CONSENT & PATERNALISM. “Consent” is a recurring theme in much of my work. This theme is manifested in two distinct ways. First, starting with a presumption against interference, I explore the conditions under which individual liberty can be justifiably restricted. For example, I address this issue both in my article on smoking regulations in the University of Pittsburgh Law Review, and in more recent articles in the Georgia State University Law Review, the UMKC Law Review, and the Oklahoma City University Law Review. As coercive measures are increasingly proposed and implemented to combat the behaviorally-based epidemics of today and tomorrow, the legitimacy of hard paternalistic public health laws demands further scholarly attention. I am excited to continue this line of inquiry in a book chapter for Prevention vs. Treatment: Philosophical, Empirical, and Cultural Reflectionsand in briefings on organ donation and "crisis standards of care" for the Journal of Clinical Ethics.
Second, the theme of consent is manifested in my work through my exploration of the ways in which individuals can be made sufficiently informed and educated, to obviate the need for the restriction of their liberty. For example, I address this issue in my article on informed consent and advance directives in Health Matrix. In a piece with Lindsey Anderson for the Widener Law Review, I explore the degree to which individuals should be free to voluntarily stop eating and drinking as a means to hasten death. Finally, I cover both informed consent and advance care planning in two briefings for the Journal of Clinical Ethics.
AUTONOMY & END-OF-LIFE. My more recent work also focuses on the limits of autonomy, but specifically in the end-of-life context. While many agree that there must be limits on the right of a patient to request specific medical interventions, few can agree on just where to place those limits. Consequently, few effective limits have been imposed. In my article for the Tennessee Law Review , I analyze why legislative attempts to set these limits have failed. In our article in the Ohio State Journal on Dispute Resolution, Ellen Waldman and I argue that since mediation cannot resolve all end-of-life disputes, we must further attend to the default rules which now empower patients to demand medically inappropriate care. In my article for Marquette Elder's Advisor, I debunk the popular myth that the courts are or have been hostile to health care providers' unilateral decisions to stop inappropriate treatment. Finally, in my article for the St. Louis Journal of Health Law & Policy, I demonstrate the promise and limitations of surrogate selection as a solution to intractable medical futility disputes.
PROCEDURAL FAIRNESS & END-OF-LIFE. In a group of newer articles (including some short commentaries in the American Journal of Bioethics, the Health Law Journal of the N.Y. State Bar Association, and elsewhere), I turn from substantive law to procedural law. Because no consensus has been reached on clinical guidelines for inappropriate end-of-life care, futility disputes are often relegated to resolution by pure process. But, as currently implmented, that process is not sufficiently fair. The ultimate decision maker, the intramural ethics committee, lacks the requisite independence and competence. In my "Hospital Ethics Committees as a Forum of Last Resort," I demonstrate that the Texas Advance Directives Act, which grants HECs ultimate authority, violates the procedural due process clause of the 14th Amendment. I colorfully present these same issues in the 2008 National Health Law Moot Court problem published in the Journal of Legal Medicine. I explore balancing provider and patient rights in briefings on both conscience clauses and medical futility in the Journal of Clinical Ethics. Finally, in my article for the Campbell Law Review, I propose reassigning the decision making authority of intramural HECs to extramural, shared, and/or quasi-appellate HECs.
Research Agenda 2013-2016
Here is a two-page PDF summary of the research and writing projects that I have planned for 2013 to 2016. Obviously, these will change somewhat as new and exciting opportunities present themselves.
Limiting Liberty to Prevent Obesity: Justifiability of Hard Paternalistic Public Health Regulation, 46 CONNECTICUT LAW REVIEW __ (forthcoming 2014).
Intractable Medical Futility Conflict: Comparing Three Models of Dispute Resolution: Queensland, Ontario, and Texas (in progress) (with Paula Chidwick, Robert Sibbald, Ben White, and Lindy Willmott).
Definition and Defense of Hard Paternalism: A Conceptual and Normative Analysis of the Restriction of Substantially Autonomous Self-Regarding Conduct, Chapter Five - A New Normative Defense of Hard Paternalism (under revision for publication, over 120 downloads and citations). SSRN link
The Growing Power of Healthcare Ethics Committees Heightens Due Process Concerns, 15(2) CARDOZO JOURNAL OF CONFLICT RESOLUTION 425-447 (2014).
Dispute Resolution Mechanisms for Intractable Medical Futility Disputes, 58 NEW YORK LAW SCHOOL LAW REVIEW 347-368 (2014).
POLST Legislative Guide (Feb. 2014) (with Legislative Working Group of the National POLST Paradigm Task Force).
Clinicians May Not Administer Life-Sustaining Treatment without Consent: Civil, Criminal, and Disciplinary Sanctions, 9 JOURNAL OF HEALTH & BIOMEDICAL LAW 213-296 (2013).
Legal, Medical, and Ethical Issues in Minnesota End-of-Life Care, 36(2) HAMLINE LAW REVIEW 139-150 (2013).
Lessons from Tragedy - Part Two, 19 WIDENER LAW REVIEW 239-258 (2013).
Physicians and Safe Harbor Legal Immunity, 21(2) ANNALS OF HEALTH LAW 121-135 (2012). SSRN link
Career Guide for the Future Healthcare Attorney, 4(1) WIDENER HEALTH LAW COLLOQUIUM 2-7 (Fall 2012).
The Government's Duty to Preserve in False Claims Act Litigation, American Health Lawyers Association (AHLA) HEALTHCARE LIABILITY & LITIGATION PRACTICE HEALTH BRIEFS E-NEWSLETTER (Oct. 2012).
Voluntarily Stopping Eating and Drinking: A Legal Treatment Option at the End of Life, 17(2) WIDENER LAW REVIEW 363-428 (2011) (with Lindsey Anderson), reprinted in NINA A. KOHN, ELDER LAW __ (Aspen 2013), and cited in Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165. SSRN link
Caring for the Seriously Ill: Cost and Public Policy, 39(2) J. L. MED. & ETHICS 111-113 (2011) (with Robert M. Arnold and Amber E. Barnato). Journal link
Guest Editor of a Special Symposium: Caring for the Seriously Ill: Cost and Public Policy, 39(2) J. L. MED. & ETHICS 111-234 (2011) (with Robert M. Arnold and Amber E. Barnato).
Comparing the FHCDA to Surrogate Decision Making Laws in Other States, 16(1) NYSBA HEALTH L.J. 107-111 (April 2011). SSRN link
Foreword: Symposium: Health Law and the Elderly: Managing Risk at the End of Life, 17(2) WIDENER L. REV. i-vii (2011).
Surrogate Selection: An Increasingly Viable, but Limited, Solution to Intractable Futility Disputes, 3 ST. LOUIS U. J. HEALTH L. & POL’Y 183-252 (2010). SSRN link
The Topography and Geography of U.S. Health Care Regulation, 38(2) J. L. MED. & ETHICS 427-432 (2010). SSRN link
2008-2009 National Health Law Moot Court Competition, 30 J. LEG. MED. 443-466 (2009). SSRN link
A Conversation About End-of-Life Decisionmaking, 14(2) NYSBA HEALTH L.J. 91-107 (Fall 2009) (with Nancy Dubler, Alicia Ouellette, Timothy Quill, Robert Swidler). SSRN link
Multi-Institutional Healthcare Ethics Committees: the Procedurally Fair Internal Dispute Resolution Mechanism, 31 CAMPBELL L. REV. 257-331 (2009). SSRN link
Involuntary Passive Euthanasia in U.S. Courts: Reassessing the Judicial Treatment of Medical Futility Cases, 9 MARQUETTE ELDER’S ADVISOR 229-68 (2008), reprinted in MEDICAL TREATMENT AND THE LAW 104-45 (Asifa Begum ed. Amicus Books, Icfai University Press 2010). SSRN link
EMTALA: Its Application to Newborn Infants, 4 ABA HEALTH ESOURCE No. 7 (Mar. 2008). SSRN link
Medical Futility Statutes: No Safe Harbor to Unilaterally Stop Life-Sustaining Treatment, 75 TENN. L. REV. 1-81 (2007), reprinted in JANET L. DOLGIN & LOIS L. SHEPHERD, BIOETHICS AND THE LAW 796-98 (2d ed. Aspen 2009). SSRN link
Mediation at the End-of-Life: Getting Beyond the Limits of the Talking Cure, 23 OHIO ST. J. ON DISP. RESOL. 143-94 (2007) (with Ellen Waldman). SSRN link
Rethinking Medical Liability: A Challenge to Defense Lawyers, Trial Lawyers, and Medical Providers: An Introduction to the Symposium, 37 U. MEM. L. REV. 455-58 (2007).
Monstrous Impersonation: A Critique of Consent-Based Justifications for Hard Paternalism, 73 UMKC L. REV. 681-713 (2005). SSRN link
Is Public Health Paternalism Really Never Justified? A Response to Joel Feinberg, 30 OKLA. CITY U. L. REV. 121-207 (2005). SSRN link
Counting the Dragon’s Teeth and Claws: The Definition of Hard Paternalism, 20 GA. ST. U. L. REV. 659-722 (2004). SSRN link
Balancing Public Health against Individual Liberty: The Ethics of Smoking Regulations, 61 U. PITT. L. REV. 419-98 (2000). SSRN link
The Maladaptation of Miranda to Advance Directives: A Critique of the Implementation of the Patient Self Determination Act, 9 HEALTH MATRIX 139-202 (1999). SSRN link
Clinical Practice Guideline for Physician Aid-in-Dying (under review) (with Compassion & Choices Guidelines Committee).
Managing Conscientious Objection in Intensive Care Medicine AMERICAN THORACIC SOCIETY (forthcoming 2013) (with ATS Ethics Committee and other external content experts).
Statement on Futility and Goal Conflict in End-of-Life Care in ICU Medicine AMERICAN THORACIC SOCIETY (forthcoming 2013) (with ATS Ethics Committee and other external content experts).
Futility in the Cardiac Intensive Care Unit (in progress) (with Andem Effiong).
The Changing Legal Climate for Physician Aid-in-Dying, 311 JAMA ___ (2014) (with David Orentlicher and Ben A. Rich).
Legal Briefing: Voluntarily Stopping Eating and Drinking, 25(1) JOURNAL OF CLINICAL ETHICS 68-80 (2014) (with Amanda West).
Making Medical Decisions for Patients without Surrogates, 369(21) NEW ENGLAND JOURNAL OF MEDICINE 1976-1978 (2013).
Legal Briefing: Home Birth and Midwifery, 24(3) JOURNAL OF CLINICAL ETHICS 293-308 (2013) (with Deborah Fisch).
Judicial Responsibility to Decide Bioethics Cases, 10(4) JOURNAL OF BIOETHICAL INQUIRY 441-444 (Dec. 2013).
Advance Care Planning for End-Stage Kidney Disease (Protocol). COCHRANE DATABASE OF SYSTEMATIC REVIEWS 2013, Issue 7. Art. No.: CD010687. DOI: 10.1002/14651858.CD010687 (with A. Effiong, L. Shinn & J.A. Raho)
Legal Briefing: The New Patient Self Determination Act, 24(2) JOURNAL OF CLINICAL ETHICS 156-167 (2013).
Legal Briefing: Shared Decision Making and Patient Decision Aids, 24(1) JOURNAL OF CLINICAL ETHICS 70-80 (2013) (with Mindy Hexum).
Legal Briefing: POLST (Physician Orders for Life-Sustaining Treatment), 23(4) J. CLINICAL ETHICS 353-376 (2012) (with Mindy Hexum).
Facebook Can Improve Surrogate Decision Making, 12(10) AM. J. BIOETHICS 43-45 (2012).
The Courts, Futility, and the Ends of Medicine, 307(2) JAMA 151-152 (2012) (with Douglas B. White).
Review of Lawrence J. Schneiderman and Nancy S. Jecker, Wrong Medicine: Doctors, Patients, and Futile Treatment, 12(1) AMERICAN JOURNAL OF BIOETHICS 49-51 (2012).
Responding to Requests for Non-Beneficial Treatment, 5(1) MD-ADVISOR: A JOURNAL FOR THE NEW JERSEY MEDICAL COMMUNITY (Winter 2012) at 12-17.
Legal Briefing: The Unbefriended: Making Healthcare Decisions for Patients without Proxies (Part 1), 23(1) J. CLINICAL ETHICS 84-96 (2012) (with Tanya Sellers).
Legal Briefing: The Unbefriended: Making Healthcare Decisions for Patients without Proxies (Part 2), 23(2) J. CLINICAL ETHICS 177-192 (2012) (with Tanya Sellers).
Legal Fundamentals of Surrogate Decision Making, 141(4) CHEST 1074-1081 (2012) (5th in series: Intersection of Law and Medicine).
Legal Briefing: Medically Futile and Non-Beneficial Treatment, 22(3) J. CLINICAL ETHICS 277-296 (Fall 2011).
The Best Interest Standard: Both Guide and Limit to Medical Decision Making on Behalf of Incapacitated Patients, 22(2) J. CLINICAL ETHICS 134-38 (2011).
Medical Futility and Maryland Law, MID-ATLANTIC ETHICS COMMITTEE NEWSLETTER, at 1-3 (Winter 2011).
Legal Briefing: Healthcare Ethics Committees, 22(1) J. CLINICAL ETHICS 74-93 (2011). Journal link
Resolving Medical Futility Disputes, 36(2) DNA REPORTER [Delaware Nurses Association], at 5-6 (May/June/July 2011) (with Donna Casey). Journal link
Conscientious Objection, 17 LAHEY CLINIC MED. ETHICS J. 6-7 (Winter 2011). Journal link
Law's Impact on the Resolution of End-of-Life Conflicts in the ICU, 39CRITICAL CARE MED. 223-224 (2011). Journal link
Legal Briefing: Crisis Standards of Care, 21(4) J. CLINICAL ETHICS 358-367 (2010) (with Mitchell Palazzo). Journal link
MOLST: A Cure for the Common Advance Directive, 35(4) DNA REPORTER [Delaware Nurse's Association], at 6 (Nov.-Dec. 2010) (with Monyeen Klopfenstein). Journal link
Legal Briefing: Organ Donation, 21(3) J. CLINICAL ETHICS 243-263 (2010).Journal link
Legal Briefing: Conscience Clauses and Conscientious Refusal, 21(2) J. CLINICAL ETHICS 163-180 (2010). Journal link
The Case of Samuel Golubchuk: The Dangers of Judicial Deference and Medical Self-Regulation, 10(3) AM. J. BIOETHICS 59-61 (Mar. 2010).Journal link
Legal Briefing: Informed Consent, 21(1) J. CLINICAL ETHICS 72-82 (2010). Journal link
Legal Update, 21(1) J. CLINICAL ETHICS 83-85 (2010). Journal link
Restricting CPR to Patients Who Provide Informed Consent Will Not Permit Physicians to Unilaterally Refuse Requested CPR, 10(1) AM. J. BIOETHICS 82-83 (Jan. 2010).Journal link
Resolving Conflicts with Surrogate Decision Makers, 137(1) CHEST 238-39 (2010). Journal link
Legal Briefing: Advance Care Planning, 20(4) J. CLINICAL ETHICS 289-296 (2009). Journal link
Legal Briefing: Medical Futility and Assisted Suicide, 20(3) J. CLINICAL ETHICS 274-86 (2009).Journal link
Legal Update, 20(3) J. CLINICAL ETHICS 287-88 (2009). Journal link
Controversies Abound in End-of-Life Decisions, 18(5) AM. J. CRITICAL CARE 400 (2009). Journal link
The Pure Process Procedural Approach to Medical Futility, J. MED. ETHICS eLetter June 10, 2009 (comment on S Moratti, The Development of "Medical Futility": Towards a Procedural Approach Based on the Role of the Medical Profession, 35 J. MED. ETHICS 369 (2009)).
DNAR as Default Status: Desirable in Principle, Difficult in Practice, 17 AM. J. CRITICAL CARE 404 (2008). Journal link
Multi-Institutional Hospital Ethics Committees: For Rural Hospitals, and Urban Ones Too, 8(4) AM. J. BIOETHICS 69-71 (April 2008). Journal link
The Language of Living Wills, 178 CANADIAN MED. ASS’N J. 1324 (2008). Journal link
Futility: The Limits of Mediation, 132 CHEST 888-89 (2008) (with Ellen Waldman). Journal link
Philosopher’s Corner: Medical Futility, 15 MID-ATLANTIC ETHICS COMMITTEENEWSLETTER, Fall 2007, at 6-7. Journal link
From Theoretical Foundations and Methods to Practical Applications: My Bioethics Education at Georgetown, 2 AM. J. BIOETHICS No. 4, at 36-37 (2002). Journal link
THE RIGHT TO DIE: THE LAW OF END-OF-LIFE DECISIONMAKING (3rd ed. Wolters Kluwer Law & Business) (with Alan Meisel & Kathy L. Cerminara) (commencing with the 2015 supplement).
Medical Futility and Physician Power, in OXFORD HANDBOOK ON DEATH AND DYING (Stuart Younger & Robert Arnold eds., Oxford University Press forthcoming 2014) (with Douglas B. White).
Death Penalty, in ENCYCLOPEDIA OF BIOETHICS (4th ed., Jennings ed., Macmillan Reference forthcoming 2013).
Quality of Life in Legal Perspective, in ENCYCLOPEDIA OF BIOETHICS (4th ed., Jennings ed., Macmillan Reference forthcoming 2013).
Patient Rights, in OXFORD TEXTBOOK OF CRITICAL CARE (Webb, Angus, Finfer, Gattioni & Singer eds., Oxford University Press forthcoming 2013) (with Douglas B. White).
Medical Futility, in GUIDANCE FOR HEALTHCARE ETHICS COMMITTEES ch.13 (Micah D. Hester & Toby Schonfeld eds., Cambridge University Press 2012).
The Slow Transition of U.S. Law toward a Greater Emphasis on Prevention, in PREVENTION VS. TREATMENT: WHAT'S THE RIGHT BALANCE? 219-244 (Halley S. Faust & Paul T. Menzel eds., Oxford University Press 2011).
Involuntary Passive Euthanasia in U.S. Courts: Reassessing the Judicial Treatment of Medical Futility Cases, in MEDICAL TREATMENT AND THE LAW 104-45 (Asifa Begum ed. Amicus Books, Icfai University Press 2010).
Foreword to STANLEY A. TERMAN, PEACEFUL TRANSITIONS: AN IRONCLAD STRATEGY TO DIE HOW AND WHEN YOU WANT vi-vii (Life Transitions Pub. 2009).
Medical Futility Statutes: Can/Ought They Be Resuscitated? in THE MANY WAYS WE TALK ABOUT DEATH IN CONTEMPORARY SOCIETY: INTERDISCIPLINARYSTUDIES IN PORTRAYAL AND CLASSIFICATION ch.18 (Margaret Souza & ChristinaStaudt eds., Edwin Mellen Press 2009).
Social Contract Theory, Slavery, and the Antebellum Courts, in A COMPANION TO AFRICAN AMERICAN PHILOSOPHY 125-33 (Tommy Lott & John Pittman eds., Blackwell 2003) (paperback 2006) (with Anita L. Allen).
A DEFINITION AND DEFENSE OF HARD PATERNALISM: A CONCEPTUAL AND NORMATIVE ANALYSIS OF THE RESTRICTION OF SUBSTANTIALLY AUTONOMOUS SELF-REGARDING BEHAVIOR (GeorgetownUniversity doctoral dissertation 2003).
Legal Issues (The Right to Privacy and Lawsuits), in AIRLINE PASSENGER SECURITY: NEW TECHNOLOGIES AND IMPLEMENTATION ISSUES 34-43 (National Academy of Sciences 1996) (with Paul F. Rothstein).
Since 2007, I have published thousands of posts to my Medical Futility Blog. These have been cited in academic and other publications. The content is republished by Westlaw and other distributors. And the original site has itself received more than 500,000 pageviews. In 2013, the American Bar Association Journal recognized my Medical Futility Blog in its 7th Annual Blawg 100.
American Journal of Bioethics
Since 2012, I have been part of a small group of contributors invited to publish original content at Bioethics.net, the blog of the high impact factor American Journal of Bioethics. My posts here have been substantial multi-page arguments. These have included:
Death Panels: Can We Handle the Truth? (March 17, 2014).
Top 10 North American Death Panels (Dec. 16, 2013).
Cuthbertson v. Rasouli: Limited Guidance from the Supreme Court of Canada (Nov. 25, 2013).
Consent continues to be a theme in my ongoing scholarship. My current projects examine when consent can be overriden in the contexts of (i) bioethics, (ii) torts, and (iii) public health law.
1. Medical Futility: Overriding Consent at the End-of-Life. Normally, individuals or their surrogates decide whether or not to withdraw life-sustaining medical treatment (LSMT). But, increasingly, health care providers are refusing to comply with requests to continue LSMT where they consider such requests to be "medically inappropriate." My research on medical futility analyzes the legal bases for and limits on providers making such unilateral decisions.
2. Assumption of Risk: Overriding Consent in Tort Law. Individuals also normally decide whether or not to confront everyday health risks like eating a Big Mac. But, increasingly, the law is restricting their ability to make such (bad) choices. Where individuals knowingly and voluntarily confront the risks, ought their liberty be limitated? Is this an appropriate role for public health law? Is it an appropriate role for tort law?
3. Conditions for Justified Hard Paternalism. While hard paternalism is the only plausible liberty limiting principle underlying much public health law, few theorists have defended justificatory conditions for hard paternalism. In this piece I identify and defend seven necessary and sufficient conditions for justified hard public health paternalism.