BOOK REVIEW:
BIOETHICS BEYOND THE HEADLINES:
WHO LIVES? WHO DIES? WHO DECIDES?
Authored by: Dr. Albert R. Jonsen *
Bioethics Beyond the Headlines. Who Lives? Who Dies? Who Decides?
is a book about the growing interest in bioethics and the study of the
ethical questions involved in medical science and practice. It is written
for the general reader who sees daily media stories about complex
topics such as stem cell research, euthanasia, organ transplantation,
genetic diagnosis and therapy and other "medical miracles" that offer
great benefits but equally perplexing problems. The author, one of the
pioneers in the field of bioethics, attempts to explain in plain language
what the ethical problems are and how bioethicists attempt to deal with
them.
LESS BULL, BETTER BIOETHICS
Reviewed by: Dr. Jerry Menikojfu .
Over the several weeks this was being written, headlines raced across
the globe, heralding unsavory doings in the laboratory of the leading
Korean stem cell researcher. The story was initially broken by the
Washington Post on November 12 with the headline: "U.S. Scientist
Leaves Joint Stem Cell Project; Alleged Ethical Breaches By South
Korean Cited.,,1 The article went on to note how stem cell pioneer
Hwang Woo Suk had obtained some of the human eggs used in his
work from junior researchers in his laboratory. It noted that if this was
true, his actions would be "in violation of widely held ethics principles
that preclude people in positions of authority from accepting egg
donations from underlings.,,2
• Albert R. Jonsen, Professor Emeritus of Ethics in Medicine, University of
Washington School of Medicine, and Co-director, Program in Medicine and Human
Values, California Pacific Medical Center, San Francisco
•• Associate Professor of Law, Ethics & Medicine, University of Kansas School of
Medicine, and Associate Professor of Law, University of Kansas School of Law.
I Rick Weiss, u.s. Scientist Leaves Joint Stem Cell Project; Alleged Ethical Breaches
By South Korean Cited, WASHINGTON POST, Nov. 12, 2005, at A2.
2
I d.
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The Washington Post article also noted that Dr. Hwang might
have paid the women for providing the eggs, an action that also was
described as highly problematic. A researcher at Harvard's Stem Cell
Institute was quoted as saying that such payments were in violation of
guidelines adopted by the National Academy of Sciences: "There is a
right way and a wrong way, and we must be sure to perform this vitally
important medical research the right way.,,3 Within two weeks of the
revelations, Dr. Hwang admitted that two junior researchers had indeed
supplied e§gs and that about 20 of the women who supplied eggs had
been paid. He subsequently stepped down as director of the Korean
stem cell center. Leading U.S. bioethicist Arthur Caplan co-authored an
op-ed claiming that these events demonstrated the need for the U.S. to
be playing a prominent role in stem cell research, since otherwise
"ethics can get forgotten" as other nations race to be leaders in this
field. 5
Hold on a minute. Was everything quite as black-and-white as
some of these headlines suggested? Yes, Dr. Hwang had indeed
breached commitments to not use his subordinates as sources for eggs
and to not pay for the eggs. But to what extent were these two practices
violations of "widely held ethical principles"? It is interesting to note
that in the United States, which has an extensive and long-standing set
of regulations designed to protect human subjects, there is no general
prohibition against enrolling a subordinate in a research study. The
official Institutional Review Board Guidebook notes that the "issues
with respect to employees as research subjects are essentially identical
to those involving students as research subjects: coercion and undue
influence, and confidentiality.,,6 While it notes that special attention
needs to be given to make sure that such subjects are not enrolling as a
result of coercion or undue influence, it does not recommend an
3
!d.
4 James Brooke, Korean Leaves Cloning Center in Ethics Furor, N. Y. TIMES, Nov.
25,2005 at AI. The discussion in the text is limited to the ethical issues relating to the
recruitment and payment of egg donors. Dr. Hwang was subsequently accused of
having fabricated substantial portions of a major paper. See, e.g., Nicholas Wade,
. Korean Scientist Said to Admit Fabrication in a Cloning Study, N.Y. TIMES, Dec. 16,
2005, at A I. Those accusations, if true, would indeed constitute major violations of
"widely held ethical principles."
5 Arthur Caplan & Glenn McGee,
Must Support, Regulate Stem Cell Research,
TIMES UNION, Nov. 20, 2005 at E I.
6 ROBIN LEVIN PENSLAR, PROTECTING HUMAN RESEARCH SUBJECTS: INSTITUTIONAL
REVIEW BOARD GUIDEBOOK, at 6-55 (2d ed. 1993).
u.s.
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outright ban on the use of this category of subjects. 7 As for Dr.
Hwang's subordinates, there have been few, if any, details regarding
the conditions under which he obtained eggs from them. Thus, at best
we can say that we don't really have enough information to know
whether their participation was truly voluntary. Indeed, the New York
Times, writing about Dr. Hwang's resignation less than two weeks after
the Washington Post expose, concluded that at the time the egg
donations took place, they ''were not considered a legal or ethical
vio lation.,,8
And what about the second issue raised with regard to Dr.
Hwang's conduct: the fact that he paid these women to supply eggs? As
the Harvard stem cell researcher noted, this was the "wrong way"
according to the National Academy of Sciences ("NAS") guidelines.
The NAS guidelines, however, represent solely the views of that body,
which merely acts as an advisor to the federal government. The federal
government has not even adopted the guidelines. Thus, they have no
binding legal authority. Indeed, these guidelines were developed under
unusual circumstances, since the federal government had not even
asked for any advice from the NAS, as would be the usual case before
the NAS gives its advice. The NAS produced the guidelines in
furtherance of an explicit goal, to promote stem cell research, faulting
the federal government for its inaction in this area. 9
Moreover, anyone who reads the actual guidelines, at least with
regards to paying subjects, will discover that this aspect of them
actually does not have that much to do with ethics. The guidelines
themselves note that "paying research subjects is 'a common and longstanding practice in the United States.",10 The reason for that practice
See id at 6-52 - 6-55.
8 Brooke, supra note 4, at AI.
9 See Nicholas Wade, Scientists Draft Rules for Ethics on Stem Cells, N.Y. TIMES,
7
Apr. 27, 2005, AI. It is interesting to note that the NAS guidelines say very little
about many ofthe most controversial aspects of stem cell research, such as whether it
is ethical to create new embryos as a source of stem cells. The guidelines deal with
such issues by proposing the creation of special ethics committees to review each
research study involving stem cells. However, the standards that the committees
would use to approve or disapprove such studies are not made clear.
10 NATIONAL RESEARCH COUNCIL AND INSTITUTE OF MEDICINE OF THE NATIONAL
ACADEMIES, GUIDELINES FOR HUMAN EMBRYONIC STEM CELL RESEARCH 85 (2005)
[hereinafter NRCIM]. The Guidelines also would likely not have permitted Dr.
Hwang's collection of eggs from his subordinates. !d. at 85 quoting N. Dickert et al.,
Paying research subjects: an Analysis of Current Policies. 136 ANNALS INTERNAL
MED. 368 (2002); and l.A. Anderson & C. Weijer, The Research Subject as Wage
Earner, 23 THEORETICAL MED. AND BIOETHICS 359 (2002).
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appears to be that "moral principles of fairness and gratitude support
providing payment to those who bear the burdens of research on behalf
of society.,,11 The guidelines, nonetheless, went on to recommend that,
although there is not a consensus on the ethics relating to payment, egg
(or sperm) donors should not receive any payments in excess of
reimbursement for their direct expenses for donation. 12 In making that
recommendation, however, the guidelines state that it was in part
because such payments "raise concerns that might undermine public
confidence" in stem cell research. 13 Indeed, they go on to specifically
note the "strengths of all the arguments surrounding this issue," which
include the argument that substantial payments to egg donors (who bear
substantial risks and inconveniences) are not only permissible, but
should be required as a matter of good ethics. 14 Thus, the NAS itself is
acknowledging that its anti-payment position has more to do with good
public relations-avoiding any policies that might cause public
controversy over stem cell research-than with ethics.
A New Primer on Bioethics
Lest anyone have thought that the events in early 2005 surrounding the
withdrawal of artificial hydration and nutrition from Terri Schiavo were
a fluke, this more recent story provides additional support for
concluding that bioethics discussions in the media can leave a person
less than fully informed about what is really going on. And when
people fmd themselves in the situation of wanting a better
understanding of such events, they might consider reaching for a cOPls"
of Albert Jonsen's new book, Bioethics Beyond the Headlines. 5
Jonsen, Emeritus Professor of Ethics in Medicine at the University of
Washington, has played a founding role in the field ofbioethics. He has
been influential in a number of ways,16 not least by being a prolific
writer. Among other things, he is lead author of one of the most
NRCIM, supra note 10, at 85.
12 See id at 85 - 87.
13 Id. at 87.
14Id.
11
ALBERT R. JONSEN, BIOETHICS BEYOND THE HEADLINES: WHO LIVES? WHO DIES?
WHO DECIDES? (2005).
15
16 He has served as a member of several prominent bioethics commissions, including
the National Commission for the Protection of Human Subjects of Biomedical and
Behavioral Research, and the President's Commission for the Study of Ethical
Problems in Medicine.
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influential clinical ethics handbooks (now in its fifth edition),17 and is
author or co-author of three scholarly works on the history of
bioethics. 18
Bioethies Beyond the Headlines is a change from his usual
writings, in that it is directed at the general public. Recognizing that
complex bioethical issues are often presented by the media "in
superficial and inaccurate terms,,,19 Jonsen attempts to provide a more
substantive explanation of the most common bioethical issues. The
book, a relatively concise 208 pages, is divided into three sections. The
first section deals with the core topics of clinical bioethics, including
the important role of patient autonomy and its significance in informed
consent and in decisions to forgo life support. This section also covers
the defmition of death, euthanasia, organ transplantation, assisted
reproduction and abortion. The second section is devoted to ethical
issues that arise not as part of the clinical encounter between a patient
and a doctor, but instead out of our efforts to advance our knowledge.
Thus, in this section, Jonsen addresses the rules to protect people who
participate as subjects in research studies. He also covers the major hotbutton topics in medical research, including genetics, neuroscience,
cloning and stem cell research. The fmal section is directed at topics
that he describes as being "beyond the usual borders" ofbioethics. Here
he addresses a topic that is of growing prominence: the ethical issues
relating to access to health care (including the inability of many people
to afford such care). Another major topic dealt with here is that of
"ethical relativism": how should we deal with differences in cultural
beliefs (such as it being common among certain Asians to not tell a
person with terminal cancer that he has a fatal illness) while still being
true to the ethical principles that we generally apply in this country?
The fmal two chapters in this section address animal ethics and
environmental ethics. 20
Obviously, a book of this size cannot provide a comprehensive
treatment of such a wide range of topics, nor does Jonsen intend it to do
so. He describes the book as a primer, one that will serve as a curious
17 ALBERT R. JONSEN, MARK SIEGLER, & WILLIAM 1. WINSLADE, CLINICAL ETHICS
th
(5 ed. 2002).
18 ALBERT R. JONSEN, THE BIRTH OF BIOETHICS (1998); ALBERT. R. JONSEN, A
SHORT HISTORY OF MEDICAL ETHICS (1999); ALBERT R. JONSEN & STEPHEN
TOULMIN, THE ABUSE OF CASUISTRY: A HISTORY OF MORAL REASONING (1988).
19 JONSEN, supra note 15, back cover.
The book also has three appendices, providing a "Precis of Moral Philosophy," a
"Precis of the History of Medical Ethics," and discussing the "Frankenstein
Analogy."
20
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reader's introduction to this area. 21 Thus, people who already have a
fairly extensive background in bioethics should probably go elsewhere
for their next bioethics book. But with regard to his chosen audience,
Jonsen succeeds admirably in his goals. The book is written in a clear
and engaging style, and nicely blends a description of current issues
with quite a bit of the historical background, which has been one of
Jonsen's lifetime interests. Consistent with the title, most of the
chapters are constructed around what appear to be actual newspaper
headlines, thus allowing Jonsen to demonstrate how a deeper analysis
of a topic will enrich the understanding one might otherwise get from
merely a headline or sound bite. He generally avoids the common fault
of quickly deciding that one or another view is the "correct" one (a
practice that of course does not make for exciting news headlines),
noting that in bioethics there often is not a consensus regarding the
right answer. 22 There is relatively little jargon or technical terminology;
people who are looking for extensive discussions of Kant or deontology
will not find it here.
What the reader does get, happily, is the wisdom of one of the
leading bioethicists, distilled into a very palatable form. A person could
do far worse in selecting their first bioethics book. And, hopefully
Jonsen will also succeed in his second goal: he hopes this book will not
only provide readers with a background in bioethics, but also encourage
them to read further. He wants this primer to "prime" a reader's interest
for such further explorations. And there is an excellent chance that the
book will do just that.
Law and Bioethics
Since this review is appearing in a health law journal, it seems more
than appropriate to say something about the relationship between law
JONSEN, supra note IS, at 3.
22 In a book that covers most of bioethics, there will of course be the occasional
misstep. In his discussion of withdrawing care from patients in a persistent vegetative
state, Jonsen's comments might lead a reader to wrongly conclude that there is a wide
consensus in bioethics that keeping such persons alive falls within the category of
"futile" care. See id. at 37. He also occasionally misstates some legal points: He
comments that the legal standard for informed consent in the United States involves
determining what a reasonable person would want to be told (whereas in many states,
the standard still looks to what information a physician would generally provide). See
id. at 43. He states that in the Baby M case, In re Baby M, 537 A.2d 1227 (N.J.
1988), the Supreme Court of New Jersey enforced a surrogacy contract, when it in
fact did just the opposite. Id. at 72. But these are very minor faults in a generally
excellent book.
21
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and bioethics. Time and again, legal issues pop up in Jonsen's book.
Within this book are mentions (generally brief) of: the Uniform
Determination of Death Act; the legal decisions regarding Karen Ann
Quinlan, Nancy Cruzan, Elizabeth Bouvia, and Terri Schiavo; the
Schloendorff v. The Society of the New York Hospital23 opinion; the
laws regarding refusals of care by Jehovah's Witnesses; the Supreme
Court decisions on physician-assisted suicide; the Uniform Anatomical
Gift Act and the role of the United Network for Organ Sharing in
distributing organs; the Baby M case; Roe v. Wade24 and the federal
ban on partial birth abortions; and the federal regulations regarding
research with human subjects.
Given the frequency with which Jonsen brings up legal issues, it
is interesting to note his own viewpoint about the connection between
law and bioethics. He addresses this topic in the fmal paragraph of his
fIrst chapter:
Inevitably, the questions of bioethics mingle with the
questions of the law. From the beginning of bioethics, legal
scholars have joined the discussion. Many cases involving
bioethical questions have come to the courts. Legislatures
have passed laws that reflect various bioethical positions.
So, it is impossible to describe the field of bioethics
without reference to "biolaw," and the reader will fmd
many references in the following pages. Despite the
prominence of law, a bioethics that seeks to alleviate the
human predicament must be, in essence, a philosophical
and theological enterprise. 25
It seems, then, that he is somewhat apologetic about the amount of law
that shows up in the book, viewing it perhaps as a necessary but not
always welcome distraction from the philosophical and theological
analyses that form the core ofbioethics.
Jonsen might be somewhat overstating the case in suggesting
that legal reasoning is a largely distinct endeavor from that ofbioethical
analysis. The two might have more in common, particularly in areas of
the law where there is little statutory or similar guidance. Indeed, one
of Jonsen's own landmark works-The Abuse of Casuistry: A History
23
24
25
105 N.E. 92,211 N.Y. 125 (1914).
410 U.S. 113,93 S.Ct. 705 (1973).
JONSEN, supra note 15, at 21.
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ofMoral Reasonini 6-describes how modem bioethical thinking owes
much to the religious case-based reasoning known as casuistry that was
popular hundreds of years ago. Any fIrst-year law student would no
doubt recognize the similarity between casuistry and the type of
reasoning that courts undertake in answering questions relating to
common law. One of this nation's leading legal scholars, Cass R.
Sunstein,27 devoted part of his 1994 Tanner Lectures to reaffIrming the
importance of casuistry in modem legal decision-making. 28 He noted
that case-based analysis (making legal decisions in a framework that
does not involve interpreting a specifIc "rule" such as a statute) plays a
vital role in our legal system, and that we should consider expanding
that role. 29
Even assuming that legal reasoning and bioethical reasoning
sometimes follow similar procedures for coming to decisions, it might
nonetheless still be the case that these two disciplines apply those
procedures to wholly different types of substantive rules. But perhaps
even these substantive differences are not always as great as one might
suspect. One of the more fascinating academic legal debates in recent
years involved Judge Richard Posner's presentation in 1997 of the
Oliver Wendell Holmes Lectures at Harvard Law School, which he
titled The Problematics ofMoral and Legal Theory.3D Posner argued in
these lectures that (1) the work of academic philosophers who
specialize in moral issues is of little practical help in making decisions
about such issues,3l and (2) more particularly, moral theory should play
no role in making legal decisions. 32 The Harvard Law Review
subsequently published Posner's lectures with accompanying critical
responses 33 from a "Who's Who" of legal luminaries: Ronald
JONSEN & TOULMIN, supra note 18.
Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School
and Department of Political Science, University of Chicago.
28 See generally Problems with Rules, 83 CAL. L. REv. 953 (1995).
29 See id. at 958.
30 Richard A. Posner, The Problematics of Moral and Legal Theory, III HARV. L.
REv. 1638 (1998). Posner, consistent with his generally prolific nature, subsequently
expanded these ideas into a book, RICHARD A. POSNER, THE PROBLEMATICS OF
MORAL AND LEGAL THEORY (1999).
31 See Posner, supra note 30, at 1638 - 1692.
32 See id at 1693 - 1709.
33 Ronald Dworkin, Darwin's New Bulldog, 111 HARv. L. REv. 1718 (1998); Charles
Fried, Philosophy Matters, 111 HARv. L. REv. 1739 (1998); Anthony T. Kronman,
The Value of Moral Philosophy, III HARv. L. REv. 1751 (1998); John T. Noonan,
Jr., Posner's Problematics, III HARV. L. REv. 1768 (1998); and Martha C.
Nussbaum, Still Worthy ofPraise, III HARv. L. REv. 1776 (1998).
26
27
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Dworkin/ 4 Charles Fried,35 Anthony Kronman/ 6 John T. Noonan,
Jr./ 7 and Martha C. Nussbaum. 38
These are all wonderful articles, discussing an extremely
complicated and important issue, and I will not even attempt to present
what would no doubt be an overly-simplistic summary here. The only
point to be made here is that several of this nation's great legal minds
strongly disagree with Posner's conclusions, and believe that moral
theory often plays a very significant role in determining what the law
is. Justice Fried, for example, states that
I am a judge, and I will reaffIrm that my reading,
thinking and writing about moral, political and legal
philosophy makes a difference to my work. In fact, I
regularly test my work as a judge against the arguments
that have influenced my thinking about these more
academic matters.... [M]aterials of positive law are
interpreted in light of morality and in the last analysis
are accountable to it. 39
Dean Kronman notes that "Posner badly understates the real, if limited,
role that moral reflection can and must play in the decision of cases....
In reality, the role judges occupy is one in which the need for moral
reflection is steadier and more insistent than in almost any other
position. ,,40
In the clash of viewpoints between Posner and his critics, it is
especially noteworthy that the examples that are brought up by both
sides often are taken from the field of bioethics. Thus, both abortion
and physician-assisted suicide end up being discussed. And, upon
reflection, this is not very surprising. Issues in bioethics often constitute
so-called "hard cases" where we do not have a clear and explicit statute
to reference, which will provide an easy answer to a particular question.
In part, this is due to the rapid changes in technology that create new
Both Professor of Jurisprudence at Oxford University and Professor of Law and
Philosophy at New York University.
35 Former Harvard Law School professor and U.S. solicitor general, and Associate
Justice of the Supreme Judicial Court of Massachusetts.
36 Dean of the Yale Law School.
37 Judge on the U.S. Court of Appeals for the Ninth Circuit.
38 Professor of Law and Ethics in the Law School, Philosophy Department, and the
Divinity School of the University of Chicago.
39 Fried, supra note 33, at 1743.
40 Kronman, supra note 33, at 1761-62.
34
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questions where previously none existed. (We need not have worried
about whether having gestated a child or being the genetic mother of a
child is a "stronger" sign of motherhood before technology allowed us
to have these two aspects residing in two different women). But
whatever the cause, it is nonetheless true that to the extent moral
reasoning may playa role in legal decision making, it is far more likely
to do so in the analysis of bioethics cases than in the more typical case.
Thus, the type of analysis that Jonsen provides in his book should be
particularly useful to a lawyer (whatever her role) who fmds herself
confronting a legal issue that falls within the field ofbioethics.
Hopefully Jonsen would not object to the notion that legal
decision-makers and commentators are indeed frequently paying
attention to the very same moral issues that concern bioethicists. And,
in Jonsen's spirit of priming a reader's interest, I will take this
opportunity to briefly provide a few appetizers, as it were: food for
thought showing how further reading in the legal literature relating to
some of the topics Jonsen addresses can contribute to the understanding
of the relevant ethical issues:
Selective Reduction. In his chapter on abortion, Jonsen
concludes with a discussion of how assisted reproductive technology
has caused a large increase in multiple gestation pregnancies (a woman
who is gestating, for example, four or more fetuses) and the unique
dilemma of selective reduction. Such pregnancies, given that the female
human body was not designed to carry such a large number of fetuses
to term, often result in all of the babies having major health problems.
By aborting one or more of the fetuses, an outcome can often be
produced where all of the babies have a much greater chance of being
healthy. Jonsen notes:
Presumably, parents want all of these babies; all fetuses
in the multiple gestation are wanted. One or several of
the fetuses poses a threat to its siblings. An ethicist
opposed to abortion simply would fmd no justification
for selective reduction. However, an ethicist opposed to
abortion generally but not universally might fmd a selfdefense justification. However, even then, it would not
be clear in most cases which fetus is the aggressor and
why. The "aggressor" is selected somewhat at random
(and is often the smallest fetus). Indeed, can mere
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coexistence in the same womb count as aggression? ...
Selective reduction is truly an ethical paradox. 41
The selective reduction issue naturally leads one to the
discussions in the legal literature regarding similar "coexistence"
problems. Anyone can benefit from rereading (or better yet, reading for
the first time, if they have not yet had the pleasure) Lon Fuller's classic
article, The Case of the Speluncean Explorers. 42 Fuller describes a case
in the far future (the year 4300), decided by the fictitious Supreme
Court of Newgarth.
The facts involved a party of amateur cave explorers who end
up being trapped underground as a result ofa landslide. 43 They are able
to remain in communication with the outside world. 44 Learning that it
will take at least 10 days before they can be rescued, they talk with a
committee of physicians, which advises them that given their lack of
food and water, it is unlikely that they will be able to survive until the
rescuers reach them. 45 They then ask if, were they to kill and eat one of
themselves, could they could survive long enough to be rescued. 46 That
question was "reluctantly" answered in the affrrmative. 47 The explorers
all agree to throw dice to determine who is to be eaten, but in the
middle of the process of doing that, one of them decides to withdraw
from the arrangement. 48 The others force him to participate, and he
ends up being the loser; he is killed and eaten. 49
After the successful rescue, the survivors are tried for murder.
Fuller's article presents the opinions of the several justices on the
fictitious supreme court. 50 He constructed each opinion so that it
represents a particular point of view regarding where the law comes
from. 51 Fuller's thoughtful analysis of jurisprudence allows the reader
to explore how much (or how little) some views of law-making (such
as the natural law approach) might overlap with the type of ethical
decisions about right and wrong that Jonsen wrestles with in his book.
lonsen, supra note 15, at 83.
42 Lon L. Fuller, The Case ofthe Speluncean Explorers, 62
43Id.
44 I d. at 617.
45 Jd.
46 !d.
47 Fuller, supra note 42, at 617.
48 !d. at 618.
49 Jd.
50 See generally id
51 See generally id
41
HARV.
L.REv. 616 (1949).
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Fuller's article continues to engage us more than a half-century after it
was written, regularly producing new commentary in the legal
literature. As recently as 2002, it was employed in analyzing a case
involving the separation of conjoined twins, which raises issues very
similar to those surrounding multiple gestations. 52
Withdrawal ofArtificial Hydration and Nutrition. In discussing
the judicial review of Terri Schiavo's case, Jonsen notes the following:
Every [Florida] court recognized that much law existed
about similar cases and that, indeed, the U.S. Supreme
Court had ruled on a similar case. In 1990, it concluded in
the similar case of Nancy Cruzan that "a State may apply a
clear and convincing evidence standard in proceedings
where a guardian seeks to discontinue nutrition and
hydration of a person in persistent vegetative state." 53
Jonsen is of course correct in noting the relevance of the Cruzan 54
decision to the legal analysis of Terri Schiavo's situation. And given
that obvious relevance, it is especially interesting to note the paucity of
references to that landmark opinion in the otherwise massive amounts
of media coverage that led up to Terri Schiavo's death on March 31,
2005. For example, between January I of that year and Schiavo's
death, the New York Times 55 and the Washington Post 56 each published
only two news articles by its reporters even mentioning the Cruzan
case.
The minimal attention given to that case during the Schiavo
media frenzy is especially surprising, given how much there is to learn
from Cruzan. In the Schiavo case, two of the most controversial issues
appeared to be (1) the allegedly lax burden of proof standard being
52 See Tom Stacy, Acts, Omissions, and the Necessity ofKilling Innocents, 29 AM. 1.
CRIM. L. 481, 486 - 99 (2002) (discussing Fuller's article, the conjoined twins
situation, and the nineteenth century real-life lifeboat case, Regina v. Dudley &
Stephens, 14 Q.B.D. 273 (1884)).
53 JONSEN, supra note 15, at 39 quoting the Supreme Court's decision in Cruzan v.
Director, Missouri Dept. of Health, 497 U.S. 261 (1990).
54 Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S.Ct. 2841 (1990).
55 Denise Grady, The Best Way to Keep Control: Leave Instructions, N.Y. TIMES,
Mar. 29, 2005, F5; David D. Kirkpatrick & Sheryl Gay Stolberg, How Family's.
Cause Reached the Halls ofCongress, N.Y. TIMES, Mar. 22,2005, AI.
56 Manuel Roig-Franzia, Catholic Stance on Tube-Feeding Is Evolving; Terri Schiavo
Case Reopens International Debate on Ethics and the End of Life, WASHINGTON
POST, Mar. 27,2005, A7; Dana Milbank, Legal Experts Say Parents Are Unlikely To
Prevail, WASHINGTON POST, Mar. 22, 2005, AI.
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applied by the Florida courts in deciding what Terri Schiavo would
have wanted done, and (2) the allegedly barbaric nature of allowing
someone to die as a result of withdrawal of artificial hydration and
nutrition. Cruzan squarely addressed both of those issues.
With regard to the burden of proof issue, the Cruzan decision
was actually rather controversial back in 1990. It determined, by only a
5-4 majority, that it was acceptable under the Constitution for a state to
require "clear and convincing" evidence of a person's wishes before
allowing life-sustaining medical care to be withdrawn. And, tellingly, it
was the more conservative block of the Court-including Chief Justice
Rehnquist and Justice Scalia-whose views were on that winning side.
Justice Rehnquist's opinion for that majority accepted that a state, in
effect, could err on the side oflife (where have we heard that concept
recently?!) by imposing the more demanding burden of proof The
more liberal dissenting four Justices would have not allowed a state to
impose such a strict standard; their view was that this type of standard
improperly kept people alive too long, unconstitutionally violating their
interest in having their wish to die--even if only supported by merely a
preponderance of the evidence-respected.
And in 2005, what was the relevant law in Florida applicable to
Terri Schiavo's case? Florida's statute explicitly required that there be
"clear and convincing" evidence of a patient's wishes before lifesustaining care could be withdrawn. In other words, Florida applied the
strict standard that was at issue in the Cruzan case, a standard that - but
for the swing vote of a single Justice fifteen years earlier - might not
have even been constitutionally permissible. How odd, then, that during
the Schiavo case much of the media took no notice of the fact that an
evidentiary standard that strongly favored the "pro-life" viewpoint, and
that barely survived being upheld by the Supreme Court, was suddenly
being characterized by many as too generous in allowing people to die.
The Cruzan Court had also spoken to another of the most
controversial issues regarding Terri Schiavo: the acceptability of
allowing someone to die by withdrawing artificial hydration and
nutrition. Simply stated, that Court had determined that this issue was
not even very controversial back in 1990. Withdrawal of artificial
hydration and nutrition was to be treated in the same way as withdrawal
of any other form of medical care. Eight of the nine Justices accepted
this conclusion. Indeed, even Chief Justice Rehnquist-rare1y
considered a wild-eyed liberal-writing for the majority, appeared to
acknowledge that the Constitution probably protected a person's right
to have artificial hydration and nutrition withdrawn.
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Again, how odd that relatively little attention was paid to these
facts by much of the media. Surely it was relevant that a practice that
fifteen years earlier was considered non-controversial, even
constitutionally protected, by some of the most conservative members
of the Supreme Court, was now being recharacterized as some type of
cruel invention for killing people off
The Cruzan decision-each and everyone of the various
opinions-remains a source of much wisdom, no matter what one's
political leanings might be. That fact makes it even worse that there has
been so little serious discussion of it in the major media, even as there
are calls for "tightening up" the burden of proof for allowing care to be
withdrawn from future patients. The issues addressed in that case,
regarding the appropriate burden of proof, were difficult ones back in
1990, and still remain difficult ones, even today. How to "properly"
make a decision for someone when we are not sure what she really
wants done remains a vexing problem, whether we treat it as one oflaw
or ethics. Whatever we decide, we will be doing a wrong to some
people by doing something to them that they would not have wanted
done. 57
Determining When a Person is Dead. One of the few issues that
was relatively non-controversial in the recent debate over Terri Schiavo
was the fact that she was not dead. This is the first substantive topic
that Jonsen addresses in his book. 58 And even though many of those
who advocated withdrawing artificial nutrition and hydration from
Schiavo might have felt that she should be considered dead (she was
perhaps "as good as dead"), and thus presumably her wishes would
then be irrelevant, such arguments were rarely made. To a significant
extent, that is because the debate about where to draw the line between
life and death took place decades ago, and is largely settled: a person
with a functioning brainstem and a beating heart does not meet the
legal defmition of death in any state ofthe u.S.
But oddly enough, there is still an ongoing controversy about
one aspect of the defmition of death. Jonsen notes the relatively recent
practice of obtaining organs for transplantation not only from people
who are declared dead under "brain death" criteria (their entire brain
has irreversibly ceased functioning, even though their hearts continue
to beat), but rather who die as a result of their heart ceasing to beat.
These people used to be called non-heart-beating donors, although the
See, e.g., JERRY MENIKOFF, LAW AND BIOETHICS: AN INTRODUCTION 322-27
(2001).
58 JONSEN, supra note 15, at 26-27.
57
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newest terminology refers to this practice as donation after cardiac
death (DCD).
In spite of there being specific statutory guidance on this
issue-almost all states have adopted a version of the Uniform
Determination of Death Act ("UDDA")-there is a significant
controversy about whether organs are regularly being removed from
DCD donors prior to the time that they meet the legal criteria for being
dead. 59 The growing legal literature on this issue addresses many of the
same questions that philosophers would ask. Are there fundamental
concepts we have in mind-concepts that are embedded in the
UDDA-when we decide that someone is dead? The current protocols
for removing organs in the DCD context allow a person to be declared
dead even though that person could later end up being brought back to
life. They allow persons to be declared dead even though they might
still have continuing brain function. We are again discovering that core
ideas about the nature of our being, long thought settled, can revive
themselves to present challenging new issues.
Conclusion
Over the coming years, issues in bioethics will no doubt continue to
attract a great deal of media attention, and playa growing role in 'public
policy debates. Jonsen's book is an excellent starting point for
beginning an exploration of this field. And hopefully it wi11lead many
readers to a further and deeper inquiry-delving into both the
philosophical and legal literature, each of which has much to contribute
to "alleviat[ing] the human predicament.',(jo
59 See, e.g., ROBERT M. ARNOLD ET AL., PROCURING ORGANS FOR TRANSPLANT: THE
DEBATE OVER NON-HEART-BEATTNG CADAVER PROTOCOLS (1995); Jerry Menikoff,
Doubts About Death: The Silence of the Institute of Medicine, 26 J. L. MED. &
ETHICS 157 (1998); Jerry Menikoff, The Importance of Being Dead: Non-HeartBeating Organ Donation, 18 ISSUES L. MED. 3 (2002); MENIKOFF, supra note 57, at
462-66.
60
JONSEN,
supra note 15, at 21.
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BOOK REVIEW:
IS THERE AN ETHICIST IN THE HOUSE?
ON THE CUTTING EDGE OF BIOETHICS
Authored by: Jonathan D. Moreno*
Is There an Ethicist in the House? explores a 25-year personal and
professional journey through the field of bioethics just as it was getting
off the ground. I was a young philosophy professor who found himself
with a rare opportunity: to be part of a new field and help define its
issues, as well as a new profession, helping to define its role. This
work has taken me from the hospital bedside to congressional hearing
rooms and presidential commissions. In these writings I reflect on my
experience as clinical ethicist, medical philosopher, historian of
medical ethics, and bioethics policy analyst.
REFLECTIONS ON AN IMPOSSmLE PROFESSION: A FIRSTHAND ACCOUNT OF THE DEVELOPMENT OF
CONTEMPORARY, MULTI-DISCIPLINARY BIOETHICS
Reviewed by: Jennifer S. Bard**
Jonathan D. Moreno holds an honored place in American society as one
of the most credible voices in the application of philosophical training
to contemporary moral, ethical and legal problems in clinical medical
care and human subject research. 1 This book relates his personal
• Jonathan D. Moreno, Ph.D., is the Kornfeld Professor and Director of the Center for
Biomedical Ethics at the University of Virginia and a Senior Fellow at the Center for
American Progress. He is an elected member of the Institute of Medicine of the
National Academies, has served as senior staff for two presidential advisory
commissions, and is an advisor for numerous academic, scientific and professional
organizations. He is a past president of the American Society for Bioethics and
Humanities.
•• Jennifer Bard, J.D., M.P.H., is an Associate Professor and the Director of the Health
Law Program at Texas Tech University School of Law. She is also an Associate
Professor (adjunct) Department of Neuropsychiatry, Texas Tech University School of
Medicine
1 He became a public figure following his appointment by President Clinton to the
President's Advisory Committee on Human Radiation Experiments when he helped
uncover a secret Government program of experiments conducted in the late 1940's
through the 1960's on the effects of radiation on the human body. These experiments
were conducted by the most prominent and respected medical researchers on unHeinOnline -- 9 DePaul J. Health Care L. 1149 2005-2006
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experiences making the transition from a philosopher to. a bioethicist
and reflects his views on the ethical issues that concern medical
decision making and human research. 2 Apart from and in addition to
his status as a public figure, Moreno is well-known in the field of
bioethics. Moreno has written a respected text book on clinical ethics, 3
many other books4 and dozens of well-respected articles. 5 He was
recently appointed to the highly prestigious Institute of Medicine-an
honor awarded to few non-physicians.
Because Moreno has achieved success in the fields of
individual clinical medical decision making and the ethics of medical
research on human populations, the story of his life encompasses all the
major developments in two very large and often distinct fields. It is a
tribute to the richness of this book that it is difficult to review. There is
so much important information that to emphasize some chapters risks
the impression of de-emphasizing others. Some of the very best
portions of this book are those in which Moreno discusses his own
personal experiences. Moreno's recounting of his journey from a
professor of philosophy to a hospital ethics consultant, and his
reflections on the relationship between the two endeavors represents a
suspecting vulnerable populations. The experiments included "feeding radiationlaced breakfast cereal to institutionalized adolescents" without their parents' consent,
"exposing cancer patients to total-body irradiation, and irradiating the testicles of
subject research. prisoners in state penitentiaries."l Moreno described his discoveries
in a well-received book. This led to his continuing interest in the role of the
Government in human subject research. He is perhaps best known to the public for
refusing an unsolicited appointment to President Bush's National Human Research
Protections Advisory Committee; he was quoted as rejecting the appointment because
he felt that the other members did not represent a diversity of viewpoints. Rick
Weiss, New HHS Panel Makeup Draws Ire of Patient Advocates, WASH. POST, Jan
5, 2003, at A9.
2 JONATHAN D. MORENO, Is THERE AN ETHICIST IN THE HOUSE? ON THE CUTTING
EDGE OF BIOETHICS 200 (2005).
3 See, e.g., JUDITH C. AHRONHEIM & JOHNATHAN MORENO ET AL., ETHICS IN
CLINICAL PRACTICE (2000).
4 See, e.g., JONATHAN D. MORENO, IN THE WAKE OF TERROR: MEDICINE AND
MORALITY IN A TIME OF CRISIS (2003); ETHICAL AND REGULATORY ASPECTS OF
CLINICAL RESEARCH (2003); JONATHAN D. MORENO, UNDUE RISK: SECRET STATE
EXPERIMENTS ON HUMANS (2001); EZEKIEL J. EMANUEL & JONATHAN MORENO ET
AL., JONATHAN D. MORENO, DECIDING TOGETHER: BIOETHICS AND MORAL
CONSENSUS (1995); and JONATHAN D. MORENO, ARGUING EUTHANASIA (1995).
5 Most recently Moreno questioned the value of bioethics in the face of the glaring
inequalities of access to health care exposed in New Orleans after Hurricane Katrina.
See, e.g., Jonathan D. Moreno, In the Wake of Katrina: Has "Bioethics" Failed?, 5
AM. J. BIOETHICS Wl8 (2005).
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rich resource to all current and asprrmg clinical bioethicists. His
chapters recounting the history of medical research on human beings
and how it came to be regulated in the United States are meticulously
researched and beautifully written.
The following chapters, on specific problems in human subject
research with vulnerable populations and on the current recognition of
the need for protection of the cognitively impaired, are also models of
clarity. These will become required reading for anyone seeking to
understand how the history of human subject research impacts the
current state of regulation and seeking to evaluate the effectiveness of
these regulations in contemporary society.
But this book is far more than a memoir, a precis, a history, a
bedside guide to bioethics, or a reflection on contemporary problems in
bioethics. It is an important work of philosophical and sociological
thought on the role of the philosopher in bioethics and the role of
medical research in society. Moreno takes on the ambitious projects of
securing bioethics' place in the history of Western Philosophy and of
linking the history of human subject research regulation to the social
history of the United States. He shows how bioethics is rooted in the
American-developed philosophy of pragmatism and how the growth of
regulation of human subject research tracked an erosion of trust in
authority during the 1960's and 1970's. Given the depth and richness
of this book, I approach my task as a reviewer as first highlighting the
achievements of this work and then by reflecting on what it offers to
the readers of a journal on health law. In so doing, I take advantage of
the privilege of an academic reviewer to apply the book in a way not
specifically contemplated by the author.
One of the many ways this book succeeds is, as noted above, as
a sensitive memoir of the personal events which shaped Moreno's
remarkable empathy for the vulnerability of human beings in the face
of illness. What becomes clear in this book is that Moreno's
understanding of the sick, and especially of the cognitively impaired,
goes back to his experience as a child where he grew up on the grounds
of a private psychiatric hospital run by his father. 6 There, Moreno
knew the patients as friends and saw their vulnerability to the good-will
of those who had charge of them. 7 He also attributes his [rrst thoughts
about bioethics at the end of life to his feelings of doubt about whether
J. L. Moreno, a prominent, Austrian trained psychiatrist who ran the Moreno
Sanitarium in Beacon, New Yark.
7 See MORENO, supra note 2, at 154-56.
6
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his family understood and correctly carried out his father's wishes to
forgo further medical care after what would become a fatal stroke. 8
He writes that his later work, teaching ethics to medical students
and consulting in an academic medical center was, and continues to be,
impacted by his understanding that it is human nature to see the sick
and the vulnerable as "others" because of the inherent fear we all have
of becoming like them. 9 This fear is based on the reality that we will
all become sick and will depend on others for our care, our comfort
and, eventually, to manage our deaths. Moreno is exceptional in his
ability to embrace this realization of what will be our common
experience and apply it in the service of others. This ability combined
with a powerful intellect and an unusual talent to convey subtle and
complex ideas in writing and in speech have made him a highly
honored teacher, scholar, member of the bioethics community and one
of the most important voices in the contemporary debate over medical
and research ethics.
In this book, Moreno shares aspects of his life with the reader.
As a teacher, he presents clearly written and exhaustively researched
histories of bioethics in the context of both medical decisions made
about individuals and large-scale human subject research. He similarly
presents current developments such as the role of bioethics in times of
war and the much belated movement to provide protections for the
cognitively impaired. As a scholar and philosopher, Moreno fIrmly
places clinical bioethics into the tradition of Western Philosophy and
shows how it is an important part of the uniquely American philosophy
of pragmatism as developed by William James, John Dewey and
Charles Pierce. 10 He further shows how bioethics uses the method of
Naturalism, which privileges the experience of the philosopher over the
application of abstract forms and concepts." As a prominent member
of the community of bioethicists, he addresses the role of the bioethicist
in the hospital setting. He identifIes the inherent tendency to identify
with the doctors and medical staff, who become friends, rather than to
maintain the viewpoint as an outsider or patient advocate. 12 He also
discusses the criticism that bioethicists lose their ability to provide
objective analysis when they are paid for their services, either by the
See id. at 35-36.
9 See id. at 26-32.
10 See id. at 49-50.
11 See id. at 51-66.
12 See MORENO, supra note 2, at 15-32.
8
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medical centers that employ them or by the increasing number of
private companies that seek to employ ethical oversight boards. 13
Finally, in his role as a public voice, he explains the history of
both clinical and research bioethics as being closely linked to the social
climate of the United States. He identifies bioethics as a "child of the
sixties" in that it values individual over societal rights and seeks justice
for otherwise marginalized members of society. 14 By putting bioethics
in the context of social history, he shows that the trend towards greater
protection for human research subjects and greater respect for
individual patient autonomy are not inevitable, but rather, can and are
likely to change should the United States experience severe resource
shortages, alone or accompanied by real threats to National Security.
Moreno ends the book by speculating that the fear of terrorism brought
on by the September 11, 2001 attacks on New York will result in
greater interest in public safety and in less individual protection. IS His
speculation is founded on how the United States has reacted to past
threats to national security by conducting what were at the time secret
human experiments. 16 He continues to be a careful observer of the
balance between the interests of the individual and society.
In Part One "A Hospital Philosopher,,,17 Moreno relates his
personal journey from professor of philosophy to bed-side ethicist.
Although he attributes the career shift in part to being in the right place
at the right time, he turns his remarkable powers of self-reflection and
analysis to understanding what it meant for him to move between these
two very difficult worlds. Was he a philosopher? A teacher? A
healer? Moreno's account of what he learned the medical staff needed
from an outside "ethicist" is a blueprint for those entering the field
today and also a warning of the inevitable shifting of boundaries when
one moves from being an observer of medical decision making to a
participant.
In Part Two, "Naturalizing Bioethics in Theory and Practice,,,18
Moreno does no less than anchor bioethics in the American school of
philosophical pragmatism. He creates a provenance for a subject that
has long struggled to define itself within the world of philosophy,
which views bioethics' interest in the "real" as evidence of it,S lack of
13
14
15
16
17
18
See id. at 245-47.
Id. at 234.
See id. at 240-42.
See id. at 236.
See MORENO, supra note 2, at 3-45.
See id. at 49-101.
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intellectual rigor. That will no longer be possible after this book's
placement of Bioethics in Western philosophy.
Moreno begins his quest to locate the bedside clinical ethicist in
the context of philosophy with the observation that ''This encounter
with sickness is extraordinarily challenging for one whose primary
professional identification is that of philosopher, for the intellectual
detachment usually associated with philosophical speculation is at least
as difficult to sustain in the oncology unit, for example, and may even
seem voyeuristic.,,19 He rejects the charge of voyeurism, however, by
noting that rather than seek out this close contact with the sick, "we
[philosophers] have been fairly dragged into the fray by beleaguered
doctors" who are struggling to balance the new emphasis on patient
autonomy with rapid growth in the available medical interventions. zo
Moreno writes that the reason doctors feel beleaguered today is that
along with rapid advances in medical knowledge and technology that
allow doctors to make far more effective interventions have come
"during a period in which self-determination has also asserted itself in
an equally unprecedented manner, the most obvious expression of this
trend being the various civil rights movements."ZI
Moreno traces the problem of the relationship between the goals
of philosophy and that of medicine back to the earliest recorded
intersections between the two, noting that "Plato's Socrates frequently
expressed skepticism about the usefulness of a call on the physician.
Yet tradition has it that, just before his death, Socrates asked that one of
his students give an offering to Aesculapius, the god of healing arts.',zz
Moreno sees bioethics as firmly rooted in the Socratic Western
19
See id. at 22.
Id. The literature of physician "belaguerment" is vast.
For example, in 1998
Professor Fran Miller pointed out the stress to physicians brought on by the rapid
change of their role from trusted authority figures, with an essential monopoly on
what "precious little" knowledge they had about how to cure disease, to that of being
challenged by patients with greater skill at accessing cutting-edge medical
information [from the internet]. See Frances H. Miller, Health Care Information
20
Technology And Informed Consent: Computers And The Doctor-Patient Relationship,
31 IND. L. REv. 1019, 1024 (1998); see also Catherine T. Struve, Doctors, The
Adversary System, and Procedural Reform in Medical Liability Litigation, 72
FORDHAM L. REv. 943, 948 (2004)(recounting physicians' perception of being under
siege by malpractice litigation fueled by improvements in medical knowledge and
technology that have heightened consumer expectations, and have led to lawsuits over
imperfect results where previously-under less sophisticated treatment-no suit
would have been possible).
21 Id. at 28.
22 MORENO, supra note 2, at 22.
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tradition as reflected in the "contextual approach to moral theorizing"
which the "major philosophical theorists in the 1980s" such as Richard
Rorty and Alasdair Macintyre, were claiming was necessary to free
moral philosophy from the reductive process of developing conclusions
based on an abstract, Platonic concept of "the good.,,23
Moreno frames the questions that "emerge from this novel
relationship between philosophy and medicine" as: "First, does this
experience, fascinating as it may be on other counts, have anything to
contribute to the ancient line of philosophical inquiry per seT' and
"Second, what exactly the philosopher quo philosopher is contributing
at the bedside.,,24 His answer to these questions in the remainder of
part two is destined to become a foundational document for those
seeking to place reflection on medical decision making for individual
patients as a branch of "moral philosophy" in the American twentiethcentury movement of "pragmatic naturalism." Moreno explains that
the bioethicist must be an activist philosopher participating in the
experiences about which he is called upon to evaluate in ethical
terms. 25
In Part Three "Human Use,,,26 Moreno limns the history of
human subject research in the United States and explores the
contemporary debates on protection of vulnerable populations. He
accomplishes this by describing the contemporary situation in which
human subject research is governed by Federal and State Law and
enforced by agencies and persons outside of the research community.
In the fIrst section, "Goodbye to all that: The End of Moderate
Protectionism in Human Subjects Research," he states that his goal is
"neither to challenge nor defend" the current state of regulation but
"[r]ather, to note how inured we have become to this grim view of
investigator discretion and how far we have traveled to reach this
pass.'>27 He divides the history of oversight or regulation of human
subject research in the United States into three periods: weak
protectionism, moderate protectionism and strong protectionism. 28 He
writes that he uses the term "protectionism" to mean "the view that a
duty is owed those who participate as subjects in medical research.,,29
Id. at 26.
24 Id. at 22.
25 See id. at 50.
26 See id. at 105-172.
27 MORENO, supra note 2, at 111.
28 Id. at 110-11.
29 Id. at 126.
23
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He go~s on to state, ''The underlying problem is how to resolve the
tension between individual interests and scientific progress, where the
latter is justified in terms of benefits to future individuals.,,3o Within
that definition, he defines "Weak Protectionism" as "the view that this
problem is best resolved through the judgment of virtuous scientists.,,3!
Thus, under Weak Protectionism there is no outside oversight of
medical research except whatever professional norms develop within
the culture of physicians and scientists.
Weak Protectionism
characterizes the history of human subject research in the United States
until the revelations of the horrific actions of physicians in Nazi
Germany, which were revealed in the war crimes trial at Nuremberg.
Moreno's concise but rich account of the history of human
subject research should be required reading for everyone interested in
the history of human subject research. It is easy to view the history of
human subject research as a series of horrendous ethical lapses,32
followed, upon discovery, by sweeping denunciations and new
regulations intended to prevent all future abuses. Moreno's account,
however, shows that the reality is far less clear cut. For example,
Moreno shows that American physicians and scientists were
immediately dissatisfied with the "legalistic" requirements of the
Nuremberg Code which demanded informed consent from all research
subjects, and this requirement was almost immediately softened in the
1954 declaration of Helsinki to allow for researcher discretion. 33
Moreno explains that rather than seeing the excesses of the
holocaust as a danger that could befall anyone, the United States
medical community insisted that protections against acts by Nazi's
were not needed by men of good character like themselves. 34 This
inability or refusal to see the way real commonality between the
[d.
!d.
32 See e.g., The Tuskegee Syphilis Study, the deprivation of poor, Black sharecroppers of life-saving penicillin in order to study the natural course of syphilis. See
Wikipedia, Tuskegee Syphilis Study, at http://en.wikipedia.org/wikifTuskegee
_Syphilis_Study (last visited Apr. 6, 2006) (a clinical study, conducted around
Tuskegee, Alabama, where 400 poor, mostly illiterate African American
sharecroppers became part of a study on the treatment and natural history of syphilis.
This study became notorious because it was conducted without due care to its
subjects, and led to major changes in how patients are protected in clinical studies.
Individuals enrolled in the Tuskegee Syphilis Study did not give informed consent
and were not informed of their diagnosis; instead they were told they had "bad blood"
and could receive free treatment).
33 MORENO, supra note 2, at 123.
34 See id. at 198-99.
30
31
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medical experiments of the Nazi period and the prevailing western
norms is reflected in consistent chafing against what are often
described as "legalistic" regulations that are not relevant to scientists
with good moral character and will not stop scientists who lack good
moral character. 35
In the fourth part of his book,36 Moreno reminds the reader that
the U.S. has been in an almost constant state of war, the Cold War,
since the end of World War II. In that context, he details how the
Pentagon has always chafed against human subject research regulation
seeing it as a threat to their efforts at providing for national defense.
Moreno uses clear, clean prose to take the reader through the most
difficult and troubling historical incidents of human subject research on
"convenient and captive" populations 37 and shows how the same ethical
issues exist today as those present when Walter Reed was first
conducting Yellow Fever studies on workers digging the Panama
Canal. Moreno does not, however, present this history as a tale of the
"bad old days" but rather addresses head-on the central problem of
human subject research; that it "is a complex, expensive and valued
social activity [and that] [o]ne of the conditions that makes it possible
is a subject population that is convenient, both in terms of availability
for recruitment and for monitoring through the course of a study.,,38 He
notes that "[0 ]ne element that crops up repeatedly in the research
context is that human subjects are often used in research that is not
intended to benefit them but instead other individuals.,,39
Likewise, a population may be used in studies that develop
treatments intended mainly, or even exclusively, to benefit other
groups. Any reasonably well-formed conception of justice in research
will need to reckon with these special circumstances.,,40 He reminds
us, however, that "much human-subject research has contributed
greatly to human well-being and has been conducted according to
sound ethical standards.,,41
By putting research performed on
vulnerable or captive populations into the context of scientifically valid
efforts by careful researchers to develop new, effective treatments for
serious diseases, Moreno avoids presenting this history as some sort of
35
36
37
See id. at 176.
See id. at 175-207.
See id. at 131-36 (referencing prisoners, institutionalized persons, military
personnel, students, and employees of research institutions).
38 MORENO, supra note 2, at 129.
39 Id. at 131.
4° Id.
41
Id.
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Island of Dr. Moreau 42 parade of horribles presided over by scientists
with little or no concern about the well-being of their subjects.
Moreno describes contemporary regulation of human subject
research as being "[t]he essence of strong protectionism [which is] the
minimization of clinical researchers' discretion in governing their
conduct with regard to human subjects.,,43 This is achieved by "thirdparty monitoring of consent and study procedures, disclosure of
financial arrangements or other potential conflicts of interest, required
training of investigators in research ethics and research regulations, and
independent review of the decision-making capacity of potential
subjects.,,44 Moreno recognizes that all research using humans involves
the inherent conflict between the needs of the many and the rights of
the few. Although it is sometimes confusing that human subject
research is in the purview of both clinical medicine, concerned with
individuals, and public health, concerned with populations, Moreno
shows why this must always be so. He returns to this at the end of the
book where he speculates whether the fear of terrorism created after the
events of September 11 th , 2001 will result in a backlash against human
·
. 45
su b~ect
protectIon.
He writes that:
A new preoccupation with "homeland defense" and a
renewed respect for the professionals engaged in these
efforts, including the granting of greater legal flexibility
for espionage activities, could easily spill over into an
enhanced image for civilian institutions whose mission is
to protect our national survival and therefore less concern
about protecting the individual rights of individuals. 46
He further speculates that this lessened concern about individuals could
change views about disproportionate allocations of health care
resources on "moral strengths.,,47 This concern about the role of
bioethics in a time of war is an on-going theme in his current research
H.G. WELLS, THE ISLAND OF DOCTOR MOREAU (Leon Stover ed., McFarland 1996)
(1896).
43 MORENO, supra note 2, at 110.
42
44/d.
45
See id. at 240-42.
at 237.
[d.
46/d.
47
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and is reflected in wntmgs published subsequent to this book. 48
Moreno suggests that if indeed human subject protection is weakened it
will be consistent with what has happened in the United States during
other periods of perceived national danger, such as the cold war. 49
Reflecting further on the pressures of bioethics in wartime, the
chapter "The Meaning of Nuremberg" raises what continues to be a
troubling bioethical issue of the current war on terrorism: the role of
physicians in the conduct of war. Moreno shows how ''The Pentagon's
ambivalent relationship with Nuremberg Code" has resulted in constant
tension between the Code's emphasis on openness and consent and the
military's need for secrecy in pursuit of national security. 50 He also
returns to the theme of the relationship between human subject
protection and fears about national security. Following his book about
the human radiation experiments,51 he was often asked by what he then
considered "conspiracy" theorists whether there were "secret" human
experiments being carried on. 52 At the time he did not think this
possible.53 However, hearing that the US had developed a strain of
anthrax previously linked to the Soviets, he expresses doubt. 54 Given
the news that there are "secret" US interrogation prisons in Eastern
Europe, it is not difficult to conclude that these same pressures have
resulted in secret human experiments.55
As this was being written, in February 2006, the American
tendency to question authority proved to still be vigorous even in the
face of foreign threat. There is vigorous debate over the use of torture
even though there is little doubt that the US faces serious threats from
terrorists. Further, it seems likely that we will eventually be hearing
revelations about experiments or research intended to find the most
effective torture methods. As the debate on the morality of torture and,
in particular, the role of the medical profession in conducting torture
continues,56 Moreno's voice will be an important for seeking a rational
48 See, e.g., Jonathan D. Moreno, Detainee Ethics: Terrorists as Research Subjects, 3
AM. 1. BIOETIDCS W32 (2003); Jonathan D. Moreno, In the Wake of Katrina: Has
"Bioethics" Failed? 5 AM. J. BIOETHICS W18 (2005).
49 MORENO, supra note 2, at 236-37.
50/d. at 177.
5l
JONATHAN D. MORENO, UNDUE RISK: SECRET STATE EXPERIMENTS ON HUMANS
(2001).
52 MORENO,
53/d.
supra note 2, at 236.
at 235.
55 See Robert Jay Lifton, Doctors and Torture, 351 NEW ENG. 1. MED. 415-16 (2004).
56 Id.
54/d.
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balance between fears about national security and the danger of losing
the hard-won American belief in the value and dignity of all human
beings.
Finally, part Five of Moreno's book57 considers various
challenges to bioethics, many of which come from advances in both
medicine and technology, including the ability to read an individuals'
genetic code. Moreno considers his own mortality in a new way as he
reflects upon his fortieth birthday and speaks quite candidly about his
mother's struggle with cancer. 58 Specifically, he comments on the
changing relationship between the physician and the patient and how a
physician who almost routinely uses the word "cancer" with their
patients today would never have done so forty years ago, choosing a
more placating euphemism such as "growth" instead. 59
In his next chapter, Moreno discusses the impact that
neuroscience has had on society, and specifically the law, with regard
to selective serotonin reuptake inhibitors and traumatic brain injury and
their implications from the standpoint of determining criminal
culpability.60 In this chapter, Moreno also addresses a growing concern
of his and of the research community's with the lack of regulation for
research with individuals whose cognitive impairments make it difficult
for them to give informed consent. In doing so, he proposes addin~
"impaired consent" to the list of legally protected vulnerable subjects. 1
He writes that although medical testing on those with impaired
"decision making abilities" is not a new issue as institutionalized
persons have always been attractive subjects because of their
confinement and ability to be monitored. 62 He also looks at what has
become another area of growing concern, which is decision-making by
the cognitively impaired. These patients are often researchers' favorite
subjects to further advances in Alzheimer's and other such illnesses,
but the fact remains that these patients are cognitively impaired and are
perhaps unaware of the ramifications of participating in such research.
Moreno therefore presents a very serious issue for incapacitated adults,
which is the uncertainty of who may authorize such research if these
.
63
patients cannot.
See MORENO, supra note 2, at 211-50.
Id. at 213.
59 Id. at 214.
60 Id at 224-225.
6\ Id at 227.
62 MORENO, supra note 2, at 228.
63 Id.
57
58
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In closing, he addresses a contemporary dispute among
bioethicists as to the propriety of serving as paid advisors to
commercial entities seeking to develop new medical drugs and
devices. 64 As expected, Moreno confronts the most substantial critique
of this practice, which is that bioethicists are induced to promote a
product because of their financial incentive and therefore their
"advisement" is motivated more by their financial gain than their
expertise. 65 Moreno then disclosed his own personal experience in
serving on a similar board and conveys that he shares a similar
perspective as those who defend this practice, which is that "no
respectable ethics expert would allow his or her opinion to be bought"
and that the problems, which drive corporations to seek ethics advice,
are in fact genuine. 66
The Role of the Lawyer-Bioethicist
Since this review is written for a law journal and therefore will most
likely be read by law students and lawyers interested in clinical ethics, I
will give most emphasis to how Moreno's work can inform the role of
the "lawyer-ethicist." In so doing, I will also take advantage of the
privilege an academic book reviewer has to apply the book in a context,
in this case the lawyer-bioethicist, which is not the primary intent of the
author. This book is written by a philosopher about the role of
philosophy in bioethics, particularly the practice of bioethics. Moreno
makes almost no mention of lawyers in his book except to note that
although legal training imparts many of the same important skills as
philosophy, the natural distrust of lawyers by doctors makes the lawyer
somewhat less effective than a philosopher in conducting bioethics
consults. 67 In writing about the advantage of his role as a philosopher,
he cites "specific advantages for the philosopher as compared to the
lawyer in this role, for lawyers are commonly so stereotyped by
physicians that it can be difficult for them to be heard as sympathetic or
at least neutral. Philosophers can occupy a certain moral high ground,
the same high ground that theologians used to be able to claim.,,68 By
implication lawyers lack "moral high ground," which impairs their
credibility to physicians.
ld. at 245-47.
65 ld. at 245.
66 ld.
67 See MORENO, supra note 2, at 29.
68 ld.
64
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I feel comfortable applying Moreno's experience and
observation to those with legal training because he, himself asserts that
the qualifications of a successful bioethicist are not particular to
Philosophers. 69 This is based on his answer to the question he poses
early in the book in a section called "Who Teaches Virtue" when he
considers the typical dual roles of the bioethicist in an academic
medical center. That role involves not just consulting at the bedside but
also teaching ethics to medical students. 7o
Now what uniquely qualifies philosophers to take on this
educational job [educating medical students about ethics]?"
The answer
is nothing uniquely qualifies the
philosopher. Anyone comfortable with the free play of
ideas, capable of formulating and assessing arguments,
sensitive to connections between seemingly unrelated
subjects, and with sufficient intellectual curiosity and selfconfidence to become engaged with a variety of technical
languages, can take this on. It does happen that, among the
academic disciplines, philosophers are likely to have been
trained specifically in the acquisition of these skills and to
be self-selected in the possession of the necessary qualities
(Moreno, 1991). Clearly, however, individuals from a
variety of backgrounds, includin~ law, medicine, or
nursing, could be equally qualified." I
He notes, however, that lawyers may not be effective because there are
specific advantages for the philosopher as compared to the lawyer in
this role because "lawyers are commonly so stereotyped by physicians
that it can be difficult for them to be heard as sympathetic or at least
neutral."n At another point, he notes that the contribution of a lawyer
is limited because there is already a defined role for the hospital's
lawyers in an ethical dispute-presumably to shield the hospital from
liability. 73 Indeed, this is a job of the hospital's lawyer, but it is
accomplished every day either by highly skilled individual lawyers who
can separate their roles as ethicist and risk manager or by involving two
or more lawyers.
69
70
71
72
73
See [d. at 28.
See [d. at 26.
[d. at 28 (emphasis added).
MORENO, supra note 2, at 29.
See id. at 19.
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Moreno's list of desirable traits in a clinical ethics consultant
also point to the value of legal training. Moreno notes that "one must
be acquainted with relevant statutory and case law, the institutional
structure of the healthcare system, the financing of health care, and the
prevailing consensus and current issues in health policy.,,74
In
reflecting on those "aspect[s] of my philosophical education that is
most helpful is the ability to analyze a conceptual problem in a way that
may clarify the issues.,,75 He states that to be effective in "work[ing]
on ethical problems directly with health care professionals in the real
setting of healthcare delivery requires a further range of skills that have
little to do with traditional training in any single discipline, including
philosophy.,,76 In addition, "some understanding of the economics of
health care is very useful, and an appreciation for the sociological and
political processes of the clinical setting is essential.,,77 It is no wonder
then that Moreno later describes being a bioethicist as an "impossible
profession.,,78 Moreno draws an analogy to the observation that
"psychoanalysis [is] the impossible profession" because "[h]ow could
anyone hope to see into the psyche of another, apart from the vantage
point of one's own?" by describing the competing and conflicting
demands on the bioethicists as equally impossible. 79
We are expected to be original scholars not only in our own
basic disciplines but also in connection with issues in
health care.
As hu'manists addressing clinicians and
scientists, we are also expected to speak with authority on
the economics and politics of health care, the system for
allocating resources, the psychology of physician-patient
relations, and the culture of medicine, among other diverse
topics. Who in their right mind would take this one? 80
While the definitive history has yet to be written, lawyers in
their capacity of hospital counsel have probably been consulted on
difficult bioethical issues for as long as such issues have presented
themselves. It has been my personal experience that doctors are able to
74Id.at31.
75/d. at 30.
76 I d.at31.
77
MORENO, supra note
78
Id. at 243.
2, at 33.
79/d.
80/d.
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make the distinction between lawyers in general and an individual
lawyer who is sympathetic to both the very real pressures of having
responsibility for the life and well-being of another human and the
medical team's deep personal commitment to their patients. Perhaps
this is because many doctors have family members who are lawyers
and are therefore prepared to accept the possibility that a lawyer is
there to help. Finally, and perhaps most helpfully, my experience is
that along with the fear doctors have of lawyers there is also a respect
for our training in analyzing complex problems and our ability to put
thoughts into words. Although it may not be comfortable to be viewed
as one of the few "good" or "trustworthy" lawyers, the fact is that the
role is sufficiently established to allow the lawyer-ethicist a voice at the
table.
Further, Moreno's observations about philosophers are more
closely analogous to that of lawyers than to bioethicists with medical
training. Both lawyers and philosophers must address the primary
question of how someone trained outside the medical fraternity can be
of use. Moreno defines the work of the ethics consultant as influencing
policy rather than simply solving a series of individual problems. S!
Lawyers, too, can and do play this role of "policy scientist" or "policy
humanist."s2 In this context, Moreno's thoughts, informed by nearly 20
years of experience in this role, are critical to anyone who wants to take
on the role of an "ethics expert" in the process of making decisions for
other human beings, which arise in a medical context.
Since, of course, Moreno is not writing about the lawyerbioethicist, he does not address what is really the primary problem for a
lawyer in this situation, which is not that her ideas will be dismissed,
but rather that she will be asked to solve the problem by "saying what
the law is." Given all their supposed hostility to the law and lawyers, I
have found doctors have a completely baseless confidence that there is
a definitive legal solution to every problem. The unfortunate truth,
which every lawyer dealing with doctors must learn to convey, is that
the law establishes boundaries but does not prescribe solutions. In
reality, the actual legal issues that arise in bedside clinical ethics are
usually so well settled that their resolution plays no role in resolving
the issue. If these problems had solutions dictated by law there would
be no role for ethical consultation beyond communicating the result to
the famil y.
81
I d. at 65.
82
MORENO, supra
note 2, at 65.
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It is often the role of the lawyer-bioethicist to clarify for the
medical team what, exactly, is meant by the concept of law and the
legal system in the United States. First of all, it is important for all
lawyers to remember that no matter how many legislators or their aids
have legal degrees, lawyers do not make the law. Laws, according to
the Constitution, are made by the directly elected representatives of the
American people, enacted by the President who is elected through the
Constitution's provisions for an electoral college and enforced by
citizen juries and, what is in many states the directly elected, judiciary.
Thus, every lawmaker casting her vote is in fact representing a very
specific, geographically based population of individuals who have
voted her into office and can just as easily vote her out. A practicing
attorney, even the much maligned "trial lawyer," can do no more than
form and present arguments based on existing laws.
The second function of the law is to adjudicate disputes
between individuals. The power of judges and juries to make binding
decisions is delegated to them by society, the same voting public. The
law, then, is not imposed on society but rather created by it. The role
of law in resolving an issue of patient care is, therefore, completely
dependent on whether the issue is law as "prescriptive limit setting,"
for example outlawing physician assisted suicide, or law as "dispute
resolution," such as determining which family member will be allowed
to make a decision about terminating life sustaining treatment.
Unfortunately, the most bitter disputes arising around medical decision
making come from the need to resolve disputes among family
members.
The Terri Schiavo case which gripped the nation last year is,
unfortunately, a quite typical example of how the law shapes medical
decision making. 83 The representatives of the citizens of the state of
Florida adopted the law which determined that a husband could make
medical decisions for his incompetent spouse. 84 Floridians also
adopted the judiciary system which determined that Michael Schiavo
was Terri Schiavo's lawful husband, that she had not designated any
See generally Steven G. Calabresi, The Terri Schiavo Case: In Defense of the
Special Law Enacted By Congress and President Bush, 100 Nw. u.L. REv. 151
(2006); see also Schindler v. Schiavo, 780 So. 2d 176, 26 Fla. L. Weekly D 305
(2001); Schiavo ex reI. Schindler v. Schiavo, 358 F. Supp. 2d 1161, 18 Fla. L.
Weekly Fed. D 375 (2005). See generally University of Miami Ethics Programs,
http://www.miami.edu/ethics/schiavo_projects.htm (last visited Mar. 6, 2006). See
also Robert Schindler v. Michael Schiavo ex reI. Theresa Marie Schiavo, 789 So.2d
348 (Fla. 2001).
84 FLA. STAT. ch. § 765.401 (2000).
83
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other decision maker and that he was followin~ her wishes in removing
the feeding tube that was keeping her alive. 5 The only role for an
ethicist in such a dispute is to attempt to reach a compromise between
warring family members. Barring agreement, the family's dispute must
be referred to some outside form of decision making. 86 Moreno writes
that he discovered early in his career as an ethics consultant that "More
often than not, the problem with a current case has to do with a concern
or disagreement with a patient's family about the most appropriate
course of treatment.,,87 The frequency with which these disputes arise
leads Moreno to list "sound interpersonal skills, particularly tactfulness
and the ability to mediate among deeply felt differences while honoring
them" as a quality which "can vastly enhance the value of the ethics
consultant.,,88
So what is the role of the law in resolving clinical bioethical
dilemmas? It is that the parameters within which ethicists work in
issues such as physician assisted suicide are based on laws created by
society, not by lawyers. If individual voters in an individual state wish
to allow physician assisted suicide then it is their prerogative to enact a
law such as Oregon's.89 The fact that except for Oregon no state allows
physician assisted suicide is not an artifact of fancy lawyering; it is the
will of the people.
Therefore, absent a practice prohibited by specific law, the law
does not affect medical decisions. Indeed, the law offers so little help
in most situations that many hospitals have their own "folk" beliefs
about the law, which, not coincidentally, foster their administrative
needs. For example, no state has a law specifying when a hospital must
remove the equipment which had been sustaining the physical body of
a patient after he is declared brain-dead. The law establishes criteria
for brain death and is then silent. Routinely, however, hospitals will
The legal drama was Congress' decision to preempt the fact finding role of the
Florida state courts and giving it to the Federal court system.
86 Although there is within bioethics a movement to resolve family disputes by
mediation rather than adjudication, it is inevitable that as in the case of the Schiavo
family some disputes will be left to the courts. See generally NANCY NEVELOFF
DUBLER & CAROL B. LIEBMAN, BIOETHICS MEDIATION: A GUIDE TO SHAPING
SHARED SOLUTIONS (2004).
87 MORENO, supra note 2, at 13.
88/d. at 31.
89 The Oregon Death with Dignity Act, OR. REv. STAT. § § 127.800-.897 (2003)
(permitting physicians to prescribe lethal doses of controlled substances to terminally
ill residents of Oregon, but also utilizing certain procedures intended to protect those
not "capable" of making an "informed decision").
85
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hurry along families by telling them "by law" they must remove their
loved one from the machines and refer the "corpse" for burial. This
was evidenced in the debacle at Duke University Hospital when the
mother of Jesica Santillan, the 12-year-old girl who due to medical
error received incompatible organs, was told that the law required
Jesica to be removed from the machines within hours of her being
declared brain dead. 9o Lawyers are often criticized for discussing this
gap in the law in public because of the "harm" it would cause families
to know that if they had the money and the inclination they could keep
their brain-dead child's body oxygenated indefinitely. What these
always extremely well-meaning clinicians seek to avoid is an ugly
confrontation with a grieving family in which the hospital must
acknowledge that it is no longer willing to provide the patient with a
bed. Therefore, unless the family can, at their expense, find a facility
willing to accept the patient, the patient will be disconnected from the
machines and transferred to a funeral home for burial. Clearly this will
create hard feelings at the bedside, but it will not be because of the
hospital's requirement to follow the law.
So if knowledge of the law itself is not a necessary skill to
solving most of the morally difficult decisions that arise when there is
no chance of a medical cure, yet no prospect of imminent natural death,
what is the role of an ethics consultant-whether she is a lawyer or
philosopher or nurse? Moreno accurately identifies that often the most
valuable role of the consultant is to provide a perspective outside of the
medical model. The consultant, he writes, is the person without
medical training who can see the situation as the patient herself
might. 91 This truth, the role of the ethicist as a sympathetic outsider, is
to me the true value of including outside clinical ethicists in high stakes
decision making. The role of the lawyer, as an outsider, is one of our
greatest contributions. Reading Moreno's accounts of his early
experiences as a consultant in bioethics reminds me of a series of 19th
century children's stories 92 which center around the power of the
The stories
outsider in solving seemingly intractable problems.
concern the Peterkins, a large family consisting of a mother, father and
six children. 93 The Peterkins were intelligent, educated, kind hearted
See generally Jean P Fisher, Duke University Health System Maintains Financial
Health, NEWS & OBSERVER, Oct. 6,2005.
91 See MORENO, supra note 2, at 29.
90
LUCRETIA P. HALE, THE PETERKIN PAPERS (The Riverside Press Cambridge 1960)
(1914).
92
93
See generally id.
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people who often found themselves in dilemmas from which they could
not, as a group, extract thernselves. 94 On one notable occasion, Mrs.
Peterkin put salt instead of sugar in her coffee. 95 This, of course,
rendered it undrinkable. One by one, members of the family attempted
to solve the problem by adding ingredients they hoped would turn the
increasingly foul liquid back into coffee. 96 Finally, at desperation's
edge, they turned to what would become their final resort in all such
situations: they summoned ''The Lady from Philadelphia.,,97
Never named further, ''The Lady from Philadelphia" was a
family friend with no special expertise or other training. 98 Yet on this
occasion, as on many others, she knew exactly what to do. 99 On
arrival, she suggested that Mrs. Peterkin spill out the noxious brew,
wash out the cup and pour a new cup of coffee. loo Immediately the
problem was solved and all were delighted. 101 No one felt stupid, nor
was there ever any indication that the Peterkins lacked normal problem
solving abilities or common sense. 102 Rather, they became enmeshed
in a group decision making process from which they could see no way
out. Only a sympathetic outsider with no personal stake in creating the
problem could recognize a solution with which all were happy.
Without trivializing the role of the philosopher or lawyer
ethicist, it is this position as the sympathetic outsider which can be of
the most use in solving a problem that has evaded resolution through
the normal model of medical decision making. Moreno provides a
perfect example of the ethicist as thinking outside of the prevailing
paradigm in recounting a solution devised by his friend, noted
bioethicist Art Caplan, a philosopher from Philadelphia. 103 Faced with
an emergency room overwhelmed by elderly people suffering
respiratory effects of an unusual heat wave, Caplan asked whether
Medicaid or Medicare funding could be used to purchase air
conditioners. 104 A call to the department of social services found out
See generally id.
95 LUCRETIA P. HALE, The Lady Who Put Salt in Her Coffee, in THE PETERKIN
PAPERS, at 6 (The Riverside Press Cambridge 1960) (1914).
96 !d.
97 [d. at 12.
98 [d.
99 [d.
100 HALE, supra note 95, at 12.
101 [d.
102 See id. at 6-12.
103 See MORENO, supra note 2, at 71-72.
104 Id.
94
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that this was possible. The frail elderly were therefore kept safe and
comfortable in their homes and no longer needed to seek care in the
emergency room. This solution had no basis in the skills of managing
an emergency department, developing cost effective treatments for heat
stroke or even developing standards for rationing scarce resources.
Rather, by thinking of a solution to the problem outside of the world of
the hospital, Dr. Caplan was able to devise a solution satisfactory to all
parties. Although most problems are not susceptible to such elegant
solutions, often an outsider can make a suggestion or see an option
simply because she is not tied to the medical model.
Moreno recognizes that the lawyer's or philosopher's role as an
outsider is most at risk when a lawyer or a philosopher becomes a
member of the "team." He writes that to be effective, the consultant
must struggle against identifying with the medical team who become
colleagues and friends. IDS This natural tendency to identify with people
we spend time with can be seen as a form of Stockholm syndrome l06
and is especially dangerous for lawyer-ethicists who are happy to go
along with their physician/friends construct because they are anxious to
prove themselves a "good" lawyer and not one of the "bad" lawyers
who doctors hate. We are so eager to avoid this unfair label and to
prove ourselves friendly and sympathetic that we stand to lose what is
our real value to the team: our status as a clear-thinking outsider.
The title of Moreno's book alludes to this role confusion, and he
discusses it further by telling a story about his own tendency to
"identify with the physician role." He writes that during a long airplane
flight he was "struck by an urgent desire to answer the flight
attendants" call for a physician to tend an ill passenger. 107 All of us
who seek to do this difficult work must give our thanks to Jonathan
Moreno for the careful, self-effacing analysis of the role of ethics
consultant which he provides us in this book. As we are all patients
and all beneficiaries of the medical advances from human subject
research, this latest book by Jonathan Moreno earns its place as an
important, rewarding, and delightful addition to the canon of works
recounting bioethics' history and setting policy for its future.
Id. at 15-32.
Wikipedia, Stockholm Syndrome, at http://en.wikipedia.org/wiki/Stockho1m_
syndrome (last visited Apr. 6, 2006) (a psychological response sometimes seen in a
hostage, in which the hostage exhibits seeming loyalty to the hostage-taker, in spite of
the danger (or at least risk) the hostage has been put in. Stockholm syndrome is also
sometimes discussed in reference to other situations with similar tensions, such as
battered woman syndrome, child abuse cases, and bride kidnapping).
107 MORENO, supra note 2, at 15.
lOS
106
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In conclusion, the depth and breadth of Is There an Ethicist in
the House? is an entertaining read and a valuable contribution to the
field of bioethics, whether it is enjoyed by reading it straight through as I recommend - or by dipping into specific chapters of interest. The
reward will be an increased understanding of bioethics and, just as
important, the opportunity to get to know an extraordinary man.
HeinOnline -- 9 DePaul J. Health Care L. 1170 2005-2006