Matters of Life and Death

Making Moral Theory Work in Medical Ethics and the Law

David Orentlicher

• Publisher: Princeton University Press
• Year: 2021
• ISBN:
  9780691227665
• Topic: Medicine
• Subtopic: Medical Theory, Practice & Reference

Philosophical debates over the fundamental principles that should guide life-and-death medical decisions usually occur at a considerable remove from the tough, real-world choices made in hospital rooms, courthouses, and legislatures. David Orentlicher seeks to change that, drawing on his extensive experience in both medicine and law to address the translation of moral principle into practice--a move that itself generates important moral concerns.
Orentlicher uses controversial life-and-death issues as case studies for evaluating three models for translating principle into practice. Physician-assisted suicide illustrates the application of ''generally valid rules, '' a model that provides predictability and simplicity and, more importantly, avoids the personal biases that influence case-by-case judgments. The author then takes up the debate over forcing pregnant women to accept treatments to save their fetuses. He uses this issue to weigh the ''avoidance of perverse incentives, '' an approach to translation that follows principles hesitantly for fear of generating unintended results. And third, Orentlicher considers the denial of life-sustaining treatment on grounds of medical futility in his evaluation of the ''tragic choices'' model, which hides difficult life-and-death choices in order to prevent paralyzing social conflict. Matters of Life and Death is a rich and stimulating contribution to bioethics and law. It is the first book to examine closely the broad problems of translating principle into practice. And by analyzing specific controversies along the way, it develops original insights likely to provoke both moral philosophers and those working on thorny issues of life and death.

Part I

THE APPROACH OF USING GENERALLY VALID RULES

Two

The Importance of Generally Valid Rules in Implementing Moral Principle

WHEN MORAL principle is translated into practice, a critical question is whether to rely primarily on case-by-case judgments or primarily on rule-based decision making. For example, if organs for transplantation are to be allocated so that benefit to patients is maximized,¹ physicians could make a case-by-case judgment for each organ to decide which patient would gain the most benefit from a transplant and therefore would be the best candidate for the organ. Alternatively, physicians could rely on benefits-based rules to determine the recipient of each organ, with the idea that the rules would usually identify leading candidates for transplantation but not necessarily the best candidate each time.²

I will say more about the choice between case-by-case judgments and broadly applicable rules, but an important feature of rules is their general validity. That is, rules will typically, but not always, serve their underlying principles. The general validity of a rule can be illustrated as follows. Assume that the goal in transplantation is to give organs to those patients who will live the longest with their new organs. Transplant surgeons might therefore exclude from consideration for kidney transplantation patients who are heavy drinkers of alcohol.³ Such a rule would generally ensure longer survival of kidney transplant recipients, but it would also deny transplants to patients with heavy alcohol use who do unexpectedly well and live longer than many other patients who would receive a kidney transplant.

When generally valid rules are used, they can appear to be misguided. Since they are by definition imperfect proxies for their underlying principles, they will at times yield results that seem unfair. The kidney failure patient with heavy alcohol use whose life is not shortened by the drinking will not have an opportunity for a transplant. Similarly, if state law requires individuals to reach the age of adulthood before exercising decision-making capacity, adolescents of advanced maturity may be denied decision-making authority that they deserve.⁴ Because of their imperfection, generally valid rules will often be criticized as inferior to case-by-case judgments.

Such criticism, however, misses an important reason for using generally valid rules rather than individualized judgments. Often, the moral concerns that arise in the translation of principle to practice make case-by-case judgments undesirable. Thus, for example, aspects of abortion law can be misunderstood if the move from principle to practice is not considered. When the law permits women to have an abortion for any reason if the fetus is not viable, people frequently object to the law on the ground that it indicates that abortions are always morally permissible when the fetus is not viable. As these opponents observe, the morality of an abortion may depend not only on the fetus’s viability but also on the woman’s reasons for wanting an abortion. If the woman chooses an abortion to protect her health, we have a very different case than when a woman chooses an abortion because she is angry with the father of the fetus and she wants to get back at him.⁵ However, the law permits abortions for any reason before viability, not because reasons are irrelevant, but because it would not be feasible to distinguish between acceptable and unacceptable bases for an abortion.⁶ Women could easily lie about their reasons, and it would be too intrusive for physicians to investigate the validity of the woman’s explanation.⁷ In other words, it would not be possible to implement in practice the principle that a woman must have a morally valid reason for an abortion.

If one believes that abortions are permitted for any reason because one mistakenly thinks the law deems reasons morally irrelevant, one will misunderstand why the law has not qualified the right to abortion before viability in terms of the woman’s reasons for choosing abortion.⁸ Proper understanding of abortion law requires consideration of both underlying principle and the translation of principle into practice.

In the remainder of this chapter, I will discuss in more depth why generally valid rules are often preferable to case-by-case judgments. I will also indicate how the distinction between physician-assisted suicide and withdrawal of life-sustaining treatment can be better understood in terms of using generally valid rules to accomplish the translation of principle into practice.

Generally Valid Rules versus Case-by-Case Judgments

Although it might seem preferable to make case-by-case judgments that would closely track underlying principles, generally valid rules may be superior. As the abortion example demonstrates, it is not always feasible to make case-by-case assessments, and one can often achieve better results by employing generally valid rules.⁹

By way of further illustration, it will be helpful to look more closely at the arguments in favor of both individualized judgments and generally valid rules.¹⁰ I will begin with an important advantage of individualized assessments. Case-by-case judgments can ensure that the full range of relevant considerations is taken into account for each decision. When a liver is available for transplantation, for example, physicians can look at the severity of the patient’s liver failure, the proximity of the patient to death, the likelihood that transplant surgery would be successful, and the life expectancy of the patient with a transplant.

In contrast to individualized judgments, rules take into account some important differences but necessarily neglect other important differences. For example, assume that organ allocation policy is designed to maximize the length of time that recipients benefit from their transplant. Assume further that, to foster that policy, an allocation rule gives priority for kidney transplantation to the potential recipient with the best tissue match to the donor kidney. The rule would generally increase the number of years between the date of transplant and the date on which the kidney is rejected by the recipient.¹¹ And the rule would take into account very important differences among patients in terms of their tissue matching. However, a rule based purely on tissue matching would ignore the fact that other considerations affect the length of time during which a transplanted kidney functions. Both the patient’s underlying cause of kidney failure and the presence of other medical problems will influence the longterm success of transplantation. In other words, the allocation rule would ignore many relevant differences among patients that affect how long a transplant will last. In short, rules often undermine fairness by treating people alike even when they are different.¹²

To put it another way, rules by their nature are both overinclusive and underinclusive.¹³ As Schauer writes, a speed limit of fifty-five miles per hour is overinclusive because it prevents people from driving at higher speeds even when it would be perfectly safe to do so (e.g., when driving on a flat and straight interstate highway, on a clear day, when there is no other traffic nearby). Similarly, a speed limit of fifty-five miles per hour is underinclusive because it permits people to drive that fast when rainy weather means that speeds above forty-five miles per hour are not safe.¹⁴ Rules thus can result in outcomes that are inconsistent with the moral justifications underlying the rules.

Although the greater complexity of case-by-case judgments can be advantageous, so can the greater simplicity of rule-based decisions. Case-based decision making can encourage poor decision making, for example by overburdening decision makers with too many factors to weigh.¹⁵ Many scholars oppose “bedside” rationing of medical care, in which physicians make case-by-case allocation judgments, and one important concern is that a physician cannot possibly assimilate all of the data relevant to an individual rationing decision. The physician would need to know the magnitude of the potential benefit for the patient, the likelihood that benefit would be realized, the duration of benefit, the financial cost of the treatment, and the benefit that would be realized if the treatment were denied and the saved resources used for another patient (or for a non-health care service).¹⁶ Thus, as John Rawls has noted, we might prefer “general” rules to guide many actions, on the ground that people will not correctly decide the optimal action in particular cases.¹⁷

Case-by-case judgments are susceptible to error also because they leave room for decision makers to bring their self-interest,¹⁸ their prejudices, and their other unwelcome motivations to their work. The American Medical Association’s Code of Medical Ethics, for example, prohibits certain gifts from drug companies to physicians, like airline tickets to conferences or cash payments to attend company-sponsored presentations,¹⁹ rather than rely on physicians to apply on a case-by-case basis an underlying principle, such as, “Do not accept gifts ‘if acceptance might influence or appear to others to influence the objectivity of clinical judgment.’ ”²⁰ With such a principle as a guide, many physicians will not give sufficient weight to the effects on their judgment of gifts. Similarly, police officers who rely on their individualized judgment may end up pulling over cars driven by African-Americans more often than those driven by whites. To be sure, decision makers may not be aware of the influence of self-interest or other unfair bias. But that does not change the fact that rules may be needed to prevent undesirable biases from infecting decision making. Rules, then, effect an allocation of power, by which decision-making authority is withdrawn or withheld from some people, out of concern that they will not use their authority wisely.²¹

The simplicity of rule-based decision making offers several other advantages. By streamlining the decision-making process, rules save time.²² They free decision makers from having to undertake a thorough and nuanced investigation and calculation every time a decision comes up.²³ If each organ is given to the patient who has been on the waiting list for the longest time, it is a simple matter to identify the recipient of each organ. Similarly, as Schauer observes, speed limits can tell us exactly how fast we are able to drive and spare us the need to figure out on our own the maximum safe speed.²⁴ This is the argument from efficiency.

Related to the argument from efficiency is the argument from predictability, or reliance. People can plan their lives much more expansively once they know that they can rely on the existence and enforcement of rules. Automobile manufacturers would have great difficulty operating their assembly lines if they could not sign contracts for the delivery of parts on future dates, contracts that they know will be enforced by the rules of contract law.²⁵ Likewise, people waiting for organs would spend much of their time maneuvering for priority in the allocation process if they could not rely on the authority of organ allocation rules to determine who among potential recipients will be chosen for transplantation. When decisions are made on a case-by-case basis, people must accept a good deal of undesirable uncertainty, and rules can address that concern.²⁶

In some cases, rules are employed because insufficient information makes more refined judgments impossible. Many medical guidelines reflect this reason for rules. For example, the National Cancer Institute recommends that women receive regular mammograms to detect breast cancer once they reach age forty.²⁷ Yet some women in their forties, fifties, or older have a very small risk of developing breast cancer, while other women at those ages have a substantial risk. In the future, advances in medical knowledge will probably allow physicians to identify which women age forty or over really need to be screened for breast cancer and which do not need to be screened. For the time being, however, the best cancer experts can do is recommend mammography for all women starting at age forty (or fifty).²⁸

In the end, it seems fairly clear that both case-by-case judgments and rule-based decision making have important roles, and many life-and-death decisions are made through a combination of the two methods. For example, the liver allocation guidelines of the United Network for Organ Sharing (UNOS) assign priorities to patients waiting for a liver transplant, and an available organ is generally given to the first person on the waiting list. Transplant surgeons do not undertake a comprehensive analysis to decide the most appropriate recipient each time an organ becomes available. However, transplant surgeons are given discretion to decide not to transplant a liver into the first person on the waiting list if they do not believe it is appropriate to do so, based on their medical judgment.²⁹ If the first person’s surgeon declines the liver, it goes to the next person on the waiting list (unless that person’s surgeon also declines the liver).

The Role of Rules in Medical Ethics and Law

Despite the amount of attention to the choice between case-by-case judgments and rule-based decision making by some scholars, the importance of that choice has often been neglected in discussions of specific issues in medical ethics. In particular, discussants commonly do not give full recognition to the moral concerns that arise when principle is translated into rules or judgments. As I mentioned in chapter 1 of this book, rules or judgments are frequently seen as fairly straightforward applications of an important moral principle. For example, if one considers it immoral for physicians to cause their patients’ deaths, one might look favorably on a rule that prohibits physicia...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• One: Introduction
• Part One: The Approach of Using Generally Valid Rules
• Part Two: Avoiding Perverse Incentives
• Part Three: The “Tragic Choices” Model
• Conclusion
• Notes
• Index