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Disincentives to Whistle BlowingDenial of treatment cases typically come to publicattention only when a "whistle blower"—usually ahealth care professional 6 or a family member 7 whois convinced the denial of treatment is wrong—reports the matter to a public agency or other rightsadvocate. 8There are substantial disincentives to whistleblowing whether it takes place among health carepersonnel or in the general population. A recentstudy of whistle blowers by Donald and KarenSoeken found that all of those studied who blew thewhistle in the private sector lost their jobs. One-fifthof those surveyed (who also included FederalGovernment employees) were without jobs at thetime of the study; 86 percent had "negative emotionalconsequences, including feelings of depression,powerlessness, isolation, anxiety and anger"; and 80percent had physical deterioration. Mr. Soeken, apsychiatric social worker with a doctorate in humandevelopment, concluded (as paraphrased by a reporter)that "[Tjhere is so much retaliation againstknown whistle blowers [because]. . .it is associatedwith cultural taboos against tattling." 9Mr. Soeken said there are seven stages of life forthe whistle blower: discovery of the abuse, reflectionon what action to take, confrontation withsuperiors, retaliation, the long haul of legal or otheraction involved, termination of the case, and goingon to a new life. "The last stage is the most difficultto reach," he said, "and most [of] them don't reachit." 10Bill Bush, himself a whistle blower who wasdemoted, maintains a computer file on whistlecircumstances. . .it is prima [facie] irresponsible to obtain knowledgeabout the results of surgery on high risk infants and then notto use the negative results in informing the parents and others ofthe consequences of surgery." Id. at 451, quoting with approvalFletcher, Spina Bifida with Myelomeningocele: A Case Study inAttitudes Towards Defective Newborns, in Decision Making and theDefective Newborn 281 (C. Swinyard ed. 1978).6Health care professionals did so in the "Baby Jane Doe" case.Lawyer Fights on For Baby Doe, USA Today, Dec. 13, 1983, at 2A,col. 1.7A family member did so in In re T.A.P., No. 03231186(Milwaukee County, Wis. Cir. Ct. July 31, 1987), rehearing (Aug.12-13, 1987), a case involving denial of surgery to a child withspina bifida. Telephone interview with Thomas C. Potter,Assistant District Attorney, Milwaukee County, Wis. (Nov. 25,1988).8Occasionally, unusual circumstances bring a case to publicattention in other ways. In a Minnesota case, In re Steinhaus, No.J-86-92 (Minn. Redwood County Ct., Juv. Div. Sept. 11, 1986),reprinted in 2 Issues in L. & Med. 241 (1986), the child to whomtreatment was being denied was in the legal custody of a childblowers with 8,500 entries. "When individualsphone him with dark secrets he exhorts them to keepquiet unless they're independently wealthy. 'I wantto emphasize this one thing,' he says. 'Whistleblowing is dangerous. I've seen people bloodied.And it's not going to get easier to do. Nobody wantsa snitch.'" 11 Sociology Professor Myron PeretzGlazer, an expert on whistle blowers, observes,"They break the unwritten law of social relationships.. . .They break a norm—the norm of loyalty."12These realities lead to the conclusion that countingthe number of reported or publicized cases alonewould underestimate the incidence of discriminatorydenial of treatment. It is probable that such casesrepresent only the tip of the iceberg. It is necessaryto turn, therefore, to methods other than countingthe reported cases.Surveys of Physician AttitudesOne method of judging the prevalence of denial oftreatment is by examining the attitudes of treatingphysicians and other health care personnel. Althoughsurveys of attitudes toward denial of treatmentdo not provide direct evidence of the numberof actual cases, the statements of health care professionalsdo establish that a significant proportion ofthem would participate in denial of treatment incertain circumstances. Two surveys of pediatricianspublished in 1988 suggest that contemporary denialof treatment is not infrequent.The November 1988 issue of the Journal ofPediatrics contains a report on a poll undertaken tolearn how pediatricians would influence treatmentabuse agency (although the agency had placed him with hismother) because of previous abuse by his father. For that reason,the agency received information about the treatment denial.Telephone interview with Michael H. Boyle, attorney for LanceSteinhaus (Dec. 1, 1988). In the Idaho "Baby Ashley" case, theproposed denial of treatment evoked public attention and agencyintervention because the child—whose disability was not initiallyapparent—was found in a trash can shortly after birth, an eventthat made the headlines and led to reporters' putting a spotlighton the case. Medical professionals openly deplored the publicattention, and agency involvement focused on them because theybelieved that without the publicity treatment could have beenquietly withheld. Telephone interview with James Baugh, ManagingAttorney, Coalition of Advocates for the Disabled, amicuscuriae in the case (Dec. 1, 1988).9Farnsworth, Survey of Whistle Blowers Finds Retaliation but FewRegrets, New York Times, Feb. 22, 1987, at 22, cols. 1-5.10Id. at col. 5.11Kleinfield, The Whistle Blowers' Morning After, New YorkTimes, Nov. 9, 1986, sec. 3, at 1, col. 2, at 10, col. 2.» Id. at 10, col. 2.104