CLASSIC LEGAL CASES AT THE FOUNDATION OF MEDICAL
ETHICS IN THE USAA B

Karin W. Zucker, MA, JD, LLM* Martin J. Boyle, JD**

Abstract

The ethics of a people, as demonstrated through public policy, are generally thought to
affect that people's legal system and its decisions. The converse is also true: decisions
within a legal system impact ethics ­specifically medical ethics. The cases discussed in
this paper are at the foundation of medical ethics in the United States.

Background

Although ethics is clearly a discipline separate from law, each informs the other and there
are many areas of congruence. Numerous U.S. judicial cases deal with medical questions,
and medical ethics texts routinely cite judicial opinions. The case format has even been
adopted by medical ethics educators, and scenario based education is common.

The purpose of this paper, drawn from a monograph, Landmarks from the Law: Classic
Cases in Medical Ethics, developed as part of an academic seminar,1 is to consider some of
those cases from the U.S. judicial system which now form part of the basis of medical
ethics. Because of the constraints on length, many of the cases in the monograph are not
addressed;2 and only the most significant points of those cases that are reviewed are
considered.

a Disclaimer. Views expressed in this article are solely those of the authors and do not represent policies of the Army ­
Baylor Graduate Program in Health and Business Administration, the Department of the Army, the Department of
Defense, or the Department of Veterans Affairs.
b Note on Citation. Because of the limitation on length and in the interest of clarity for readers not familiar with U.S.
law, only single, not parallel, citation to cases is used; specifically, the West Reporter System citation is used when citing
state cases and federal cases, except for U.S. Supreme Court cases. The official U.S. government citation (U.S.) is used
for those.
* Karin Waugh Zucker is an Associate Professor in the Army-Baylor University Graduate Program in Health and
Business Administration, Ft. Sam Houston (San Antonio), Texas, USA, where she teaches medical ethics (clinical and
organizational), health law, and health care contracting. Address correspondence to Prof. Zucker at 5926 Winding Ridge
Drive, Windcrest, Texas, 78239, USA or E-mail her at ameddja@aol.com.
** Martin J. Boyle is a Senior Attorney in the Department of Veterans Affairs, Office of the Regional Counsel, Houston,
Texas, USA, working at Audie L. Murphy Veterans Administration Hospital, San Antonio, Texas.
E-mail him at Martin.Boyle@mail.va.gov.
1 Members of that seminar were Major Tracy Allen, USAF; Ensign Amy Burton, USN; and Captain Vito Smyth, USAF.
Research assistance was provided by Martin J. Boyle.
2 Cases that are in the monograph, but which are not addressed here, include, in chronological order, Buck v. Bell, 274
U.S. 300 (1927) (eugenic sterilization); U.S. v. Karl Brandt, Military Tribunal I, Nürnberg, Germany (1947) (elucidation
of the Nürnberg Code); Feres v. United States, 340 U.S. 135 (1950) (generally, servicemembers incident to service or
exercising a military privilege may not successfully sue the U.S. government under the Federal Tort Claims Act, 28
U.S.C. § 1346(b)); Application of President and Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir. 1964)
(blood transfusion for pregnant Jehovah's Witnesses, pre-Roe v. Wade); Griswold v. Connecticut, 381 U.S. 479 (1965)
(zone of privacy effecting right to use contraception); Pollard v. United States, Civ. Action No. 4126-N, M.D. Ala. (1973)
(medical research/Tuskegee Experiment); Parker v. Levy, 417 U.S. 733 (1974) (the military is a separate society); Matter
of Quinlan, 355 A.2d 647 (N.J. 1976) (right to refuse care, by surrogate); Tarasoff v. Regents of the University of
California, 551 P.2d 334 (Cal. 1976) (breach of patient confidentiality for good of another); Superintendent of
Belchertown State School v Joseph Saikewicz, 370 N.E.2d 417 (Mass. 1977) (right to refuse care, by surrogate); Matter of
Eichner, 426 N.Y.S.2d 517 (N.Y. App. Div. 1980) (right to refuse care, by surrogate); Matter of Storar, 434 N.Y.S.2d 46
(N.Y. App. Div. 1980) (right to refuse care, by surrogate); Matter of O'Connor, 531 N.E.2d 607 (N.Y. App. Div. 1988)
(right to refuse care, by surrogate); Georgia v. McAfee, 385 S.E.2d 651 (Ga. 1989) (right to refuse care); Moore v.

681

---

With the exception of two cases3 that address issues unique to the military system, almost
all cases in the monograph deal with some aspect of personal privacy, i.e., with the
importance of recognizing the autonomy of the individual.4 Even Tarasoff v. Regents of
the University of California,5 and Matter of Baby M6 address personal privacy, although
the former deals primarily with the question of when patient confidentiality should be
breached and the latter addresses legal issues involved in surrogate motherhood.

Judicial Decisions / Cases
Informed Consent

A requirement for consent of the patient is not found in the Hippocratic Oath or otherwise
in ancient medicine. To the contrary, Hippocrates advocated concealment of the patient's
condition to avoid agitation;7 and Rodrigo à Castro, wrote in Medicum Politicus, in 1614,
that it was right to deceive a patient if it was done with good intent and not for monetary
gain.8 Since the decision in Schloendorff v. Society of New York Hospital,9 it has been
generally accepted in U.S. law that consent to treatment is required. However, the doctrine
of informed consent, i.e., the idea that the patient must have a minimum amount of
information in order to give legally sufficient consent, developed incrementally until
Canterbury v. Spence10 was decided in 1972.

Today, the informed consent of the patient, which includes a requirement for competence
and voluntariness, is required in all but a very few circumstances, such as when care is
required by law or regulation, ordered by a judge, required by medical emergency, or
permitted based on therapeutic privilege.11 Although arguments can certainly be made that
requiring informed consent is beneficent, i.e., that it is for the good of the person
concerned,12 it is generally discussed in conjunction with the principle of autonomy.
Beauchamp and Childress caution that it should not be assumed that autonomy has primacy
over the other principles (beneficence, nonmaleficence, and justice) simply because it is the
first principle they address.13 However, Brannigan and Boss note that in the United States
"[a]utonomy is so important that social values and justice are sometimes overlooked."14

Regents of the University of California, 793 P.2d 479 (Cal. 1990) (research misconduct, lack of informed consent,
ownership/right of control over bodily tissue); and Matter of Baby K, 832 F.Supp 1022 (E.D. Va. 1993) (required care for
an anencephalic infant and the applicability to that situation of federal laws regarding handicapped persons and state law
regarding child abuse).
3 Parker v. Levy and Feres v. U.S., supra note 2.
4 For more on the importance of the principle of autonomy/respect for autonomy/respect for persons see generally, TOM L.
BEAUCHAMP & JAMES F. CHILDRESS, Principles of Biomedical Ethics Ch.3 (5th ed. Oxford Press 2001).
5 See supra note 2.
6 Id.
7 ROBERT J. BOYLE, "Communication, Truthtelling, and Disclosure" in Introduction to Clinical Ethics 51 (John C.
Fletcher, et al., University Publishing Group 1995).
8 ALBERT R. JONSEN, A Short History of Medical Ethics 51 (Oxford Press 2000).
9
10 464 F.2d 772 (D.C. Cir. 1972).
11 KARIN WAUGH ZUCKER & MARTIN J. BOYLE, Health Law for Federal Sector Administrators (8th ed. 2000) (privately
printed, US Army Medical Department Center and School).
12 This was the concept argued in Arato v. Avedon, 858 P.2d. 598, 609 (Cal. 1993) when plaintiff's counsel asserted that
had Mr. Arato's physicians given him the grim statistics on length of life after a diagnosis of pancreatic cancer he would
have better used his remaining days and would have gotten his financial affairs in order. The court ruled for the
defendant doctors holding that the purpose of the doctrine of informed consent was to allow patients to make medical
choices, and that it did not mean that there was a duty "to disclose every contingency that might affect the patient's
nonmedical rights and interests."
13 See supra, note 4 at 57.
14 MICHAEL C. BRANNIGAN & JUDITH A. BOSS, Healthcare Ethics in a Diverse Society 41 (Mayfield Publishing 2001).

682

---

Schloendorff v. Society of New York Hospital15

Mary Schloendorff presented to the Society of New York Hospital, a charitable institution
founded in 1771, with a medical problem likely related to her stomach or abdomen. We are
told that she consented only to an examination under ether and was instead operated upon.

Schloendorff is cited today not for a legal rule or for its discussion of the doctrine of
charitable immunity16 but for Judge Cardoza's statement, which may be the most often
quoted phrase in American medical law, that "[e]very human being of adult years and
sound mind has a right to determine what shall be done with his own body. . . ."17 That
phrase can be applied to the right to abortion, to dangerous procedures intended only to
improve appearance, to surgery for body dysmorphic disorder, to refusal of medical care,
and to the right to die. It may well be considered as the legal equivalent of the ethical
principle of autonomy, respect for autonomy, or respect for persons.

Canterbury v. Spence18

Canterbury is a much more recent case involving a young man, still a minor under the 1959
law of the District of Columbia, who assented to, and underwent, a laminectomy with
resultant, severe complications. The case reads as a law review article might. After a brief
recital of the facts and a procedural note giving the history of the case, the court begins to
examine the doctrine of informed consent; and by this time it is not a matter of mere
consent, as arguably it was in Schloendorff; it is truly a matter of informed consent. The
court reviews the history of the requirement for disclosure by physicians; considers the
scope of the requirement of disclosure; looks at the rare privilege not to disclose; and
reviews the requirement for expert testimony in such cases, as well as the role of causality
in liability for failure to obtain informed consent.

Citing Schloendorff, the court makes it clear that consent is required but then goes on to
address what must be disclosed ­what information, if given, would be sufficient. Clearly,
full disclosure is not required; the disclosure required is something less than that, but the
patient must be given "enough information to enable an intelligent choice."19 The
physician's disclosure is to be measured, then, by what a reasonable patient, in the specific
circumstance, would find material when making a decision as to whether to accept or
forego treatment. In addition to the proposed treatment itself, i.e., what the proposed
procedure is and what the hoped for benefits are, the patient must also be told of "the
inherent and potential hazards of the proposed treatment, the alternatives to that treatment,
if any, and the results likely if the patient remains untreated."20
Abortion

The first anti-abortion law in the United States was passed by the State of Connecticut in
1821. During the middle of the 19th Century, the American Medical Association adopted a

15 See supra note 9.
16 This was a doctrine which held charitable institutions legally blameless for their negligent acts.
17 See supra note 9 at 93.
18 See supra note 10.
19 Id. at 786.
20 Id. at 787.

683

---

resolution against abortion and states followed with restrictive laws. During the 1960s,
much dissatisfaction was voiced with regard to these laws, even though most contained a
therapeutic exception. The American Medical Association reversed its position and six
states and the District of Columbia repealed their restrictive laws.21 It is estimated that,
during this period, 5,000 to 10,000 women died each year following illegal abortions.22
The issue moved from the states into the federal courts in the 1970s and, in 1973, Roe v.
Wade reached the United States Supreme Court. No medical-legal issue remains more
divisive for the United States than abortion.23


Roe v. Wade24

This case presented a challenge to the abortion laws of Texas, Art. 1191-96
Tex.Rev.Stat.Ann. After reviewing the historical background of abortion and abortion law,
the Court turned to the U.S. Constitution, finding that a fundamental right to privacy,
including abortion, did exist but was limited. While pointing out that the Constitution
recognized as persons only individuals born alive, the Court also noted that the state's
interest in protecting potential human life increases as the pregnancy progresses.

The Court struck down the Texas statutes as too broadly restrictive. It went on to
summarize its logic by setting forth three stages of pregnancy and a rule regarding abortion
with regard to each stage: (1) From conception to approximately the end of the first
trimester, the decision is to be between the woman and her doctor; (2) from approximately
the end of the first trimester to viability, a state may regulate the procedure but only to
protect the woman's health; and, (3) from viability to birth, a state may regulate abortion,
and may even prohibit it, except where it is necessary for the woman's life or health.

The Supreme Court has decided many abortion cases25 since Roe v. Wade. Some may be
viewed as explaining the decision; others as restricting it. But, Roe has not been
overturned.



Maher v. Roe26

This case presented the question of whether the Medicaid Act, Title XIX of the Social
Security Act, 42 U.S.C. § 1396 et seq., requires a state participating in the Medicaid

21 See supra note 14 at 181-182.
22 Janet Benshoof, The Dismantling of Choice, NCJW, Spring 2002, at 12.
23 LAURENCE H. TRIBE, Abortion: The Clash of Absolutes 6 (W.W. Norton 1990).
24 410 U.S. 113 (1973).
25 Among these cases are Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) (upheld a provision of
Missouri's abortion law that required the written consent of the woman, struck a provision requiring the consent of the
spouse, and struck a provision requiring the written consent of a parent when the pregnant female was a minor); Bellotti v.
Baird, 443 U.S. 662 (1979) (held that parental consent to a minor's abortion could not be required unless there was a
judicial bypass provision ­a way for the minor to seek judicial authorization for the abortion); Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846 (1992) (upheld the three primary parts of the Roe decision,
identified as (1) a woman's right to an abortion before viability without undue interference from the state, (2) the state's
right to restrict abortion after viability with exceptions for the woman's life and health, and (3) recognition of the state
interest in protecting the life of the woman and "the life of the fetus that may become a child"); and Stenberg v. Carhart,
530 U.S. 914 (2000) (struck a Nebraska statute that criminalized partial birth abortion but did not include an exception to
preserve the life and health of the woman).
26 432 U.S. 464 (1977).

684

---

program to pay for abortion if it pays for childbirth. A Connecticut Welfare Department
regulation limited benefits to medically necessary first trimester abortions. The question
was considered under the Equal Protection Clause of the 14th Amendment27 to the U.S.
Constitution. The Court found no requirement for a state to fund such abortions, holding
that ­

An indigent woman who desires an abortion suffers no disadvantage as a
consequence of Connecticut's decision to fund childbirth; she continues as
before to be dependent on private sources for the service she desires. . . . 28

And, it went on to point out that the indigency was not created by the State of Connecticut
and is not a category, or status, requiring special treatment under the 14th Amendment.

Funding cases since Maher have held that even medically necessary abortions need not be
funded by states or the federal government.29 Further, states may prohibit the use of their
personnel and facilities in performing abortions.30

The Right to Refuse Care

The right to refuse care is something apart from the right to die. It is a common law right
grounded in the principles of self-determination and privacy. In some states the right is
also found in statutory law. Whatever its basis, it is not without limits. 31

In the Matter of Karen Ann Quinlan32

In 1975, for reasons never made completely clear, Karen Ann Quinlan, age 22, stopped
breathing for at least two periods of approximately 15 minutes each. Her friends attempted
to resuscitate her; and she was taken to a hospital, where she remained throughout this
litigation. At the time this case reached the Supreme Court of the State of New Jersey,
experts stated that she was in a persistent vegetative state. Her father sought judicial
determination of her incompetency and appointment as her guardian. He specifically asked
that the letters of guardianship contain an express power authorizing him to discontinue
extraordinary medical care, which all concerned expected to end her life.

The court reviewed the Harvard Criteria for Brain Death33 and agreed that, although in a
persistent vegetative state, Karen Quinlan was alive. The court took notice of the fact that
the experts believed that she could not survive without the respirator and that were it to be
removed she would soon die. It also noted that, according to a friend of the court brief filed

27 The 14th Amendment states in pertinent part ­"1. . . . No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property
without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
28 See supra note 26 at 495.
29 Harris v. McRae, 448 U.S. 297 (1980).
30 Webster v. Reproductive Services, 492 U.S. 490 (1989).
31 J.STUART SHOWALTER, The Law of Healthcare Administration 323 (Health Administration Press 4th ed. 2004).
32 355 A.2d 647 (N.J. 1976).
33 The Harvard (Brain Death) Criteria are set forth and commented upon in Defining Death, a 1981 report of the
President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research,
available at http://.bioethics.gov/reports/past_commissions/defining_death.pdf

685

---

by the New Jersey Catholic Conference, were she to die when the respirator were turned
off, it would not constitute euthanasia.

Addressing the right of privacy and citing Griswold v. Connecticut34 and Roe v. Wade,
supra, the court noted that were Karen Quinlan miraculously lucid she could make the
determination to have the respirator disconnected, even if it meant her death. Finding a
right of privacy that could be exercised by a competent individual, the court held that the
right could also be exercised by a third party on behalf of an incompetent.


Bouvia v. Superior Court of California35

Elizabeth Bouvia was described as a mentally competent, 28-year-old, who suffered from
cerebral palsy and was quadriplegic, capable of moving only a few fingers on one hand.
She sought the removal of a nasogastric feeding tube which had been inserted and was
maintained over her objection.

The court reviewed some case law and made reference to the California Natural Death Act,
California Health and Safety Code § 7185 et seq., which, while not strictly applicable since
it pertained only to the terminally ill, clearly showed the intent of California law in giving
competent individuals the right to make decisions about their medical care. The court then
went on to state: "The right to refuse treatment does not need the sanction or approval of
any legislative act."36 The court also quoted a 1986 statement entitled, "Withholding or
Withdrawing Life Prolonging Medical Treatment," issued by the Council on Ethical and
Judicial Affairs of the American Medical Association:

The social commitment of the physician is to sustain life and relieve
suffering. Where the performance of one duty conflicts with the other the
choice of the patient or his family or legal representative, if the patient is
incompetent to act in his own behalf, should prevail. Life prolonging
medical treatment includes medication and artificially or technologically
supplied respiration, nutrition, or hydration. . . .37

State of Georgia v. McAfee38

Larry James McAfee, a quadriplegic dependant upon a ventilator, attempted on several
occasions to end his life by turning off the ventilator but, when he did so, he suffered severe
pain when deprived of oxygen. In this case, he filed a petition asking not only that he be
allowed to turn off his ventilator but that he be given a sedative to alleviate the pain he
anticipated would occur as he died. The court noted that the State of Georgia recognized
that "a competent adult has the right to refuse medical treatment in the absence of a
conflicting state interest."39 It further held "that Mr. McAfee's right to be free from pain at

34 See supra note 2.
35 225 Cal.Rptr. 297 (Cal.Ct.App. 1986).
36 Id. at 302.
37 Id. at 303-304.
38 385 S.E.2d 651 (Ga. 1989).
39 Id. at 652.

686

---

the time the ventilator is disconnected is inseparable from his right to refuse medical
treatment."40


Fosmire v. Nicoleau41

In a situation where withholding or withdrawing care might reasonably be expected to
result in the death of the individual concerned, the state's interests must be weighed against
the individual's right to autonomy. The state's interests42 which potentially conflict with an
individual's right to refuse care, whether exercised personally or through a surrogate, are
discussed in numerous cases,43 but all are set forth very clearly in Fosmire. These interests
are "(1) the preservation of life, (2) the prevention of suicide, (3) the protection of innocent
third parties, and (4) the maintenance of the ethical integrity of the medical profession."44

It is the discussion of the important state interests which makes this case classic, not its
facts. Denise Nicoleau, a Jehovah's Witness, who had specifically refused blood products,
was nonetheless transfused shortly after the birth of her child. Officials of the hospital had
applied to a court and had obtained an ex parte order45 permitting transfusions. In this
action, Mrs. Nicoleau requested that the order be vacated, and it was. The court also noted
that the lower court had erred in issuing the order.

The Right to Die

Another look at the four preceding cases should make the distinction between the right to
refuse care and the right to die clearer. In each of the right to refuse care cases the patient
or the patient's surrogate sought to remove a medical device which was prolonging life and
without which, it was believed, life would then end naturally. In the right to die cases,
individuals or their representatives seek the authority to take an action which will itself end
life, and that action is something other than withholding or withdrawing a life prolonging
medical intervention.


Washington v. Glucksburg46 and Vacco v. Quill47

In both the States of Washington (Glucksburg) and New York (Vacco) refusal of medical
care, even life-saving medical care, was accepted by state law. Likewise, in both states,
there was a prohibition on assisting with suicide. This prohibition on assisting with suicide
generated legal challenges from two perspectives. Glucksburg challenged the prohibition
on due process grounds, i.e., that it was violative of the Due Process Clause of the 14th

40 Id.
41 536 N.Y.S.2d 492 (N.Y. App. Div. 1989).
42 Although the interests are identified by the court as compelling state interests, this is inartful language. Were they truly
compelling, they would take primacy over the individual's interest and there would be no need to weigh and balance the
two. Important or significant state interests seems a more accurate characterization.
43 See supra note 41 citing, among other cases, Matter of Eichner, supra note 2; Application of President and Director's of
Georgetown College, supra note 2; In re Osborne, 294 A.2d 372 (D.C. App. 1972) and Matter of Delio v. Westchester
County Medical Center, 516 N.Y.S.2d 677 (N.Y. App.Div. 1987).
44 See supra note 41 at 495.
45 An ex parte order is one obtained without notice to the individual concerned.
46 521 U.S. 702 (1997).
47 521 U.S. 793 (1997).

687

---

Amendment; Vacco challenged it on equal protection grounds, i.e., that it was violative of
the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.48

In each case, although its analysis differed, the Supreme Court found the distinction
between killing and letting die to be meaningful and supported in the law. The Court
upheld the State of Washington's ban on assisted suicide, when it stated that ­

The decision to commit suicide with the assistance of another may be just as
personal and profound as the decision to refuse unwanted medical treatment,
but it has never enjoyed similar legal protection. Indeed, the two acts are
widely and reasonably regarded as quite distinct.49

In Vacco, the Court noted that while states must treat like cases alike, "[t]he law has long
used actor's intent or purpose to distinguish between two acts that may have the same
result." 50

Conclusion

The right to privacy, a right not explicitly found in the U.S. Constitution, is a clear and
unifying theme throughout these cases. Indeed, in Roe, the Court stated that a right of
privacy has been recognized in cases decided as early as 1891. Having noted that, there are
cases which do not deal primarily with the right of privacy but which nonetheless have
greatly affected the development of medical ethics. Tarasoff v. Regents of the University of
California51 is such a case. While Justice Tobriner clearly recognized the importance of
the physician - patient relationship and the significant part trust plays in that relationship,
he found the public's right to disclosure necessary to its protection even more important.
He saw that there are situations when, for the greater good, confidentiality must be
breached. His assertion that "[t]he protective privilege ends where the public peril
begins"52 is generally accepted across the United States, except in Texas.53 In Matter of
Baby M,54 which dealt with surrogate motherhood and parental rights, the court recognized
that there are rights above those set by contract and that, in the end, it is the best interest of
the child which must be determinative of custody.
Taken together these cases demonstrate balance between the rights of individuals and the
rights of society. Moreover, they show the tension that will forever exist in medical ethics
among the principles of autonomy, beneficence, nonmaleficence, and justice.

48 See supra note 27.
49 See supra note 46 at 725.
50 See supra note 47 at 802.
51 See supra note 2.
52 See supra note 2, Tarasoff at 347.
53 Texas does not follow Tarasoff; see Thapar v. Zezulka, 994 S.W.2d 635 (Tex. 1999).
54 See supra note 6.

688

---