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COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. HISTORICAL ORIGINS A. Emergence of the American Medical Association B. Relationship Between Law and Ethics C. Reluctance to Treat II. IN THE ABSENCE OF AN "EMERGENCY" A. Americans with Disabilities Act B. Direct Threat C. Specialists D. State Laws E. Emergency Medical Treatment and Active Labor Act III. EMERGENCY LEGAL FRAMEWORK A. Shortcomings in Existing State Emergency Plans B. Model State Emergency Health Powers Act C. Proposals for Procedural Safeguards CONCLUSION
INTRODUCTION
Over the course of the twentieth century, the medical community "appeared to be winning the battle against communicable diseases" with antibiotics and vaccines. (1) Yet, in the last few decades, new infectious diseases and conditions such as Human Immunodeficiency Virus (HIV), Acquired Immunodeficiency Syndrome (AIDS), Severe Acute Respiratory Syndrome (SARS), Ebola, and avian influenza (most notably virus H5N1) have created grave new threats. Although HIV/AIDS is not particularly contagious if appropriate precautions are taken, (2) avian influenza, SARS, and Ebola are believed to be highly contagious, fatal, and sometimes without mechanisms to prevent transmission. (3)
With the threat of an epidemic looming, the question of physicians' legal duties during an epidemic of a highly infectious disease becomes critical. While there is a rich body of literature in medical journals concerning physicians' ethical obligations in epidemics and extensive case law regarding the question of physicians' legal duties to HIV/AIDS patients under the Americans with Disabilities Act of 1990 (ADA), few scholars or policymakers have discussed the appropriate legal frameworks for addressing physicians' duties to treat highly infectious diseases such as avian influenza, Ebola, and SARS. That this issue has received minimal attention from legal scholars and policymakers is troublesome since physicians will probably be needed to help control an epidemic. The current failure to address the issue of whether and to what extent physicians have a duty to treat people with fatal, highly infectious diseases could have devastating consequences during an epidemic.
This Note focuses on the impact of an epidemic on physicians because, as compared with other healthcare workers such as nurses, physicians are the most publicly visible and tend to have the most professional autonomy. Moreover, physicians as a group have tremendous influence over the development of local, state, and federal healthcare policy. However, a focus on physicians in no way suggests that they are the only group of healthcare professionals with an important stake in policies regarding duties to treat during an epidemic. The concerns of other healthcare professionals tend to be coextensive with the concerns of physicians. The healthcare industry employs millions of Americans, many of whom will be affected by the creation of legal frameworks compelling delivery of care. (4) Greater clarity regarding physicians' responsibilities during an epidemic will help inform a discussion about the interests of other healthcare professionals.
By addressing the structural limitations of existing legal frameworks pertaining to physicians' duties and by discussing ways in which states can create emergency legal frameworks that compel physicians to provide treatment when appropriate, this Note begins to fill a void in the literature regarding physicians' obligations during an epidemic. Part I considers the willingness of physicians to treat during an epidemic by examining physicians' past attitudes towards epidemics, and the role the American Medical Association (AMA) has played in shaping the regulation of the medical profession.
Part II analyzes the inapplicability of existing statutory frameworks in an epidemic context. In particular, this Part examines why the ADA and similar state laws, which prohibit physicians from refusing treatment to patients with HIV/AIDS because they are seropositive for HIV, have limited applicability for determining whether physicians are required to treat patients with highly infectious diseases. This Part also demonstrates that while hospitals have a legal obligation to treat people with infectious diseases and doctors have contractual obligations to hospitals, the care available from this set of relationships is unlikely to be sufficient during an epidemic.
Part III discusses the role that states and governors will play in managing an epidemic given current legislation and directives from the Department of Health and Human Services (HHS). Moreover, this Part addresses the contributions of the drafters of the Model State Emergency Heath Powers Act (MSEHPA) in proposing a system that recognizes the need for governors to be able to declare a state of emergency during an epidemic and to require physicians to provide care as a condition of their professional licensure. Finally, Part III argues that the primary shortcoming of the MSEHPA, as it pertains to physicians, is that it fails to recognize physicians' property interests in their licenses and to provide them with the process they are constitutionally due.
This Note acknowledges that the degree of risk physicians should be required to confront during an epidemic as a condition of their licensure is hardly clear. Of course, uncertainty regarding what type of epidemic might transpire and how many people would be implicated greatly contributes to the challenge of establishing what role physicians should play. As evidenced by the muddle of laws that tangentially address physicians' obligations to treat people with highly infectious diseases, it is impossible to create a bright-line test for determining what exactly physicians should and should not be required to do during an epidemic. Therefore, during an epidemic, it would be appropriate to give the governor the opportunity to declare a state of emergency and to allow her, after great consideration, to assess whether and to what extent physicians should be required to provide treatment to patients with highly infectious diseases. Yet, this power of the governor should not be unbridled. Only by relying on traditional due process analysis can we create a system in which physicians provide appropriate care to patients during an epidemic.
I. HISTORICAL ORIGINS
The current lack of clarity regarding the legal standard that governs physicians' duties during an epidemic is in part a reflection of the persistent divisions among physicians concerning appropriate professional conduct. The question of whether and to what extent physicians have an ethical duty to treat patients during an epidemic has a long pedigree. Scholarship on the history of medical ethics reveals that the medical community has never come to a consensus on the nature and scope of its responsibilities during an epidemic. (5) Physicians' interpretations of their professional responsibilities are relevant for understanding their legal duties because the medical profession in the United States exerts tremendous influence over the regulation of the profession.
A. Emergence of the American Medical Association
Since the mid-1980s, medical historians have accepted the Zuger-Miles hypothesis that prior to the twentieth century there was no "strong or consistent" tradition of physicians rendering care in epidemics due to a sense of professional responsibility. (6) According to the Zuger-Miles hypothesis, physicians have tended to act according to their own individual predilections. For example, medieval doctors fled Venice in the fourteenth and fifteenth centuries to avoid becoming infected with the black plague, and physicians in the seventeenth century left London to escape the bubonic plague. (7) In Philadelphia, during the yellow fever outbreak of 1793, some American physicians' responded as their European predecessors had. (8) For example, three of the most famous doctors in Philadelphia went to the countryside to try to avoid contact with yellow fever. (9)
Yet, not all physicians fled disease-ridden cities. (10) During the yellow fever outbreak in Philadelphia, most physicians probably stayed in the city. (11) Some stayed to tend to the ill out of a feeling of religious obligation. (12) Others, dubbed "plague doctors," provided care in exchange for monetary incentives. (13) Another group of physicians was motivated by a sense of contractual duty to their patients. (14) Since writers from the medieval period to the nineteenth century derided physicians who fled epidemics for their "avarice and cowardice," (15) perhaps some physicians stayed to avoid censure by the broader community.
In response to the multitude of physicians' reactions during epidemics, the AMA, founded in 1847, sought to codify expectations for physicians' behavior. The AMA's first Code of Ethics was groundbreaking in part because it "served formally to enshrine the potential for professional obligations, distinct from matters of personal choice, charity, or religion." (16) The Code stated: "[W]hen pestilence prevails, it is [physicians'] duty to face the danger, and to continue their labors for the alleviation of the suffering, even at the jeopardy of their own lives." (17)
The impetus for trying to codify expectations in the Code is highly contested. Some historians view the Code of Ethics as an example of "public relations exercises designed to pacify the public and to gull legislators into supporting orthodox medicine's monopolizing proclivities." (18) Others view the original Code as articulating a "radical reformist vision of American medicine" that sought to protect the public from unorthodox, uneducated practitioners. (19)
In either case, once codified, the AMA's standard became a touchstone in the debate about professional ethics and has facilitated a certain conception of professional obligation among physicians and the public at large. (20) Although only a quarter of physicians are members of the Association, the AMA's words and actions influence professional standards within the medical community, (21) especially to the extent that its words are reinforced by legislative initiatives and programs developed by the AMA. (22) Drs. Steven J. Huber and Matthew K. Wynia (23) argue that the Code facilitates a sense of professional identity that:
separate[s] professional duties from personal choices ... [as well as a] public expectation of the duty [that] implies reliance on physicians to perform according to a social contract, for which physicians as a group are rewarded and, by extension, the breach of which is anticipated to lead to rescinding of professional prerogatives granted the group by society. (24)
Evidence of the Code's efficacy can be found during the period between 1847 and 1957, when the Code clearly articulated a duty to treat despite personal risk. (25) During this period, records indicate that physicians provided care in a number of epidemic contexts, including during the Spanish Flu of 1918 and during times of heightened tuberculosis outbreaks. (26) Perhaps doctors during this period were more inclined to provide care than their predecessors because they had entered the profession with an understanding that they would be expected to tend to patients even if it posed a threat to their own health.
In 1957, however, the strong language of self-sacrifice in the Code was perceived to be in tension with the goal of contractual freedom, so the Code's reference to epidemics was relegated to an interpretive note. (27) By 1977, this interpretive note was withdrawn as a "historical anachronism." (28) This withdrawal may have been in part a reflection of the widespread view that the medical community was winning the war against communicable diseases. (29)
Amidst the AIDS crisis of the 1980s, the AMA declined to amend the Code to explicitly require physicians to provide care to patients with HIV/AIDS. Instead, in 1987, the AMA's Council on Ethical and Judicial Affairs (CEJA) issued an opinion that said, "A physician may not ethically refuse to treat a patient whose condition is within the physician's current realm of competence solely because the patient is seropositive [for HIV/AIDS]." (30)
Similarly, in the 2002 revisions to the Code, the AMA chose not to directly address physicians' duties during emergencies, such as the recent attacks on the World Trade Center and the Pentagon. Instead, the AMA drafted a Declaration of Professional Responsibility, which listed as one of its principles that physicians should "[a]pply [their] knowledge and skills when needed, though doing so may put [them] at risk." (31) This comment clearly encompasses scenarios in which the risk to the physician would be low and the benefit to the patient would be high. Yet, the AMA offers little guidance on how physicians should weigh their competing responsibilities in a scenario in which the risk to the physician would be high, as would be the benefit to the patient. The AMA's level of generality and vagueness is not coincidental. In the official comments accompanying the Declaration of Professional Responsibility, the authors note that "[g]reater specificity would compromise the universal applicability of the Declaration and possibly divide rather than unite physicians." (32)
The AMA states that the principles articulated in the Declaration are enforceable only by the signatories within the profession and as such "differ[] from codes of ethics used in the adjudication of legal and ethical issues by professional boards and courts of law." (33) This comment is illustrative of the AMA's struggle to create a more expansive understanding of ethical duty while also recognizing the possible legal consequences of such an articulation. The AMA, in its failure to address specifically when and to what extent physicians should be required to provide care during an epidemic, has effectively ceded some of its influence on this matter to the government.
B. Relationship Between Law and Ethics
Physicians' view of their own ethical duty is relevant because physicians have tremendous autonomy in regulating the behavior of those in the medical profession. The policy of the Rhode Island Board of Medical Licensing and Discipline exemplifies physicians' influence over the laws that govern them: "No single list or source can offer practicing physicians guidance in every conceivable circumstance. However, the Board relies upon the American Medical Association's code of ethics as the legal standard." (34)
A brief discussion of physicians' involvement in the development of legal standards helps demonstrate the importance of physicians' conception of their duty to treat during an epidemic. Generally, physicians' legal influence arises in two contexts: (1) associations of physicians act in gatekeeping capacities by determining who can enter and remain in the profession, and (2) courts rely on customs within the medical profession and the judgments of practitioners.
Physicians, primarily through the AMA, serve as gatekeepers of the profession by virtue of their participation in and influence over medical education and licensure. The AMA controls the accreditation process for medical schools and the licensure requirements for those who want to enter the profession. (35) The stated rationale for the authority vested in the AMA is that it allows the profession to maintain high standards, which then benefit members of the public as consumers of medical services. (36) Economists debate whether this cartel-like behavior has the intended effect of controlling quality rather than simply driving up healthcare costs. (37) Similarly, the efficacy of the AMA at exerting complete control over the supply of physicians is contested. (38) Nonetheless, the active role of physicians as gatekeepers for the medical profession is widely agreed upon. (39)
Another factor that contributes to physicians' influence over the legal standards to which they are held is the courts' deference to professional standards. Just as a lay defendant accused of committing a tort is judged against the behavior of a hypothetical reasonably prudent person acting under the same or similar circumstances, a physician accused of committing malpractice is judged against the standard of care a reasonable physician with similar specialized knowledge or skill would provide. (40) While each state's tort laws governing malpractice differ, the prevailing standards of care in a physician's medical community are highly influential when determining whether a physician has committed malpractice. (41) Through this process, the courts have institutionalized deference to physicians' communal assessments of their professional responsibilities.
Finally, physicians' understanding of their own responsibilities is influential because of the Supreme Court's reliance on the judgment of medical professional associations, especially the AMA, when considering some of the thorniest medical ethics issues. As discussed by physician-lawyer M. Gregg Bloche, the Supreme Court has cited the AMA's amicus briefs in recent cases dealing with physician-assisted suicide, Fourth Amendment rights relating to hospitals' refusals to disclose to the government the results of patients' drug tests, and the appropriate role of a physician's judgments when considering abortions and treating the mentally ill. (42)
As recently as Gonzales v. Oregon, the Supreme Court cited the AMA's position that "[p]hysician-assisted suicide is fundamentally incompatible with the physician's role as a healer" to support its conclusion that providing a prescription to produce death does not constitute a legitimate medical purpose. (43) In Stenberg v. Carhart, the AMA's position that an intact dilation and extraction abortion "not be used unless alternative procedures pose materially greater risk to the woman" served as one of the focal points of the Court's analysis. (44) Although the Court's holding that the Nebraska law regulating intact dilation and extraction abortions did not have an adequate exception for the life and health of the mother was not entirely consistent with the AMA's position, the Court's decision did consider the standards set forth by the AMA. (45)
This pattern of the Court looking to the AMA for guidance is noteworthy because it suggests that should issues relating to the treatment of patients with highly infectious diseases reach the Supreme Court, the Court is likely to...
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