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Justified limits on refusing intervention.

Justified Limits on Refusing Intervention

Respect for the autonomy of the patient is a dominant ethical principle in the literature on biomedical ethics, particularly in the literature on refusal of medical intervention by competent or apparently competent patients. There seems to be a near uniform consensus that refusal of surgical management of a gangrenous toe, religiously based refusal of blood products to manage shock, and refusal of cesarean delivery to manage complete placenta previa should always be respected. This consensus rests on the underlying view that refusal of medical intervention is simply an instance of the general negative right to be left alone, i.e., a negative right to noninterference in the autonomous management of the affairs of one's life when no else is being harmed. We challenge this assumption and argue that "refusal" of medical intervention, in cases where the individual is not refusing any longer to be a patient, is not simply refusal, but refusal that is necessarily combined with an implicit demand for alternative medical management. That is, refusal of medical intervention is a complex moral phenomenon because it involves both a negative right to noninterference and a positive right to alternative treatment. Because a positive right is involved, the issue of ethically justified limits on patients' refusal of medical intervention must be addressed. We undertake that task in this paper, focusing on the example of well-documented, complete placenta previa. [1]

Negative and Positive Rights

Refusal of medical intervention is a negative right simpliciter when the refusal of medical intervention takes the form of refusing any longer to be a patient. In such cases, to respect the patient's refusal, that individual's physician need only do nothing. Thus, when the competent patient, for example, discharges him- or herself from the hospital against medical advice, he or she is asserting the negative right to be left alone by his or her hospital physician.

When a patient refuses medical intervention, but does not withdraw from the role of being a patient, matters are more complex. A hospitalized patient with gangrene of a toe who refuses amputation but wants the gangrene treated on a trial basis, is (a) refusing surgery and (b) demanding the only other available alternative, namely, medical management. A Jehovah's Witness who refuses blood products in a situation when volume expanders (which need not be constituted of blood products) may be therapeutic is demanding the expanders on the grounds of religious objection to receiving blood. A pregnant woman who in the intrapartum period refuses cesarean delivery for a well-documented, complete placenta previa in favor of vaginal delivery is exercising a negative right not to have surgery and a positive right to medical management of the only other alternative, vaginal delivery. Finally, a patient with terminal disease who refuses aggressive management of the disease process but wants aggressive management of pain and suffering while he or she is dying is also exercising a combination of negative and positive rights.

A negative right is usually understood in ethics as a right of noninterference in decisionmaking and behavior. A negative right therefore generates duties on the part of others to leave the individual in question alone. [2] In law, the rights to privacy and to self-determination, both pertinent to medical decisionmaking by patients, are negative rights not to be subject to nonconsensual bodily invasion. By contrast, positive rights involve a claim on the resources of others to have some need, desire, or want met. Such rights obligate others to act in specified ways in response, as illustrated in the above examples. As a rule, positive rights are in all cases understood to be liable to limits by their very nature. [3] This feature of positive rights contrasts sharply with negative rights, for which the burden of proof is on others to establish limits (for example, on the basis of preventing serious harm to innocent others). In most cases there is no need to place limits on refusal of medical intervention that involves both negative and positive rights, because the alternative demanded by the positive right is reasonable from a clinical perspective. This will be the case when that alternative is consistent with promoting the interests of the patient construed on a beneficence model. [4]

The Beneficence Model

The beneficence model makes a peculiar claim: to interpret reliably the interests of any patient from medicine's perspective. This perspective is provided by accumulated scientific research, clinical experience, and reasoned responsess to uncertainty. It is thus not a perspective peculiar or idiosyncratic to any particular physician.

On the basis of this perspective, the beneficence model identifies the goods relevant to the application of the principle of beneficence in clinical practice. These goods are those, among the many valued by human beings, that medicine is competent to seek on our behalf: the prevention of unnecessary death (death that can be prevented at reasonable rates of morbidity), and the prevention, cure, or at least management of morbidity, which can take the form of disease, injury, handicap, or unnecessary pain and suffering. Pain and suffering become unnecessary when they do not result in achievement of the other goods of the beneficence model.

Consider the preceding examples. A patient's preference for trial of medical management of a gangrenous toe counts as reasonable because there is a not-insignificant rate of success with this modality. To be sure, medical management is not as effective in managing gangrenous infection and its serious sequelae as surgical management is. This is only to say, however, that surgical management is more effective, not that trial of medical management is ineffective altogether. Medical management is therefore reasonable to the degree that it promotes the interests of the patient, as construed from the perspective of a beneficence model. There is, therefore, no beneficence-based reason for the physician not to accept and act on the competent patient's refusal of surgical management of a gangrenous toe. The same analysis applies to the examples of refusal of blood products in favor of volume expanders and the management of terminally ill patients.

Rarely, the positive right for an alternative medical intervention is justifiably understood to be unreasonable because it is altogether inconsistent with promoting the interests of the patient as construed in the beneficence model. This occurs when the positive right is exercised on behalf of an alternative that, in Joel Feinberg's terms, "dooms" or virtually "dooms" the patient's medical interests and there is some reasonable, ready-to-hand alternative that promotes those interests. For Feinberg, to doom an interest is "to foreordain its defeat":

To defeat an interest is to put it to utter rout, to conclusively and irrevocably set it back by destroying the conditions that are necessary for its fulfillment, as death can set back some interests once and for all. [5]

This would seem the case for refusal of cesarean delivery for well-documented, complete placenta previa. Vaginal delivery, with its staggering mortality rate for the fetus and very high mortality rate for the pregnant woman, would appear to doom or virtually doom the interests of both, while cesarean delivery, by contrast, unambiguously advances those interests. Vaginal delivery is therefore unreasonable from the perspective of a beneficence model.

Clinical Judgment

This conclusion can be immediately challenged, given alleged uncertainty regarding the outcome of complete placenta previa. George J. Annas, among others, has argued that clinical prognostic judgment regarding complete placenta previa is subject to uncertainty, because there apparently have been a few exceptions to the prognosis for complete placenta previa. [6] In two legal cases, complete placenta previa would appear either to have been misdiagnosed (in our view the most likely explanation) or to have spontaneously resolved. Neither of these, we want to emphasize, fits the definition of well-documented, complete placenta previa. [7]

Those who plead uncertainty make a fundamental mistake. They hold clinical prognostic judgment to a standard of truth that it can never satisfy, namely, that it never turns out to be false in an individual case. On such a standard of truth, before the outcome actually occurs, all clinical prognostic judgments must be judged possibly false and therefore disabled by uncertainty. In effect, Annas proposes an impossible epistemological standard, one that bears little relation to a reasonable test of epistemological reliability of clinical prognostic judgments. This test emphasizes the reliability with which such judgments are formed because, prospectively, knowledge of the actual outcome is unavailable.

In our view, reliability of clinical judgment involves both the process of reaching a particular clinical judgment and the data upon which that judgment is based. In the first respect, a clinical judgment is reliable when it would most likely be made again by a second competent, rigorous judger given the same data as the original judger. In the second respect, a clinical judgment is reliable when the data upon which it is based do not vary and are not expected to vary.

Assessing the reliability of prognostic clinical judgment involves several considerations. First, the clinician must identify rigorously the probability of self-limitation or spontaneous resolution of the patient's condition, specifying as precisely as possible the expected outcomes of alternative management strategies.

Second, the clinician needs to realize that prognostic clinical judgment is not about individual cases but about the natural history of a particular disease under different management strategies. Thus, if an outcome of very rare incidence happens to occur, this does not mean that the prior prognostic judgment that the most common event would be the most likely outcome was wrong. In particular, given that spontaneous resolution of well-documented, complete placenta previa diagnosed in the intrapartum period is at best an extremely rare event, the clinician who makes a recommendation for cesarean delivery on this basis is making a reliable clinical judgment. He or she is not wrong if an extremely unlikely spontaneous resolution happens to occur.

Third, to say nonetheless that clinicians can be and often are wrong in their clinical prognostic judgments only makes sense if one is employing the clinical instrument medical students fondly dub the "retrospectroscope." It has a wonderful feature: it is always crystal clear. It also has an unfortunate feature: its findings always come too late. The epistemological status of prognostic clinical judgment is not adequately captured in the two-valued logic of truth and falsehood about individual cases.

This analysis of the reliability of prognostic clinical judgment is crucial for our example of well-documented, complete placenta previa. First, spontaneous resolution of the condition or an erroneous diagnosis are highly unlikely. Second, the outcome of vaginal delivery for the fetus is that there is a very substantial risk, approaching certainty, of death. [8] Third, the outcome of cesarean delivery for the pregnant woman vis-a-vis vaginal delivery is a dramatic reduction of risk of mortality.

Can the clinician say unconditionally that the fetus will not survive vaginal delivery? No. However, the issue for prognostic clinical judgment is its reliability, not its truth. The ethical issue regarding reliability here is this: Can any clinician competently claim to have documented evidence of a significant rate of fetal survival from vaginal delivery? No. Indeed, such a claim would properly be regarded as an irrational basis for obstetric management. Moreover, to study the question via a randomized clinical trial would be judged unethical by any IRB asked to review such a proposal, given the grave risk to fetuses in the vaginal delivery arm of such a clinical trial. The clinician is correct to conclude that the only obstetric management strategy consistent with promoting the interests of the fetus is cesarean delivery, because vaginal delivery dooms the beneficence-based interests of the fetus, [9] while cesarean delivery does the opposite.

With regard to the pregnant woman's interests, the reliability of prognostic clinical judgment here means that any clinical judgment that well-documented, complete placenta previa is most likely self-limiting and most likely to resolve spontaneously is unfounded and probably irrational. The only rational assumption to make is that vaginal delivery places the pregnant woman at grave risk for exsanguination. The gravity of such a risk is underscored by the long-standing obstetric dictum never to perform a vaginal examination on a third-trimester patient who is experiencing vaginal bleeding, because of the rapidity with which uncontrollable blood loss might result from disruption of a placenta previa. [10]

Should bleeding occur, massive blood replacement may save some women. [11] However, this intervention may not be sufficient to prevent maternal death. In addition, there are significant risks of morbidity and mortality associated with massive blood transfusion, risks that greatly exceed those of cesarean delivery. Here again, no one would seriously propose that studying this issue via a clinical trial is ethically justified, because the maternal risks are so well defined.

The upshot of this analysis of reliability is that vaginal delivery carries grave risks of maternal mortality that can only infrequently be managed successfully. By comparison, cesarean delivery, despite its morbidity and mortality risks for the woman and despite its invasiveness, unequivocally produces net medical benefit for the pregnant woman. Any clinical judgment to the contrary borders on the irrational and cannot, therefore, be consistent with promoting the beneficence-based interests of the woman. The clinician who recommends cesarean delivery to protect the pregnant woman is making a recommendation with the highest reliability that can be applied to clinical judgment: No competent, rigorous clinician will undertake her management on the basis of a clinical judgment of expected spontaneous resolution, because doing so will virtually doom the pregnant woman's beneficence-based interests.

The ethical implications of this level of reliability of clinical judgment and of refusal of cesarean delivery are the following: (1) no physician is justified in accepting such a refusal because doing so would be based on unreliable clinical judgment; and (2) the physician is justified in resisting a patient's exercise of a positive right when fulfilling that positive right contradicts the most highly reliable clinical judgment, dooms the beneficence-based interests of the fetus, and virtually dooms the beneficence-based interests of the pregnant woman. Patients do not have a positive ethical right to obligate physicians to practice medicine in ways that are patently inconsistent with the most reliable clinical judgment. [12]

Preventive Ethics

The primary response to unreasonable assertions of positive rights that are embedded in refusals of medical intervention should be the strategies of preventive ethics. [13] The goal of these strategies is to explain to the patient why the positive right is unreasonable from a clinical perspective. This is best accomplished by informed consent as an ongoing dialogue with the patient, with special attention to adequate disclosure and to the values the physician and the pregnant woman hold in common for her pregnancy. Adequate disclosure should include such information as the following: the rates of cesarean delivery in the United States for a variety of obstetric indications, both maternal and fetal, as well as the rates of cesarean delivery in the physician's own practice; the fact that a low-risk pregnancy can become a high-risk pregnancy quickly and without warning; and the fact that in high-risk pregnancies complicated decisions will be confronted, including decisions regarding cesarean delivery. The informed consent process should also invite the pregnant woman to assess this information in terms of her values and beliefs. These values in turn serve as the basis for negotiation with the pregnant woman, as well as for respectful persuasion, which takes the form of showing how a beneficence-based clinical perspective on her interests and those of her fetus is consistent with the pregnant woman's values. This process should be open to the possibility that the pregnant woman may want to seek second opinions or even consider switching physicians. In short, informed consent as an ongoing process is a crucial autonomy-enhancing clinical tool within the strategy of preventive ethics. Provided that they are utilized in a noncoercive fashion, ethics committees can also play a useful role in conflict resolution.

Court-Ordered Intervention

Strategies of preventive ethics will sometimes fail. Is it ever justified to seek court orders to override a patient's negative right not to be subjected to nonconsensual bodily invasion when this negative right is exercised in conjunction with an unreasonable positive right? Consider again the example of well-documented, complete placenta previa.

Because of their thoroughness and representativeness of the arguments of others, Nancy Rhoden's objections to court-ordered cesarean delivery must be addressed and defeated to justify limiting the refusal of cesarean delivery. [14] First, we consider Rhoden's claim that court-ordered cesarean delivery necessarily treats the pregnant woman solely as an instrument or means by which the fetus is benefitted, but by which she is not benefitted at all, being instead only placed at risk. In Rhoden's terms, court orders treat the pregnant woman as a "mere means" to benefit her fetus. To defeat this objection, we must show that forced cesarean delivery does indeed benefit the pregnant woman.

Cesarean delivery produces significant benefit for the pregnant woman (the dramatic reduction in maternal mortality risks), and significant benefit for the fetus (essentially complete elimination of risks of fetal mortality). Cesarean delivery for well-documented, complete placenta previa produces two causally independent effects: benefit for the pregnant woman and benefit for the fetus. Both of these promote beneficence-based interests. Thus, the pregnant woman is not a "mere means" to the benefit of the fetus, in the sense that benefit to her is not considered relevant. Instead, she is an end and is in no way whatever reduced to being simply a "fetal container" --the dramatic but in this context totally misleading phrase of Annas. [15] The pregnant woman is, and remains throughout the procedure, a patient in her own right, a status that is never compromised, because her medical interests are promoted.

The preceding is not meant to imply that cesarean delivery is risk-free. To the contrary, because it is major abdominal surgery, it does entail risks (albeit small and usually manageable) of morbidity and rare incidence of mortality. The key feature in the present context of cesarean delivery for well-documented, complete placenta previa is that its net effect for the pregnant woman is to produce benefit. Because the risks involved in cesarean delivery are a means to benefit the pregnant woman, while at the same time benefiting the fetus, the pregnant woman is not a "mere means" for benefiting the fetus. By aggregating all cases of cesarean delivery--in particular fetal distress and complete placenta previa--Rhoden is prevented from identifying this unique ethical feature of cesarean delivery for well-documented, complete placenta previa.

Rhoden's next objection is that forced cesarean delivery treats pregnant women as a "means merely." That is, her autonomy, her negative right against bodily invasion, is violated without sufficient justification. This objection can be defeated by establishing that the pregnant woman is ethically obligated to accept cesarean delivery for the management of well-documented, complete placenta previa. If this is the case, her autonomy is already constrained and no new constraint is introduced by forced cesarean delivery.

We have argued elsewhere that the pregnant woman, in a pregnancy being taken to term, is ethically obligated to accept reasonable risks on behalf of the fetus in the management of her pregnancy. [16] Robertson argues for a similar legal obligation; [17] Nelson and Milliken, as well as Rhoden, accept an ethical obligation. [18] If this view is reasonable in obstetric ethics, then it is all the more reasonable to hold that the pregnant woman is ethically obligated to accept obstetric interventions that benefit the fetus while also benefiting her. If she is obligated to accept reasonable risks, she is surely obligated to accept well-documented benefits for herself. That is, her negative right is inherently subject to the limitation imposed by this obligation. This is different from the situation in which an unconditional negative right against nonconsensual bodily invasion exists.

The harm principle provides another justification for constraining autonomy in these cases. [19] It is a well-understood tenet of ethical theory that an individual's exercise of rights, negative and positive, can justifiably be limited to prevent virtually certain, preventable, serious, and far-reaching harm to innocent others. This justification becomes even stronger when imposing such limits also benefits the individual subject to them.

On the basis of the above analysis, it can be shown that another of Rhoden's objections fails, namely, that based on analogies to forced donation of tissue, such as bone marrow or one of a matched pair of solid organs. Just as courts have refused to order family members (more precisely, distant family members--namely, cousins) to donate tissue or organs, so too, Rhoden argues, courts should not order cesarean deliveries.

At first glance, these analogies possess a powerful intuitive appeal. On closer examination, the appeal fails in the case of well-documented, complete placenta previa. In cases of tissue and organ transplantation, the donor is subject to significant harms: the risks of morbidity and mortality of the medical procedures, of hospitalization, and--in the case of organ donation--subsequent life without the donated organ, though he or she may derive some psychological benefits from being a donor. [20] Moreover, where pediatric patients are concerned, the benefits of transplantation are not always clearcut. In the case of bone-marrow transplantation, the benefits to the pediatric recipient are not uniformly significant, given the high failure rate of this therapy. [21] Pediatric kidney transplantation, although the preferred management of end-stage renal failure, has persistent, not insignificant rates of failure. [22] Moreover, even though independence is increased, pediatric renal transplantation can involve diminished quality of life in other respects. [23]

In contrast to organ donation and transplantation, cesarean delivery for well-documented, complete placenta previa produces clear-cut benefit for the pregnant woman (the posited analogue of the tissue or organ donor) and clear-cut benefit for the fetus (the posited analogue of the pediatric recipient of tissue or an organ). Indeed, there is no analogy in pediatric transplantation to cesarean delivery for well-documented, complete placenta previa. Hence, Rhoden's objection to interference with the pregnant woman's negative right on this score fails.

Rhoden next considers at some length differences in beliefs about outcome between pregnant women and their physicians and patients' understandable fears about major surgery. In the present context a belief on the part of the pregnant woman that vaginal delivery would be more beneficial for her or for her fetus than cesarean delivery is a matter of empirlcally very poorly founded belief, not a difference between two equally empirically valid opinions (as would be the case in the gangrenous toe example). Fear of the cesarean delivery is, therefore, in all likelihood, an irrational fear. False beliefs and irrational fears are properly understood in bioethics not to be an expression of autonomy, but a factor that can significantly disable autonomy. [24] Thus, neither demonstrably false belief nor irrational fear should be treated as expressions of autonomy. Rather, they should be addressed as obstacles to the exercise of autonomy via the strategies of preventive ethics. Rhoden's argument on this score would, therefore, appear to fail.

Rhoden also considers and supports religious objections to forced cesarean delivery. Here we believe that there is an analogy that defeats Rhoden's view: parents' refusal, on religious grounds, of well-documented life-saving interventions for children who are patients. Rhoden points out that one reason the courts are correct to protect patients from parental religious constraints is that no physical burden is imposed on the parents by a court order to treat their child. To be sure, cesarean delivery is invasive, major abdominal surgery. Yet in the case of well-documented, complete placenta previa invasiveness should not be the sole criterion for assessing physical burdens, because invasiveness in this case is not associated with net harm. To the contrary, it is associated with net benefit, because it dramatically reduces the risk of maternal mortality. In the pediatric cases, parents may take moral, religious, or psychological offense in being overridden, but the courts apparently do not regard this as a significant invasion of their autonomy. The same would hold true in the present instance. The net effect of cesarean delivery for this complication is to benefit the pregnant woman, not burden her. Hence, Rhoden's support of religious objections to cesarean delivery also seems to fail.

We conclude with considerable trepidation that court orders are not unjustified when strategies for preventive ethics fail to alter refusal of cesarean delivery for well-documented, complete placenta previa. We want immediately to caution that our conclusions about this clinical example should not be extended to other clinical examples of unreasonable refusal without very careful analysis and argument, especially cases in which there is only one patient. These matters are beyond the scope of this paper, the purpose of which is to put forward for serious consideration a more nuanced analysis of refusal of medical intervention and the ethical obligations of physicians in response to them.

Implications for Medical


We close by identifying some of the implications of our argument for the issue of medical paternalism. Typically, this issue is construed in terms of the imposition of beneficence-based clinical interventions in violation of the autonomy of the patient. [25] Thus, administration of blood products rather than volume expanders to a competent Jehovah's Witness patient, over his or her express objection, is the imposition of an intervention that is life-saving (hence, beneficence-based) in violation of the patient's autonomy. That is, medical paternalism is thought to be unjustified, because, for a variety of reasons--both theoretical and practical--autonomy-based obligations override or trump beneficence-based obligations.

This construal fails to account accurately for the problem with medical paternalism in those cases--the vast majority--in which the patient rejects the physician's recommendation in favor of an alternative that is reasonable. It would be unjustified, in response, for the physician to impose the recommended management as the only management that is in the patient's interests, because the patient's preferred alternative, as reasonable, promotes his or her beneficence-based interests to some reasonable degree. The physician's mistake would be to think that, on the grounds of beneficence, the "best" management excludes as unreasonable all other alternatives; in cannot do so. Paternalism in such circumstances is therefore unjustified, because it is based on defective beneficence-based clinical judgment: that one management is the best, from the point of view of beneficence-based clinical judgment, does not make unacceptable those alternatives that promote the patient's interests in different ways or to a lesser, but still positive degree. It is not that autonomy-based obligations trump beneficence-based obligations, but that there is no compelling or controlling beneficence-based obligation to consider overriding the autonomy of the patient in the first place.

In the case of refusal of intervention necessarily coupled to a positive right to a patently unreasonable alternative, the standard construal of medical paternalism also seems inaccurate, but for a different reason. The correct analysis is the following: the negative right of the patient against nonconsensual bodily invasion is asserted against the physician's negative right against nonconsensual practice of patently unreasonable medicine, because the positive right of the patient to an unreasonable alternative threatens the physician's autonomy. Here the physician's autonomy should be understood in terms of the ethical integrity of medicine, which has been recognized by the courts and in the literature. [26]

It would seem that these (rare) cases of medical paternalism do not therefore involve a clash between beneficence and autonomy, but between autonomy and autonomy--perhaps as a side constraint of both the patient and the physician. [27] The question, How should such clashes be resolved? seems be addressed on the basis of an analysis of the harms that would ensue from the violation of the autonomy of the patient, on the one hand, and of the physician, on the other, and arguments about how those harms should be rank-ordered.

For the most part, rank-orderings in the literature strike us more as a function of public policy than of rigorous analysis and argument. Thus, for example, it is a matter of public policy in the United States, in virtue of the First Amendment and the body of law based on it, that the integrity of religious beliefs is given a protection not accorded the integrity of medicine. But this public policy is an accident of our history, not of a well-worked-out philosophical account of how harms should be ranked.

The same would seem to be the case for the near-absolute character of the legal right of self-determination, as articulated in Schloendorff v. Society of New York Hospital [28] and other informed consent cases. In Schloendorff Judge Cardozo seems unaware of the sort of analysis we suggest here. Moreover, he simply lays down the right of self-determination regarding medical decisions without argument. Neither the accidents of history nor the dicta of judges count as sustained philosophical analysis and argument. Perhaps it is time to reconsider accepted views about medical paternalism.


The authors want to thank the following individuals for their very helpful comments on earlier drafts: Thomas Bole, Baruch A. Brody, H. Tristram Engelhardt, Jr., B. Andrew Lustig, Joy H. Penticuff, Stephen Wear, and Courtney S. Campbell.


[1] By well-documented, complete placenta previa we mean the following: transabdominal or transvaginal ultrasound examination is performed by individuals competent in the technique and interpretation of its results and the placenta is clearly visualized on ultrasound examination should be performed shortly before delivery. See William J. Ott, "Placenta Previa," in Textbook of Ultrasound in Obstetrics and Gynecology, ed. Frank A. Chervenak, Stuart Campbell, and Glenn Isaacson (Boston: Little, Brown, in press); Dan Farine, Harold E. Fox, and Ilan E. Timor-Tritsch, "Placenta Previa: Transvaginal Approach," in Textbook of Ultrasound in Obstetrics and Gynecology (in press). The reliability of the examination varies inversely with the length of time remaining before expected date of delivery. In addition, there should be no uterine contractions and the maternal bladder should be empty, because, if these factors are not taken into account, false positive diagnosis can occur. Satisfaction of these criteria makes a false positive diagnosis of complete placenta previa highly unlikely.

[2] Joel Feinberg distinguishes rights claimed against individuals from rights claimed against the state. These rights can either be claims to "noninterference in...private affairs" (negative rights), or claims to "assistance" and "specific services" (positive rights). See Joel Feinberg, "Rights: Systematic Analysis," in Encyclopedia of Bioethics, ed. Warren T. Reich (New York: Macmillan, 1978), pp. 1508-09. See also Feinberg, Harm to Self (New York: Oxford University Press, 1986), p. 53.

[3] See Ruth Macklin, "Rights: Rights in Bioethics," Encyclopedia of Bioethics, ed. Warren T. Reich (New York: MacMillan, 1978), p. 1513.

[4] For a discussion of a beneficence model, see Tom L. Beauchamp and Laurence B. McCullough, Medical Ethics: The Moral Responsibility of Physicians (Englewood Cliffs, N.J.: Prentice Hall, 1984), especially ch. 2.

[5] Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984), pp. 54, 53.

[6] George J. Annas, "Protecting the Liberty of Pregnant Patients," NEJM 316, no. 19 (1988): 1213-14; "Pregnant Women as Fetal Containers," Hastings Center Report 16, no. 6 (1986): 13-14; Sherman Elias and George J. Annas, Reproductive Genetics and the Law (Chicago: Year Book Medical Publishers, 1987), pp. 253-62; "Perspectives on Fetal Surgery," American Journal of Obstetrics and Gynecology 145, no. 7 (1983): 807-812; Lawrence J. Nelson and Nancy Milliken, "Compelled Medical Treatment of Pregnant Women: Life, Liberty, and Law in Conflict," JAMA 259, no. 7 (1988): 1060-66; and Committee on Ethics, American College of Obstetrics and Gynecology, "Patient Choice: Maternal-Fetal Conflict," American College of Obstetrics and Gynecology Committee Opinion Number 55, October 1987.

[7] See Jefferson v. Griffin Spalding County Hospital Authority, 274 Ga. 86, 274 S.E. 2d 457 (1981) and In Re Baby Jeffries, No. 14004 (Jackson County, Mich. P. Ct. May 24, 1982).

[8] Carlyle Crenshaw, D. E. Darnell Jones and Roy T. Parker, "Placenta Previa: A Survey of Twenty Years Experience with Improved Perinatal Survival by Expectant Therapy and Cesarean Delivery," Obstetric Gynecology Survey 28 (1973): 461-70.

[9] In saying this we accept the concept of he fetus as a patient and assume that in virtue of being a patient, the fetus can correctly be said to have beneficence-based interests. See, especially, American College of Obstetricians and Gynecologists, Committee on Ethics, Patient Choice: Maternal-Fetal Conflict (Washington, D.C.: American College of Obstetricians and Gynecologists, 1987); American Academy of Pediatrics, Committee on Bioethics, "Fetal Therapy: Ethical Considerations," Pediatrics 81 (1988): 898-99. For a discussion of when the fetus is a patient and some of the ethical implications of the concept, see Frank A. Chervenak and Laurence B. McCullough, "Does Obstetric Ethics Have Any Role in the Obstetrician's Response to the Abortion Controversy?" American Journal of Obstetrics and Gynecology 163, no. 5 (1990): 1425-29.

[10] Jack A. Pritchard, Paul C. MacDonald, and Norman F. Gant, eds., Williams Obstetrics, 17th ed. (Norwalk, Conn.: Appleton-Century-Crofts, 1985), p. 409.

[11] David B. Cotton, John A. Read, Richard H. Paul et al., "The Conservative Aggressive Management of Placenta Previa," American Journal of Obstetrics and Gynecology 137 (1980): 687-95.

[12] Allen Brett and Laurence B. McCullough, "When Patients Request Specific Interventions: Defining the Limits of the Physician's Obligations," NEJM 315 (1986): 1347-51.

[13] Frank A. Chervenak and Laurence B. McCullough, "Clinical Strategies for Preventing Ethical Conflict Between Pregnant Women and Their Physicians," American Journal of Obstetrics and Gynecology 162 (1990): 303-307.

[14] Nancy K. Rhoden, "The Judge in the Delivery Room: The Emergence of Court-Ordered Cesareans," California Law Review 74, (1986): 1950-2030.

[15] Annas, "Pregnant Women as Fetal Containers."

[16] Frank A. Chervenak and Laurence B. McCullough, "Perinatal Ethics: A Practical Analysis of Obligations to Mother and Fetus," Obstetrics and Gynecology 66 (1985): 442-46.

[17] John A. Robertson, "The Right to Procreate and In Utero Fetal Therapy," Journal of Legal Medicine 3, no. 3 (1982): 333-36; "Legal Issues in Prenatal Therapy," Clinical Obstetrics and Gynecology 29, no. 3 (1986): 603-11.

[18] Nelson and Milliken, "Compelled Medical Treatment of Pregnant Women."

[19] For a concise formulation of this principle, see Tom L. Beauchamp, "Paternalism," Encyclopedia of Bioethics. See also Joel Feinberg, Harm to Others.

[20] Robert M. House and Troy L. Thompson, "Psychiatric Aspects of Organ Transplantation," JAMA 260, no. 4 (1988): 535-39.

[21] C. Philip Steuber, "Bone-Marrow Transplantation," in Principles and Practice of Pediatrics, ed. Frank A. Oski et al. (Philadelphia: J. B. Lippincott, 1990), pp. 1578-79.

[22] Edward C. Kohaut, "End-Stage Renal Disease," Principles and Practice of Pediatrics, pp. 1619-24.

[23] Larry M. Gold et al., "Psychosocial Issues in Pediatric Organ Transplantation," Pediatrics 75, no. 5 (1986): 738-44.

[24] Ruth R. Faden and Tom L. Beauchamp, A History and Theory of Informed Consent (New York: Oxford University Press, 1986), especially ch. 7.

[25] See Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 3d ed. (New York: Oxford University Press, 1989), pp. 209-27.

[26] See, for example, Superintendent of Belchertown v. Saikewicz 373 Mass. 728. 370 N.E.2d 417 (1977), and Satz v. Perlmutter, 362 So.2d 160, affirmed 379 So2d 359 (1978); see also The Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying (Bloomington: Indiana University Press, 1987).

[27] H. Tristram Engelhardt, Jr., The Foundations of Bioethics (New York: Oxford University Press, 1986).

[28] Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914).

Frank A. Chervenak is associate professor and director of Obstetric Ultrasound and Ethics, Department of Obstetrics and Gynecology, The New York Hospital-Cornell Medical Center, New York, N.Y.; Laurence B. McCullough is professor of medicine and medical ethics, Center for Ethics, Medicine, and Public Issues, Baylor College of Medicine, and visiting professor of philosophy, Rice University, Houston, Tex.
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Title Annotation:treatment of patients by physicians
Author:Chervenak, Frank A.; McCullough, Laurence B.
Publication:The Hastings Center Report
Date:Mar 1, 1991
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