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The fragile web of responsibility: AIDS and the duty to treat.

The Fragile Web of Responsibility: AIDS and the Duty to Treat

Do physicians, by virtue of their role as health care professionals, have a duty to treat HIV-infected patients? Must they subject themselves to the very small, but nonetheless terrifying, risk of becoming infected themselves in order to live up to the ethical demands of their calling? For most physicians toiling in the front lines against AIDS, this is a new and totally unanticipated moral question that has yet to receive a clear and satisfying answer.

The current generation of physicians has experienced very little exposure to serious occupational risk. Well protected by antiseptic techniques and antibiotics for a period of roughly thirty years, doctors in developed countries have come to believe (with some justification) that they are exempt from the riskier aspects of medicine that had claimed the lives of so many of their predecessors. Prior to this pax antibiotica, risk and fear accompanied physicians daily, especially during the all-too-frequent periods of plague and virulent infectious disease. For many, if not most, of these physicians, to be a doctor meant that one was willing to take personal risks for the benefit of patients. One entered the profession with a keen appreciation of the hazards. By abruptly dispelling this perception of relative safety, AIDS has compelled today's physicians to reopen the traditional inquiry into the moral relationship between hazard and professional duty.

AIDS has likewise highlighted the limits of most contemporary bioethical inquiries into the physician-patient relationship. In their singleminded campaign against the excesses of medical paternalism, most bioethicists have been content merely to refute physicians' claims to moral expertise and special prerogatives based upon their Hippocratic duty to benefit the patient. In undermining this claim, bioethicists have completely ignored the question of whether physicians might still have special responsibilities as healers.

Moreover, the bioethicists' favorite metaphor for describing the physician-patient relationship, the contract between free and equal moral agents, has further obscured the issue of physicians' obligations to place themselves at risk in the service of their patients. By stressing the voluntary nature of the physician-patient "contract," bioethicists have inadvertently reinforced the notion that physicians, as free moral agents, have a perfect right to choose whomever they wish to serve. This claim to contractual freedom, enshrined in the 1957 AMA Code of Ethics, [1] likewise fails to address the question of whether physicians have a special duty to enter into contracts with hazardous patients.

Although there are many ways in which physicians can fail to discharge their putative duty to care for HIV-infected patients, ranging from outright refusal to foot-dragging, I shall focus on the central problem of categorical refusal to treat due to fear of infection. Do all physicians have an ethical duty to treat HIV-infected patients in spite of the risk, or can physicians fully discharge their moral duty to such persons by referring them to other physicians who are willing and capable of treating them? In short, is voluntarism an ethically acceptable basis for medical practice in the age of AIDS?

Protecting the Vulnerable: Individual Rights and

Professional Obligations

One promising starting point for our inquiry is to focus on the medical need of HIV-infected patients. These persons harbor a potentially lethal virus and may already be manifesting symptoms of ARC (AIDS Related Complex) or AIDS. They may require treatment of AIDS related conditions--such as Kaposi's sarcoma and pneumocystis pneumonia--or they may incidentally have other health problems requiring attention, such as kidney failure, heart defects, or dental problems. Although the diagnosis of HIV disease renders their plight particularly poignant, these patients resemble all patients with serious illnesses insofar as they are sick, vulnerable, and needy.

One compelling, though still contested, response to such health needs is to claim that they establish either an individual right to health care or at least a social duty to provide it. [2] This approach holds that because of the pivotal importance of health needs, including those needs created by AIDS, each person either infected with the virus or manifesting symptoms has a claim, grounded in justice, to the provision of needed health care.

The obvious drawback of this approach for our purposes is that it entirely avoids the question of physicians' individual or collective responsibility for HIV-infected patients. Whether we accept the language of individual rights or the language of societal obligation, the duty to provide care could be interpreted to fall squarely upon society through the vehicle of government, not on physicians as individuals or as a professional group. A voluntaristic system, with special incentives for those willing to treat, is compatible with this kind of societal duty.

A closely related argument makes use of the notion of a social contract between society and the medical profession. In exchange for the performance of a vital public service--that is, ministering to the needs of the sick and vulnerable--physicians as a group are granted monopolistic privileges over the practice of medicine. By seeking and receiving such a benefit, physicians incur a corresponding obligation founded on the notion of reciprocity. [3] If physicians are granted a monopoly over medical practice and then refuse to treat certain patients who are perhaps the most vulnerable members of society, who else will treat them? Just as the police have a duty to protect defenseless citizens based on their monopoly over the legitimate use of force, so physicians have a duty to treat those in medical need, even in the face of some personal risk.

By establishing some sort of duty to treat, the social contract approach thus improves upon the right-to-health-care argument, but we must concede immediately that it locates the duty not on the shoulders of each and every physician, but rather at the level of the medical profession. Since the parties to this contract are society and the profession, the social contract cannot generate, at least in the first instance, the kind of responsibility that goes through the profession to each individual member. So long as society's vital interest in caring for the vulnerable is secured, the social contract is upheld, no matter what the response of individual physicians.

This is where the analogy between physicians and the police breaks down. Whereas both groups have a professional monopoly on providing a vital public service, as well as the corresponding professional duty to provide it, individual police officers are also expected to take risks in the course of their ordinary duties. Whether they like it or not, they have to go down that dark alley where danger lurks. The reason for this disparity in the terms of these two social contracts is that police officers cannot usually delegate their risky business to others. Except for medical emergencies and personnel at public hospitals--the two obvious exceptions to the social contract's inattention to individual performance--physicians can usually refer undesirable or especially hazardous cases to others.

The sort of duty to treat generated by the social contract strategy is thus clearly compatible, at least in theory, with a voluntaristic system. Indeed, some might argue that such a voluntaristic system provides an optimal solution to the problem of AIDS: the patients get respectful care from physicians who really wish to provide it; unwilling doctors are freed from professional or legal coercion; and willing physicians are rewarded either by their own virtue or by incentives. In theory, everyone's needs and interests are thus secured by the social contract under conditions of maximal freedom of choice.

In practice, however, there is reason to believe that such a voluntaristic system might prove to be either unstable or inadequate. In the first place, such systems might place unfair demands upon those physicians who are willing to treat HIV-infected patients. If the majority of hospital-based physicians exempt themselves from the care of such patients, thereby dumping the burden upon a willing few, the resulting division of labor might easily be perceived as being grossly unfair. Those who undertook the nearly exclusive care of AIDS patients would thereby expose themselves to higher risk of both psychological burnout and eventual infection. In response to this perception, recalcitrant physicians might well agree to treat their fair share of AIDS patients so that the burden might be more or less equally distributed among the staff. Even so, it must be conceded that this shift from voluntarism to egalitarianism would be attributable, not to any putative individual duty to patients, but rather to a perceived duty to treat one's colleagues fairly.

An individualized duty to treat HIV-infected patients might nevertheless be empirically derived from the social contract if we could demonstrate that a voluntaristic system failed to perform according to the terms of the contract. Indeed, if it could be shown that voluntaristic systems tended to harm HIV-infected patients or failed to meet their needs, then the social contract could consistently call for the imposition of a duty to treat upon each and every doctor.

Demonstrating likely harms to HIV-infected patients under a purely voluntaristic system is not difficult. First, refusing to treat a person because he or she has AIDS or HIV infection ordinarily constitutes an insult of monumental proportions. The prospective patient is stigmatized and made to feel like an outcast. In itself this amounts to a significant injury. [4]

Secondly, the delays inherent in any system of widespread referrals might themselves cause significant harms. If patients suffering from severe or painful maladies are refused care by a physician or clinic and referred elsewhere, their conditions may well be exacerbated by the time they find someone willing and able to treat them. [5]

But perhaps the most obvious and serious problem with any voluntaristic system is that it would in all probability lead to lack of access and to substandard care. The dental profession provides an interesting case in point. A recent informal poll of the 4,100 member Chicago Dental Society revealed only three dentists, all from the same clinic, who were willing to accept new AIDS referrals. [6]

Even if a voluntaristic system were able to produce enough willing physicians to solve the problem of access, the quality of the care received would remain an open question. Although it is possible (but not likely) that such a system could find the right incentives to achieve acceptable levels of quality, the history of our treatment of poor, stigmatized, and unpopular groups indicates that AIDS patients, like the insane and criminals, will most likely receive inadequate and substandard care. In either case, if the system were unable to secure either access or quality, the social contract through the conditions of licensure would justify the imposition of an individualized duty to treat. [7]

An individual duty to treat can thus be empirically derived from the collective duty ascribed to the profession, and this duty can justifiably be imposed by the state in conformity with the social contract. Perhaps this is enough to get the job done, and perhaps in the long run that is what matters most to AIDS patients; but it is certainly not the stuff on which legends of professional virtue are based. In order to ground the sort of individualized and unmediated duty to treat patients--despite substantial hazard--that we associate with the historical tradition of medicine, we have to shift our focus from the specific task of meeting social needs to understanding traditional conceptions of the virtuous physician.

Conceptions of Professional Virtue

In general, virtue-based accounts of the physician-patient relationship depend upon both a specific conception of the goal or good of the medical art and an account of the virtues (for example, competence, courage, fidelity) necessary to attain that good. [8] In contrast to the more standard bioethical methodologies that attempt to marshall rules and principles toward the resolution of specific quandaries or dilemmas, virtue ethics is more concerned with articulating the character and role-specific duties of the good physician. There are two different approaches to virtue ethics that speak to the issue of physicians' duty to treat. One relies on a rather abstract end-means relationship; the other attempts to ground the notion of the virtuous physician in an analysis of the commitments endorsed by the profession historically.

The Timeless Virtues of Medicine

In an admirable paper on this subject, Abigail Zuger and Steven H. Miles argue that the historical record of physicians' behavior in time of plague is too inconsistent to warrant the invocation of a strong professional duty to treat in the present crisis. [9] Instead, they attempt to establish a duty to treat by reviving a conception of the virtuous physician as articulated by Scribonius Largus, a Roman physician from the first century AD.

According to Zuger and Miles, Scribonius argued that "to be in a profession implies a commitment to a certain end (professio), and thus an obligation to perform certain functions or duties (officia) necessary to attain that end. In the case of medicine, the professio is healing, the officia is treatment of sick persons presenting for care." By voluntarily committing themselves to the end of healing, physicians bind themselves to undertake the care of those in need. Those who refuse to heal thus lack the virtue necessary for accomplishing the most fundamental goal of medicine. In refusing to treat, they violate their own professional commitment to the end of healing.

How might a recalcitrant physician respond to this argument? While agreeing that his primary professional goal is to attempt to heal, a physician might nevertheless contend that he is not obligated to seek this goal under any and all circumstances, and that his professional duty to heal pales in comparison to his duties to himself and to his family. Whenever discharging his duty would place him in harm's way, he might claim that there is no binding obligation to treat. Even though the objective risk of acquiring HIV disease in the course of professional duties might be quite low, he might claim that it is too high for him.

The general problem inherent in the Zuger-Miles approach is that their rejection of history leaves them with the alternative of defining the duties of the virtuous physician by fiat. A doctor must treat hazardous patients because he or she belongs to a profession whose timeless essence involves the healing of the sick at personal risk. However, the mere stipulation of a professional goal does not tell us what we need to know about the extent of our duty to reach it. But the strength or degree of the obligation is exactly what is at issue: how robust is this duty? Some say that they have a duty to heal so long as it doesn't threaten their own lives; others contend that their professio as healers mandates that they take such risks. The central disagreement is whether the professio of healing entails a commitment to the other above oneself.

Moral Tradition and Medical Virtue

Another virtue-based approach relies, not on the nature or essence of medicine sub specie aeternitatis, but rather on the notion of a moral tradition embedded in the on-going history of the profession. Proponents of this view would agree with Alasdair MacIntyre's claim that we cannot answer the question "What am I to do?" without first answering the prior question "Of what story or stories do I find myself a part?" [10] They would then proceed to tell a story, to relate a history, of a profession that has incorporated a willingness to take risks for the benefit of patients as a constitutive element in physicians' self-understanding. Over time, this account would explain, the profession elevated the ideal of steadfast devotion to the well being of patients to the status of a fundamental duty, a definitive element inherent in the very role of physician. According to this story, physicians, if queried about their commitment to accept risk in the line of duty, would simply respond, "This is who we are; this is what we do. Those who fail to treat are cowards and not true physicians."

1. The Problem of Evidence

Incredibly, however, this is a history that has yet to be written. Apart from two pertinent articles that adopt contradictory positions, there are no focused, comprehensive, historical studies of physicians' duty to treat. [11] This is obviously a major problem for the virtue-based approach, since it attempts to ground the duty to treat in the historical practice and traditional self-understandings of physicians. In the absence of a reliable historical record, the status of the virtue-based duty is problematical.

To be sure, there is some historical evidence attesting to the existence of a self-perceived duty. Darrel M. Amundsen notes, for example, that as early as the 14th century, flight in the face of plague was regarded, both by physicians and the public at large, as a dereliction of duty and a shameful thing. [12] Although many physicians did, in fact, flee the plague, Amundsen contends that a standard of behavior had emerged according to which their retreat would be harshly judged. In support of this view, he quotes Guy de Chauliac, the Pope's physician at Avignon, who ruefully declared, "And I, to avoid infamy, dared not absent myself but with continual fear preserved myself as best I could."

Another important example of self-sacrificial behavior motivated by medical duty is provided by Benjamin Rush during the great yellow fever epidemic at Philadelphia in 1793. [13] Although Rush's extraordinary devotion to patients during the epidemic has become the stuff of legend--as opposed, sadly, to the efficacy of his violent treatments--it is crucial to note that his courage was perceived by himself and others as required by duty. His acts were courageous, not because they went beyond the call of duty, but rather because he did his duty when others might be sorely tempted to flee from it. [14]

In spite of this "oral tradition" attesting to a duty to treat, we still lack rigorous historical studies that would establish an unbroken chain of professional duty stretching from the advent of the Black Death in Europe to modern times. Moreover, it is noteworthy that the only medical historian who has attempted to focus on this vast stretch of time has come to a very different conclusion. According to Daniel Fox, the history of medicine is marked, not so much by an unbroken tradition of risk taking for patients, as by a tradition of negotiation between civic leaders and the medical profession to provide for the needs of patients during epidemics. In short, Fox claims that voluntarism, rather than any individualized professional duty to treat, has been the historical norm. [15]

2. The Burden of Proof

Notwithstanding the absence of hard historical data on the duty to treat throughout the past six centuries, two salient facts suggest that the burden of proof should lie with those who would deny the existence of this duty. First, the persistence of an oral tradition or "folk wisdom" among physicians attesting to a duty to take risks for patients tells us a good deal about how physicians have traditionally understood their professional role. This sort of narrative tradition can still speak powerfully to us even if it does not meet the exacting standards of contemporary historiography.

Second, even if historians eventually demonstrate that voluntarism, rather than individual duty, best describes the behavior and beliefs of most physicians from the Middle Ages to the 20th century, they will most likely have to concede that, from the latter half of the 19th century onwards, tales of heroism eclipse accounts of flight as a sense of individual duty became indisputably rooted in the medical conscience. Even Zuger and Miles, who eventually conclude that the duty to treat cannot be firmly grounded in the vast canvass of medical history, admit that from the 1850s onwards "it becomes far more difficult to find recorded instances of physicians' reluctance to accept the risks that epidemics entailed for them. The stories of the cholera pandemics of the 19th century, the plague in the Orient, the influenza pandemic of 1918, polio in the 1950s, are largely ones of medical heroism." [16]

This firm understanding of the physician's duty was explicitly recognized as early as 1847 in the first code of ethics of the American Medical Association, which stated that "...when pestilence prevails, it is their duty to face the danger, and to continue their labors for the alleviation of the suffering, even at the jeopardy of their own lives." [17] Language to this effect remained in the Code until 1957, when it was dropped on account of medicine's (ultimately provisional) conquest of pestilential diseases. [18] Following a prolonged period of indecision on the physician's duty to treat HIV-infected patients, the A.M.A. in November 1987 unambiguously reaffirmed the duty to treat in the face of risk. [19] Although such codes are by no means infallible guides to the moral sensibilities of physicians, they at least provide good evidence of a profession's considered ethical judgments and of its own sense of identity.

Thus, although the historical record is woefully incomplete and physicians' track record is markedly inconsistent, our recent history reveals a very strong professional commitment to place the needs of the patient first, even at the risk of one's own health or life. This historical understanding, based perhaps more on story than on historiography, is aptly captured in Arnold Relman's claim that "the risk of contracting the patient's disease is one of the risks that is inherent in the profession of medicine. Physicians who are not willing to accept that risk....ought not to be in the practice of medicine." [20]

Characteristics of a Historically Based Duty

There are several important and distinctive features of this duty derived from the moral tradition of medicine.

1. A particularistic duty. First, it should be noted that a historically based virtue ethic yields a particularistic duty. In contrast to the categorical duties generated by universalistic notions of rationality, respect for human beings as such, or Rawlsian social contracts--that is, duties which are ascribed to us no matter what our particular notion of the good life--this duty is based upon a shared vision of the good animating a particular moral tradition. Its very existence therefore depends upon a historically grounded and voluntarily sustained commitment to a particular notion of the good physician as someone who takes risks for patients.

2. Motivation. Our storyteller might have a hard time identifying the various factors motivating this commitment. The history of physicians and plague does not immediately display any consistent philosophical rationale underlying the recurring theme of a duty to treat. In this it resembles a kind of folk ethic whose precepts are solemnly handed down from one generation to the next, each of which provides them with a different rationale. Thus, during medieval times the duty was no doubt linked with religious obligations, such as the duty of Christian charity, whereas the 19th century physician guided by Percival might have been motivated by more secular notions of the "gentleman physician" and noblesse oblige. [21]

In spite of the shifting nature of the ethical justifications for this duty, it might still be possible to discern stable elements that have persisted beneath the flux of time--common themes that unite previous generations of physicians with our own. First, it might be plausibly claimed that the duty to treat is grounded in an empathic response to the patient's medical need and vulnerability. Lacking medical knowledge, the sick stand in a relation of abject dependency toward those with the power to heal them. As the unique possessors of medical skills, physicians hold an awesome and exclusive power, through their actions and omissions, to profoundly affect the lives of others. This conjunction of extreme vulnerability and exclusive power in the context of the physician-patient encounter generates a strong duty to respond--that is, a moral responsibility. [22]

Second, as Edmund Pellegrino points out, the physician's knowledge and skills are dependent upon social contributions. [23] Without such contributions of money and human bodies both quick and dead, physicians could never learn or practice their skills. This indebtedness undermines the oft-repeated claim that the physician's skills are his own private property whose use should be entirely a matter of their possessor's discretion.

Third, it could be argued that the duty is also grounded on a shared ideal of medicine as a profession dedicated to the good of others, a profession which has always had within it members who have persistently seen themselves as more than merely self-interested tradesmen. [24] In this respect, medicine resembles ministry insofar as both professions purportedly dedicate themselves to lofty goals that transcend self-interest and occasionally call for extreme sacrifices. The virtue of courage would thus play an essential role in the maintenance of these moral traditions, for it is courage that allows us to reach out to others in spite of personal risk.

3. An individualized duty. In contrast to the obligations yielded by the social contract--which fell immediately on the entire profession of medicine, and on the individual practitioner only derivatively--this duty born of the moral tradition is directly individualized. Each and every physician is bound by this duty whose moral demands are inscribed in common understandings of the physician's role. So long as he or she possesses the requisite skills, each and every physician has to acknowledge an obligation to treat irrespective of whether other physicians might be available. Merely referring the patient to someone else after refusing to treat would not right a moral wrong.

4. Voluntarism ruled out. One obvious corollary of this point is that an account of the duty to treat based upon virtue ethics would firmly rule out most voluntaristic arrangements for providing care for HIV-infected patients. With the sole exception of those voluntaristic systems that acknowledge each physician's duty to treat, yet settle upon dedicated AIDS wards staffed by volunteers for purely pragmatic reasons (such as the belief that these units would deliver the best care to patients), a virtue-based duty to treat has to condemn voluntaristic arrangements as systematic evasions of individual duty. In contrast with the right-to-health-care and social contract approaches, for which the bottom line was the provision of health care to the needy, no matter how, the virtue-based approach incorporates a willingness to treat hazardous patients into its notion of a good physician. Those who refuse to treat are bad physicians, even if they succeed in referring all of their would-be patients to other doctors who satisfy all their medical needs.

This account holds interesting implications for the oft-repeated claim that physicians should have the freedom "to choose whom to serve." For if physicians have a duty to subordinate their own self-interest to the welfare of needy patients, then the scope of this vaunted freedom to choose appears to be rather narrowly circumscribed. Physicians may choose whom to serve, but their reasons for refusing patients are not a matter of moral indifference, as some accounts tend to depict them. More specifically, a physician's reasons for not entering into a treatment contract can neither legitimately be based upon whim nor violate the role-specific duty to care for the vulnerable. Thus, physicians can refuse to treat because they lack a specific competence, because of an intractable personality conflict, or because of egregious patient noncompliance, but they cannot ethically refuse to treat because a patient belongs to a minority group or poses some hazard.

5. Social reinforcement. Although this role-specific duty has presumably been articulated and sustained by the medical profession, it has not been entirely self-imposed. In contrast to codes of conduct generated by entirely private societies, such as the Masonic Order, the physician's duty to take risks has been forged in an ongoing dialogue with society at large. Whereas society would ordinarily have no interest whatever in the internal rules governing the behavior of Masons, it has a vital interest in the duties of physicians and acts to maintain compliance with them through the devices of praise and blame.

As noted, physicians who have abandoned their patients out of fear have been subjected to severe criticism from society. This passage from Defoe's plague journal is typical: "Great was the reproach thrown on those physicians who left their patients during the sickness, and now [when] they came to town again, nobody cared to employ them; they were called deserters, and frequently bills were set up upon their doors, and written, here is a doctor to be let!" [25] Likewise, society reinforces adherence to this duty by granting special status to physicians. In recognition of their professional virtue, the citizenry has usually given physicians not only economic benefits such as large incomes and monopolistic privileges, but also large measures of gratitude, respect, and social status. Were physicians to abandon their duty to treat hazardous patients, one could reasonably expect them to sacrifice much of their honorific status in society. Were society sufficiently offended, it would begin to look upon the medical profession as just another self-interested trade and deal with it accordingly. [26]

6. Limits of the Duty. If there is a historically grounded duty to treat in spite of personal risk, this duty must have limits. The problem is to determine the threshold of "acceptable risk," the dividing line between duty and supererogation.

Some hazards clearly fall beyond the ambit of the doctor's duty to treat. First, physicians would not be obligated to run risks without some foreseeable benefits to the patient. If the treatment is manifestly useless--for example, CPR on a highly infectious but clearly moribund patient--physicians cannot be obligated to provide it; but this is true whether or not the proposed intervention poses any risk.

Secondly, physicians have never been expected to subject themselves to blatantly suicidal risks or to go out of their way to confront danger. It would have been courageous far beyond the call of duty for a doctor to lower herself from a helicopter into the burning Chernobyl reactor in order to rescue and minister to the accident victims. Likewise, some extraordinarily courageous physicians have subjected themselves to highly dangerous auto-experimentation or have left their comfortable surroundings in order to assist in plague-stricken cities more in need of their help. Assuming they are done for worthy motives, such acts are deemed to be highly courageous and praiseworthy, but no one would blame a physician for not exposing herself to such high levels of risk.

Other choices are more problematic. What if the probability of the risk is moderate or low, the patient stands to reap some tangible benefits in terms of comfort, palliation, or life-extension, and yet the projected harm to the physician, should it occur, is great (for example, serious illness or death)? In spite of its pivotal importance, there does not appear to be any way of answering this question in the abstract. The most that can be said here, I think, is that gauging the precise threshold between strict duty and supererogation will always be a matter of practical judgment strongly influenced by socially and historically determined views of what counts as a "reasonable" risk. [27] Procedurally, this requires an ongoing dialogue between professionals on the firing line and the rest of society.

Although the precise threshold of supererogation cannot be abstractly apprehended through some ahistorical algorithm, the standard emerging from this dialogue between physicians and society has traditionally been set very high. In spite of the fact that physicians were subjected to intense criticism for leaving their posts during the Black Death, for example, many physicians seem to have considered themselves bound by duty to run risks that were practically suicidal. [28] Likewise, one can select just about any epidemic of contagious disease in history and find doctors subjecting themselves to great risks of morbidity and mortality in the line of self-perceived duty. During the great 1878 outbreak of yellow fever that killed 5,000 citizens of Memphis, 45 of 111 physicians succumbed to the epidemic (a fatality rate of 40%). Notwithstanding the evident risks, doctors who adhered to the "fomite theory" of disease--that is, the belief that the fever was spread by contact with the patient's body, clothing or household objects, rather than by an insect vector--continued to handle and care for the stricken despite their conviction that everything they touched was deadly poison. [29] Similar examples could easily be adduced for physicians' behavior in the face of cholera, tuberculosis, and polio.

AIDS and the Duty to Treat

Can or should the traditional duty to treat be extended to include HIV-infected patients? To answer this question, we must ask additional questions about the nature of the risks posed by AIDS to physicians. What exactly is the risk of transmission through occupational exposure? And, how should this risk be evaluated?

What is the Risk? Since physicians do not usually have sex or share needles with their patients, the most likely routes of transmission are needle-stick accidents and blood splashing. In contrast to the risk of acquiring hepatitis B through an errant needlestick, the risk of HIV infection from similar accidents is very small--probably no more than one per every 200 incidents. [30] Even this low level of risk can be essentially eliminated for many physicians by scrupulous attention to established infection-control recommendations.

This is not to say that there is no risk at all. By February 1988, at least eight health care workers had acquired HIV infection through occupational exposure, and those who go on to develop full-blown AIDS will almost certainly die. Moreover, some physicians may be at higher risk for HIV infection. Surgeons, obstetricians and emergency room personnel, for example, appear to be disproportionately vulnerable to needle sticks and exposure to blood. Significantly, however, existing studies do not indicate a higher rate of occupational HIV transmission among these "high blood profile" specialties. [31]

Evaluating the Risk of AIDS. In addition to the task of scientifically estimating their actual exposure to risk, physicians must also evaluate this risk. Is it worth running? At first glance, this would appear to be an easy question for a historically based virtue ethics, since the objective risk of death from occupational exposure to HIV simply pales in comparison with the risks run by previous generations of physicians. But we must recall that the threshold separating duty from supererogation depends upon culturally relative definitions of reasonable or acceptable risks. What if risks that were acceptable thirty, sixty, or one hundred years ago are no longer deemed reasonable by physicians and the society at large?

Conditions certainly have changed, and these changes are responsible for much of our current perplexity regarding the limits of the duty to treat. Perhaps most importantly, the world (or at least the industrialized, affluent part of it) is now a much safer place. Prior to the development of antibiotics, antisepsis, and vaccines, the entire population of the world might be said to have constituted a gigantic "high risk group" for early death from pestilence and other killer diseases. Life for most people, including physicians, was on average much shorter than it is today.

Thus, to a 19th century physician, death from yellow fever would no doubt have seemed a tragic but not extraordinary possibility. By contrast, present day physicians fully expect to live a long life; they no longer believe that anyone, especially themselves, should die from an infectious disease.

Notwithstanding this displacement of the threshold of supererogation, today's medical profession appears to be extending its historical commitment to encompass those who suffer from HIV and AIDS. As the A.M.A. policy statement recently made clear, "that tradition must be maintained.... A physician may not ethically refuse to treat a patient whose condition is within the physician's current realm of competence solely because the patient is seropositive." [32] Although some physicians have privately or publicly engaged in categorical refusals to care for HIV-infected patients, [33] they appear to constitute, in the words of Surgeon General Koop, "a fearful and irrational minority." [34] To be sure, many physicians, especially the younger ones who bear most of the burden of caring for AIDS patients, tread a narrow path like Guy de Chauliac between fear of AIDS and fear of infamy; but very few are driven by fear to renounce the care of AIDS patients altogether.

Thus, while our altered perceptions of relative risk may help to account for resistance to treating AIDS patients, it appears that the medical profession has collectively decided, albeit with a significant amount of internal dissent, to view most occupational exposures to HIV disease as at least comparable to other risks inherent in the practice of medicine--that is, as "acceptable risks."

Notwithstanding this consensus on the basic issue, a significant number of physicians, especially those who are no longer subjected to the discipline of internship and residency programs, have come to the conclusion that for them the risk is not worth running, even if they concur with the CDC's low estimates. How can this be explained?

The answer lies, at least in part, in the way some of these physicians perceive those afflicted with HIV disease. In refusing to deal with such patients, many physicians seem not merely to be saying, "Why should I risk my life?" but rather, "Why should I risk my life for the likes of homosexuals and intravenous drug abusers?" In other words, these physicians want to know why they must incur even small risks of serious harm for the benefit of morally suspect groups. It is one thing, they say, to risk one's life for an "innocent" child afflicted with AIDS through no fault of his own, but it is quite another thing to expose oneself to risks for patients who have "brought it upon themselves" through behaviors that are either illegal, immoral, or both. [35]

This attempt to turn the HIV-infected person into a complete Other by means of distancing and devaluation is often supplemented by a simultaneous movement of imaginative identification. As he evaluates the risks, the physician places himself in the shoes of the AIDS patient, but instead of achieving sympathy, this act of identification often yields only horror. The physician must contemplate not only the risk of death, however small, but also the risk of dying as people often die of AIDS in our society--that is, as outcasts, as stigmatized objects of fascination and disgust.

The appropriate societal response to a reluctance to treat based on this kind of fear should be a renewed effort to extend compassion and humane services to all AIDS sufferers. The fear of stigmatization is real and a matter of legitimate concern. Although it does not justify categorical refusals to treat, such fear is not a shameful response to societal intolerance. If physicians are to be expected to put their lives on the line, the least society can do is to treat them and their families with gratitude and the utmost respect if they become infected.

But as for those physicians who refuse to treat because they do not deem the lives and health of homosexuals and drug addicts to be worth the slightest exposure to risk, it would seem that they violate an even more basic duty traditionally espoused by the medical profession: the duty to treat all patients with respect for their human dignity, irrespective of considerations of their personal attributes, their social or economic status, or the nature of their disease.

The Fragility of a Virtue-Based Duty

The virtue-based approach to the problem of professional duty thus appears to have some foundation, if only in recent history, and it seems capable of resolving the present dispute in favor of an individualized duty to treat over against the claims of voluntarism. At least the burden of proof lies squarely with those who would deny this duty. It is important to note, however, that this conclusion rests upon the profession's and society's shared conception of the good, and that this conception is beginning to erode as the AIDS crisis deepens.

In fact, signs of fragmentation in the web of professional responsibility are already visible. "Doctors in the past might have been duty-bound to sacrifice themselves," physicians have told me, "but we should no longer be held to their standards." These doctors are saying, in effect, that they do not share the traditional vision of the good. In its place, they wish to substitute something different--for example, the idea of medicine as a career, like law, not as a potentially self-sacrificial vocation.

A recent survey of house officers in two prestigious New York City medical centers, for example, reveals the extent of the erosion thus far. [36] Tellingly, 25 percent of the respondents would not continue to care for AIDS patients if given a choice; 34 percent believed that house officers should be allowed to decide for themselves whether to treat AIDS patients; and, most problematically, 24 percent stated that refusing to care for AIDS patients was not unethical. Clearly, resistance to treating AIDS patients is real and growing, and a new generation of physicians is coming to the fore with increasing doubts about its role in accepting risks on behalf of its patients.

Such resistance is by no means limited to young physicians in training. Numerous accounts have appeared in the news media or whispered about in hospital corridors of individual physicians, surgeons and dentists who have flatly refused to treat HIV-infected patients. Following the publication of one such account--Dr. Dudley Johnson's public announcement that he would not perform long operations on anyone determined to be seropositive--91 percent of the surgeons responding to a poll on Dr. Johnson's policy in Cardiovascular News agreed with his decision. Even though the poll's low response rate of 1.5 percent casts doubt on the representativeness of this finding, it is still significant that roughly 814 surgeons agreed with Dr. Johnson. [37]

If this kind of opposition to the traditional duty persists in the medical trenches, it could eventually undermine the claim of prominent physicians that a professional duty still exists. Although it is nowhere written that the existence of tradition is in any way incompatible with heated debate and disagreement about the nature of the good being pursued, such dissent can undermine the tradition to the point of dissolution. [38]

Moreover, because of the inability of many people to identify with AIDS sufferers, it is not at all obvious that "society" will either uniformly condemn physicians' refusals to treat or praise their dedication to duty. For many people who already feel anxious or even outraged about the presence of HIV-infected children in their schools and workplaces, for people who resent having to expose themselves or their families to any additional risk from AIDS, the refusals of physicians to run such risks might seem an eminently reasonable choice. For the vast majority of people who are neither homosexual nor geographically linked to high rates of intravenous drug use, AIDS is someone else's problem. To be more precise, it is perceived primarily as a problem for gays and inner-city minorities. Many people are not likely to interpret widespread refusals to treat as a threat to themselves. Unfortunately, they are equally unlikely to praise physicians for steadfastly treating the victims of AIDS and HIV infection. Indeed, for many people such behavior only serves to identify treating physicians with stigmatized social groups. Numerous physicians have confided to me that in many social circles being an "AIDS doctor" carries a highly pejorative connotation.

If AIDS were like other plagues that rained terror upon the whole of society, cutting across social, ethnic and economic boundaries, we could probably count on society to play its traditional role in sustaining a sense of medical duty. But AIDS may turn out to be very unlike those more democratic epidemics, and the usual societal reinforcement of the duty may not be forthcoming. The traditional duty to treat is thus exposed both to significant internal strains among the medical profession and possibly to a lack of adequate support from without. For now, the center appears to be holding, but as the AIDS crisis worsens the future of this medical duty will no doubt depend upon its continual reconfirmation by the profession and society.

To Affirm or To Abandon a Tradition

Perhaps the most important feature of AIDS for bioethics is that it forces the recognition that society and its physicians have a decidedly fractured understanding of their proper role and duties in the face of risk. The AIDS crisis has, in fact, awakened medicine from its thirty year slumber during the pax antibiotica. In doing so, it has confronted our society with a decision of great magnitude concerning medicine's own ends, good, and role. On one side of the debate are those who would have the profession reaffirm its traditional ideal of self-sacrifice for the benefit of patients; on the other are those who would advocate a more self-centered role for physicians, a role perhaps more in keeping with the recent drift of the profession away from ideals of service and towards more entrepreneurial, scientific, or bureaucratic models of practice. Some physicians may seek radically to alter medicine's self-conception, to abandon its traditional conception of the good and attendant virtues in favor of some other norm. Physicians as a professional group may well attempt to follow this path for the remainder of the AIDS epidemic. If they do, however, it should be painfully obvious, both to them and to the rest of society, that they will have thereby abandoned a noble calling.

For its part, "society" may insist upon the maintenance of this professional duty to treat, either through the pressure of public opinion or the legal requirements of licensure, or it may simply lose interest in whether physicians abandon their duty, especially when they turn away stigmatized groups with whom the "general public" does not identify. This would be a great loss, not simply because such apathy in the face of need and vulnerability would amount to a significant moral failure on our part, but also because it would set a precedent that future generations may come to regret. It took us a mere thirty years after the advent of the pax antibiotica to realize the provisional nature of our conquest over infectious disease. If we have been taken completely by surprise by AIDS, an apparently new disease in human history, why should we think that we will be spared the visitation of other unanticipated plagues that will also prove refractory to modern medicine? If and when such future epidemics strike, and if such diseases turn out not to be respecters of race and social class, what kind of medical profession will the public want then?


[1] Judicial Council of the American Medical Association: Current Opinions of the Judicial Council of the American Medical Association (Chicago: American Medical Association, 1986), ix.

[2] For a general discussion of the comparative merits of "right-based" and "social duty" approaches to equity, see John Arras, "Retreat from the Right to Health Care," Cardozo Law Review 6:2 (Winter 1984), 321-45.

[3] Compare John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 102-03.

[4] Richard Goldstein, "AIDS and the Social Contract," The Village Voice 32:52 (December 29, 1987), 14ff.

[5] See Report on Discrimination Against People with AIDS (January 1986-June 1987) and AIDS and People of Color: The Discriminatory Impact (August 1987).

[6] "AIDS Clinic Being Weighted by Chicago Dental Society," New York Times (July 21, 1987), B4.

[7] Since most state licensure laws do not address the issue of physicians' refusal to initiate treatment contracts, this imposition would most likely require fresh legislation.

[8] Cf. Earl Shelp, ed., Virtue and Medicine (Boston: Reidel Publishing Company, 1985).

[9] Abigail Zuger and Steven H. Miles, "Physicians, AIDS, and Occupational Risk," Journal of the American Medical Association 258, No. 14 (October 9, 1987), 1924-28.

[10] Alasdair MacIntyre, After Virtue (Notre Dame: Notre Dame University Press, 1981), 201.

[11] Darrel M. Amundsen, "Medical Decontology and Pestilential Disease in the Late Middle Ages," Journal of the History of Medicine and Allied Sciences 32 (1977), 403-21; and Daniel M. Fox, "The Politics of Physicians' Responsibility in Epidemics: A Note on History," Hastings Center Report 18:2 (April/May 1988).

[12] Amundsen, "Medical Decontology," 408.

[13] See generally, J.H. Powell, Bring Out Your Dead: The Great Plague of Yellow Fever in Philadelphia in 1793 (Philadelphia: University of Pennsylvania Press, 1949).

[14] On the relationships between courage, duty, and supererogation, see Douglas N. Walton, Courage: A Philosophical Investigation (Berkeley: University of California Press, 1986).

[15] Fox, "The Politics of Physicians' Responsibility in Epidemics."

[16] Zuger and Miles, "Physicians, AIDS..." 1926.

[17] Code of Ethics of the American Medical Association, 1847. Reprinted in Chauncey D. Leake, ed., Percival's Medical Ethics (Huntington, NY: Krieger Publishing Company, 1975).

[18] This interpretation of the A.M.A.'s decision to drop this provision was recently confirmed by Nancy Dickey, M.D., a member of the A.M.A. Council on Ethical and Judicial Affairs, at a meeting of the Hastings Center's project on "AIDS and Professional Responsibilities."

[19] American Medical Association Council on Ethical and Judicial Affairs, Report on Ethical Issues Involved in the Growing AIDS Crisis (November 1987).

[20] Cardiovascular News (August 1987), 7.

[21] Leake, ed., Percival's Medical Ethics.

[22] For a general account of the connection between vulnerability and ethical duty, see Robert E. Goodin, Protecting the Vulnerable (Chicago: University of Chicago Press, 1985).

[23] Edmund D. Pellegrino, "Altruism, Self-Interest and Medical Ethics," Journal of the American Medical Association 258:14 (October 9, 1987), 1939-40.

[24] Pellegrino, "Altruism, Self-Interest, and Medical Ethics."

[25] Daniel Defoe, A Journal of the Plague Year--1665 (London: Routledge and Sons, 1886), 297.

[26] Of course, many doctors will rightly claim that this has already happened to some extent. But do they want further deterioration in the status of their profession?

[27] See generally Baruch Fischoff, et al., Acceptable Risk (Cambridge: Cambridge University Press, 1981) and Mary Douglas and Aaron Wiladvsky, Risk and Culture (Berkeley: University of California Press, 1982).

[28] Katherine Park, Doctors and Medicine in Early Renaissance Florence (Princeton: Princeton University Press, 1985), 83.

[29] Bernard A. Weisbarger, "Epidemic," American Heritage 35:4 (October/November 1984), 57-65.

[30] James R. Allen, "Health Care Workers and the Risk of HIV Transmission," Hastings Center Report 18:2 (April 1988).

[31] See M.D. Hagen, et al., "Routine Preoperative Screening for HIV," JAMA 259:9 (March 4, 1988), 1357-59.

[32] AMA Council on Ethical and Judicial Affairs, "Issues Involved in the Growing AIDS Crisis," December 1987.

[33] "AIDS Fear Spawns Ethics Debate as Some Doctors Withhold Care," New York Times (July 11, 1987), A1, 12.

[34] "Doctors Who Shun AIDS Patients are Assaulted by Surgeon General," New York Times (September 10, 1987), A1

[35] As a family practitioner from Illinois put it, "I would not knowingly treat a homosexual patient with AIDS, but I would treat patients who got the disease by blood transfusion, and I would treat children with AIDS." "What Doctors Think About AIDS," MD (January 1987), 95.

[36] R. Nathan Link and Anat R. Feingold, "Concerns of Medical and Pediatric House Officers about Acquiring AIDS from their Patients," American Journal of Public Health (forthcoming).

[37] "Surgeon Won't Operate on Victims of AIDS," New York Times (March 13, 1987), A21; Cardiovascular News (August 1987), 7.

[38] It is important to recall that the A.M.A. only represents roughly 50 percent of the nation's physicians. Due to the erosion of the A.M.A.'s power over physicians and the concomitant trend towards increased specialization and fragmentation within medicine, it is becoming increasingly difficult to tell exactly who speaks for the profession.

John D. Arras is philosopher-in-residence in the department of epidemiology and social medicine of Montefiore Medical Center, Albert Einstein College of Medicine, Bronx, NY, and adjunct associate professor of philosophy at Barnard College, New York, NY.
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Author:Arras, John D.
Publication:The Hastings Center Report
Date:Apr 1, 1988
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