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Medical Professionalism: The Role of Law

Posted Oct 20 2008 12:07pm
In the latest issue of Neurology, Dan Larriviere and H. Richard Beresford, two J.D., M.D.s, argue and provide ample illustration (though largely somewhat dated) that the law generally defers to standards set by the medical profession. From the abstract:

Professionalism may be defined as the obligation of the physician to uphold the primacy of patients’ interests, to achieve and maintain medical competency, and to abide by high ethical standards. Recent commentary has suggested that medical professionalism is being threatened by commercialism and the legal system. Consideration of judicial rulings centered on primacy of patients’ interests (informed consent, end-of-life care, and conflicts of interest), medical competence (standard of care in medical malpractice cases, medical futility cases, and confidentiality of peer review), and enforcement of ethical standards (peer review by professional organizations) demonstrates that the law generally defers to standards set by the medical profession, but competing views over what health care model is operative may generate non-deferential outcomes.
Unfortunately, even if correct, this does not provide terribly much comfort in the futility context because either there are no standards or they are not ascertainable. Therefore, it is not clear exactly to what the law should or will defer.
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