Should Hugh be admitted to medical school despite his violent past?
Reflection: Professional Standards
Surveys consistently place physicians among the most trusted and respected of professionals. This is true across many nations. Much of this respect derives from faith in the integrity of healthcare professionals. There is the old joke that 99 percent of lawyers give the other 1 percent a bad name; nobody says such things of doctors. In order to maintain such widespread trust, which is essential to the effective doctor-patient relationship, medical schools and licensing boards generally turn away candidates of questionable character. Since 2002, the Association of American Medical Colleges has required applicants to reveal felony arrests and convictions on their applications. It also recommends criminal background checks for all prospective students. Historically, “moral turpitude” has been the standard for striking physicians off the medical rolls. Yet one person’s immorality may not be another’s. Consensual homosexual conduct was once considered a crime of moral turpitude. In Arizona, a would-be lawyer who had failed to pay his school loans was turned away from the bar on these grounds.
The prospect of a murderer-turned-medic arose in Sweden in 2008, when Karl Helge Hampus Hellekant (later, a.k.a. Karl Svensson), a former neo-Nazi convicted of killing a prominent union activist in 1999, enrolled as a medical student at the Karolinska Institute. As a general policy, Swedish medical schools do not ask about prior criminal convictions, and Hellekant did not reveal this information on his application or during his interviews. He was later dismissed from the university on a technicality. However, his case prompted considerable soul-searching among medical gatekeepers, both in Sweden and around the world.
Many critics of Hellekant’s admission questioned whether patients would trust a former killer. If not, did admitting him to a prestigious professional school—in place of another applicant—do a disservice to the public? And would allowing Hellekant to practice diminish overall trust in doctors? New York Times columnist Lawrence Altman reported that Harriet Wallberg-Henriksson, then the Karolinska’s president, referred the case to the institute’s ethics committee for guidance; among the questions she asked: “Must educators and administrators inform patients about a convicted criminal student’s past?” Medical students, after all, interact extensively with patients during their training. Advocates for Hellekant noted that his distinctive experiences might render him uniquely fit to provide medical care to prisoners and ex-convicts, a historically underserved population.
If one excludes candidates like Hugh, in the scenario at the start of the chapter, from the practice of medicine, one must ask where one draws the line. Should financial fraud be a disqualifier? Drunk driving? Fishing without a license? The legal profession has confronted similar questions in several high-profile cases. Reginald Dwayne Betts, who served eight years in prison for a carjacking committed at age sixteen, later graduated from Yale Law School; the Connecticut Bar Examining Committee initially rejected his application for admission to the bar on grounds of moral “character and fitness” but ultimately relented, and he was admitted to the practice of law in 2017. This contrasts with the case of Stephen Glass, a former New Republic reporter who fabricated a series of feature stories and later applied for membership in the California bar. The California Supreme Court rejected his application; he subsequently found work as a paralegal.
Whatever the merits of allowing Hugh to practice medicine, such a decision is likely to prove unpopular, as the public generally expects physicians to manifest the highest ethical standards—possibly even higher than those they have come to expect of attorneys.
10
Turning a Blind Eye to Torture
Dr. Banner is a military physician with the US Navy. He is informed by his superiors that “enhanced interrogation techniques” will be used upon several detainees who are allegedly suspected of terrorism. Some critics have labeled these techniques as torture.
The navy would prefer to have a physician available should any of the detainees suffer a medical emergency during the interrogation. “All you have to do is sit inside the officers’ lounge and read the newspaper,” says his commanding officer. “If we have an emergency, we’ll call for you.” Dr. Banner’s superior officer also says that if the navy cannot find a doctor to be on hand for emergencies, the authorities will pursue the interrogations anyway without a physician available. “We won’t force you to do it,” says his boss, “but we’d strongly prefer it. Your country would strongly prefer it. And it is the right thing to do.”
Is it ethical for Dr. Banner to participate in this interrogation process in the indirect manner requested by his superiors?
Reflection: Enhanced Interrogation
The canons of medical ethics have long banned physicians from participating in torture. These proscriptions were explicitly laid out in the World Medical Association’s Declaration of Tokyo (1975), the United Nations Principles of Medical Ethics (1982), and the United Nations Convention against Torture (1984). The American Medical Association Code of Medical Ethics goes one step further, noting that “physicians must not be present when torture is used or threatened.” The AMA code also warns that “physicians may treat prisoners or detainees if doing so is in their best interest, but physicians should not treat individuals to verify their health so that torture can begin or continue.”
Whether “enhanced interrogation techniques” used by the US military constitute torture has been a matter of considerable controversy. In preparing for the interrogation of detainees at Guantanamo Bay, Deputy Assistant Attorney General John Yoo and Assistant Attorney General Jay Bybee advised the Bush administration that such techniques did not constitute torture. Critics, such as Physicians for Human Rights, strongly disagree. While the AMA and the American Psychiatric Association forbid members from participating in enhanced interrogation, the American Psychological Association once sanctioned such engagement. Psychologists James Elmer Mitchell and Bruce Jessen allegedly participated in guiding the examination of al-Qaeda prisoners. They were later sued by the American Civil Liberties Union on behalf of several of these detainees; the case was settled on terms that have not been publicly disclosed.
Dr. Banner is not being asked to participate directly in enhanced interrogations. Rather, he has been informed that such interrogation will occur with or without his presence; his sole role is to aid prisoners who suffer negative medical consequences. Yet some of those patients could theoretically be revived by him only to face more questioning. Under the circumstances, if these techniques are indeed torture, he is rendering assistance that might permit it to continue.
The scenario, in essence, asks how complicit one must be in unethical conduct before one suffers moral responsibility for that conduct. These same questions arise in a number of areas where physicians interface with law enforcement. For instance, now that most major medical organizations have prohibited physician participation in capital punishment, one must ask whether psychiatrists are permitted to certify that patients have the capacity to understand why they are being executed—a US Supreme Court requirement for such executions to go forward. Dr. Banner may legitimately feel he is helping these internees by making himself available to provide emergency care. However, he must balance those noble intentions against the harm he may do by lending his good name, and the good name of his profession, to legitimizing potentially unethical behavior.
11
When Medical Secrets Are Business Secrets
Dr. Hawkeye Pierce is an oncologist with a “high-end” practice near New York’s Wall Street. One of his patients, Herman, is being treated for a terminal brain tumor. Herman is also the CEO of a major US corporation. Recently, a larger US company has agreed to merge with that corporation. Under the publicly announced plan, Herman, considered a genius in his field, will run the combined company.
Health rumors swirl around Herman, who appears sickly and emaciated, but he publicly attributes this appearance to long-standing anemia. “Otherwise
, I’m fit as an ox,” Herman tells the media. “There is absolutely nothing else wrong with me. My doctors tell me I could live another fifty years.” Herman’s remarks drive both stock prices up more than 20 percent. Dr. Pierce is aware that Herman’s remarks constitute fraudulent stock manipulation and might be illegal.
Should Dr. Pierce share his knowledge with the Securities and Exchange Commission?
Reflection: CEO Responsibility
Considerable variation exists regarding how much medical information US business leaders disclose to shareholders. At one extreme, Google cofounder Sergey Brin announced in 2008 that he carries a genetic mutation linked to Parkinson’s disease, increasing his hypothetical risk of the disorder at a distant point in the future. At the opposite extreme, Apple cofounder Steve Jobs went to great lengths to conceal his treatment for the neuroendocrine tumor of the pancreas that ultimately killed him in 2011. Some high-profile executives have opted (as far as we know) for full and rapid disclosure of health issues: Harry J. Pearce of General Motors, Jamie Dimon of JPMorgan Chase, Berkshire Hathaway’s Warren Buffett. In contrast, Kraft Foods initially refused to reveal the reasons behind then-CEO Roger Deromedi’s medical leave in 2004, while Bear Stearns kept entirely silent about leader Jimmy Cayne’s hospitalization for life-threatening sepsis in 2007.
Controversy exists over whether, and to what degree, grave illnesses among business luminaries must be reported to the Securities and Exchange Commission (SEC). Securities litigator Allan Horwich has argued that, at a minimum, under rule 10b-5.3 of the Securities Exchange Act of 1934, making a “deliberately false material statement about the health of a corporation’s luminary” is unlawful; US courts have largely arrived at the same conclusion. While one can argue about the definitions of both “luminary” and “material,” few would likely maintain that the declarations of Herman, the CEO dying of a brain tumor, have not crossed the statute’s red line.
Yet the question in this scenario is not whether Herman has a legal duty to reveal his diagnosis to investors, but whether Dr. Pierce is ethically permitted to share that diagnosis with the SEC. Both the federal government, through HIPAA, and many states limit the grounds upon which physicians may breach doctor-patient confidentiality to those in which the patient’s conduct poses “a serious and imminent threat to the health or safety of an individual or the public.” Warning the probable victim of a violent crime, for instance, clearly falls under this exception; in fact, many states require doctors to attempt such a warning. Certain other exceptions are specified in federal law, such as those permitting doctors to report an escaped convict or a crime that occurs on their own premises. Barring such exceptions, physicians generally cannot breach confidentiality.
Whether a judge or jury would find Herman’s dishonesty a serious threat to the public is uncertain but seems improbable. The fact that the confidential knowledge is medical in nature also favors maintaining confidentiality. However, one can envision cases involving large-scale financial fraud where providers breaching doctor-patient confidentiality might have a more compelling case—like a physician who might have turned in Ponzi schemer Bernie Madoff or the leadership of Enron. Interestingly, although state courts afford litigants a doctor-patient privilege, federal courts do not; if Herman is ultimately charged with a breach of securities law, Dr. Pierce may still be compelled to testify against him.
For the time being, society has decided that protecting trust between doctors and patients is, on the whole, more important than any social benefit to be gained by allowing breaches in cases of financial wrongdoing. So legally, Dr. Pierce’s hands are likely tied. Whether they should be, especially in the context of the various financial frauds exposed over the past decade, is a more challenging question. Of course, Dr. Pierce is certainly free to use his persuasive talents to convince Herman to disclose the truth himself. Alternatively, as long as Herman is able to obtain adequate medical care elsewhere, Dr. Pierce has every right to refuse to continue to treat him while he is perpetrating a fraud on the public. Oh—and in case you are wondering, it would be both illegal and unethical for Dr. Pierce to short-sell stock in Herman’s company.
12
A Doctor’s Buried History
Emma, a medical student, dabbles in historical research during her spare time. She is writing a paper on the Oakfield hepatitis experiments, a series of studies conducted at her state’s hospital for mentally impaired children during the 1960s. The most disturbing of these experiments involved intentionally infecting the patients, many of them African American toddlers with IQs under 70, with viral hepatitis in order to study various potential treatments. While no children died, several became severely ill. At the time, the study was not considered objectionable by mainstream investigators, but it is now held up as an example of abusive and unethical research.
In the Oakfield archive, Emma discovers a document naming several college students who worked as volunteers on the experiment. One of them is now-seventy-five-year-old Dr. Van Helsing, her school’s most preeminent physician, who has been a long and vocal advocate for patient welfare at the local hospital and for human rights around the world. Emma knows that revealing Dr. Van Helsing’s role in the Oakfield experiments would tarnish his reputation significantly. At the same time, she is troubled that he has never revealed his part in this tragedy.
Should Emma identify Dr. Van Helsing in her paper?
Reflection: Evolving Ethical Norms
Medical ethics and research norms are constantly evolving. Some of the profession’s most illustrious figures have engaged in conduct that in hindsight is difficult to defend. For example, Jonas Salk, the celebrated inventor of the polio vaccine, previously took part in conducting controversial research that sprayed “wild influenza” into the nasal passages of psychiatric patients. J. Marion Simms, the father of modern gynecology, earned his initial fame for performing experimental surgeries on unanesthetized African American slaves. Experiments that went largely unremarked upon at the time—such as the notorious Tuskegee syphilis experiment (1932–1972), in which poor black men were denied a treatment for their disease so that government researchers could watch its natural course—now appear deeply unethical. Only over the past few decades has medicine made a concerted effort to clear the historical record. For instance, diseases named for Nazi physicians Friedrich Wegener (1907–1990) and Hans Reiter (1881–1969) have recently been renamed. A statue of Simms was removed from Central Park in 2018.
Contemporary society places considerable emphasis on acknowledgement of past mistakes and often favors candor over retribution. One can see this phenomenon in the operation of “truth and reconciliation” in nations as varied as Argentina and South Africa. Yet the revelation of a highly regarded figure’s shady past not only damages that individual’s image, but it may also undermine the ability of that individual to champion worthwhile causes. For instance, revelations that German Nobel laureate Günter Grass served in the Waffen-SS during World War II led to what Grass’s biographer called “the end of a moral institution” and the end of his authority to speak convincingly on behalf of human rights around the world.
The experiment in which Dr. Van Helsing participated as a college student clearly defies modern ethical standards. But such experiments were all too common prior to the revolution in patients’ rights that occurred in the 1960s and 1970s. Even if his involvement was minor, an argument can be made that history should judge his participation. Emma may owe it to the children he sickened to reveal her discovery. Yet exposure would likely prevent Van Helsing from continuing his patient advocacy and human rights work. An argument can be made for forgoing justice for Van Helsing’s past victims if doing so will help save present-day lives, but such a utilitarian approach may sit uneasily with many people.
Part Two
Body Parts
The advent of specialized surgeries in the twentieth century, and especially organ transplantation, has raised a novel set of ethical concerns. Richard Lawler of Little
Company of Mary Hospital in Illinois performed the first cadaveric kidney transplant in 1950, and Joseph Murray of Boston’s Brigham Hospital performed the first successful living kidney transplant in 1954, but transplantation remained relatively rare and extremely risky for the next three decades. That changed in 1983, when the immunosuppressive agent cyclosporine came to market. Yet as organ transplantation became safer and more frequent, physicians had to grapple with the ethics of how to allocate scarce organs. What factors, if any—medical, social, moral—should exclude a patient from eligibility for lifesaving treatment?
Beyond the realm of transplantation, technological advances also made possible novel procedures in gender reassignment, reconstructive cosmetics, and body modification. Which operations should be permitted—and who should pay for these often-costly interventions—remains a source of considerable debate.
13
“Take My Foot, Please”
Margaret, a forty-year-old teacher, is a new patient of Dr. McCoy, a prominent orthopedic surgeon. At their initial appointment, when he asks how he can help her, Margaret replies, “I want you to amputate my left foot.” Further discussion and examination reveals that Margaret’s foot is physically healthy and not a source of pain or disability.
Margaret elaborates: “All my life, I’ve had this strange feeling that my left foot—right here, below the ankle—did not feel like it was part of my body. I have been to psychiatrists and neurologists, but nobody can explain it. To me, even though the foot functions just fine, it feels like having a foreign object attached to my leg. Then last year, I went online and discovered that there are other people out there like me who suffer from ‘foreign limb syndrome’—who have limbs or appendages that feel like they do not belong. We are sort of like patients who want sex-change operations, only far fewer medical professionals take us seriously.
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