Section VII. The Moral Tragedy of Forced Murder.

Again, my thesis is that due to concerns of financial efficiency or profit, hospital personnel are being put into situations in which they have to make choices involving moral tragedy –they are forced to choose between two very bad alternatives in trying to do good in spite of the fact that there is a third alternative which is, though it may not be entirely compatible with profit goals, is a moral alternative. For the sake of financial efficiency and/or profit, many hospitals have instituted a policy of refusing medical care to patients who come through their ERs, but cannot pay for continued treatment. These patients are transferred to other hospitals that are inadequate in treatment capabilities or released where they receive care that often less than adequate (in a few cases, they are merely sent home), which actions in some cases lead to the ultimate demise of the patient. This policy, I shall show, causes staff to choose between killing patients while in the ER or letting them die (sending them away). I shall argue that both actions are morally equivalent (both are very wrong), though, I shall argue further that the latter alternative is worse. Further, I shall contend that the requirement of financial solvency requires hospital administrators to enact policies that they would not be willing to have applied to them were they in the position of patients or medical staff. My proposed solution is socialized medicine which would eliminate the financial conditions which bring about the policies in the first place.

Consider the following scenario. Let us suppose there exists a hospital –call it St. Hippocrates-- and you are the head of staff of the ER. Because of the cost crunch, the hospital has instituted the following policy: Incoming patients will be adequately stabilized, but will not be admitted to the hospital unless they or a third provider can pay for the treatment. Stabilized poor patients will be transferred to another medical center which can “absorb” the costs --a “poor persons’” hospital so to speak. Not part of the policy, but known to all is that care in this secondary hospital is not very good. Let us say that the care is substandard not due to the situation that the personnel are not dedicated, but simply that they are not as good practitioners as in St. Hippocrates and do not have up to date equipment. One other fact: the act of transferring the patient to the indigent hospital can put some patients at a greater risk.

One afternoon, an indigent patient, a young girl, is admitted to the ER with a critical problem. This problem can be expertly managed by the unit which you have in your hospital. In fact, your hospital’s unit is the only one which could provide the special attention to meet this patient needs. There is a similar unit in the indigent care hospital, but that staff is not equipped or trained to handle this specific problem. Your staff stabilizes the patient. Given that she cannot pay, hospital policy requires you to transfer her to the other hospital. You and your staff know that the patient will not survive in that other unit. Again, it is not that the doctors there will not do their best; it is simply that they do not have the training or equipment necessary. What ought you to do?

I claim that you ought to keep the patient in your hospital. Why? Because the hospital policy was wrong to force you into the position in which you are now. But what is so wrong about your position? Answer: you are forced to decide whether or not to kill someone in one of two unacceptable ways. How so?

First of all, I take it to be true that hospitals are always concerned and devoted to what is in the best interests of their patients; that is, the primary purpose of a hospital is to provide medically those services what are in the best interests of the patient’s health or wellbeing. A physician’s intentions, given the oath he/she takes, with respect to his/her patient are always to do that which is in the best interests of the patient. Other interests are secondary at best.

Let us consider the two options with which you are faced as dictated by hospital policy. The first is to transfer the patient as dictated by policy. If you transfer her, you will have discharged her to let her die; you know that you act of discharging her will ultimately lead to her death. Presumably, your intention is always to do what is in the best interests of your patient. But, in this case, you intention must be that death is in the best interest of the young girl, else there would be no reason, morally speaking in terms of the oath you took, to discharge her. So, you release her to another hospital where she dies within a week of complications.

Consider the second, not so obvious, option. In accordance with hospital policy, you decide not to admit the girl to your hospital for treatment. In accordance with hospital policy, you decide not to admit the patient to the hospital for treatment. Your intention is the same as in the previous case; you have determined that death is in the best interest of the young girl. And so, with the knowledge that you will not transfer her or turn her out to her home (both cases involve extended suffering until death), you actively kill her painlessly in the ER.

Let’s compare these two options using the moral symmetry principle. The actions are different: one action is transferring away to let die in another hospital; the other is actively killing the patient. The ends or results are the same, death. The intentions are the same; death is the intended result, for it is the best interests of the patient given hospital policy that she will not be admitted. Were she admitted, she could survive due to the excellence of the staff and equipment of St. Hippocrates, but of course, she cannot pay, and thus, she must be transferred. But, if these conditions are true, then the transferring and letting die is clearly morally equivalent to actively killing the patient. And intentional killing of a person without a substantial justifying reason (e.g., being at war) is murder. It looks as though transferring the young girl is morally the same as murder, if, of course, there are no justifying reasons.

It could be that the transfer may be worse than active killing. If you were the patient and were given the choice between certain, instant painless death and certain painful death drawn out though lack of adequate treatment, I think that you would choose the former. By analogy, suppose you visited an animal shelter and found that rather than painlessly killing very sick “indigent” animals, the staff transferred them to a large facility where they were treated as much as the meager monies would allow (i.e., given a place to lie down and food), but “allowed to die” slowly and painfully of their ailments. My intuition is that you would call the moral principles of the shelter’s staff into question along with those of the larger holding facility; it is far more humane to kill the animals quickly without pain than to let them die terribly by not spending the money on them to save them. I think the same judgment would be true for the St. Hippocrates example. Hospital staff who turn away sick people to die painfully because they cannot pay seem to be cruel persons, far more than those who kill them outright to spare suffering. Of course, the alternative hospitals and staff have medicines to help with the pain and suffering, but sometimes those medicines are not well administered or given properly. However, as stipulated in my example, either the girl is admitted and she survives or the other tow options –painless murder in the ER or transfer (murder with extended suffering).

But what about “justifying reasons?” What reasons could be given to excuse or justify the transfer/ letting die option? One reply could concern intentions. Again, suppose you are the ER physician who has to transfer the young girl. You could say that you never intended her death, but only transferred her because she could not pay. She did not have a right to hospital services because she could not fulfill her financial obligation which is clearly stated in admission policy. Her transfer and demise is unfortunate in virtue of her lack of funds, but certainly it was not intended by you or your staff. Your intention was to treat her as best as policy would allow, which you did. Hence, because intentions are different, the moral symmetry principle does not apply, making a big moral difference between active killing and transferring to another hospital.

Two responses may be given to this argument. First, it sounds very strange to say that you intended the patient well. Suppose I put a gun to your head and pull the trigger killing you. In defense, I claim to be not guilty of murder because I was merely testing the gun. Though I foresaw you certain death, I did not intend it. My intention was to test the gun. Your death was an unintended, unfortunate “by product” of my testing the gun. Thus, I am not guilty of intentional killing or murder, but only of testing my gun and, consequently, letting you die of the consequences.

Such a reply or defense is ridiculous. That I foresaw your death in my intentional action of “testing the gun” makes your death at least intentional, if not directly intended. If the action of “testing the gun” was one which had multiple consequences, none of which was certain, it may be possible to say that I did not intend your death. That is not the case. I cannot be excused as the intentional proximate cause of your demise. The same holds true in the girl’s case; your transferring her to let die is equivalent to intentionally putting a gun to her head and pulling the trigger. And you know it, so lack of knowledge of “what goes on in the indigent hospital” is not an excuse either.

The second argument is equally brunt. It is implausible to believe that your intentions could have been anything else but involved with the belief that death of the girl is in her best interest; that is, your transferring her to another hospital means that you intend that she die, for you have determined that death is in her best interest. Now either a hospital and it staff has the best interests of its patients as primary or else it has some other interests (such as profit, efficiency) as primary. To send a person away to die when the hospital has the resources and capability to save the patient or give the best care can only indicate that financial matters are prior in status to the best interests of patients. When treatment will not be given because the patient cannot pay, then the only decision about the best interests of the patient must be that she die a painless death. But this position certainly sounds strange from a moral perspective, that the primary concern of a hospital is its financial status. True, a necessary condition for there being hospitals at all is that they be financially solvent. But that condition should not be the primary focus of a hospital. The primary focus should be to do those actions which are in the best interests, medically speaking, of patients. It looks obvious, thus, that when a hospital has finances as its primary focus, that focus can radically alter what is perceived to be in the best interests of its patients. Death is that which is in the best interests of a patient only if no other alternatives are viable.

This St. Hippocrates’ policy is wrong. When financial objectives come before the best interests of patients, then medicine has slipped beyond the moral demands of the first propositions with which this essay began (in the review, propositions 1 and 2). How can financial profit be more than a trivial concern, morally speaking, compared to a patient’s life? If it is in the hospital’s power to prevent a great harm without giving up something of comparable moral value, then the hospital ought to do it. To let someone die just because they cannot pay (especially when the means are there to save her) cannot be justified.

But wait, you may reply. There are justifications. The young girl does not have a right to what she cannot pay for. Hospital services are private enterprises involved with private property and a non-paying patient has no right to them. Restaurants are not required to feed the starving who cannot pay for the food. Likewise, hospitals should not be required to treat the indigent sick. Private property is exactly that, private; others do not have a right to it, though it may do them great good.

It is true that St. Hippocrates has a right to do what it wishes with its property and enterprise. It is also true that a non-paying patient has no right to hospital services beyond preliminary stabilization. However, I contend that the hospital’s exercising its right to withhold services for financial reasons is morally the same as Harry’s action of throwing the widow and her child out in the could because she cannot pay; exercising one’s right may not be the right action to do.

You may reply in exasperation: Look, regardless of whether or not the non-paying patient has a right to hospital treatment, if the hospital were to give away its services, it would be out of business in no time flat and then there would be no services at all –a far worse consequence. Better to have hospitals and treat those who can pay than to try to save all and eventually save none.

A number of responses may be given to this “doomsday reply.” First, the claim is an empirical one. It is not altogether obvious that gross misuse of medical services would occur. The problem may not be one of misuse, but supply and demand in a socialized medical system. Further, should there be misuse, that can be reduced to a degree by education of the participating population. To some extent, this is what HMO’s and insurance agencies are doing already. Secondly, it may be that the medical and insurance institutions are partially to blame for some of the cost problems. Perhaps, today’s elevated medical costs are not reflections of real market prices as much as historical reflections of a tradition of payment by government and insurance companies to whatever was demanded by the medical providers. It also could be plain old bad accounting and poor management of labor and equipment. So, the case may be that the poor do have some claim on hospital services because they have been subject to unfair pricing in the medical market.

Let me get upfront and personal. Suppose that we know that private hospitals will fail if the poor have open access to them. Even in this case, there is an argument showing that the hospital policy of turning away the poor to die is morally wrong, though financially expedient. It is wrong because it forces those persons (medical staff) in the ER and hospital administration who have to implement the policy to choose between turning patients away to die or killing them right there in the ER. Let me explain by way of example.

Suppose that there are children in your neighborhood who are being severely mistreated. The children, bruised, battered and hungry, come to your back door one evening and plead for help from you. Helping them, you realize, will involve a real hassle: police, social workers, maybe having to take them in for a few days. And continued problems once you get to know them better. Clearly, they do not have a right or claim to your help and resources. Your life will change not for the better in terms of ease of living. But, could you look them in the eyes, tell them that they have no right to your help and then send them away, or at least to point them in the direction of your neighbor. I don’t think so. There is something about personal contact that brings weight to a situation and obligations involved. You would be a real villain.

Now back to the hospital. On paper, “looking at the bottom line,” the turn away policy may seem workable; money is saved. But, in actuality, when an ER physician has to look into the eyes of his/her patient whom he has just treated and then send them away to die when they could be treated (or more humane, killing them painlessly in the ER) –when that happens, there is a moral surge of compassion and empathy that cannot be overlooked. I cannot imagine physicians who care for their patients doing that. The psychological damage done would be soul rending. So, the point to be made is that by the reciprocity principle, we should never place persons in a position we would not be willing to be in ourselves. I would never will to be subject to a policy which would force me to do such things to my patients were I a physician, administrator or simply a stockholder in a medical institution. Accordingly, it would be wrong for me to institute the policy for others to have to obey with their patients. Perhaps, today, the times have hardened the hearts and judgments of medical staff so that they are calloused to the situation. But, I doubt it. That is why I would never be a physician or hospital administrator. It’s hard enough to lose patients in spite of your best efforts. It’s crushing to be forced to lose them for no good reason and to realize that rather than a physician or team member of a health/life saving organization, one is a murderer.

Section VIII: Some Legal Implications.

An argument can be developed to show that criminal charges can be made against a hospital which refuses to admit patients from its ER when the patients cannot pay. Consider the following brief.

Under the law, causation is an important factor in considering blameworthiness for harm. The general principle involved is that people are liable for the harm they cause. (5) If I hit you with my car by accident, I am liable for property damages. If I hit you through misconduct, I am also culpable of criminal charges. (6) What if of interest to us in the St. Hippocrates case is to determine whether or not the refusal to provide services which leads to the death of a patient who cannot pay for the services constitutes causing harm. I shall argue in the affirmative, but let us review first the other side of the coin.

The argument runs like this.

A patient is admitted to St. Hippocrates' ER with a critical illness, an illness in no way caused by the hospital. The patient is stabilized, then transferred to another hospital, even though Hippocrates has the means to continue treatment which could provide benefit. Shortly after the transfer, the patient dies of the disease and complications. In one sense, the hospital cannot be held blameworthy of the death of the patient, for it did not initiate the cause of the illness; the patient died from a disease agent. There was no misfeasance or "active misconduct working positive injury to others." At the mostthere is nonfeasance, "passive inaction or a failure to take steps to protect him from harm,"7 but this nonfeasance cannot serve as the basis for liability for causation is not present.

My case is this: I shall show that the hospital's refusing treatment is not a nonfeasance, but misfeasance. Two points: 1) the fact that the hospital admitted the patient and gave preliminary treatment indicates it intermeddled with the causes; 2) a hospital stands in a special relationship to the community by being the exclusive source of expert treatment for medical problems.

About point 1. There are cases of misfeasance classified as negligent ommissions. In prosecuting such cases, the crucial factor is to show that "...the defendant had started upon the undertaking, so that his negligent omission, which let in the damage, could be connected with his acts as a part of his dealing with the thing."8

The matter of not doing anything with respect to the law is clear. “Although a man has a perfect right to stand by and see his neighbor’s property destroyed, or …to watch his neighbor perish for want of his help, yet if he once intermeddles, he no longer has the same freedom. …the sme reasoning applies to civil liability. A carpenter need not go to work upon another man’s house at all, but if he accepts the other’s confidence and intermeddles, he cannot stop at will and leave the roof open to the weather. …the immediate occasion of the damage…may have been a mere omission letting in the operation of natural forces. But, if you connect it…with the previous dealings, you have a course of action and conduct which, taken as a whole, has caused or occasioned the harm.”9

Thus, once one intermeddles with the process of an event, he affects the causes of the process and can be held liable for damages related to his intervention. The fact of intervention changes the situation; there is a new causal process which is brought about by the intervention. Let’s take a look at a fictitious example for clarity. Suppose that you are walking alongside a cliff, slip and fall to the edge where, by fortune, there is a small shrub which you grab and cling to. The shrub keeps you from falling immediately, but slowly the roots begin to break away and you realize that before too long yoy will fall to your death. The path upon which you were walking is frequented mostly by experienced rock climbers and I, one of the best, happen along and hear you cry for help. I have a rock hammer and pin which I lower to you on a string. You hammer the pin into the ground thus stabilizing your immediate crisis. I have a new rope and tackle with me and inform you that I will save you for a substantial fee. You respond that you cannot pay that amount, but beg me for help. Hearing that, I walk off and leave you to fall to your death more sooner than later.

From a moral perspective, there is no problem in assigning my blameworthiness; I failed to rescue and let you fall to your death when I could easily have saved you. You have no right to my help(though this point is debatable), but there is no question that I should help you. And, let us say that the number of times that I would come across someone like you is not large; I would not be forced into the position of becoming a moral saint trying to save everyone who traversed the path and fell. But, from a legal perspective, had I not intermeddled by giving you the hammer and pin, I would have only committed a nonfeasance –a passive inaction neither causing your harm nor intermeddling and becoming a part of those causal processes. However, having intermeddled, I changed the situation and causal processes. You fall not only from the shrub, but from my rock pin. I have introduced a causal factor in your death’s occurring and, most especially, not being prevented. Consequently, I am liable for harm done to you, not because I am responsible for the proximate causes which produced the critical situation, but because in dealing with that situation, I became a sufficient condition by which it could be resolved. My failure to rescue, caused by me, is an integral part of the new causal processes by which you are not saved and die.

Let me modify the above example somewhat to demonstrate the second point about special relationships. Suppose that the path from which you fell is walked by many average Joe persons, not by many rock climbers. I, however, like the path and frequent it often. In fact, I am the only expert rock climber who traverses the path, and thus, is the only person in the area who can save persons in situations such as yours. Further, I make it my business to save those persons who get themselves into trouble either through fault of their own or by plain old bad luck. Everyone knows what I do, knows about my expertise and has expectations with respect to my services. Everything happens as before, except one other condition –you are my son.

On trial, the district attorney has charged me with manslaughter for failure to rescue my son. His case before a jury emphasizes not only my expertise as a rock climber, my associated life-saving business, but also the further special relationship or responsibility that I have to my son. Tort law does not apply here, but criminal law does. I have neglected my responsibility to my son, which responsibility is recognized precisely by that relationship. I cannot imagine a jury not finding me guilty on a tacit breech of contract with respect to my services. But, the clincher is the special relationship between a father and son. That special relationship goes beyond contracts involving money for services.

I think that a hospital stands in an analogous special relationship to its community which it serves. It is the only provider of expert medical care in most situations. People in the community look to hospitals for help in the same way that an injured child would seek his parents for help. Hospitals are more than mere medical enterprises just as parents are more than providers of room and board. It is this special relationship which hospitals default on when they demand payment for care from those who cannot pay and then turn them away. And it is this special relationship along with the intermeddling factor which provide sufficient grounds for a jury’s finding a hospital culpable of criminal neglect when it turns away indigent patients to die.

To summarize as would a prosecuting attorney in a jury trial: 1) though the hospital is (usually) not the cause of a person’s illness, once it intermeddles (through any kind of treatment whatever) with the patient’s condition, it becomes a causal factor in the patient’s life not being saved should treatment be withheld. Those who intentionally cause injury and suffering should pay for their actions. 2) The hospital stands to its community in a special relationship that goes deeper than a business contract. A hospital which demands payment for services of a traumatized patient stands on the brink of the most terrible kind of extortion imaginable. Take me to the next section