Are clinical ethics consultants in danger? An analysis of the potential legal liability of individual clinical ethicists.

• Author: Sontag, David N.

INTRODUCTION

In September 1999, eighteen-year-old Jesse Gelsinger tragically died while participating in a University of Pennsylvania gene transfer experiment. (1) The lawsuit that followed this unfortunate incident named as defendants not only the researchers involved but also renowned bioethicist Arthur Caplan. (2) Although a hospital ethics committee was named in a lawsuit more than ten years earlier, (3) there had not been any other such instances until the Gelsinger case in 2000. However, since the Gelsinger lawsuit was filed (it was ultimately settled out of court), at least one more lawsuit has named bioethicists as defendants. (4) Accordingly, bioethicists have begun to worry about the possibility of being found liable for the advice they give. (5) Due to the close contact with traditional decision makers in the clinical context (i.e., patients and physicians), bioethicists who participate in individual case consultations have become especially concerned about potential exposure to liability for their advice under tort law. (6) Hence, the potential liability of these "clinical ethicists" (7) has become a hot topic in legal, medical, bioethical, and sociological circles.

Hospital ethics committees have been the focus of many discussions ever since the New Jersey Supreme Court decided In re Quinlan. (8) In the years since that decision, however, ethics consultation has ceased to be performed solely by committees. In fact, consultations performed by individual clinical ethicists are becoming increasingly popular. (9) One reason for this may be the functional aspects of the increasing demand for ethics consultations (10)--ethics committees are difficult to call to action on a moment's notice (11) and they can only handle one case at a time; whereas individual ethicists are easy to contact, and multiple individual ethicists can work on different cases simultaneously. (12) Another reason is that "[h]ealth care professionals ... probably are more likely to ask for help from an ethics consultant than from an ethics committee" because the health care professionals are familiar, and therefore comfortable, with requesting consultations from individual medical specialists. (13) Finally, the growing popularity of consultations with individual ethicists may be attributed simply to the belief that "©onsultations are almost always better when performed one-on-one." (14)

Janet Fleetwood and Stephanie Unger are quick to note, however, that the competing models of consultation by individual and consultation by committee both have "advantages and shortcomings." (15) Regardless of whatever shortcomings consultations by individual clinical ethicists may have, "the ethics consultant is replacing the ethics committee in [consultations]." (16) For this reason, this Comment will focus on analyzing the potential legal liability of individual clinical ethicists.

Since committee discussion has been the major format for ethics consultations for longer than individual interaction, committees have been the focus of many more academic inquiries, which include such issues as who should be members, what role they should play in consultations, and what their potential exposure is to legal liability (both as a whole, and their members individually). In spite of the differences between consultations performed by ethics committees and those carried out by individual clinical ethicists, these discussions of ethics committees can be very useful when considering the individual ethicist. In fact, there are many instances in which the previous analyses are directly applicable to the discussion of individual ethicists. (17)

In Part I of this Comment, I discuss the variety of tasks individual clinical ethicists may perform, explain the focus on ethics consultations, and provide an example of a situation in which a clinical ethics consultation might prove to be useful. In Part II, I provide a definition of "clinical ethics," refute objections that ethics consultation is unnecessary or undesirable, and present two opposing views of what clinical ethicists' role should be in case consultations. In Part III, I focus on why legal liability has only recently become an issue for clinical ethicists. Finally, in Part IV, I analyze specific types of liability to which a clinical ethicist could be exposed for her involvement in an individual case consultation. This Part ends with my conclusion that clinical ethicists' role in case consultations should be largely that of mediators, or facilitators of moral consensus, in order to limit their exposure to potential liability.

1. WHAT DO CLINICAL ETHICISTS DO?

   Clinical ethicists generally perform three main functions. First, they are often asked to provide ethical input for the development and implementation of patient care guidelines and policies for various health care institutions. (18) Second, clinical ethicists are often asked to educate health care professionals (e.g., physicians, nurses, etc.) within an institution about ethical concerns associated with the care of patients. (19) Third, the most often discussed function clinical ethicists are asked to perform is individual case consultation, in response to either a patient's or a physician's request. (20)

   Judith Hendrick lists three other functions that clinical ethicists are asked to perform: "reducing litigation, helping to protect healthcare professionals legally by making them aware of any applicable law, and providing a forum for discussion of legal issues." (21) Other authors do not list these three tasks, a phenomenon that could be attributed to the refusal of clinical ethicists and health care institutions to identify publicly any watchdog-type activities as the responsibility of the clinical ethicist. It could also be due to the lack of consensus by academics and participants (e.g., health care institutions, clinical ethicists, physicians, patients) concerning whether or not clinical ethicists should be performing these functions. For example, John Fletcher recognizes that ethics consultations help to keep physicians' fear of liability from interfering with good medical practice because they help to reduce the number of "unnecessary" malpractice suits. (22) However, he shares the view that an ethics committee should not become a forum for risk management. (23) When considered simultaneously, Fletcher's statements could be interpreted to mean that although ethics consultations may help reduce litigation, this should not be the designated function or the goal of the clinical ethicist. Many involved parties are concerned that if clinical ethicists are asked to perform these tasks, "legal" will come to be equated with "ethical," even though the two are not necessarily synonymous, (24) and that clinical ethicists will abandon consideration of the latter for the former.

   This Comment will focus on the clinical ethicist's role as a consultant for individual cases because it is the most likely to expose the ethics consultant to potential liability; the clinical ethicists' roles as educator and policymaker are incredibly unlikely to produce instances in which they could be held liable for the advice they give.

   1. What Would Constitute an "Ethics Consultation"?

      It is important to understand that "[e]thics consultation is a genus which encompasses a variety of species." (25) Fletcher provides a minimalist definition of "ethics consultation": "a meeting, or series of meetings on a continuum from `informal' to `formal,' between person(s) in need of help with an ethical problem and person(s) appointed to provide such help." (26) From this, it is possible to define "clinical ethics consultation" in the following manner: a meeting between a patient, her physician, and an ethics consultant, in which the ethicist assists the patient and physician in resolving their ethical disagreement. (27) A more specific, detailed definition would not be general enough to encompass the significant variation among competing conceptions of exactly how the ethics consultation should be performed.

      Instead of discussing these divergent views in the abstract, the following subsection introduces an example of a situation in which an ethics consultation might prove helpful. It also presents the different approaches a clinical ethics consultant could take in assisting the patient and physician to resolve the dilemma.

   2. An Illustrative Example (28)

      A fifty-seven-year-old woman is admitted to the hospital because of a fractured hip. During her stay in the hospital, the woman's physician discovers that she has stage 1A carcinoma of the cervix. Luckily, because the cancer is caught early, it is almost certainly curable by a hysterectomy. However, the patient refuses to have the surgery. Based on the patient's "unreasonable" refusal to undergo surgery, the treating physician believes that the woman is not mentally competent to make decision's regarding her own care. (29) The physician requests a psychiatric consultation to confirm this belief. The psychiatric consultant, however, does not agree that the patient is mentally incompetent. At this point, the physician has three options. She can (1) seek a court order to allow her to perform the surgery against the patient's will, and probably save her life; (2) accept the competent patient's autonomous decision, and discharge her "Against Medical Advice"; or (3) attempt to resolve the disagreement between herself and the patient. Clearly, option three is preferable. In such a case, an ethics consultation might help resolve the disagreement.

      If a clinical ethicist were called to discuss the situation with the patient and physician, the consultation could take a number of forms. Without commenting on what role the ethicist should play, which will be discussed in Part II, the following are examples of how the consultation could go.

      First, a clinical ethicist could try in a neutral manner to elucidate the reasoning behind the patient's...