Motion(less) in limine

Journal of Law, Medicine and Ethics

Volumn 33, Issue 4, 2005, Pages 821-833

  Scofield, Giles ^a  

^a YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

BIOETHICS AND PROFESSIONAL ETHICS; EXPERT WITNESS; HUMAN; LEGAL APPROACH; LEGAL ASPECT; MEDICAL ETHICS; REVIEW; UNITED STATES;

BIOETHICS AND PROFESSIONAL ETHICS; LEGAL APPROACH;

ETHICS, MEDICAL; EXPERT TESTIMONY; HUMANS; UNITED STATES;

EID: 32144442351     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2005.tb00548.x     Document Type: Review

References (102)

1. See, for example, In re Rezulin Products Liability Litigation, 309 F. Supp. 2d 531 (S.D.N.Y. 2004).
2. E. J. Imwinkelried, "Expert Testimony by Ethicists: What Should Be the Norm?" Journal of Law Medicine & Ethics 33 (2005): 198-221, at 218, n. 238.
3. M. Walzer, "Philosophy and Democracy," Political Theory 9 (1981): 379-399.
4. Id. at 379.
5. Id.
6. Id.
7. Id. at 381.
8. Id.
9. Id. (quoting Thomas Hobbes).
10. R. Rorty, Philosophy and the Mirror of Nature (Princeton, NJ: Princeton University Press, 1979): 392.
11. M. Yeo, "Prolegomena to Any Future Code of Ethics for Bioethicists," Cambridge Quarterly of Healthcare Ethics 2 (1993): 403.
12. L. Zoloth, "Seeing the Duties to All," Hastings Center Report 31, no. 2 (2001): 17.
13. Walzer, supra note 3, at 383. (emphasis added).
14. Id. (emphasis added).
15. Id. (emphasis added).
16. Id. at 385.
17. Id. at 387.
18. Id. at 397.
19. Nor is it the case that Walzer is the only "authority" I can cite in support of my objection. "[F]ew philosophers, and probably not many thoughtful and educated people, now believe that we can arrive at absolute, intersubjectively valid, and 'objectively true' moral judgments....Although some more philosophers may make such a claim, they have conspicuously failed to demonstrate the absolute and objective status of any specific moral judgments they are prepared to assert. Instead, their 'objective moral truths' turn out to be highly debatable [and] their pretense of intersubjective validity cannot be upheld." R. A. Dahl, Democracy and Its Critics (New Haven, CT: Yale University Press, 1989): 66;
20. see also, E. Sagan, The Honey and the Hemlock: Democracy and Paranoia in Ancient Athens and Modern America (Princeton, NJ: Princeton University Press, 1991).
21. P. Selznick, The Moral Commonwealth (Berkeley, CA: University of California Press, 1992): 484.
22. The last of these scenarios being consistent with a concern that Eliot Freidson voiced about the professions years ago, when he wrote, "there is a real danger of a new tyranny which sincerely expresses itself in its own language of humanitarianism and which imposes its own values on others for what it sees to be their own good." E. Freidson, Profession of Medicine: A Study of the Sociology of Applied Knowledge (New York, NY: Harper & Row, 1970): 381.
23. R. J. Bernstein, The New Constellation: The Ethical-Political Horizons of Modernity/Postmodernity (Cambridge, MA: MIT Press, 1992): 337.
24. A. R. Jonsen, "Ethicist's Heyday," The American Review of Respiratory Disease 113 (1976): 5-6, at 6
25. D. J. Self, "Is Ethics Consultation Dangerous?" Cambridge Quarterly of Healthcare Ethics 2 (1992): 442-445, at 443.
26. E. R. Klein, "'Kings or Rogues': Philosophers on Biomedical Ethics Committees," APA Newsletter (1996): 79-83, at 83.
27. Rorty, supra note 10, at 292.
28. A. Baier, "Some Thoughts on How We Moral Philosophers Live Now," Monist 67 (1984): 490-91.
29. American Society for Bioethics and the Humanities, Core Competencies for Health Care Ethics Consultation (Glenview, IL: ASBH, 1998): 22-23;
30. M. P. Aulisio, R. M. Arnold, and S. J. Youngner, "Health Care Ethics Consultation: Nature, Goals, and Competencies," Annals of Internal Medicine 133 (2000): 67-68.
31. H. T. Engelhardt, "The Ordination of Bioethicists as Secular Moral Experts," Social Philosophy & Policy 19 (2002): 59-82.
32. J. C. Fletcher, "Ethics Consultation: What Standards and Accountability?" Newsletter of the Society for Bioethics Consultation 3 (1993);
33. see also, J. C. Fletcher and D. E. Hoffmann, "Ethics Committees: Time to Experiment with Standards," Annals of Internal Medicine 120 (1994): 335-38.
34. At about the same time, George Kanoti and Stuart Youngner observed in the Encyclopedia of Bioethics: "Despite growing interest in and practice of ethics consultation, important questions remain....Unlike traditional medical consultants, clinical ethics consultants are not subject to widely accepted standards and procedures for training, credentialing, maintaining accountability, charging fees, obtaining informed consent, or providing liability coverage." G. A. Kanoti and S. J. Youngner, "Clinical Ethics Consultation," Encyclopedia of Bioethics, vol. 1 (New York, NY: Macmillan, 1995): 405.
35. Aulisio, Arnold, and Youngner, supra note 28, at 59.
36. Id. at 66-67.
37. S. B. Rubin and L. Zoloth, "Clinical Ethics and the Road Less Taken: Mapping the Future by Tracking the Past," Journal of Law, Medicine & Ethics 32 (2004): 218.
38. B. Lo, "Answers and Questions about Ethics Consultations," JAMA 290 (2003):1208-10;
39. E. Fox, "Stocking C. Ethics Consultants' Recommendations for Life-prolonging Treatment of Patients in a Persistent Vegetative State," JAMA 270 (1993): 2578-82.
40. In so doing, I dispose of the argument that claims about ethical expertise can be grounded in some kind of Habermasian analysis. S. D. Yoder, "The Nature of Ethical Expertise," Hastings Center Report 28, no. 6 (1998): 11-19;
41. D. Casarett D, et al., "The Authority of the Clinical Ethicist," Hastings Center Report 28, no. 6 (1998): 6-11;
42. T. May, Bioethics in a Liberal Society (Baltimore, MD: Johns Hopkins University Press, 2002): 118-26.
43. "What moral theory can do and should be trusted to do is clarify the universal core of our moral intuitions, thereby refuting value skepticism. What it cannot do is make any kind of substantive contribution. By singling out a procedure of decisionmaking, it seeks to make room for those involved, who must then, under their own steam, find answers to the moral practical issues that come at them or are imposed upon them[.] Moral philosophy does not have privileged access to particular truths....[Nor can it] absolve anyone of moral responsibility, including philosophers." J. Habermas, "Morality and Ethical Life: Does Hegel's Critique of Kant Apply to Discourse Ethics?" Northwestern University Law Review 83 (1989): 38-53, at 53;
44. see also, J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1996).
45. This does not mean, however, that I disagree with those who believe in "deliberative democracy." See, for example, A. W. Dzur, "Democratizing the Hospital: Deliberative-democratic Ethics," Journal of Health Politics Policy & Law 27 (2002): 177-211.
46. simply agree with those who believe that there is - or at least ought to be - something "agonistic" about democratic deliberations, especially given that the kinds of choices that arise in these cases often are "tragic choices," i.e. the kinds of choices that one is supposed to agonize over. C. T. Mathewes, "Faith, Hope and Agony: Christian Political Participation Beyond Liberalism," Annual of the Society for Christian Ethics 21 (2001): 125-50;
47. M. Deveaux, "Agonism and Pluralism," Philosophy & Social Criticism 25 (1999): 1-22;
48. C. Mouffe, Agonistic Pluralism and Democratic Citizenship," in A. Sajo and S. Avineri, eds., The Law of Religious Identity: Models for Post-communism (The Hague: Kluwer, 1999): 29-38;
49. C. Mouffe, Deliberative Democracy or Agonistic Pluralism (Wien: Institute für Höhere Studien, 2000);
50. J. Gray, "Agonistic Liberalism," Social Philosophy & Policy 12 (1995): 111-35.
51. The problem, it seems, is that deliberation is good, insofar as it goes, but that it does not go far enough, as occurs when the issue at hand is tragic and agonistic, i.e. "existential" in nature. See J. D. Moreno, "Can Ethics Consultation be Saved?" in M. P. Aulisio, R. M. Arnold, and S. J. Youngner, eds., Ethics Consultation: From Theory to Practice (Baltimore, MD: Johns Hopkins University Press, 2003): 23-35, at 33-34.
52. J. Moreno, Deciding Together: Bioethics and Moral Consensus (New York, NY: Oxford University Press, 1995): 26.
53. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions (Washington, DC: USGPO, 1982): 44-45.
54. J. Katz, "Informed Consent - Must it Remain a Fairy Tale?" Journal of Contemporary Health Law & Policy 10 (1994): 86.
55. "[T]he individual person, as the one most vitally concerned, is allowed to choose..., even though he [or she] may elect the foolish and disastrous course." H. W. Smith, "Antecedent Grounds of Liability in the Practice of Surgery," Rocky Mountain Law Review 14 (1942): 237.
56. "Neither experts nor society can judge what is best for an individual better than him- or herself." M. J. Shultz, "From Informed Consent to Patient Choice: A New Protected Interest," Yale Law Journal 95 (1985): 292.
57. "Individuals know their own tastes and preferences better, and can better assess their abilities and circumstances. An individual's choices from the menu of life are inevitably bound to prove more self-satisfying and suitable than any made by an impersonal bureaucrat or even an enlightened philosopher-king." B. Winnick, "On Autonomy: Legal and Psychological Perspectives," Villanova Law Review 37 (1992): 1706-1777, at 1756.
58. The SHHV-SBC Task Force on Standards for Bioethics Consultation, Meeting One Minutes: May 24-26, 1996, Final Version (July 18, 1996) (prepared by M. Aulisio, Ph.D., Executive Director).
59. SHHV-SBC Task Force on Standards for Bioethics Consultation, Meeting Two Minutes: December 13-14, 1996, Final Version (undated) (prepared by M. Aulisio, Ph.D., Executive Director).
60. SHHV-SBC Task Force on Standards for Bioethics Consultation, Common Themes and Disputed Questions from the Literature Review and Essay Exercise, December 13, 1996 (Prepared by M. Aulisio, Ph.D., Executive Director).
61. M. P. Aulisio, R. M. Arnold, and S. J. Youngner, "Can There Be Educational and Training Standards for Those Conducting Health Care Ethics Consultation?" in D. Thomasma and T. Monagle T, eds., Health Care Ethics for the 21st Century (Gaithersburg, MD: Aspen, 1998): 486-7;
62. see also M. Aulisio, "The Foundations of Bioethics," (Book Review) Journal of General Internal Medicine 2 (1997): 335.
63. See, for example, In re Rezulin Products Liability Litigation, 309 F.Supp. 2d. 531 (S.D.N.Y. 2004).
64. J. C. Fletcher, "Goals and Process of Bioethics Consultation in Health Care," Biolaw 2, no. 2 (1986): S37-S47, at S41.
65. E. D. Pellegrino, M. Siegler, and P. Singer, "Future Directions in Clinical Ethics, Journal of Clinical Ethics 2 (1991): 6-7.
66. A. Aulisio, R. M. Arnold, S. J. Youngner, "Health Care Ethics Consultation: Nature, Goals and Competencies," Annals of Internal Medicine 133 (2000): 59-69.
67. Id. at 61.
68. Id.
69. Institute of Medicine, Assessing Genetic Risks (Washington, DC: National Academies Press, 1994): 148-84.
70. R. F. Murray, "Genetic Counseling: Ethical Issues," Encyclopedia of Bioethics, vol. 3. (New York, NY: Macmillan & Sons, 1995): 927-932, at 928.
71. A. Milunsky, Letter to the editor, N. Engl J. Med. 327 (1992): 812.
72. J. C. Fletcher and D. Wertz, "Ethics, Law and Medical Genetics: After the Human Genome Project," Emory Law Journal 39 (1990): 747-809, at 765.
73. L. G. Biesecker, Letter to the editor, N. Engl. J. Med. 331 (1994): 1383.
74. Institute of Medicine, supra note 51, at 171 (emphasis in original).
75. "One might think that directiveness and non-directiveness are polar opposites on a single dimension. I would like to suggest that they are not. In fact, there are more similarities in the two approaches than meets the eye." S. Kessler, "Psychological Aspects of Genetic Counseling: Thoughts on Directiveness," Journal of Genetic Counseling 1 (1992): 9-17, at 9.
76. "Professional commitment to a value-neutral, non-directive style guides practice, [but] should not be confused with practice....Value-neutral, non-directive counseling is...easy to espouse, but in practice difficult to perform." C. L. Bosk, All God's Mistakes: Genetic Counseling in a Pediatric Hospital (Chicago, IL: University of Chicago Press, 1992): 153.
77. A. Clarke, "Is Non-directive Counseling Possible?" Lancet 338 (1991): 998-1001, at 998.
78. "It is almost impossible to avoid communicating, by tone of voice, subtle changes of expression, choice of words, and even what one does not say, some signals that are translated by [others] as directive." A. Clarke, "Introduction," in A. Clarke, ed., Genetic Counselling: Practice and Principles (London: Routledge, 1994): 11.
79. "There are...implicitly directive components to the counseling relationship conveyed through body language, emphasis, and time spent." Murray, supra note 52, at 925.
80. SHHV-SBC Core Competencies for Health Care Ethics Consultation, The Report of the American Society for Bioethics and Humanities (Glenview, IL: ASBH, 1998): 7.
81. Id.
82. Id.
83. D. N. Sontag, "Are Clinical Ethics Consultants in Danger? An Analysis of the Potential Legal Liability of Clinical Ethicists," University of Pennsylvania Law Review 151 (2002): 667-705. By citing Sontag, I do not mean to endorse his analysis. Whereas Sontag's argument is that ethicists ought to bear little responsibility because their involvement tends to be de minimis, I would argue that because ethicists wish to minimize their responsibility, i.e. maximize their irresponsibility, that their involvement should be circumscribed and minimized to the greatest extent possible. Quite frankly, I am surprised that no one seems to think that the professionalization of the field of ethics, of which establishing the ethicist's status as a legal expert is one component, raises no anti-trust concerns. But that is another story, for another time.
84. Imwinkelried, supra note 2, at 211.
85. L. J. Nelson, "Is There Any Indication for Ethics Evidence? An Argument for the Admissibility of Some Expert Bioethics Testimony," Journal of Law Medicine & Ethics 33 (2005): 248-263, at 262
86. quoting B. Spielman, "Professionalism in Forensic Bioethics," Journal of Law Medicine & Ethics 30 (2002): 421.
87. Id. at 263, n.60.
88. Nelson's assertion that not "just anyone can claim to be an expert at bioethics...or to do bioethics in a professional manner and not as an amateur or hobbyist," id. at n.61, must be contrasted both with the concerns voiced by Rubin and Zoloth, see note 33 and accompanying text, supra, and with the matter of fact statement made in connection with a recently published study of whether ethicists can help reduce health care costs in the ICU. T. Gilmer, L. J. Schneiderman, and H. Teetzel, et al., "The Costs of Nonbeneficial Treatment in the Intensive Care Unit," Health Affairs 24 (2005): 961-71.
89. According to the authors of that study: "Ethics consultations were provided...by people equipped with medical, doctoral or law degrees; by social workers and theologians; by those formally schooled in ethics and philosophy; and by those who had acquired their expertise one way or another during the course of their career." Id. at n. 8 (emphasis added). Interestingly, the informed consent of these patient-subjects was not obtained, it being deemed not to be part of the standard of care. Id. at n.9; but see, R. M. Veatch, "Terri Schiavo, Son Hudson, and 'Nonbeneficial Treatments,'" Health Affairs 24 (2005): 976-79;
90. A. H. M. Antonmmaria, "Do as I Say, Not as I Do: Why Bioethicists Should Seek Informed Consent for Some Case Studies," Hastings Center Report 34, no. 3 (2004): 28-34.
91. Id. at 263, n.61.
92. S. R. Latham, "Expert Bioethics Testimony," Journal of Law Medicine & Ethics 33 (2005): 242-247, at 244.
93. B. J. Spielman, "Bioethics Testimony: Untangling the Strands and Testing their Reliability," Journal of Law Medicine & Ethics 33 (2005): 222-233, at 233, n. 37.
94. K. Kipnis, "Ethics Expertise in Litigation," Journal of Law Medicine & Ethics 33 (2005): 274-278, at 276.
95. M. A. Majunder, "The Roles of Ethicists in Managed Care Litigation, Journal of Law Medicine & Ethics 33 (2005): 264-273.
96. D. Cummins, "The Professional Status of Bioethics Consultation," Theoretical Medicine 23 (2002): 19-43;
97. C. L. Bosk, "Professional Ethicist Available: Logical, Secular, Friendly," Daedalus 128 (1999): 47-68;
98. L. R. Churchill, "Are We Professionals? A Critical Look at the Social role of Bioethicists," Daedalus 128 (1999): 253-274;
99. C. L. Bosk, "The Licensing and Certification of Ethics Consultants: What Part of 'No!' Was So Hard to Understand?" in Aulisio, Arnold and Youngner, supra note 35, at 145-163;
100. B. J. Spielman, "Has Faith in Health Care Consultation Gone Too Far? Risks of an Unregulated Practice and a Model Act to Contain Them," Marquette Law Review 85 (2001): 161-221.
101. According to Jonathan Moreno, "were critical theorists to write about the institutionalization of bioethics...they could truly have a field day." J. D. Moreno, "Can Ethics Consultation be Saved? Ethics Consultation and Moral Consensus in a Democratic Society," in Aulisio, Arnold and Youngner, supra note 35, 23-35, at 32.
102. See Living Will Center v. NBC Subsidiary, Inc., et al., 857 P. 2d 514 (Col. App. 1993), rev'd, 879 P.2d 6 (Col. 1994).