Kenneth Kipnis

A Defense of Unqualified Medical Confidentiality

It is broadly held that confidentiality may be breached when doing so can avert grave harm to a third party. This essay challenges the conventional wisdom. Neither legal duties, personal morality nor personal values are sufficient to ground professional obligations. A methodology is developed drawing on core professional values, the nature of professions, and the justification for distinct professional obligations. Though doctors have a professional obligation to prevent public peril, they do not honor it by breaching confidentiality. It is shown how the protective purpose to be furthered by reporting is defeated by the practice of reporting. Hence there is no conflict between confidentiality and the professional responsibility to protect endangered third parties. *A longer version of this article will appear as “Medical Confidentiality” in The Blackwell Guide to Bioethics, ed. R. Rhodes et al. Oxford, UK: Blackwell, 2006.

Overwhelming Casualties: Medical Ethics in a Time of Terror

The events of September 11, 2001 have had a peculiar significance for me. Like many, I was astounded by the damage that could be done by a few men armed with box cutters. Like millions who identify as New Yorkers, I was outraged by the insult to lower Manhattan, to its architectural integrity, its infrastructure, its people, to the very idea of New York. As I write, crowds gather daily to peer into the city’s open wound, trying, I expect, to wrap their minds around what has come to pass. I have been doing medical ethics for decades, focusing regularly on “scarce resource problems.” So, even as the towers were pancaking into memory, I began to fixate on the challenges New York’s health care system would face caring for the wounded. Later on, it was sobering to contemplate that the city was able to respond as well as it did, in part, because so many of the victims had been killed outright. As violent as the attack had been, only a few seriously injured survivors presented at nearby hospitals. The stories I heard described hundreds of clinicians and volunteers waiting for the waves of wounded who never arrived. What if it had been different? What if, as had been expected, the wounded had been many? We have now seen weaponized anthrax and are warned that even deadlier agents are out there: smallpox and other pestilential scourges, nuclear and chemical weapons, and the terrorists who would use these against

The elements of code development.

Provided that the structure of legal duties imposed upon a profession is publicly acceptable, a code that echoes that structure is acceptable, as well. But by far the more important tests for a bioethics code—for the standards it prescribes, and for the new profession that pledges itself to be bound by those standards— will be the thousands of occasions when the code actually guides action, framing encounters between bioethicists and those with whom they work—patients, co-workers, administrators, lawyers, firms. The relationship between the bioethics profession and the rest of society will be acknowledged and renewed in quiet hallway conversations with families, in heated discussions in the med-staff lounge, in the provisions of hospital compliance manuals and of industry consulting contracts—wherever and whenever the code is invoked or heeded. And if (as is inevitable) the code is ever found wanting, its amendment or reinterpretation will be the mark of a vibrant profession, one that earns privilege and trust in part by its constant willingness to revisit publicly all the nitty-gritty terms of its commitment to others.

Ethics and the professional responsibility of lawyers

Abstract“Applied ethics” is sometimes understood on the engineering model: As engineers “apply” physics to human problems, so philosophers apply ethics to dilemmas of professional practice. It is argued that there is nothing in ethics comparable to physics. Using legal ethics as an example, it is suggested that political philosophy provides a better approach to understanding professional ethics. If, for example, the adversary system is a legitimate social institution, and if attorneys must adhere to certain principles in order for that institution to fulfill its purposes, then attorneys may be said to be subject to those ethical principles.

Impairing Loyalty: Corporate Responsibility for Clinical Misadventure

A medical device manufacturer pays a surgeon to demonstrate a novel medical instrument in a live broadcast to an audience of specialists in another city. The surgical patient is unaware of the broadcast and unaware of the doctors relationship with the manufacturer. It turns out that the patient required a different surgical approach to her condition—one that would not have allowed a demonstration of the instrument—and she later dies. The paper is an exploration of whether the manufacturer shares, along with the doctor, responsibility for the death of the patient. Three arguments for corporate responsibility are considered; two are criticized and the third is offered as sound.

Ethics Expertise in Civil Litigation

Kenneth Kipnis am an academically trained philosopher who has taught and written about medical ethics for three I decades, who has done extra-mural ethics consultation in clinical and other settings for two decades, and who has served as an expert ethics witness in the courts for more than ten years. llained as a traditional amdemic, none of these three pursuits have come easily. Like most philosophers, my education did not prepare me for such responsibilities. Indeed, regardless of a bioethicist’s initial background i.e., health care, law, theology or philosophy it is invariably necessary to build upon foundational knowledges and abilities in gearing up for work as a health care ethics consultant.’ Edward J. Imwinkelreid has prepared a remarkable overview of the work of the expert ethics witness from the point of view of the law of evidence.2 My perspective as a philosopher, an ethicist, and an expert witness, stands in contrast with his. In particular, the jurisprudential context in which I have done my work discoursing on the pertinent ethical standards of practice in disputed cases is not one that is adequately anticipated by his discussion and, accordingly, what he says seems incomplete to me. In the cases I have worked on, the problems have involved either a retrospective determination of fault in some past professional action, (as with medical malpractice) or a prospective determination of the permissibility of some professional choice (as when an injunction is sought). My expertise pertains solely to this dimension of professional practice; the ethical standards that can sometimes be shown to govern in disputed cases. In addition to being technically competent, doctors, lawyers and other professionals must also be ethically competent. There are ethical as well as technical standards that are to be honored, and professionals are properly held to them. I may agree to testify when I am confident that I know my way around such an issue. While the traditional philosophical accounts of ethics have grappled with the question of how human beings (in general) ought to live, the problems that have long concerned me focus upon specialized issues arising within distinct professional roles: doctors, teachers, nurses, attorneys, social workers, and clinical researchers, among others. For the last thirty years I have worked through puzzles generated by the striking fact that professional ethics can require or prohibit actions that are contrary to those mandated by what some would call “ordinary morality.” It has seemed to some

Justice and Correctional Health Services

Because they are juridically excluded from participating in the market systems through which most American health care is distributed, more than two million incarcerated Americans have unreliable access to vital medical services. This paper sets out a normative geography of prison health care. While liberalism encourages debate on the limits of liberty, there has been scant interest in setting reciprocal limits to the penal forfeiture of liberty. This essay develops one element of this topic: inmate access to health services.