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Ethics

City of Charleston v. Ferguson, 532 U.S. 67 (2001)

Also under Confidentiality and Patient privacy

Outcome:     Very favorable

Issue

The issue in this case was whether mandatory drug testing of pregnant women seeking obstetrical care at a state funded hospital was permissible on constitutional and statutory grounds.

AMA interest

The AMA supports protection of patient privacy.

Case summary

This case challenged a policy fashioned largely by Charleston, South Carolina law enforcement officials whereby pregnant women who sought obstetrical care at the Medical University of South Carolina (“MUSC”) were subjected to warrantless and non-consensual drug testing designed and used to facilitate arrest and prosecution of mothers who tested positive for cocaine.  MUSC was a state-funded hospital and the only medical facility in the Charleston area to treat indigent and Medicaid patients, a majority of whom were African-American.  When the policy was implemented, drug treatment was unavailable for pregnant women.  Mothers and expectant mothers who tested positive at the hospital were simply jailed.  The drug testing policy was not used in any of the other Charleston area hospitals.

Ten women, including nine women who had been arrested for testing positive for illegal substances, challenged the policy on various constitutional and statutory grounds.  In upholding the policy, a divided panel of the Fourth Circuit Court of Appeals held that, because urine drug screens may serve a medical purpose, there was no need for a warrant or consent, even though the testing had been done to further law enforcement objectives.

The Supreme Court reversed and remanded, holding that the Fourth Amendment to the U.S. Constitution’s general prohibition against nonconsensual, warrantless and suspicionless searches necessarily applied to the policy.

Litigation Center involvement

The AMA filed an amicus brief in the U.S. Supreme Court, arguing that the policy mandating drug testing of pregnant women violated the patients’ expectations of privacy when they consulted with their physicians, discouraged drug-abusing women from seeking prenatal care, and was generally ineffective in preventing drug abuse.

In re: K.I., 735 A.2d 448 (D.C. Ct. App. 1999)

Also under Do Not Resuscitate Order

Outcome:     Very favorable

Issue

The issue in this case was whether a physician can enter and then follow a do not resuscitate order (DNR) when the patient’s quality of life was minimal and when the child’s pain and suffering were overwhelming.

AMA interest

The AMA believes that physicians should not be required to deliver care that, in their best professional judgment, will not to benefit their patients.

Case summary

A two year old child had been born prematurely with cerebral palsy, sepsis, and other serious medical conditions.  She required continuous, acute medical care.  Her physicians evaluated her cognitive functioning as “virtually non-existent,” with no hope of improvement.  She could neither hear nor see, but she did experience pain, including the pain that would arise from an extraordinary resuscitation effort.  Her physicians recommended that a DNR order be entered, since the quality of her life was minimal but the pain to her of prolonging that life would be substantial.

Previously, a court had found that the child’s mother had neglected her.  However, as a biological parent, she objected to the DNR order and stated that she wanted everything done for her child in the event of a medical emergency.  Her position was that “any amount of pain is worth it as long as she breathes.”  One of two men may have been the father; the trial evidence did not show the results of a paternity test.  One of the putative fathers agreed with the mother and opposed the DNR order.  The other putative father agreed with the experts that the court should authorize the DNR order.

The trial court found that it would be in the child’s best interest if, in the event of cardiac and/or pulmonary arrest, her attending physician could perform only non-invasive means of resuscitation.  The court so ordered.  The biological mother appealed to the District of Columbia Court of Appeals, arguing that her judgment as to the child’s wishes should be determinative.  However, the Court of Appeals declined to follow the substituted judgment standard and affirmed the trial court’s decision.

Litigation Center involvement

The Litigation Center, along with the Medical Society of the District of Columbia, filed an amicus brief to support the trial court’s application of the best interests of the child standard for determining when to require resuscitation.

Jensen v. Sawyers, 130 P.3d 325 (Utah 2005)

Also under Physicians' privacy rights

Outcome:     Unfavorable

Issue

The issue in this case was whether a physician has a protectible right of privacy in connection with a patient examination.

AMA interest

The AMA supports physicians’ privacy rights.

Case summary

A television reporter, Mary Sawyers, used a hidden video camera to tape Dr. Jensen prescribing phentermine and fenfluramine (“Phen-Fen”) for weight loss without undertaking a complete physical examination.  During a news broadcast, Ms. Sawyers showed portions of her recordings and charged Dr. Jensen with promising “illegal” medication.  In fact, while Dr. Jensen’s examination was less thorough than it should have been under acceptable medical standards, he did make a partial evaluation of her physical condition.  Also, he did not prescribe any illegal medications for Ms. Sawyers.

As a result of this report, Dr. Jensen lost his job and his hospital privileges.  The Utah Division of Occupational and Professional Licensing placed his medical license on probation for one year and ordered him to attend classes on medical ethics.  Although Dr. Jensen continued to maintain his license, he was unable to develop patients outside of the nursing home at which he was practicing medicine.  The “punishment” that Dr. Jensen received from the damaging publicity far exceeded any transgression on his part.

Dr. Jensen sued the television reporter and the television station, and the jury rendered a verdict in his favor.  However, the trial court reduced the verdict.  Both sides appealed.

The Utah Supreme Court partially vacated the verdict and damages awards based on Dr. Jensen’s invasion of privacy claims from the first and second broadcasts as time-barred by the statute of limitations.  Further, the Court modified the economic loss and damages award based on Dr. Jensen’s claims relating to the third broadcast.  The Court affirmed the trial court on all other issues raised on appeal.

Litigation Center involvement

The Utah Medical Association and the Litigation Center filed an amicus curiae brief to support Dr. Jensen.  The brief highlighted several sections of the Code of Medical Ethics, emphasizing the personal, collaborative nature of the patient-physician relationship and the need for mutual candor and trust in that relationship. 

Unfortunately, Dr. Jensen brought this case to the Litigation Center’s attention long after the ordinary time for briefing had lapsed.  The defendants objected to the amicus brief as untimely, and the Utah Supreme Court denied the motion for leave to file it.

Neade v. Portes, 739 N.E.2d 496 (Ill. 2000)

Also under Managed care tort liability, Patient rights, and  Payment issues (for physicians)

Outcome:     Favorable

Issue

The issue in this case was whether a physician is liable for breach of fiduciary duty to patients for not disclosing any financial incentives to limit care.

AMA interest

The AMA believes that the primary burden of disclosure of financial incentives relating to a patient’s treatment lies with the HMO, not with physicians.

Case summary

The Illinois Appellate Court, relying in part on the AMA’s Council on Ethical and Judicial Affairs (CEJA) Opinion 8.132, held that a physician and a managed care organization have a fiduciary duty to disclose to their patients any financial incentives to limit medical care. 

The Illinois Supreme Court reversed, holding that no cause of action exists for breach of fiduciary duty against a physician.  The Court ruled that the alleged breach of a fiduciary duty for failure to disclose an interest in a Medical Incentive Fund was merely a “re-presentment” of plaintiff’s medical malpractice claim.  Concerning CEJA Opinion 8.132, the Court stated that Illinois law places the burden of disclosure of “financial inducements” on HMOs, not on physicians.

Litigation Center involvement

The Illinois State Medical Society and the Litigation Center filed an amicus brief which supported the CEJA opinion, while emphasizing the practical burdens a physician faces in making the disclosures mandated in the appellate court decision.  The brief also argued that, under the circumstances of this case, the court should not equate the physician’s legal and ethical obligations, as the primary duty to disclose financial incentives should rest with the health plan. 

Riuli v. Barakat (Md. Spec. App)

Also under Physician-patient relationship

Outcome:     Neutral

Issue

The issue in this case was whether physicians should have legal standing to advocate for their patients.

AMA interest

The AMA believes that physicians have the right and the responsibility to advocate for their patients.

Case summary

A cardiology practice dissolved its partnership.  The departing physicians set up a new practice, while the remaining physicians carried on the old one.  The departing physicians, citing CEJA Opinion 7.03, contended that either they or the former partnership was required to notify the patients of the old practice of the new address of the departing physicians.  The issue was how many of those patients should be notified.  The departing physicians said that 10,000 patients should be notified, whereas the remaining physicians said that only 1,500 patients should be notified.

The trial court held that, although the patients of the departing physicians deserved notice of their new address, the departing physicians themselves lacked standing to request such notification.  Therefore, the trial court refused to decide how many patients should have received the notice.

The Maryland Court of Special Appeals affirmed in part and reversed in part.  The Court held that the departing physicians had waived their argument that they had standing to vindicate their patients’ rights.  The court remanded the case, because the trial court had erroneously failed to consider whether the plaintiffs should be allowed to seek modification of the injunction due to a change in circumstances.

The case ultimately settled.

Litigation Center involvement

The Litigation Center along with MedChi, the Maryland State Medical Society, filed an amicus brief supporting the appeal.  The brief did not take sides between the physicians on the ultimate merits, and it did not suggest how many patients should have received the notice.