law for Health Professionals 76
Chapter 7 Public Duties 92
Chapter 8 Consent 108

UNIT 3 Workplace Issues 121

Chapter 9 Medical Records 122
Chapter 10 Reimbursement and Collection Practices 138
Chapter 11 Employment Practices 152
Chapter 12 A Cultural Perspective for Health Professionals 167

UNIT 4 Bioethical Issues 179

Chapter 13 Allocation of Scarce Medical Resources 180
Chapter 14 Genetic Engineering 190
Chapter 15 Reproductive Issues 204
Chapter 16 End of Life Issues 225

SPECIAL SECTION
Have a Care! 246

APPENDICES
Appendix I Code of Ethics 250
Appendix II Sample Documents for End of Life Issues 253

INDEX OF RESOURCES 260

INDEX 263

ix
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2706_fm_i-xvi 11/01/12 11:43 AM Page xi

CONTENTS

UNIT 1 Group Practices 21

Understanding the Basics 1 Advantages of Group Practice 21
Chapter 1 Disadvantages of Group Practice 22
Medical Law, Ethics, and Bioethics 2 Considerations for the Health-Care
Law 3 Employee 22
Ethics 3 Health Maintenance Organizations 22
Bioethics 4 Managed Care 22
Comparing Medical Law, Ethics, Other Business Arrangements 25
and Bioethics 4 Joint Ventures 25
The Importance of Medical Law, Preferred Provider Organizations 26
Ethics, and Bioethics 5 General Liability 27
Today’s Health-Care Climate 6 Business License 27
Ethical Issues in Modern Medicine 7 Building 27
Codes of Ethics 7 Automobile 27
Applying Medical Law, Ethics, and Fire, Theft, and Burglary 27
Bioethics as a Professional Employee Safety 28
Health-Care Employee 10 Bonding 28
You Must Decide 11 Responsibilities to Employees 28
Summary 11 Summary 28
Chapter 2 Chapter 3
Medical Practice Management 14 The Health-Care Team in the
Sole Proprietors 16 Ambulatory Setting 31
Advantages of Sole Proprietorships 17 The Health-Care Team 33
Disadvantages of Sole Administrative Team Members 34
Proprietorships 17 Accreditation of Medical Assistant
Considerations for the Health-Care Programs 36
Employee 17 Clinical Support Team Members 37
Partnerships 18 Health-Care Providers 38
Advantages of Partnerships 18 Considerations for Ambulatory
Disadvantages of Partnerships 19 Care Employees 39
Considerations for the Health-Care Scope of Practice 40
Employee 19
Summary 41
Professional Service Corporations 19
UNIT 2
Advantages of Professional Service Law, Liability, and Duties 45
Corporations 19
Disadvantages of Professional Chapter 4
Service Corporations 20 State and Federal Regulations 46
Considerations for the Health-Care Licensure (MDs and DOs) 48
Employee 20

xi
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xii Contents

License Renewal 48 Chapter 6

License Revocation and Suspension 48 Law for Health Professionals 76
Prescriptions 49 Sources of Law 78
Transmission of Prescriptions 49 Types of Law 78
Understanding Narcotic and Civil and Criminal Law 79
Non-Narcotic Prescriptions 50 Civil Law 79
Non-Narcotic Prescriptions 50 Criminal Law 80
Narcotics 51 Types of Court 84
Controlled Substances Act 51 Federal Court 84
Drug Schedules 51 State Court 85
Substance Abuse 53 Probate Court 85
Drug Abuse 53 Small Claims Court 87
Alcohol Abuse 54 Subpoenas 87
Prevention of Substance Abuse 54 The Trial Process 88
Health Insurance Portability and Expert Witness 88
Accountability Act 55 Statute of Limitations 89
Confidentiality 56 Summary 90
Healthcare Reform Act of 2010 57 Chapter 7
Summary 58 Public Duties 92
Chapter 5 Reporting Requirements 93
Professional Liability 61 Births and Deaths 94
Professional Liability 62 Birth Certificates 94
Contracts 63 Death Certificates 94
Breach of Contract 64 Notifiable Diseases 95
Abandonment 64 Childhood and Adolescent Vaccinations 96
Standard of Care 66 Notifiable or Reportable Injury 98
Professional Negligence or Malpractice 66 Abuse 98
The Four Ds of Medical Negligence 67 Child Abuse 99
Torts 67 Intimate Partner Violence 100
Intentional Torts 68 Rape 100
Unintentional Torts or Malpractice 68 Elder Abuse 101
Doctrine of Res Ipsa Loquitur 68 Evidence 102
Doctrine of Respondeat Superior 69 Summary 104
Professional Liability/Malpractice Chapter 8
Insurance 70 Consent 108
Cost of Professional Liability Implied and Expressed Consent 109
Insurance 70
Informed and Uninformed Consent 110
Alternatives to Litigation 71
The Doctrine of Informed Consent 111
Risk Management and Compliance
Plans 71 Problems in Consent 112
Risk Management Within the Implementing Consent 114
Ambulatory Health-Care Setting 72 Inadequacy of Conventional
Summary 73 Consent Forms 114
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Contents xiii

Improving the Consent Process 114 Deficit Reduction Act 144

Summary 118 Civil Monetary Penalties Act 144
UNIT 3 Enforcement of the Laws 144
Workplace Issues 121 Collection Guidelines 145
Chapter 9 Collection Do’s 146
Medical Records 122 Collection Don’ts 146
Purpose 123 Collection Problems 147
Medical Record Creation and Content 124 Collection Agencies 147
Documentation 124 Reimbursement Attitudes 148
Problem-Oriented Medical Records 125 Ethical Implications 148
SOAP/SOAPER 125 Summary 149
Electronic Medical Records 126 Chapter 11
Legal Aspects of the Medical Record 129 Employment Practices 152
Confidentiality 129 Hiring Employees 153
Release of Information 130 Policy and Procedure Manual 154
Errors in Medical Records 130 Personnel Policies 154
Subpoenas 132 Clinic Hours and Workweek Schedule 154
Telecommunications 132 Job Descriptions 155
Electronic Mail 132 Benefits and Compensation 155
Fax Machines 133 The Employment Process 156
Ownership of Medical Records 134 Locating Employees 156
Storage of Medical Records 134 Interviewing Candidates 156
Retention of Medical Records 135 Selecting Employees 157
Destruction of Medical Records 135 Evaluating Employees 158
Summary 135 Employee Dismissal 159
Chapter 10 When Employees Choose to Leave 159
Reimbursement and Collection Retaining Employees 159
Practices 138 Family and Medical Leave Act 161
Compliance Plan 140 Sexual Harassment 161
How Providers Are Paid 140 Occupational Safety and Health Act 162
Private Pay 140 Americans With Disabilities Act 163
Third Party Payers 140 Summary 164
Other Payers 142 Chapter 12
Clients’ Responsibility for A Cultural Perspective for Health
Reimbursement 142 Professionals 167
Laws for Reimbursement and Collections 143 Understanding Cultural Diversity 168
Truth in Lending Act 143 Components of Cultural Diversity 170
Equal Credit Opportunity Act 143 Establishing a New Culture in Health
Fair Credit Billing Act 143 Care 173
Fair Debt Collections Practices Act 143 Evaluating Self 175
Federal Wage Garnishing Law 143 Cross-Cultural Communication 175
Tax Equity Fiscal Responsibility Act 144 Summary 175
Stark I, II, and III Regulations 144
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xiv Contents

UNIT 4 Emergency Contraception 207

Bioethical Issues 179 Sterilization 207
Chapter 13 Abortion 208
Allocation of Scarce Medical Resources 180 Fetal Development 209
Allocation and Access in Today’s When Does Life Begin? 210
Health-Care Environment 181 Methods of Abortion 210
Influence of Politics, Economics, and Antiabortion Terrorism 211
Ethics on Health Care 182 Global Gag Rule 212
Health-Care Legislation 183 Assisted Reproduction 212
Macroallocation and Microallocation 183 Artificial Insemination 212
Systems for Decision Making 185 In Vitro Fertilization 213
System I 185 Surrogacy 213
System II 185 Access to Reproductive Health
How Would You Decide? 186 Services 214
Allocation of Resources 186 Legal and Ethical Implications
Summary 187 of Reproductive Issues 215
Chapter 14 Female Genital Mutilation 215
Genetic Engineering 190 Contraception 215
Genetic Advances 192 Abortion 215
Genetically Informed Medicine 193 Antiabortion Terrorism 218
Genetic Screening and Testing 193 Assisted Reproduction 218
Artificial Insemination by Husband
Carrier Screening 194 and Articial Insemination by Donor 219
Preimplantation Genetic Diagnosis 194 In Vitro Fertilization 219
Prenatal Diagnostic Testing 194 Surrogacy 220
Newborn Genetic Screening 194
Protocol for Health Professionals 221
Presymptom Genetic Testing 195
Summary 221
Forensic Identity Genetic Testing 195
Chapter 16
Genetic Counseling 195 End of Life Issues 225
Genetic Discrimination 196
Choices in Life 228
Gene Therapy 196
Living Wills, Advance Directives,
Stem Cell Research 197 and the Patient Self-Determination
Types of Cell Tissues 197 Act 228
Fetal Tissue Research 199 Durable Power of Attorney for
Tissue and Organ Engineering 200 Health Care 229
Reproductive Cloning 200 National Registry 231
Legal and Ethical Implications Choices in Dying 231
of Tissue Cell Research 200 Suffering in Dying 232
Considerations for Health Professionals 201 Use of Medications 233
Summary 201 Psychological Aspects of Dying 233
Chapter 15 Physiological Aspects of Dying 234
Reproductive Issues 204 Hospice 235
Reproductive Issues and Rights Stages of Grief 235
of Women 205
Denial 235
Female Genital Mutilation 205
Anger 235
Contraception 206
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Contents xv

Bargaining 236 APPENDICES 250

Depression 236 APPENDIX I 250
Acceptance 236 Codes of Ethics 250
Legal Definitions of Death 236 The Hippocratic Oath 250
American Association of Medical
Legal Implications 237 Assistants 251
Ethical Considerations 238 Principles of Medical Ethics 252
Cultural Views 239 APPENDIX II 253
Assisted Death 239 Sample Documents for Choices About
Uniform Anatomical Gift Act 241 Health Care, Life, and Death 253
Autopsy 242 Durable Power of Attorney for Health
Care and Health Care Directive 253
Priority Authorization for Autopsy 242
Organ Donation Form 258
Role of Health Professionals 242
Organ Donation Card 259
Summary 243
INDEX OF RESOURCES 260
SPECIAL SECTION 246 INDEX 263
Have A Care! 246
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2706_Ch01_001-013 07/01/12 4:32 PM Page 1

UNIT I

Understanding
the Basics

CHAPTER 1
Medical Law, Ethics, and Bioethics
CHAPTER 2
Medical Practice Management
CHAPTER 3
Health-Care Team in the Ambulatory
Setting

1
2706_Ch01_001-013 07/01/12 4:32 PM Page 2

CHAPTER 1

Medical Law, Ethics,

and Bioethics

“The aim of education is the knowledge, not of facts,

but of values.”—William Ralph Inge (1860-1954); Church of England
clergyman, scholar, and critic

KEY TERMS
hospitalist Individual who assumes the care of hospitalized individuals in place of their primary care
provider.
internal milieu Internal environment.
pluralistic Referring to numerous distinct ethnic, religious, and cultural groups that coexist in society.

LEARNING OUTCOMES
Upon successful completion of this chapter, you will be able to:
1.1 Define key terms.
1.2 Compare medical law, ethics, and bioethics.
1.3 Discuss some bioethical issues in medicine.
1.4 Explain the importance of medical law, ethics, and bioethics in the practice of medicine.
1.5 List and discuss at least three ethical codes.
1.6 Describe the American Association of Medical Assistants (AAMA) Code of Ethics.
1.7 Interpret the AAMA Creed.
1.8 Compare/contrast the AAMA and the American Medical Association (AMA) codes of ethics.
1.9 Describe the Patient Bill of Rights.
1.10 Explain the Ethics Check questions.
1.11 Describe characteristics that are important for a professional health-care employee.

COMPETENCIES
COMMISSION ON ACCREDITATION OF ALLIED HEALTH EDUCATION PROGRAMS
(CAAHEP)
• Summarize the Patient Bill of Rights. (CAAHEP IX.C.4)
• Differentiate between legal, ethical, and moral issues affecting health care. (CAAHEP X.C.1)
• Compare personal, professional, and organizational ethics. (CAAHEP X.C.2)
• Identify the effect personal ethics may have on professional performance. (CAAHEP X.C.5)
• Incorporate the Patient’s Bill of Rights into personal practice and medical office policies and
procedures. (CAAHEP IX.P.5)
2
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Chapter 1 Medical Law, Ethics, and Bioethics 3

• Develop a plan for separation of personal and professional ethics. (CAAHEP X.P.2)
• Apply ethical behaviors, including honesty/integrity in performance of medical assisting practice.
(CAAHEP X.A.1)
• Examine the impact personal ethics and morals may have on the individual’s practice.
(CAAHEP X.A.2)
ACCREDITING BUREAU OF HEALTH EDUCATION SCHOOLS (ABHES)
• Being cognizant of ethical boundaries. (ABHES 11.b.4)
• Analyze the effect of hereditary, cultural and environmental influences. (ABHES 5.g)

Are You a Professional?

VIGNETTE

A certified medical assistant (CMA) employed by an obstetrician/gynecologist calls her

former medical assistant instructor to inform her of an opening for a clinical assistant
in the obstetrics and gynecology (OB-GYN) clinic. After describing the position and its
responsibilities, the CMA says, “We really need another person in the clinical area. I’m the
doctor’s only nurse.”
Surprised by the comment, the instructor inquires, “When did you go back to school
to become a nurse?”
She replies, “Oh, I didn’t, but everyone thinks I am his nurse. I do everything a nurse
does.”

The title of this text, Medical Law, Ethics, and Bioethics for the Health Professions, presents three
distinct topics: medical law, ethics, and bioethics. Such distinction, however, is for the sake of clarity.
Discussion of any one of these topics will include the others. Any study of health law will surface
themes of ethics and bioethics. Conversely, discussing ethics and bioethics without considering the
law is futile.

LAW
Laws are societal rules or regulations that are prudent or obligatory to observe. Failure to observe
the law is punishable by the government and/or law enforcement agencies. Laws are designed to
protect the welfare and safety of society and to resolve conflicts in an orderly and nonviolent manner.
They constantly evolve in accordance with an increasingly pluralistic society. Laws have governed
humankind and the practice of medicine for thousands of years. Today federal and state govern-
ments have constitutional authority to create and enforce laws. A brief look at these laws, their
sources, and their definitions appears in subsequent chapters.
Medical law is essential in regulating licensure of health-care professionals and institutions, pro-
viding for client safety, protecting the client-provider relationship, and identifying liability for
health-care professionals and institutions. Health law also regulates insurance and managed care
as well as federal public health programs. It also has established standards for reproduction and
birth issues as well as life and death decisions.

ETHICS
Ethics is a set of moral standards or a code for behavior to govern an individual’s interactions with
other individuals and within society. Joseph Fletcher (1905–1991), an American professor who pio-
neered in the field of bioethics, differentiates morals from ethics, stating, “‘morality’ is what people
do in fact believe to be right and good, while ‘ethics’ is a critical reflection about morality and the
2706_Ch01_001-013 07/01/12 4:32 PM Page 4

4 Unit I Understanding the Basics

rational analysis of it.” According to Fletcher, for example, “Should I terminate pregnancy?” is a
moral question, whereas “How should I go about deciding?” is an ethical concern.
Although laws are more apt to be rules applied to and observed by all, different cultures have
different moral codes. Cultural differences exist relative to age, gender, sexual orientation, ethnic
heritage, educational preparation, life experiences, spiritual influences, role models and mentors,
economics, values, internal milieu, and health and illness. Every standard for ethics is culture-bound.
Therefore, there are few if any universal truths in ethics because it is difficult to identify customs as
being either correct or incorrect. It is also true that one person’s moral code has no special status
relative to another person’s moral code; it is only one among many. See Chapter 12, A Cultural Per-
spective for Health Professionals, for further discussion on the influence of culture.
Ethical standards can be personal, organizational, institutional, or worldwide. Ethics refers to
the various codes of conduct that have been established through the years by members of many pro-
fessional organizations, including the medical profession. A number of medical codes appear in the
appendices and on DavisPlus.

BIOETHICS
Bioethics refers to the ethical implications of biomedical technology and its practices. Bio refers to
life, and issues in bioethics are often life-and-death issues. Edmund D. Pellegrino, Professor Emeritus
of Medicine and Medical Ethics at Georgetown University, states that “bioethics, still in its infancy,
is routinely called on by the government to provide political cover for controversial public health
decisions involving the life and death of Americans.” In other words, political leaders often look to
bioethical discussions to guide them in making decisions regarding controversial public health
issues. Specialists in the field of bioethics provide the platform for this decision making.
Since former President Clinton established a National Bioethics Advisory Commission (NBAC)
in 1995, subsequent presidents have established their own commission to provide input to the pres-
ident and national leaders on issues of bioethics. In April 2010, President Barack Obama appointed
members to his Presidential Commission for the Study of Bioethical Issues. Obama mandated that
this Commission address potential bioethical issues through advancements in biomedicine and
“related areas of science and technology.” The Commission plays a key role in keeping the President
informed about bioethical issues.
The challenge to bioethics created by modern medicine and research in the past few decades is
staggering. Rapid changes in medicine and technology offer unique and sometimes overwhelming
choices to clients and their families. Consumers more actively involved in their health care and quite
knowledgeable of medical technology and its implications question medical professionals as they
have never before been questioned. The public carefully scrutinizes medical technology and how it
relates to their daily lives. Thus, the application of bioethics in everyday life provides opportunities,
challenges, enthusiasm, and sometimes difficult choices.

COMPARING MEDICAL LAW, ETHICS, AND BIOETHICS

Law, ethics, and bioethics are different yet related concepts. Laws are mandatory rules to which all
citizens must adhere or risk civil or criminal liability. Ethics often relate to morals and set forth uni-
versal goals to try to meet, but there is no temporal penalty for failing to meet ethical goals as there
is apt to be in law. However, law in the United States has been and continues to be a driving force in
shaping ethics.
Confusion over the interpretation of law, ethics, and bioethics is understandable. They sometimes
conflict. Consider the following example for further clarification:
The U.S. Supreme Court addressed the issue of abortion in Roe v Wade, 410 U.S. 113, 1973. The
law states that during the first trimester, pregnant women have a constitutional right to abortions,
and the state has no vested interest in regulating them at this time. During the second trimester,
the state may regulate abortions and insist on reasonable standards of medical practice if an abortion
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Chapter 1 Medical Law, Ethics, and Bioethics 5

is to be performed. During the third trimester, the state’s interests override pregnant women’s rights
to abortions, and the state may deny abortion except when necessary to preserve the health or life
of the mother.
The personal ethics of a provider or health-care professional may dictate nonparticipation in an
abortion or any abortion-related activities. Bioethics and the allocation of scarce resources are evi-
denced by some state statutes that have denied the use of state funds for an abortion or strive to
make abortions less available. As demonstrated by this example, sometimes law, ethics, and bioethics
conflict.

IN THE NEWS
As a result of two U.S. Supreme Court rulings that prohibit parents from having
absolute veto over their daughters’ decision to have an abortion, many state
legislatures rushed to tighten controls on abortions. As of 2011, only Washington, Oregon,
New York, Vermont, Connecticut, Hawaii, Maine, and Washington DC had no parental notifi-
cation or consent laws related to minors seeking abortion (see Fig. 1-1). Thirty-six states re-
quire some involvement in a minor’s decision; 22 states require parental consent, 10 states
require only parental notification, and 4 states require both parental consent and notification.
This information changes yearly as state legislative bodies struggle to exercise control over
abortions in their state. Sometimes, such legislation is later overturned by the U.S. Supreme
Court. Legal attempts continue the move to rescind Roe v Wade.

AK

WA
MT VT ME
ND
OR MN MI
ID NH MA
SD WI NY
WY MI CT
RI
IA PA
NV NE NJ
IL IN OH
CA DE
UT CO MD
WV
KS MO VA DC
KY
NC
TN
AZ OK
NM AR SC
MI AL GA

TX LA
HI
FL

Figure 1-1. U.S. map showing states requiring no parent notification and/or consent for a minor’s abortion.

THE IMPORTANCE OF MEDICAL LAW, ETHICS, AND BIOETHICS

There are many reasons that make medical law, ethics, and bioethics important for health-care pro-
fessionals. It is necessary to follow health-care laws and to examine one’s actions in light of both
laws and ethics. It is helpful to learn more from the bioethical issues that clients face and to appre-
ciate differences in moral reasoning among individuals and various cultures. Also, there is the need
to confront personal biases and bigotry.
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6 Unit I Understanding the Basics

In addition, there are political and economic factors that are relevant to the importance of medical
law, ethics, and bioethics. They include:
• Demands of society for quality health care at minimal personal cost
• The debate over whether health care is a right or a privilege
• The equality of the distribution of and access to emerging medical technology
• The controversy among the political arena, national health-care reform, and the consumer
over who pays for health care and how it is paid
• The powerful role of medical insurance and managed care.
Thoughtful consideration of the reasons identified here as well as the political and economic
factors fosters mature decision making and quality health care for clients.

TODAY’S HEALTH-CARE CLIMATE

There is much in today’s health-care environment to challenge any health-care professional’s ethics,
values, and practices. Just a few are identified here for reflection.
• Consumers are bombarded with medical information. The media, both printed and elec-
tronic, report on many aspects of health care. This immediate access of information empow-
ers consumers to ask more questions of medical professionals, allowing them to be better
informed about choices.
• Increasingly, hospitals and ambulatory care centers are establishing ethics committees and/or
institutional review boards (IRBs) that enable community resource persons, educators, and
providers to grapple with ethical dilemmas both before and after they occur in the clinical
setting. Laws and ethical standards designed to protect clients and establish guidelines for
the medical community represent an effort to create a climate for an equitable exchange
between client and provider. The primary goal of an ethics committee is to have a plan in
place before a crisis occurs. IRBs have been empowered by the U.S. Food and Drug Adminis-
tration (FDA) and the Department of Health and Human Services (DHHS) to monitor,
review, and oversee any medical research involving human subjects. An IRB is required if
there is either direct or indirect support from the DHHS.
• Medical technology is advancing at a more rapid rate than legal and ethical standards can
address. Consider the time without antibiotics, when premature infants died due to lack
of neonatal intensive care and when invasive surgery rather than a computed tomography
scan was the only method to reveal problems with internal organs. There are a number of
medical advances likely to occur in the next decade. Many may come with a flurry of ethi-
cal and bioethical implications that will create debate in the medical community. They
include:
• Restoring irreversibly damaged hearts by replacing dead heart muscle with new laboratory-
grown muscle after a heart attack
• Using harvested skin cells obtained through a small biopsy and suspended in a solution to
be sprayed directly onto a major burn area. These cells rapidly divide to cover the wound up
to 80 times larger than the donor site
• Using computer-assisted therapy sessions to identify depression and excessively negative
thoughts in the treatment of clients
• Using high-technology brain scans to detect the earliest signs of both plaques and tangles
found in Alzheimer disease and using a vaccine to stimulate the body’s own immune
response to wipe out the plaques once identified
• Increasing numbers of specialists in medicine make it more difficult to coordinate client
care. It is quite conceivable that a client has a primary care provider, a neurologist, a
nephrologist, and an oncologist, all providing care. If hospitalization is necessary, is the pri-
mary care provider or a hospitalist in charge? Who coordinates, and who approves care?
Who decides the appropriate course of action in the case of conflicting medical opinions?
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Chapter 1 Medical Law, Ethics, and Bioethics 7

Although specialization may enhance quality health care, it demands greater coordination
for clients to benefit, and it increases the cost of medical care. Managed care policies and
providers will in part dictate how medical choices are made.
• Costs of medical care have risen exponentially. In 1940, a normal infant delivery cost
$35 for 10 days of inpatient hospital care. The delivering physician received an additional
$35. In 1990, a normal delivery cost an average of $3300 for a 2- to 3-day inpatient hospital
stay. In 2005, hospitalization for normal delivery and a 1- to 2-day hospital stay was $5200.
The factors affecting the cost of a birth are: whether it is a vaginal or cesarean delivery, if
there are complications, and the length of the hospital stay. Infant delivery is most expen-
sive in the Northeast and on the West coast and least expensive in the South. In 2010, the
typical cost of a vaginal delivery without complications ranged from about $9000 to
$17,000 or more. The typical cost for a cesarean delivery without complications or a vaginal
delivery with complications ranged from $14,000 to $25,000 or more.
The importance of these issues is further evidenced by the struggle that has been made through
the past couple of decades to pass some form of a national health-care reform in the nation’s
capital. It finally happened in 2010, but not without a great deal of political maneuvering
and posturing.

ETHICAL ISSUES IN MODERN MEDICINE

Many situations arise in the practice of medicine and in medical research that present problems
requiring moral decisions. A few of these can be illustrated by the following questions.
Should a parent be able to refuse a mandated immunization for his or her child? Does public
safety supersede an individual’s right? Is basic health care a right or a privilege? Who dictates client
care—the client, the provider, or the health insurance company? Who pays for the care of children
with very serious and life-threatening birth defects? Should more medical attention be paid to a
“cure” or for “prevention?” How should legal abortions be funded? Is it important that everyone
receive equal treatment in medical care? What are the issues related to prolonging life or assisted
death for individuals with terminal illnesses? What criteria determine who receives donor organs?
Should stem cell research be limited or advanced?
None of these questions has an easy answer, and most individuals do not even think about them
unless suddenly and personally faced with one or more of them. These questions and other possi-
bilities are the reason for entering into a discussion of pertinent bioethical issues. For some, answers
can be found in ethical codes.

CODES OF ETHICS
For generations ethical codes have been written to further clarify medical law and ethics. Many codes
have become law. Professional codes have evolved throughout history as practitioners grappled with
various ethical and bioethical issues. Increasingly, groups of medical professionals have defined how
members of their profession ought to behave. Below are a few examples.
The Hippocratic Oath (see Appendix 1), although not prominent in medical schools today, still
carries significant weight among the medical community. The oath, which was first written in the
fifth century B.C., was Christianized in the 10th or 11th century A.D. to eliminate reference to pagan
gods. The Hippocratic Oath protected the rights of clients and appealed to the inner and finer
instincts of the physician without imposing penalties.
The Geneva Convention Code of Medical Ethics, established by the World Medical Association
in 1949, is similar to the Hippocratic Oath. This code refers to colleagues as brothers and states that
religion, race, and other such factors are not a consideration for care of the total person. This code
reflects the fact that medicine was becoming available to all during this era.
The Nuremberg Code was established between 1946 and 1949 as a result of the trials of war
criminals after World War II. This code suggests guidelines for human experimentation and is