Although Lundman was evidently the first case to award damages for faith healing, prosecutions of parents whose children die under similar circumstances are reasonably common.(64) Many of the cases involve Christian Scientists who do not accept the superiority of contemporary medicine to their faith-based care; and many others involve Jehovah's Witnesses, who do not accept blood transfusions because of the biblical prohibition on ingesting blood.(65) but official punishment is surely not the ideal response to the understandable and entirely justified effort to protect the life of the sick child. Usually, the states try to prevent the death of the child rather than punish it later. The typical case involves a petition from a hospital for the temporary dissolution of the parents' rights over the child and the appointment of a guardian ad litem to make the decision on the surgery or transfusion. After the decision is made and the procedure has been performed, the parents' rights are restored. See, e.g., in re McCauley, 565 N.E.2d 411, 414 (Mass. 1991) (affirming the authorization of a child's blood transfusion, despite the protests of her Jehovah's Witness parents); State v. Perricore, 181 a.2d 751, 759 (N.J. 1962) (requiring a blood transfusion for the child of Jehovah's Witnesses, despite the religious objection of the parents); O.G. v. Baum, 790 S.W.2d 839, 841 (Tex. Ct. App. 1990) (denying relief to Jehovah's Witnesses whose child was appointed a temporary managing conservator with the authority to consent to blood transfusions for the child). (Carter, 1997, p. 1627)
The case of reverse discrimination against Comodo is limited in jurisprudence as no such case has been expressly discussed or ruled upon by the courts. In short the courts could rule in either direction and a proper response to the situation might be an out or court settlement. In the alternative this case might reach his standing and be heard by a higher court who, depending on the whole of the situation could find in favor of Comodo on the grounds that it was never made clear to him that his refusal to provide certain care on the contingency of his religious beliefs could result in his termination. If such documentation is in existence, the hospital might have grounds. Alternatively testimony by individuals involved in the situation could effectively prove that Comodo's attitude in the situation was the reason for his behavior being deemed insubordinate, rather than his actual refusal to provide care.
A person needs a blood transfusion, a bone marrow transplant, or a new kidney. (81) the most suitable donor declines to contribute it. A lawsuit is brought, or legislative action is sought. How would each theory approach the questions involved -- the doctrinalist would look to the legal landscape, to judicial and legislative decisions that seem analogous, so that what is done here is "like" what is done there. And at first glance the topography seems to be unusually lucid. We are, after all, still primarily a libertarian rather than a communitarian polity. (82) Autonomy and individualism are powerfully represented in the legal topography however they may have gotten there and however justified or desirable they may ultimately be.And so the doctrinalist's initial conclusion would be that we do own our own bodies. For this he or she would cite innumerable "topographical landmarks/precedents" from any number of parts of statutory, constitutional, and common law: the fact that normally volunteering to save someone else's life is not required; (83) the constitutional prohibitions on involuntary servitude; (84) the legal sale of blood and hair; (85) the seeming right to donate body parts to those to whom we wish to give them (including, of course, the laws that specify how a person can establish that his or her organs may be used for transplants after his or her death); (86) the Supreme Court decision that seems to recognize a person's constitutional right to prohibit further medical treatment and to die more or less in peace; (87) the right to be informed and consent before medical interventions; (88) and many more. (89) it is little wonder that the courts that have faced the issue of ownership of body parts have concluded that such parts belonged to their possessors. (90) (Calabresi, 2003, p. 2113)
The bioethical determinations in a legal sense associated with voluntary provision of care and products for transfusion and other non-native procedures are still relatively unclear in the legal system. As it currently stands such donation needs to be voluntary, and yet the provision of such care is mandatory on the part of the provider, if such care would save the individual's life. In this manner the courts have frequently ruled in favor of the institution when seeking to allow them to provide such care to those who might refuse it, and yet most adults (not by proxy and in their right mind) have the full ability to refuse such care when ever they see fit. Yet, this situation is an institution, provisional under good Samaritan laws to provide legally and recognizably viable life saving care to an individual in need of it in an emergency.
My recmendation to the hospital would be to explore the record fully, including seeking out any prior documented or undocumented but testafiable situations where the refusal of Comodo to provide emergent care put the patient or the institution at risk of unsafe practices and/or potential loss of life. Additionally, any employment agreement that specifically outlines Comodo's duties, that would include the provision of care in cases where transfusion is utilized. Any situation where Comodo participated in such a case, and any prior document-able warnings of possible dismissal for refusal or attitude insubordination must be provided. If such documentation does not exist and if Comodo signed no such document or cannot be clearly shown to understand his role in the provision of care would demand that the institution offer a settlement, immediate reinstatement (under contingency of job description including or excluding religiously excluded care). As dismissal of the individual was swift and immediate and his 20 years of service did not seem to warrant such action the institution is in need of proving its case, without a doubt that Comodo's actions were unsafe and that his attitude and insubordination were corrosive to the care of the patient and the safety of the hospital. Due written warning should have been provided Comodo and if such was not done then Comodo has grounds for his lawsuit and the lengthy nature of such a lawsuit would unduly burden the institution and put future care at risk. (Smrke, 1999, p. 202) (Brown, 2007, p. 833) (Suk, 2007, p. 73) (Kleiner, 1993, p. 17)
Brown, L.S. (2007). The Title VII Tug-of-War: Application of U.S. Employment Discrimination Law Extraterritorially. Vanderbilt Journal of Transnational Law, 40(3), 833+. Retrieved January 12, 2009, from Questia database: http://www.questia.com/PM.qst?a=o&d=5023490191 http://www.questiaschool.com/PM.qst?a=o&d=5002006364
Calabresi, G. (2003). An Introduction to Legal Thought: Four Approaches to Law and to the Allocation of Body Parts. Stanford Law Review, 55(6), 2113+. Retrieved January 12, 2009, from Questia database: http://www.questia.com/PM.qst?a=o&d=5002006364 http://www.questiaschool.com/PM.qst?a=o&d=5000489421
Carter, S.L. (1997). The Free Exercise Thereof. William and Mary Law Review, 38(5), 1627-1661. Retrieved January 12, 2009, from Questia database: http://www.questia.com/PM.qst?a=o&d=5000489421 http://www.questiaschool.com/PM.qst?a=o&d=5000377195
Dicesare, C.B. (1995). Religious Discrimination. Monthly Labor Review, 118(10), 49. Retrieved January 12, 2009, from Questia database: http://www.questia.com/PM.qst?a=o&d=5000377195 http://www.questiaschool.com/PM.qst?a=o&d=114157161
Ghanea, N. (Ed.). (2003). The Challenge of Religious Discrimination at the Dawn of the New Millennium. Boston: Martinus Nijhoff. Retrieved January 12, 2009, from Questia database: http://www.questia.com/PM.qst?a=o&d=114157255 http://www.questiaschool.com/PM.qst?a=o&d=5000254375
Kleiner, D. (1993). The Impact of Discrimination Laws on Management Liability for Employment References. Review of Business, 15(2), 17+. Retrieved January 12, 2009, from Questia database: http://www.questia.com/PM.qst?a=o&d=5000254375 http://www.questiaschool.com/PM.qst?a=o&d=5001871467
Smrke, M. (1999). Proselytism in Post-Socialist Slovenia. 202. Retrieved January 12, 2009, from Questia database: http://www.questia.com/PM.qst?a=o&d=5001871467 http://www.questiaschool.com/PM.qst?a=o&d=104606685
Stone-Romero, E.F. (2005). 11 Personality-Based Stigmas and Unfair Discrimination in Work Organizations. In Discrimination at Work: The Psychological and Organizational Bases, Dipboye, R.L. & Colella, a. (Eds.) (pp. 255-276). Mahwah, NJ: Lawrence Erlbaum Associates. Retrieved January 12, 2009, from Questia database: http://www.questia.com/PM.qst?a=o&d=104606967 http://www.questiaschool.com/PM.qst?a=o&d=5024775975
Suk, J.C. (2007). Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict. Stanford Law Review, 60(1), 73+. Retrieved January 12, 2009, from Questia database: http://www.questia.com/PM.qst?a=o&d=5024775975