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LAW AND ETHICS IN EMERGENCY MEDICINE

1999; Elsevier BV; Volume: 17; Issue: 2 Linguagem: Inglês

10.1016/s0733-8627(05)70061-4

1558-0539

Arthur R. Derse,

Ethics in medical practice

On May 16, 1998, an event occurred that outraged many and presented an emergency department's physicians and nurses with an ethical and legal dilemma. Christopher Sercye, a 15-year-old boy, was shot and wounded. His friends carried him to within 50 feet of Chicago's Ravenswood Hospital, put him down, and left. Hospital staff saw Christopher lying there but did not go out to help him because hospital policy did not allow staff to leave the hospital premises to render emergency care. Should the doctors and nurses have violated hospital policy and left the patients for whom they were caring to assist this injured boy? The policy was crafted to prevent hospital liability for actions taken by staff off the premises, as well as to circumscribe the duties of the hospital's personnel. The policy was also designed to protect personnel from injury. Violation of hospital policy was grounds for reprimand or dismissal. Ravenswood was not a Level 1 trauma center, so that if its doctors and nurses intervened before paramedics arrived, they might have delayed the process of getting the patient to an appropriate level of care. It was also possible that the victim's assailants would return and put staff at risk. After a frustrated police officer finally commandeered a wheelchair and brought the boy in by himself, it was too late. The boy died of a gunshot wound to the aorta. In retrospect, immediate action might have saved his life.3, 50 Although public outrage was considerable, the hospital personnel had done nothing illegal. They violated no laws by waiting until the patient was brought to the emergency department (ED). The standard of care for emergency medical treatment does not ordinarily require ED personnel to leave to treat patients off site. In fact, the personnel adhered to hospital policy. If they had violated it, they might have been reprimanded or dismissed. (At the time, hospital personnel thought that EMTALA, the Federal law that requires EDs to screen patients for emergencies and to stabilize emergent conditions within their capability, did not apply because the patient was technically off the premises and had not yet presented to the ED. In retrospect, the hospital was cited for a violation of EMTALA.40) Nonetheless, it was thought that despite what were thought to be completely legal actions on the part of the hospital personnel, they violated an ethical duty to ignore policy and walk the short distance so that they might attempt to save a teenager's life. A nonmedical example is even more telling. Recently, University of California at Berkeley students demonstrated outside a nuclear engineering student's dormitory. This student had watched a friend sexually assault a 7-year-old child. Not only did he fail to stop the crime, but also he did not report it to authorities, nor did he report the fact that his friend told him later that he had killed the girl. Subsequently, when the student was asked in an interview why he acted the way he did, he replied that he did not know the victim so he felt no remorse for her but only for his friend. Berkeley administrators made it clear that they would not move to censure or dismiss the student because he had broken no laws. There is no legal duty to intervene to prevent a crime and no legal duty to report the crime.4 The preceding scenarios are but two examples of an important truth: ethics and law are not equivalent. Adherence to the law does not result in ethical behavior, and ethical behavior may not be covered by the law or may in fact be contrary to law or policy. In some circumstances, legal conduct may bring about an unethical result. When ethical issues arise in emergency medicine, they frequently entail legal issues. The commonest and often the first question asked by physicians in an ethical dilemma is: “What does the law say?” If that question is answered (and it cannot always be), they are many times content to end the analysis there. Adhering to the law does not guarantee a morally correct outcome, however.20 Although most emergency physicians understand this, fear of lawsuits, anecdotal reports of court rulings, misunderstanding of the law, and anxieties about legal implications of actions cause physicians to overemphasize the importance of law in the resolution of ethical issues. Although legal and ethical conclusions on issues in emergency medicine may in many cases be similar, ethical and legal analyses are not the same.20 Ethical duties typically exceed legal duties, and in some cases, the law mandates unethical conduct.13 As a result, it is important to review the relationship between ethics and law. The ethical course may well be the best course legally, but there are times when the most conservative legal advice will not comport with ethical standards. Additionally, knowledge of the law's impact on some common ethical issues in emergency medicine is necessary so that emergency physicians understand the legal implications of a medical ethical problem. Finally, the emergency physician should develop a framework to analyze ethical problems in emergency medicine with a mechanism to take the law into account but should not allow the law to trump all other considerations. One such framework is offered at the end of this article.