Duty to Treat Term Paper

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goal of their ethical calling, physicians, nurses and other health care workers are obliged to treat the sick and potentially infectious patients and, in so doing, they are to take some personal risk (Murray 2003). This was the bottom line of the assessment and stand made by Dr. Henry Masur and his colleagues at the National Institute of Allergy and Infectious Disease (NIAID), particularly during the outbreak of dread global SARS in Canada and Hong Kong last year. They also referred to other epidemics, such as the HIV / AIDS.

Masur emphasized that this primary goal and obligation is voluntary and sets the medical profession apart from other professions, precisely because of the involvement of some personal risk in fulfilling that obligation. Besides physicians, medical professionals are nurses, dentists and health workers. Records of the first SARS outbreaks in Toronto and Hong Kong showed that a huge 50% of those affected were, in fact, health-care workers (Murray). In Toronto alone, 40% were nurses, 19% were physicians and 41% were respiratory therapists, radiology and electrocardiogram technicians, paramedics and research assistants, including housekeepers, clerical staff and security personnel (Murray). Dr. Masur took the opportunity to point to that obligation to treat the sick and take the personal risk despite uncertainty, a question, which came up during the outbreak of HIV and AIDS almost 20 years ago. At the same time, he underscored the role of health-care administrators to provide equipment and environmental controls in maximizing the safety of their staff as part of their administrative responsibility (Murray).

He, however, admitted that there are "countervailing considerations that can and should be taken, such as or including a high potential serious injury or death, and, thereby, limit their primary duty to treat and take personal risk (Murray). Nevertheless, there is yet no definable level to determine when a particular risk becomes high enough to defeat the primary obligation. The general norm is to evaluate the risks of other infectious diseases, which do not always respond to therapy, such as drug-resistant bacteria, meningococcus and the Ebola virus (Murray).

Dentists may not refuse to treat an HIV patient because he or she is infectious (Schulman 2000). In the case of School Board v Arlene of 1987, the U.S. Supreme Court held that risk to others must first be accommodated and the remaining risk must remain significant before discrimination could be justified. Consequent studies demonstrated that there was "nothing remotely approaching a significant risk of transmission in dental or health care settings even without reasonable accommodation (Schulman)." "Reasonable accommodation" meant proper control of the infection. Furthermore, dentists have no right to compel a patient to reveal HIV results in order to be treated, because disability law protects the patient's right to conceal those results. They have the right to require such information only when it is relevant to proper patient care and treatment, as all relevant medical information must be disclosed by the patient (Schulman).

Unfortunately, many HIV-infected patients do not truthfully fill out medical questionnaires for fear of being refused treatment. It was believed that this behavior would not be to the best interest of patients themselves and would prevent a beneficial relationship with the dentist. Dentists faced two problems: establishing an environment of trust with the HIV-infected patient and protecting confidential information when revealed (Schulman). The law has long been protective of privacy information, such as a diagnosis of mental illness that could produce stigma or breed discrimination. Recently, this information came to include HIV information, which dentists must contend with in their practice.

A recent study of U.S. doctors showed that those willing to care for patients during a bio-terror outbreak of an unknown but potentially deadly illness dropped from 80% to only 40% (Levin 2003). Dr. G Caleb Alexander and Dr. Matthew Wynia of the University of Chicago Hospitals surveyed 526 physicians and found that fewer expressed willingness to treat when there was specific threat to their personal safety. Their study revealed that only 21% of the respondents were willing to brave a bio-terrorist attack and that 80% of these came from sectors that acknowledged their professional obligation to care for patients during epidemics, despite the dangers (Levin). These sectors were associated with primary care practice and the feeling of personal preparation to treat these patients, out of a duty and commitment to do so. The American Medical Association issued a call to doctors to apply themselves to their knowledge and skills, though the use might place them at some risk. These doctors who expressed willingness to take the risk believed that real bio-terrorism was not quite likely to occur, only 15% of them acknowledged the probability in the next few years (Levin).

Drs. Alexander and Wynia felt that physicians should be endowed with supplemental instructions on how to respond promptly to medical disasters, such as where to report an emergency and how to generate a feeling of readiness, even when a physician cannot expertly tackle an outbreak or case of smallpox, anthrax or another source of bio-terror infection (Levin). They quickly explained that preparedness for a bio-terrorist attack required more than medical knowledge and skills, but precisely to put that knowledge to work, which entailed some risk. This kind of readiness was demanded, not only by bio-terrorist attacks, but also by other natural occurrences of epidemics (Levin), including hemorrhagic fevers, plague and SARS. The threat of unusual and new disease outbreaks from bio-terrorist sources, however, presented a unique opportunity for especially-committed physicians to exhibit their intense devotion to long-standing ethical principles on their sworn duty to treat (Levin).

But there are conditions and circumstances under which physicians felt that they could and should terminate a relationship with a patient (Katz and Paul 2002). Among these were the failure of the patient to pay for the physician's services, the failure to appear for appointments or take medications as prescribed, the securing of morally and religiously inappropriate or wrong services, or the patient's having a communicable disease. These conditions and circumstances must be balanced before the law and not be resorted into out of the physician's unwillingness to extend medical care (Katz and Paul).

A physician did not have the duty to treat a patient if there was no established relationship between them. This meant that the physician's "duty to treat" could not be forced upon him (or her) in refusing to treat a person needing emergency care because, and as long as, a doctor-patient relationship was not established (Katz and Paul). Common law allowed physicians the freedom to decline to extend treatment to such a person. The law of contracts and the inexistence of such a relationship did not confer the "duty to treat" upon the physician: the relationship was also based on voluntary consent on both sides. In establishing the legal relationship, both parties must act affirmatively in a way wherein the physician expressly or impliedly wanted or was willing to treat the patient and, therefore, establish the relationship with the latter (Katz and Paul).

The relationship was customarily established when the physician saw the patient, but it could be established even if the patient failed to appear for the appointment and the physician agreed to treat him or her. It could also be established if a primary care physician referred the patient to a specialist or another physician - usually participating in the HMO - and the specialist or other physician set an appointment for the patient (Katz and Paul). When the relationship got established, the physician assumed the responsibility and "duty to treat" and provide care to the patient until the relationship got terminated by their mutual consent, the dismissal of the physician by the patient, the completion of the physician's services or when the physician withdrew from the relationship.

Many laws, however, prominently laws governing emergency treatment in hospitals and out of ethical constraints, have limited a physician's ability to terminate such a relationship with a patient. Congress enacted the Federal Emergency Medical Treatment and Active Labor Act, or EMTALA, to ward off or contain "patient dumping" by hospitals, primarily because of the patients' inability to pay for medical services (Katz and Paul). EMTALA obliged hospitals and their physicians to extend medical screening examinations and medical stabilization to all who seek emergency care, regardless of the ability to pay. Physicians who refused to comply could be subjected to monetary penalties and exclusion from Medicare and Medicaid programs for such a violation (Katz and Paul).

There were also anti-discrimination laws that curtailed the physician's option not to treat. Section 504 of the Rehabilitation Act of 1973 prohibited the exclusion of a disabled person from receiving benefit on the sole basis of his or her disability, when the program was federally funded. This was especially true with the Americans with Disabilities Act of 1990 as it covered those with a contagious disease (Katz and Paul). Title III of this Act prohibited a place of public accommodation from denying a person access to health care on account of his or…[continue]

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