Murder in the Emergency Room: A Moral Argument for Socialized Medicine

David Roberts IV

May 20, 2004

The purpose of this paper is to point out what I take to be a disturbing situation and to persuade persons in public health and hospital administration to do something about it. The thesis of this paper is that hospital staffs and administrators are being forced into moral tragedies for no good reason; they are forced to choose between two immoral modes of rendering care when there is a moral alternative. In certain ER situations, physicians must choose between killing the patient on the spot or transferring him/her to another hospital where it is known that the patient will receive inadequate care for the malady and will needlessly suffer, sometimes unto death. (1) I shall use this thesis as a basis from which to argue for a liberal socialized medical scheme –the moral alternative.

Section I. The Duty to Prevent Harm.

Peter Singer in his article on famine relief (2) makes two points which I borrow. They are (with modifications made for this paper): (a) Dying from lack of medical attention is bad; (b) If it is within our power to prevent terrible harm without giving up something of comparable moral value, then we ought to do it. These basic propositions Singer takes to be uncontroversial. I think that he is right. No one would deny that dying from lack of medical attention is intrinsically bad. Some may claim that there is instrumental value in such death, but we may discount that position as not only being unduly cruel, but, as immoral. The second proposition is also easy to agree with in that it requires only that terrible harm be prevented, not good produced; that is, we are only obligated to prevent something very bad from happening, not to promote or produce good through sacrifice. The example which Singer gives to explicate this proposition reveals its believability. Suppose, he says, you see a child drowning in a shallow pond. The pond is not deep and you have the ability and resources to save the child. Saving the child will have the obvious drawback of soiling your clothes, even upsetting your schedule, but these consequences are of little weight compared to the death of the child. Thus, that you may have to sacrifice some personal property or time is no justification for not preventing a terribly bad event from occurring. The duty to save the child is clear, and the concern for trivial personal property cannot suffice to excuse you from the obligation. Counterexamples about the problem of persons becoming moral saints in virtue of practice of principle 2, are obvious.

Singer’s principle of preventing harm I use here as a prima facie duty. A complaint has been lodged against his principle that it requires us always to prevent harm, no matter how great or trivial, which is to say that we are always obligated to prevent harm whenever we are not threatened by the consequence of giving up something of comparable moral value. Thus, we should always help old persons across the street, carry an extra umbrella for those who have forgotten theirs, give away all extra monies to those who need it, and so on. In a nutshell, the objection is that the principle requires us to be “moral saints” in every way and walk of life.

To respond, the principle I think can be used as a regulative one which presumes that we can distinguish among appropriate, trivial and supererogatory cases. Carrying around extra umbrellas, sacrificing one’s life for a stranger, or merely giving away unused capital seems to go beyond the common sense demands of the principle. The thrust of the principle is to prevent harm when one has the good resources and common sense (good reasons) to do so. There are, needless to say, gray area cases that will be problematic. But, the clear, appropriate cases will stand out.

My response to the complaint does not entirely disarm it. But, for the purposes of this paper, I think that the principle is a regulative principle that is to be applied in clear cases, especially to the particular case at hand that interests, for neither trivial nor supererogatory actions are involved. I admit then that there may be counterexamples to the principle, but these are fringe cases that may be overlooked.

Section II: The Distinction Between Having a Right and the Right Thing to Do.

The next stage of my argument deals with an important distinction –that between having a right or claim to something and what is the morally right thing to do. A right is a claim to something, which claim is usually secured under procedure of law. Rights are given by persons to one another though agreement or contract such that to deny someone what they have a right to is to violate the terms of the agreement. (3) For example, if you and I agree to play tennis and agree to the way we decide upon who serves first (flipping a coin), then if I win, I have the right to choose to serve or receive. In a professional match, the procedures are clearly defined and attended to by officials.

In the case of tennis, my right is to the choice of an action. Property rights, on the other side of the coin, are claims to goods which a person has purchased, inherited, or acquired through legal work or exchange. A person who earns money to buy a house and then purchases the house has a right or claim to that property. Property rights are usually exclusive rights; one has an exclusive claim to and use of what he owns privately.

The right action to do or one’s duty means exactly that –what one ought to do. One is morally culpable for not doing the action. I shall not be concerned to support any particular theory of moral obligation. Suffice it here to presume that we are able to determine, at least in many cases, what is the right action to do.

Duty, the right action to do, and rights often conflict. The conflict occurs in many everyday situations, especially situations involving use of property or resources. Take the classic B movie plot as exposition of the conflict. The black-hat villain has made money through capitalistic means and has invested that money in real estate. In fact, he owns most of the rental property in the small Alaskan town of my “fictitious” example. He has worked hard through legal means to build his business of rental properties. The pretty widow Hawkins and her child live in one of Harry’s rental homes. It is in the dead of winter with ongoing extremely cold weather. The widow is four months behind in her rent. Harry tells the widow to pay up or he will throw her and her child out into the cold (to a certain death). The widow cannot pay and Harry evicts them into the cold where she and her child die (or would die were it not for the hero in the white hat who rescues her and provides for her at his expense; but, that is Hollywood).

We admit that Harry has the right to throw the widow and her child out into the cold. He owns the property exclusively and it is his to use as he sees fit. Moreover, she has not fulfilled her financial part of the rental agreement or contract, and thus has no claim or right to continue to use his property. On the other hand, there is no doubt that we would say that his throwing her and her child out into the cold to be on their own is the wrong action to do; the action of his exercising his right to use his property in the way he wishes (let us say, to turn a profit) was not the morally right thing to do in her case. If it were, the movies would have no need of guys in white hats; Harry’s right to property and profit is not a sufficient justification for the death of the two. Again, Harry’s action was wrong even though he had a clear right to support it. So, as we see, rights and the right action can come into serious conflict, especially when it involves property rights or claims to resources privately owned.

Section III. The Principle of Moral Symmetry.

The third step in my argument involves a principle of moral symmetry. That principle is developed by James Rachels in his article “Active and Passive Euthanasia” (4) to show that different actions which have the same ends or results and done by persons having the same intentions are morally equivalent (i.e., have the same moral status). What Rachels shows is that two radically different kinds of actions (one the intentional killing of a person, the other a passive, letting die action) are morally equivalent –they are just as bad in the cases he points out.

Let me give an example that fits my argument. Suppose you and I are colleagues, neurosurgeons at a prominent hospital. We both like to take extended hikes for days along a Smokey Mountain trail for fitness. You are diabetic, but always prepare a special sack to take along, which sack is tied to your backpack. Unbeknown to you, I dislike you very much and think that you are a threat to my career. I wish to be chief of staff and gossip has it that you are the front runner.

Let me set up two scenarios. The first is that we are two days into a hike. I have planned to cut the insulin kit from your pack and leave it in a hidden place. I do so and fake terrible concern searching frantically for it. It is not found, for I have hidden it well. You go into shock and die. Second scenario. Everything is the same except that you lose your kit going up a hill. Neither of us knows that the kit has been lost until you need it. We backtrack to look for the kit. I see you standing right beside it during the frenzied search, but do not tell you. You go into shock and die.

In the first case, there is no question that I murdered you. I intended the action, performed it, and the result was your death. In the second case, I performed (note: my intention is the same –to kill you) a different action, which action, not telling you where the kit was, led to the same result. Would it sound reasonable to say that the first case was murder, but the second case was less wrong because the action I did was merely to withhold information? As Rachels says, “Such a ‘defense’ can only be regarded as a grotesque perversion of moral reasoning. Morally speaking, it is no defense at all” (5)

The point here is that the seeming non-action of refusing to aid is morally equivalent to active killing, given the same intentions and results.

Section IV. The Principle of Reciprocity.

The principle of reciprocity has simplicity of use when applied to well defined moral problems. The principle states that we ought never do an action or place a person in a situation in which we ourselves would not will to be. For example, I should never lie to someone just to win a bet, for were I in his position, I would not be willing to be lied to. Nor should I force someone into the position of telling a malicious lie to no good end, for I would never will to be put in the position of doing so. For the purposes of this paper, let me specify that the principle requires us never to coerce another person into a position of having to choose between two wrong actions when there is a third alternative which is right. For example, I should never force an employee to lie or resign his position to cover a company mistake when at third alternative, telling the truth, is the right (though difficult) one. Or again, I should never command a subordinate soldier to torture a prisoner or face my disgrace as a commander when I would not be willing to do so, knowing that there are rules of military justice that apply. What I will show in the following is that medical personnel are put in this untenable position; they are forced to choose between killing a poor patient in the ER or transferring him to another hospital where treatment will be inadequate to the point of an ensured death.

Section V. Facts About the Cost Crunch of Medical Care.

Today’s medical establishments are facing an oppressive money crunch: costs of technology are going up; demands for efficiency are increasing; private persons, insurance companies and government are becoming more and more reluctant to plunk out any amount for medical treatment. In response, health maintenance organizations with their “gate keeper” physicians and emphasis on health education have sprung up everywhere with the purpose of systematizing care of the healthy person and diagnosis and treatment of the ill person. Diagnostic related groups (DRG’s), insurance specifications, et al have been introduced to bring into statistical control kinds of treatment and related prices in medical care centers. The trend is towards “adequate care” rather than complete treatment. On the other side of the coin, consumers are suing physicians and hospitals as one sues a technician for improper service. Consequently, in response to some skyrocketing jury judgments and insurance policy costs, physicians are withdrawing from certain areas of medicine (hard hit is obstetrics) and many hospitals are closing wards, in a great many cases, the ER. To deal with costs incurred by patients who cannot or do not pay for treatment, some hospitals have instituted the policy of not admitting ER patients (after stabilization) of these patients. It is this policy that concerns me.

Section VI. A Quick Review of the Main Premises of the Argument.

1) Suffering and dying from lack of medical care is very bad.

2) Principle of preventing harm. If it is within our power to prevent some terrible harm (as in 1) without giving up something of compatible moral value, then we ought to prevent that harm.

3) Property rights. One has a right to the use of his property, but exercising one’s right to something can involve the wrong action to do.

4). Principle of moral symmetry. Two different actions by persons can be morally equivalent when the ends and intentions are the same. Thus, in certain cases, a passive action which leads to death can be morally equivalent to active killing.

5) Principle of reciprocity. It is wrong to do something or place someone in a position of doing something which we would not be willing to do or be placed in.

6) To control costs, many hospitals have instituted the policy of not admitting ER patients unless they can pay for the continued medical treatment.

Take me to the next section