Public Health Law Map - Beta 5 - Medical and Public Health Law Site

should be reported to the child protection agency.
Physicians should be careful about the claims they make for the offered care. It is
not unreasonable for parents to refuse medical care that is difficult or painful if it
does not offer a substantial benefit to the child. Parents who refuse supportive care
when there is little or no hope of cure are properly asserting the child’s right to
refuse unnecessary care. This is also true for discontinuing care. If parents refuse
treatment for the first presentation of acute lymphocytic leukemia because they do
not believe in treating cancer, the physician should seek court intervention. If the
parents refuse a repeat course of chemotherapy when there is little hope of
remission because they want the child to die at home in comfortable surroundings,
the physician should probably do what he or she can to assist them. Physicians
should not try to enforce their personal beliefs about hope or dying on the parents or
the afflicted child.
F. Consent for Medical Research
There has been more medical legal scholarship on the conduct of medical research
involving human subjects than almost any other consent topic—in interesting contrast
to the nearly complete lack of litigation alleging injuries from improperly conducted
research. Medical research is controversial because of the abuses that occurred in the
not-too-distant past, rather than a current litigation threat. Ranging from the medical
experiments conducted by the Nazis to the Tuskegee syphilis experiment [Jones JH.
Bad Blood: The Tuskegee Syphilis Experiment. New York: Free Press; 1981.]
conducted by the U.S. Public Health Service, these abuses resulted in the promulgation
of two major international codes and extensive congressional regulation. [Katz J,
Capron AM, Glass ES. Experimentation with Human Beings: The Authority of the
Investigator, Subject, Professions, and State in the Human Experimentation Process.
New York: Russell Sage Foundation; 1972.] Any patient injured by an experiment that
violates these codes or regulations can sue the physician for medical malpractice. More
commonly, however, investigators or their institutions are sanctioned by the
Department of Health and Human Services (HHS) or the U.S. Public Health Service
for not complying with governmental regulations.
In one area, litigation (and criminal investigation) is probable. The growth of joint
research agreements between universities and medical businesses, combined with the
involvement of medical scientists in for-profit ventures, has put many scientists in
violation of laws dealing with conflicts of interest and stock fraud. The Public Health
Service has also promulgated rules governing misconduct in science, which could be
the basis for fraud-related litigation. Lawsuits asserting financial fraud are not covered
by medical malpractice insurance and are especially dangerous to physicians. The
physician-scientist must pay the defense costs for such actions and any fines or
damages if the defense is unsuccessful.
1. International Codes
298