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Published online by Cambridge University Press: 24 February 2021
1 Wheeler, Bringing Science Under Law, The Center Magazine, March 1969, at 59, 64.
2 Editorial: Morals and Medicine, 48 Philosophy 207 (1973)CrossRefGoogle Scholar. See Editorial: Life and Death Sciences, 50 Philosophy 129 (1975)CrossRefGoogle Scholar.
3 Encyclopedia of Bioethics (1978) [hereinafter cited as Encyclopedia],
The Encyclopedia consists of alphabetically arranged topic entries. Some entries consist of just one article, bearing the title of the entry. Other entries consist of multiple articles, each bearing its own title. In this book review, all articles appearing in the Encyclopedia are cited as essays in a collection. If the particular article being cited is one of several that make up an entry, the citation will include the title of the entry as well as the name of the article. In footnote 6, infra, for example, the article entitled Western Philosophical Thought is one article in the entry entitled Death. On the other hand, in footnote 8, Law and Morality is the title of the entry and of the single article in that entry.
4 KAUFMANN, W. The Future of the Humanities 43, 209 (1977)Google Scholar.
5 Preface, in Encyclopedia at xi, xiii.
6 “For Plato, as George Santayana has expressed it in his Life of Reason, all things ideal have a natural basis and all things natural have ideal fulfillment or possibilities.” Gutmann, Death: Western Philosophical Thought, id. at 235, 237.
7 SANTAYANA, G. 1 The Life of Reason 21 (2d ed. 1922)Google Scholar.
8 Brody, Law and Morality, in Encyclopedia 817, 820Google Scholar.
9 Finnis, Abortion: Legal Aspects, id. at 26, 29.
10 Konold, Codes of Medical Ethics: History, id. at 162, 169.
11 410 U.S. 113 (1973). Konold had said that “in the early stages of pregnancy, abortion is the mother's prerogative,” Konold, supra note 10, at 169, ignoring “the decisive role accorded to ‘the physician',” Finnis, supra note 9, at 29, which Finnis correctly emphasized.
12 Katz, Informed Consent in the Therapeutic Relationship: Legal and Ethical Aspects, in Encyclopedia 770, 773Google Scholar.
13 Lebacqz & Levine, Informed Consent in Human Research: Ethical and Legal Aspects, id. at 754, 755.
14 Macklin, Rights: Rights in Bioethics, id. at 1511, 1514.
15 Kittrie, Mental Illness: Labeling in Mental Illness: Legal Aspects, id. at 1102, 1105.
16 493 F.2d 507 (5th Cir. 1974).
17 422 U.S. 563 (1975).
18 DeBakey, & DeBakey, Communication, Biomedical: Media and Medicine, in Encyclopedia 180, 185Google Scholar.
19 A. Holder, Medical Malpractice Law (1974, 2d ed. 1978). Holder's book is cited, however, in the bibliography to Margery Shaw's Genetics and the Law, in Encyclopedia 573, 578Google Scholar.
20 Madden & Hare, Civil Disobedience in Health Services, id. at 159.
21 Id. at 159.
22 Burrow, Medical Profession: Organized Medicine, in Encyclopedia 1034, 1037Google Scholar.
23 Tooley, Infants: Infanticide: A Philosophical Perspective, id. at 742.
24 Statement by Dr. Warren T. Reich, Editor in Chief, Encyclopedia of Bioethics Press Conference, Dec. 6, 1978, Georgetown University, at 4.
25 Reich, Introduction, in Encyclopedia at xv, xxi.
26 Id.
27 For instance, see Harris L. Coulter's denunciation of the drug industry and of its relationship with the medical profession. Coulter, Drug Industry and Medicine, id. at 320.
28 Reich, Introduction, id. at xv, xxi.
29 Id. at xv.
30 Samuel W. Bloom's Therapeutic Relationship: Sociohistorical Perspectives, id. at 1663, could serve as a model for this approach.
31 The Ethics entry works more or less like this. “[E]ach article reflects, to some extent, its author's own philosophical perspective.” Ladd, Ethics: The Task of Ethics, id. at 400, 406.
32 It is curious to find articles labeled “ethical aspects” in addition to other articles in the same entry as though it were not the case that all articles in an encyclopedia of bioethics must deal with ethical issues. Editor Reich explains: “[O]n occasion … [o]ne or more articles on a given topic explain the scientific state of the art and present the ethical issues associated with the use of certain technologies or procedures, and a subsequent article in the same entry systematically discusses the relevant ethical principles.” Reich, Introduction, id. at xv, xxi-ii.
33 For example, the Abortion entry contains several articles: Medical Aspects, Jewish Perspectives, Roman Catholic Perspectives, Protestant Perspectives, Contemporary Debate in Philosophical and Religious Ethics, and Legal Aspects. See note 3 supra.
34 Gene Therapy, in Encyclopedia 513, 513Google Scholar; Reproductive Technologies, id. at 1439, 1439.
35 Curran, Abortion: Contemporary Debate in Philosophical and Religious Ethics, id. at 17, 23-24; May, Double Effect, id. at 316; Moore, Acting and Refraining, id. at 32, 33-35.
36 Such issues include the following: the value of potential persons (Singer, Life: Value of Life, id. at 822, 826; Tooley, Infants: Infanticide: A Philosophical Perspective, id, at 742, 746-48); mental patients’ right to treatment (Brody, Mental Health Services: Social Institutions of Mental Health, id. at 1071, 1072-73; Wexler,Institutionalization, id. at 779, 779-80); the application of John Rawls's theory of justice to the distribution of health care (Branson, Health Care: Theories of Justice and Health Care, id. at 630, 634-35; Bryant, Poverty and Health: Poverty and Health in International Perspective, id. at 1321, 1325-26); natural law (Brody, Law and Morality, id. at 817, 817-18; D'Arcy, Natural Law, id. at 1131); and the legal aspects of informed consent to medical treatment (Hauck & Louisell, Medical Malpractice, id. at 1020, 1023-24 (which discusses informed consent without ever mentioning its relationship to the law of battery); Katz, Informed Consent in the Therapeutic Relationship: Legal and Ethical Aspects, id. at 770).
37 Id. at 1825. The outline is as follows: I. Concrete Ethical and Legal Problems (1. The Therapeutic Relationship 2. Codes of Professional Ethics 3. Health Care 4. Sociopolitical Problems in Biomedicine 5. Biomedical and Behavioral Research 6. Mental Health and Behavioral Issues 7. Sexuality, Contraception, Sterilization, and Abortion 8. Genetics 9. Reproductive Technologies 10. Organ and Tissue Transplantation and Artificial Organs 11. Death and Dying 12. Population 13. Environment); II. Basic Concepts and Principles; III. Ethical Theories; IV. Religious Traditions; V. Historical Perspectives; VI. Disciplines Bearing on Bioethics. Id. at 1826.
38 “[T]he alphabetical system of arrangement… necessarily results in a separation from one another of articles dealing with any particular subject. Consequently the student who desires to make a complete study of a given topic must exercise his imagination if he seeks to exhaust the articles in which that topic is treated.” XXIX The Encyclopedia Britannica 879 (11th ed. 1911). For an explanation of why the present edition of the Britannica has chosen to stay with the alphabetical arrangement, see Encyclopedia Britannica, Propaedia 5 (15th ed. 1973).
39 Reich, Introduction, in Encyclopedia at xv, xix.
40 Clouser, Bioethics, id. at 115, 120.
41 Curran, Bioethics and Health Ethics: A Critical Examination of the New Terminology, 66 Am. J. Pub. Health 497 (1976)CrossRefGoogle Scholar.
42 Id. at 497.
43 The word “bioethics” seems to have been used first in 1970, in Potter, Bioethics, The Science of Survival, 14 Perspectives in Biology & Med. 127 (1970)CrossRefGoogle Scholar.
44 Undated press release from the publishers of the Encyclopedia.
45 Reich, supra note 25, at 3.
46 Reich Introduction, in Encyclopedia at xv, xix.
47 McCullough, Medical Ethics, History of: Introduction to the Contemporary Period in Europe and the Americas, id. at 975, 976.
48 H. Tristram Engelhardt, Jr., a member of the board of associate editors, is an M.D. but does not practice medicine.
49 See, e.g., Lieb, Pragmatism, in Encyclopedia 1327.
50 It might be argued that since everyone is against fraud, it raises no interesting ethical issues. If so, neither does torture, which has an article to itself. Sagan, Prisoners: Torture and the Health Professional, id. at 1354.
51 This is the first of “Some Areas for Ethical Decisionmaking” considered by Frank P. Grad in Medical Ethics and the Law, Annals Am. Acad. Polit. & Soc. Sci., May 1978, at 19, 22.
52 Hauck, & Louisell, Medical Malpractice, in Encyclopedia 1020, 1021Google Scholar.
53 Id.
54 They write:
Used broadly, “malpractice” includes all derelictions of physicians committed in the course of the physician-patient relationship, e.g., abandonment; failure to continue to provide needed service in the absence of proper relief from responsibility; assault and battery; use of procedures, often surgical, not consented to by the patient; breach of express contract, when the physician fails to fulfill an express agreement, for example, to provide certain services for a stated sum or to effect a cure or specified result; deceit or fraud, when, for example, a physician conceals facts giving rise to a negligence action, fraudulently secures consent to a medical procedure, or otherwise falsely misrepresents a material fact as to diagnosis or treatment; willful misconduct such as drunkenness during surgery; and miscellaneous tortious wrongs such as false imprisonment, defamation, invasion of privacy, breach of confidential communications, and injuries to third parties (for example, through failure to warn of a patient's danger to others).
Id.
55 See Ingelfinger, Legal Hegemony in Medicine, 293 New England J. Med. 825 (1975)CrossRefGoogle Scholar.
56 Paul Freund has written:
In casting about for models from other fields that might illuminate the ethical issues involved [in medical experimentation], … lawyers … [have] tended to find models in fiduciary relationships, where a trustee, because of his superior competence and the trust and reliance placed in him, owes a duty of undivided loyalty and devotion to his client ….
Experimentation with Human Subjects at xii, xii-xiii (P. Freund ed. 1970).
57 This is expressed in a variety of ways in the following pages of the Encyclopedia: 147, 148, 73-74, 343, 524, 677, 695, 961, 1175, 1689.
58 Mechanic, Therapeutic Relationship: Contemporary Sociological Analysis, in Encyclopedia 1668, 1668Google Scholar.
59 G. Bogert, Trusts and Trustees 3 (2d ed. 1965).
60 A. Scott, Scott on Trusts 39 (3d ed. 1967).
61 Adams v. Ison, 249 S.W.2d 791, 793 (Ky. 1952). There is similar language in Cobbs v. Grant, 8 Cal. 3d 229, 242, 502 P.2d 1, 9, 104 Cal. Rptr. 505, 513 (1972).
62 Moore v. Webb, 345 S.W.2d 239, 243 (Mo. 1961).
63 The classic case is Everard v. Hopkins, Court of King's Bench, 2 Bulst. 332, 80 Eng. Rep. 1164 (1615), in which Lord Coke held that a servant was entitled to his separate “action on the case” for damages where the contract was between the physician and the servant's master.
64 A widely noted case involving this principle is Hyman v. Jewish Chronic Disease Hosp., 15 N.Y.2d 317, 206 N.E.2d 338 (1965). See the material on this case in J. Katz, Experimentation with Human Beings 9-65 (1972).
65 pernick, Medical Profession: Medical Professionalism, in Encyclopedia 1028, 1029Google Scholar.
66 Veatch, Codes of Medical Ethics: Ethical Analysis, id. at 172, 173. On this point, see René Dubos's discussion of the routine administration of the antibiotic chloramphenicol in China, which he says probably had a wide range of health benefits even though it likely caused many cases of bone marrow aplasia. Dubos, Genetic Constitution and Environmental Conditioning, id. at 548, 552.
67 Gold, Comment: Kaimowitz v. Department of Mental Health: Involuntary Mental Patient Cannot Give Informed Consent to Experimental Psychosurgery, 4 N.Y.U. Rev. L. & Soc. Change 207, 223-24 (1974)Google Scholar.
68 “Prior to Nuremberg, statements of medical and other professional organizations apparently made no mention of the necessity of consent [in research].” Lebacqz & Levine, supra note 13, at 754. “[T]he concept of informed consent is an essentially new one in the law (the first case in recent times being in Kansas in 1960) and has not fully matured.” LUDLAM, J. Informed Consent 3 (1978)Google Scholar.
69 “[T]he issue of ‘informed consent’ has so dominated recent discussion of the ethics of research that one might be led to think erroneously that other issues (e.g., research design, selection of subjects) are either less important or more satisfactorily resolved.” Lebacqz & Levine, supra note 13, at 754. “Informed consent, a crucial issue for all research, has ‘become the most important, most complex and most confused concept in medical ethics'….” Notman, & Nadelson, Women and Biomedicine: Women as Patients and Experimental Subjects, in Encyclopedia 1704, 1710Google Scholar (quoting Redlich, & Mollica, Overview: Ethical Issues in Contemporary Psychiatry, 133 Am. J. Psychiatry 125, 129 (1976)Google Scholar). It is noteworthy in this regard that Justice Cardozo's famous statement that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 126, 105 N.E. 92, 93 (1914), is quoted directly or indirectly in the Encyclopedia no fewer than four times (at 755, 1154, 1198, 1512).
70 See Mechanic, supra note 58, at 1669.
A physician may wish, and even should try, to persuade his patients to agree to what he believes would serve their medical interests best; but ultimately he may have to bow to his patients’ decision, however “senseless” or “unreasonable,” or withdraw from further participation. The alternatives, deception or coercion, may be worse, for either would victimize not only patients but physicians as well.
Katz, supra note 12, at 777.
72 Beecher, Research and the Individual 25 (1970)Google Scholar.
73 Curran, Influence of the Courts of Law on Biologicals Development, Regulation, and Use, in Proceedings of the International Conference on the Rolf, of the Individual and the Community in the Research, Development, and Use of Biologicals, 55 Bull. World Health Org., Supp. No. 2, at 53, 64 (1977)Google Scholar.
74 “[S]ome have recently argued that there is no readily apparent moral position or philosophy that can provide the moral direction that medicine necessarily requires.” Hauerwas, Care, in Encyclopedia 145, 148 (citation omitted).
75 Beauchamp, Paternalism, id. at 1194, 1197.
