Taylor, T. Raber

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The Linacre QuarterlyVolume 24 | Number 2 Article 13May 1957Doctor's Duty to SpeakT. Raber TaylorFollow this and additional works at: http://epublications.marquette.edu/lnqRecommended CitationTaylor, T. Raber (1957) "Doctor's Duty to Speak," The Linacre Quarterly: Vol. 24 : No. 2 , Article 13.Available at: http://epublications.marquette.edu/lnq/vol24/iss2/13ferentiate between blood clot and tissue; the appearance of a fetal sac, how to open it in a conta iner of water, and how to recognize an embryo or fetus. T he proper meth-od of baptiz ing an<l burying fetal remains is then explained by the priest moderator . who shares the progra m and collaborates with the physician . In a n- event, Catholics have a serious r Jonsibility to follow the directive, f the C hurch regarding burial. I\ .ttempt is b eing made to enjoin t!·, • e who are not C ath-olics regardin~· burial of their off-spring. H owL, er . the cooperation of non-Cathoh( physicians · and hospita ls is earn~st ly to be desired where Catholic patients are being treated . The per~onnel, even non-Catholic . employees. in some of these hospitals freq uently have misgivings concerning what they consider a ruthless disregard for a human being. O nce this matter is tactfully called to tht: attention of hospital administrators. there is good reason to believe tha t Christ-ian regard for the human person will include not only the feta l off-spring of Catholic parents but of non-Catholic parents as well. M any non-Catholics are instinc-tively in accord with the high re-gard for the burial of fetal off-spring maintain ed by the Church. · They rea lize that this tiny product of their union is their own flesh and blood. They are anxious , if it would be at a ll possible. to have their offspring baptized. for they also believe that baptism is neces-sary for the s upernatural life o f union with God in h eaven. And it 66 would be taking entirely too n 1ch for gra nted to conclude that 1ey are not interested in provi ing decent burial. In no small way the Cat' 1lic hospital can teach the co ect moral procedure in this ma er; first of all, by word in its trai ing courses and staff meetings, ,nd secondly, by example in its rr th-ods of practicing w hat it tea, 1es. Particularly w ith the coopen ion of its medical staff the Cati olic hospita l w ill be able to exercis, an influence beyond the sph ere o its service, if for no other reason 1an to prevent some of the hearta hes and r emorse of conscience \\ ich afflict many mothers whose ·ta! offspring went into a n incine1 tor or commode. Correct hospital procedure ind good moral advice by physic ms concerning the respect due , ven the remains of fetuses will he a challenging rebuke to some of the degra ding materialistic practicl'S so common in our time. Catholic hos-pitals , Catholic physicians . a nd Catholic personnel in othe r hospi-ta ls working together in upholding the dignity of the human person even in its fetal form will give ex-pression to our belief and hope that being buried as members of Christ's M ystical Body, we shall with Him one day also rise glor-ious and immortal from the dead. Father Simon's interest in this subject ·is asserted because of his association as Director of Diocesan C emeteries of Philadelphia . Dr. Quindlen is an A ssociate in Ob-stetrics and Gynecology. T emple University M edical Center. LINACRE QUARTERLY Doctor's Du t to Speak T. Raber T a}. Mr. Taylor, a frequent contri. · ICAL JOURNAL, was invited to addt Hospital. Den ver, Colorado, at ti believe his remarks will interest ai IT WOULD not be expected that a practicing attorney d is cuss medical questions. T here are however , legal concepts governin g the relations of physician and pa-tient that can be enumerated with profit, Let us recall a few basic lega l principles affecting the practice of medicine rela ted to an ever timely problem - when does the word of the doctor or his silence help or injure his patient? W e are not considering h e re the frequ ently and extensively treated question of medical secrecy - the doctor's ethical and legal obligation to his patient not to disclose to others information confided to him. Let us focus our attention on the prob-lems arising from the practice of his profession with the help o f speech or keeping silent. Before the birth of Christ, the artful use of speech or its oppo-site :..- silence - and the proper amount of each challenged the physician. P ublius Syrus , a Roman Advocate, when counseling phy-sicians and others , set forth these maxims: " I have often regretted my speech; never my silence. Keep the golden mean b e tween saying too much and too little." Con-scious of such good counsel. most MAY, 1957 A.B., LL.B. or to the R OCKY M OUNTAIN MED-the M edical Staff of St. Joseph 's annual meeting in January. W e ')Ur LINACRE QUARTERLY readers. f our doctors s trive to keep t he ·,Iden mean. They strive to ob-rve their professional ethics to 1either exaggerate nor minimize· · 11e gravity of a patient's condi-· 1011 . " They seek to assure them-.,elves that their patients have such Knowledge of their condition as will serve the best interests of the patient and his family. ( Cha pt. 2 , Sec. 3 - Prognosis, Principles of Med ical Ethics. 1955 Edition ) Other doctors, however, have trea ted their patients behind the dark shield - "what they don't know won't hurt them" or " ignor-ance is bliss." This dark shield has been examined by the Amer-ican Medical Association in a n opinion - sampling survey and by others in several popular and pro-fessional a rticles. The A .M.A. survey reported that many people, 46 per cent of the laymen and 47 per cent o f the medical profession, compla ined that most physicians are not frank enough w ith the ir patients. Last summer the U . S. N ews and World R eport article asked , " Should D octors T ell A ll?"1 The Saturday E vening Post article answered, " Doctors Should Tell l U . S . N ews and W orld Report, July 13, 1956, p. 104. 67 the Truth."0 In his inaugural ad-dress, Dr. D wight H. Murray, President of the A.M.A., met the charge that doctors do not tell the truth to their patients. He urged them to take a new approach. "The patien~;" he said , "has a right to know. A few physicians continue their accustomed non-disclosure. They believe at frankness with pa-tients is angerous. They point out th ct, , Jer to the patient who, if he kno•, 1!1, may lose his w ill to live whe he hears he is seri-ously ill. A ·' her mentioned dan-ger is telling too much to the pa-tient who lack~ rhe emotional sta-bility to take ba d news. Some doc-tors say that distraught individ-ua ls, on learning the blunt truth, have committed suicide. Long before the A.M.A. opinion survey doctors, moralists, and law-yers have been thinking and writ-ing about the duty to speak. To mention a few, Dr. Charles C. Lund of the H arvard M edical School has an excellent art icle en-titled "The Doctor, the P atient and the Truth."3 Father Gerald Kelly, S.J., known to many of you as the author of the booklets M ed -ico-Moral P roblems, includes in this serfes an excellent chapter, "Should the Cancer Patient Be Told?"4 The most extensive legal The question is asked, " Is t :re a legal duty to be frank with >a-tients?" The legal answer, ke most medical answers, is no , an unqualified one. Doctors seek 1 .>m lawyers an automatic rule - ,f. thumb legal prescription. A t .he same time, the doctor is consc ,us that a specific prescription to s :ve the patient's best interests is su-ally required in medicine. The legal prescription or arn. ver depends upon the facts in c- 1ch case. The cases, however, di ide into two groups. In the first gr , up are the patients with a curabl or controllable ailment. In the set , nd group are the patients w hose ill-ness is fa ta!. How does the doctor usu lly decide when the law requires 1 im to speak and w hen to be sil nt? A review of our fundamental l ::iw will give a general guide and 1n-swer. Such a review can · prop.:rly begin with our Declaration of fn-dependence. It expresses the fi rst a nd fundamental principles of our law. It is the beginning a nd source of medical law. The prin-ciples are found in these fa miliar words: We hold these Truths to be self-evident, that a ll M en are created equal: that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of H appiness. That to secure these Rights, Governments are insti-tuted among M en , deriving their just powers fro?,! the Consent of the Gov-erned; ... . study has been made by H ubert Winston Smith, M.D., LL.B. , and professor of lega l medicine, first at Harvard Medical School, and later at the University of Illinois. His w o r k is entitled, " Therapeutic Privilege to Withhold Specific Diagnosis from Patient, Sick w ith Serious or Fatal Illness."6 2 Saturday Evening Post, June 16, 1956, p . 23. 3 19 Tenn. L. Rev., 344, April I 9i6. 68 4 Gerald Kelly, S.J., Medico-Moral Prob-lems, II, 7, The Catholic H ospital Asso-ciation, St. Louis 4 , Mo. 6 19 Tenn. L. Rev., 349, April 1946. LINACRE QUARTERLY We see here the t h r e e key philosophical and ideological con-cepts-, eatment or operation by conceal-1ent or half-truths. For the treatment of a curable ,r controllable ailment, however, ,ot only is the patient's consent eeded, but the patient's in telli-ent cooperation is, for his best •1terests, necessary for success ful ,1erapy. The physician knows best 0w true this is in the case of the .1rdiac, the diabetic, the epileptic. First, All men are created and endowed by their Creator with in-alienable rights. Second, Man's right to li fe j , Creator endowed. Third, Consent is given to G ov ernment to secure this right to !if, These concepts indica te t h ;i t physicians, like government, are to make secure man's right to life And, like government, physicians derive their authority from man 's consent. The doctor receives his authority, if any, from the pa-tient's consent and desire to secure his inalienable rights. These righ ts are: to have life, to have necessary care, a nd to ask others to see lo his welfare. These rights the pa tient receives directly fro m th, Creator, not from another man , or a staff of men, nor from the Statt.. nor from any political authority. The right of the physician to treat requires the prior consent of the pa tient. Consent means with knowledge. The law imposes an obligation on the patient, once he has chosen -his doctor, to give full informa tion and a full opportunity to the doctor to treat the case. O n the other hand, the law imposes on the physician a two-fold per-sonal duty: (I) -to explain to his patient the general purpose, ex-tent, and risks, if any, of the pre-scribed treatment or operation, and ( 2) to be reasonably certain the patient understands and then free-ly consents. The law will find the physician breaching his duty if he obtains the patient's consent to MAY, 1957 l1e doctor has an obligation to , truct the patient in some detail to the nature of the ailment a nd. ~ precautions and the regimen 1ich must be followed. The law 'mds that a doctor breaches his .. uty when he fails to give the patient proper instructions as to the care and attention calculated to effect a cure. ( Beck v. Klinck. 78 Iowa 696.) - This rule of law does not mean that the doctor must explain all the details of his diagnosis and sha re them with the patient. The guiding rule of law, as well as medicine, is to use speech and silence just so far as they help the patient. Frequently there are de-tails of a diagnosis or a prognosis that need not be disclosed, either because they would be of no par-ticular benefit , or because through misunderstanding or exaggerated anxiety on his part, the words would injure more than do good. A doctor's anxious face and eva-sive silence can also injure. In every case the physician has the responsibility of prescribing the measure of speech and silence that will be for the best interests of the patient and his family. The law imposes ·on the physi-cian the duty of acting with the 69 ; . .. utmost good faith toward the pa-tient. If the doctor knows he can-not accomplish a cure or that treat-ment a dopted will probably be of no benefit or of little help, he must so advise the patient. ( Loga n v. Field, 75 Mo. app. 594.) In a recent case a doctor has been held !'.able to a patient for costly decep-tion by holding out false hopes of recovery ,·hich induced the patient to und f I expensive treatments he shoul f1 ave known were use-less. tionship requires in ordinary cit stances that the physician make a a nd full disclosure of all the per facts to any adult and mentally petent pa tient. H uber t Winston Smith, l'v LL.B., in his work on "Thera tic Privilege to Withhold Spc Diagnosis" tells us: J ffl• ank 1ent om-D., ~u-iAc There is a nother principle t, be b?rne in mind from a leqal poi of view: m a ll such cases, the phy, · ian shou_ld make it a practice, whc ·ver possible, to communicate the true 1cts immediately to near relatives. Thi. will enable special a rrangements to be ade T he Se(. I group of cases in-volves speeu ,nd silence with the patient fa tal , dL In abiding by medical sta ff c , ~titu tions and by-laws, the phyD, an is bound to give his monburd patient every ?enefit possible This obligation 1s summarized ir. the Ethical and R eligious D irectiucs for Catholic H ospitals.6 D irective 7 reads : Everyone has the riqht a nd the duty to prepare for the solemn moment of death. Unless it is clear, therefore, that a dying p atient is already well-prepared for death, as regards both tempora l and spiritual affairs, it is the physician's duty to inform, or to ha ve some responsible person impart this information. Different words have been used by lawyers w hen they express w hat is s ummarized in this direc-tive. Louis J. Regan, lega l adviser to the California State Medical Society a nd frequent contributor .to the American M edical A sso-ciation Journal.in his booklet M al-practice and the Phy_sician,• says: . It is extremely doubtful that a physi-cia n has a t?erapeutic privilege to with-hold a spec1f1c diagnosis from a patient who is s ick with serious or fatal illness. T o the contrary, the confidential rela-in respect to financial a ffa irs, pro , •rty matters or family dispositions, a' , ost as effectually as if the individual 1im-self knew the truth. Fina lly, it , , uld seem that the attending physicia in late stages of such a malady, s' m id do what he can to assure the r ient of a cha nce to make a last wi l ,ind testament and to have the solacr a nd comfort of religious ministrations Again we are confronted " ith 6 Sec_on_d Edition, Catholic Hospital As-sociation, St. Louis 4 Mo 7 J. A . M.A., 147, 54-59, S~pt. I. 195 1. 70 the practical question, how r, ..ich speech and silence must be ire-scribed for a patient suffering I rom a fatal illness? The patient h ,s a right to know the truth. All l.1w-yers will agree that a doctor may not breach his duty to his patient through deceit or a lie. The doc-tor's duty to tell the patient of his critica l condition so he can put his worldly a n d spiritual affair, in order does not require the doctor to disclose a ll of the diagnos tic data in detail , nor to tell h im the precise nature of his illness. A doctor m a y reasonably presume that a patient does not desire knowledge which w o u I cl injure rather than help, but the doctor ~ay not rely upon this presump· t1on contrary to the patien t's known desire for full knowled ge. Dr. Dwight Murray and many other physicians and surgeons be-lieve that the vast majority of LINACRE QUARTERLY people have the emotional stability to take the shock of bad news. In their professional experience they have found · that withholding in-formation may cause the patien• greater worry than knowledg e o! the truth. Dr. Lund tells us, "Al-most a lways it does more good than harm to tell t he patient w h,, is in a hopeless situation the trutr· about his prospects. This must al ways be done gently, and perhai ,, indirectly." H e further tells u~ that a question to the patient ,,: to whether he would like to see his clergyman or to make his will is usually sufficient. Following such a suggestion, the patient often a5ks MAY, 1957 1 direct question and is enti tled to . direct answer. A patient's know ledge of a fatal llness may depress him to a point o f attempted su'cide. H owever, D r. Walter Alvarez of the Mayo C linic reports, " In forty-odd years o f practice I cannot r emember itnyone's committing suicide be-ause I told h im the hopeless truth . Instead, hundred of per-sons thanked me from their heart_s ·ind told me I have relieved their minds." \!R. TAYLOR IS A FREQUENT CONTRIBU- · 'lO R TO THE LINACRE QUARTERLY. HE IS ,\ DENVER ATTORNEY, MALPRACTICE DE -' l.' NSE COUNSEL FOR UNITED STATES l' IDE LITY AND GUARANTY COMPANY, LECTURER, MEDICAL - LEGAL PROBLEMS, UNIVERSITY OP COLORADO SCHOOL OP MEDIC INE. 71 

Doctor\u27s Duty to Speak

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Doctor\u27s Duty to Speak

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