EthicsWalk addresses
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The Good Samaritan: Parable to Practice
Louisiana’s attorney general is capitalizing on a national obsession to “blame, slander, and sue” as he second-guesses the decisions of medical personnel at New Orleans’ Memorial Hospital during the Katrina crisis. PlainViews CaseConference
# 11 outlines the situation.
Why are actions of a doctor and two nurses who voluntarily remained with critically ill patients of greater concern than the inaction of absent primary providers responsible for the patients who died? [1] The ethically challenging questions center not on the professionals who stayed at Memorial, but on those who left – doctors, nurses, technicians, chaplains, administrators.
What prompts some people, with or without specialized skills, to choose to assist in crises? What ethical and legal precepts support or discourage assistance?
If an adult passively watches a child drowning in shallow water, people are horrified. Most assume the adult has moral and legal duties to rescue. While the former surely exists, in most U.S. jurisdictions no legal obligation attaches absent a special relationship between child and adult.[2] Unlike France, Portugal, Spain and other European civil law countries, neither U.S. common nor statutory law requires assistance to endangered persons.[3]
Historically, helping the stranger in distress has been a religious or moral precept, not a legal imperative. In the Good Samaritan parable (Luke 10:29-37), neither priest nor Levite violated Roman law by ignoring the wounded stranger. As Jews, they transgressed the commandment – neither shalt thou stand idly by the blood of thy neighbor (Leviticus 19:16). However, they did not risk criminal sanctions because “their breach involved no action.”[4] Medieval English Common Law and its modern U.S. progeny follow the Roman model.
American “Good Samaritan statutes” do not compel action. They provide immunity from liability for voluntarily assisting someone in distress.[5] Autonomy – an individual’s right to decide whether or not to intervene – trumps beneficence. Individual rather than communal interests are preferenced.
Among questions raised by the Katrina prosecutions are these:
1. Can any person, with or without specialized skills, be expected to make uniformly “perfect” decisions in highly charged, even toxic, emergency situations? If so, will prudent persons decline to volunteer assistance in high-risk environments?
2. In war zones, wider latitude of judgment is given to soldiers who “mistakenly” kill civilians than when such killings occur during peacekeeping missions.[6] Should similar latitude apply to decisions of medical personnel during systemic crises?
3. Should Good Samaritan statutes be re-written to include professionals in
medical facilities during times of local/national emergency?
4. At what point are the values of patient autonomy and informed consent subsumed by safety and survival concerns of other patients or even medical providers?
5. What would it say about our
national character if Thomas
Aquinas' theory of "double
effect"[7] were assumed
to apply to the Memorial doctor's
action rather than the attorney
general's theory of homicide
and, as a result, the
prosecutions were suspended?
6. In the fourth Christian gospel, Jesus admonishes, “Let he who is perfect cast the first stone” (John 8:7). What response does your faith tradition suggest to the prosecution of those who made decisions most of us will never be forced to consider under circumstances most of us would have chosen to escape?
[1] Twenty-four of fifty-five patients who died, including those on whose deaths the prosecution focuses were patients of Life Care, a corporation separate from but using Memorial’s facilities. Life Care’s chief administrator and medical director were not at Memorial during the crisis. Memorial’s staff was caring for Life Care patients. The New York Times, 08/01/2006.
[2] A parent or other caretaker is expected to rescue a child unless to do so would cause that person’s death or serious injury.
[3] The majority of U.S. jurisdictions provide no legal duty in civil law to assist another in danger, “even though a moral obligation might exist. This is true even ‘when that aid can be rendered without danger or inconvenience’ to the potential rescuer.” 8 Touro Int’l L. Rev.93 (1998) [FN 11] Exceptions to the above do exist in seven relationships: (1) duty based on personal relationship (parent-child); (2) duty based on contract (physician to patient); (3) duty based on creating the risk (driver who hits jogger); (4) duty based on voluntary assumption of care (once rescue is commenced); (5) duty based on statute (hit and run accidents); (6) duty to control the conduct of others (employer to control harm to others from employees); (7) duty based on being a landowner.
[4] Kirschenbaum, Aaron J.D. The Bystander’s Duty to Rescue in Jewish Law, citing Maimonides (1135-1204) Code. www.daat.ac.il/daat/kitveyet/assia_english/kirschenbaum.htm
[5] In 1959, California legislated the first Good Samaritan law. All states followed. The intent was to encourage medical professionals to render care in emergency situations outside a hospital where limited resources and adaptation of skills would affect quality of care. Providers were immunized from resulting problems as long as: (1) the situation was outside of a hospital and a genuine emergency – loss of life or limb at stake; (2) no remuneration was expected; (3) care was given in “good faith;” and (4) once commencing assistance, personnel remained until someone comparable took over. Eventually, most states extended this legislation to non-medical providers of emergency assistance with the criteria adapted appropriately. [Ordinary negligence standards apply and may be waived for ordinary citizens whereas gross negligence standards may apply to medical personnel unprotected by Samaritan statutes]. Cf: Good Samaritan Statutes: Are Medical Volunteers Protected? Cameron DeGuerre, www.ama.org/ama/pub/category/12191.html. The medical actions at Memorial are outside Good Samaritan protection according to Louisiana’s statute LSA-R.S. 37:1731.
[6] An investigation cleared the U.S. soldiers who shot and killed the rescuer of an Italian journalist when her car sped towards a check point in Iraq in 2005.
[7] “Double effect” principle holds that actions may have both good and bad effects. If the intention is for the good effect and it outweighs the bad effect (which must be tolerable, foreseeable and unavoidable), one can engage the action. This theory supported the U.S. Supreme Court decision in 1997 which said it is acceptable to sedate a dying patient even if unconsciousness follows. The same decision prohibited physician-assisted suicide. Many medical ethicists weighing in on the Memorial prosecution argue that the drugs found in the four patients in question fit within this principle and practice. Cf. "The Fuzzy Gray Place in the Killing Zone," Denise Grady, The New York Times, Sunday, August 13, 2006, Ideas and Trends section.
Anne Underwood has an undergraduate
degree in religious studies, a
master’s degree in rural sociology
and a mid-life law degree obtained
after working over a decade as
a college administrator. She has
mediated for the Maine family courts
since 1983. Currently she serves
as an advisor to the ethics commissions
of ACPE, APC, the CCAR (Central
Conference of American Rabbis),
and NAJC, and consults with a variety
of Protestant faith communities
on issues of power, fair process,
and congregational conflict management.
Her articles on mediation and restorative
justice have appeared in the ACPE
News, The APC News and on the ACPE
web site. Articles on clergy accountability
and judicatory processes are published
by the Alban Institute and The
Journal on Religion and Abuse.
A
chapter, “Clergy Sexual Misconduct:
A Justice Issue,” appears in Body
and Soul: Rethinking Sexuality
as Justice-Love
, Marvin Ellison
and Sylvia Thorson-Smith, editors,
The Pilgrim Press, 2003.
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