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

INTRODUCTION

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

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

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

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

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

I. WHAT DO CLINICAL ETHICISTS DO?