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Wiser Than the Laws?: The Legal Accountability of The Medical Profession

Published online by Cambridge University Press:  24 February 2021

Jay Alexander Gold
Jay Alexander Gold*
Affiliation:
New York University; Harvard University; Texas A & M University.
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Abstract

This Article argues that many seemingly disparate questions in health law are related to the issue of how experts are to be held accountable to nonexperts—show the principle that decisions should be made by those most affected is to be reconciled with the principle that decisions should be made by those with experience and training in the area. The basic subject matter of health law comprises a number of relationships between medical professionals, on the one hand, and laymen, on the other. In dealing with the proper allocation of decision-making authority within these relationships, the Article considers the social role of medical profession, the theoretical issues in the accountability of expertise, and the nature of medical expertise. On the basis of this discussion, the Article develops principles that can be applied throughout health law.

Whenever anyone appears to be investigating … medicine contrary to the written regulations, … any one of the citizens who wishes may indict him in court, on the ground that he … persuades young men to practice medicine in an illegal way, to practice on their own authority …. For no one ought to be wiser than the laws.

Plato, The Statesman

Type
Articles
Information
American Journal of Law & Medicine , Volume 7 , Issue 2 , Summer 1981 , pp. 145 - 181
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1981

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References

1 Helling v. Carey, 83 Wash. 2d 514, 519 P.2d 981 (1974).

2 Lane v. Candura, 78 Mass. App. Ct. Adv. Sh. 588, 376 N.E.2d 1232 (1978).

3 Leaf, The MGH Trustees Say No to Heart Transplants, 302 New England J. Med. 1087 (1980).

4 People v. Privitera, 141 Cal. Rptr. 764 (1978), vacated, 23 Cal. 3d 697, 591 P.2d 919, 153 Cal. Rptr. 431 (1979).

5 Gold, The Biosphere and the Circle of Learning, 5 AM. J.L. & Med. 145, 152-53 (1979) (citations omitted).

6 See, e.g., Texas Stat. Ann. tit. 71, art. 4445, § 1 (Vernon 1975), which requires physicians to report all diagnoses or treatments of venereal disease to a local health officer.

7 In the event that a medical staff is considered an independent entity to any extent (as it was in St. John's Hosp. Medical Staff v. St. John Regional Medical Center, 245 N.W.2d 472 (S.D. 1976) and in Corleto v. Shore Memorial Hosp., 350 A.2d 534 (N.J. Super. Ct. 1975), the physician who belongs to the staff may have duties to it that are independent of those owed to the institution.

8 See A. Southwick, The Law of Hospital and Health Care Administration, 378 (1978).

9 In the case of a corporate employee, a corporation may also be vicariously liable for the employee's negligent act. Id. at 411.

10 An employee is an agent or servant whose employer has the right to control the methods of the employee's work. An independent contractor, on the other hand, retains the right to control the methods of his own work; his employer has the right to control only the final results of his work. Id. at 378.

11 Id. at 411; see also Willcox, Hospitals and the Corporate Practice of Medicine, 45 Cornell L.Q. 432, 445 (1960).

12 A physician must be qualified as an expert witness. Where the physician is testifying, on the basis of personal knowledge, he is not treated any differently from any other person as a witness. An expert witness is bound neither by the nonopinion rule, which in fact binds lay witnesses in fewer and fewer jurisdictions, nor the hearsay rule, which would otherwise prohibit the use of hypothetical questions.

13 As used in this paper, the term “democratic principle” covers an unusually broad range, including individual autonomy, corporate accountability, and the regulation of private interests by public representatives. There are major differences between the individual and collective aspects of “democracy,” but there are also similarities that are often overlooked. These similarities are best seen by examining the uses of the concept of consent. The definition of a battery as a touching to which the person touched has not consented reflects the individual aspects. The collective ones are seen in the Declaration of Independence's statement that governments derive their just powers from the consent of the governed. We may go further and say that the governed express their consent primarily through the franchise, and that elected officials, and those appointed by them, make the consent of the governed operative throughout society through regulation. The democratic principle, then, refers to the gamut of relationships in which people, individually or in the aggregate, must give their consent to certain actions in order for the actions to be legitimate. Thus, for example, the right of a patient not to be operated upon unless he has given a knowing consent to the operation is a corollary of the democratic principle. covers an unusually broad range, including individual autonomy, corporate accountability, and the regulation of private interests by public representatives. There are major differences between the individual and collective aspects of “democracy,” but there are also similarities that are often overlooked. These similarities are best seen by examining the uses of the concept of consent. The definition of a battery as a touching to which the person touched has not consented reflects the individual aspects. The collective ones are seen in the Declaration of Independence's statement that governments derive their just powers from the consent of the governed. We may go further and say that the governed express their consent primarily through the franchise, and that elected officials, and those appointed by them, make the consent of the governed operative throughout society through regulation. The democratic principle, then, refers to the gamut of relationships in which people, individually or in the aggregate, must give their consent to certain actions in order for the actions to be legitimate. Thus, for example, the right of a patient not to be operated upon unless he has given a knowing consent to the operation is a corollary of the democratic principle.

14 Of course, an individual's right to make the decisions that affect him is qualified by the power of the majority to restrict his choice (for example, regarding drug use or suicide). Unless the individual has a legal right to make a particular choice, he must abide by the decision of society.

15 Parsons, Introduction to M. Weber, The Theory of Social and Economic Organization 59 n.4 (T. Parsons ed., A. Henderson & T., Parsons trans. 1947).

16 Id. Two factors make medicine an ideal example of technical authority. First, more than any of the other traditional professions, medicine has managed to achieve a scientific basis, in a “society in which experimental science is viewed as the most reliable means of obtaining knowledge. Thus, the knowledge possessed by physicians is more apt to be viewed as “genuine” than that of lawyers (often viewed as mere sophistry) or of clergymen (often viewed as mere superstition). Second, life and health have a predominant value in our society, and the authority of the profession that deals with health, illness, and the preservation of life is thus apt to be given greater recognition than is the authority of other professions.

Parsons refers to the second kind of authority as legal in nature. This needs some elaboration. The law is set forth in constitutions duly ratified, in statutes duly enacted, in court decisions duly rendered, and in regulations duly promulgated. In all four cases, the authority to make law exists solely by virtue of the office held. Only a delegate to a constitutional convention, or a member of a state legislature, can ratify a constitution. (An analogous statement could be made about amending a constitution.) Only an elected legislature can pass a statute, and only an elected executive can sign one. Only an elected or an appointed judge can rule on a matter of common law or of statutory interpretation. Only an elected or an appointed member of the executive branch can issue legally binding regulations. In no case does anyone believe that the authority of a law is due primarily to the technical competence of those who made it. Had they not been elected or appointed, their competence would be the same, but their pronouncements would not have the force of law. Rather, the principal source of legal authority is the office itself, the office that the maker of the law legitimately holds. It is true that Weber and Parsons were concerned more with what in common parlance are called “administrative positions” (corporation treasurer, for example) than with “legal offices” established by a constitution or a statute. In their sense, the authority of a corporate officer-is based upon “legal competence” in lay the same way as is that of a political official—or, for that matter, that of a “person” under the law. The rights and duties of each depend upon the legal status of each, to the exclusion of any consideration of special competence. This is true despite the enormous differences in the legal accountability of public officials and of corporate officers.

17 Under the Constitution of the United States, officeholders wield whatever authority and power are vested in their office by the Constitution. Neither the authority nor the power belongs to them personally, but rather to the office they hold. They exercise it only as officeholders. Their exercise of it is subject, even concurrently with that exercise, to such critical inspection and control by the people as will not render them impotent for the performance of their designated instrumental functions. In addition, they are liable to impeachment and removal from office when they exceed the constitutional authority vested in their office or usurp powers not allotted to them, as well as when they commit other high crimes and misdemeanors. A constitutional government is thus a government of laws in the sense that no man is above the law and no man has political authority or legitimate power except that which is conferred upon him by the people who govern themselves through the services of their political, instruments—public officials or officeholders.

M. Adler & W. Gorman, The American Testament 134-35 (1975).

18 At this point, it seems proper to consider two mechanisms that may be thought to create accountability for the medical profession. The first, the free market system, is inapplicable to the regulation of medicine. The second, self-regulation by the profession, is essential but weighted towards the professional principle.

The free market system does not function properly when there are significant differences in bargaining power between parties. The physician's specialized knowledge creates this type of disparity between physicians and laymen. Often a patient does not know that he has a health problem until a physician tells him; the physician also must tell him when he is cured. With no controls at all, it would be possible for those with expert knowledge to mercilessly exploit those without it, and there would be no recourse for the latter but to seek another expert who might be equally self-serving.

Expert accountability to laymen, whether the laymen are conceived as individuals or as a collective, requires that those without knowledge have authority; over those with knowledge. It is suggested, therefore, that the public is best served by having experts answerable to their peers. I believe that this is a necessary, if insufficient, element of professional regulation. A system whereby experts must account to their peers constitutes a check upon the individual autonomy of the expert, though not upon that of the profession as a whole, which theoretically may promulgate and enforce standards without any responsibility to the lay public. The requirement that an expert be accountable to his professional peers helps maintain standards, because it forces him to think through his actions. Since the expert would be accountable to his peers, he would expect, even if potential penalties were small, that his work would be reviewed by those most able to recognize his mistakes.

The insufficiency of self-regulation as an accountability mechanism lies in the fact that laymen themselves are not given a say in the decision making. This contravenes the democratic principle. There must be some link between laymen and the experts who are regulating themselves.

19 The doctrine was enunciated briefly in Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 154 Cal. App. 2d 560, 578, 317 P.2d 170, 181 (1957), and at greater length in Natanson v. Kline, 186 Kan. 393, 410, 350 P.2d 1093, 1106 (1960). It has since been adopted by case law and by statute in many jurisdictions. See, e.g., J. Ludlam, Informed Consent (1978); A. Rosoff, Informed Consent (1981).

20 See, e.g., Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972); Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972); Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972). \

21 The doctrine was first suggested in Smith, Therapeutic Privilege to Withhold Specific Diagnosis from Patient Sick with Serious or Fatal Illness, 19 Tenn. L. Rev. 349 (1946). It is rarely invoked.

22 Restatement (Second) of Torts § 299a (1965).

23 W. Prosser, Law of Torts 164, § 321 (4th ed. 1971).

24 83 Wash. 2d 514, 519 P.2d 981 (1974). The Helling doctrine-was affirmed in Gates v. Jensen, 92 Wash. 2d 246, 595 P.2d 919 (1979), after the Washington legislature passed a law designed to overrule it.

25 Still another doctrine—res ipsa loquitur—which permits a jury to find negligence without expert testimony or a violation of custom, rests in part on the democratic principle. The very point of this doctrine, however, is that the case speaks for itself, thus not requiring professional evaluation.

26 See Wash. Rev. Code § 4.24.290 (1975).

27 Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92 (1914).

28 This belief still governs courts to some extent. See, e.g., James v. Jane, 267 S.E.2d 108, 112 (Va. 1980).

30 Kan. Stat. Ann. § 77-202 (1970). The statute seemingly adopts the professional principle, since it provides no specific medical criteria. It was upheld in State v. Shaffer, 574 P.2d 205 (1977), against a challenge to its constitutionality that contended, inter alia, that in failing to spell out the criteria the statute is impermissibly vague.

31 A statute adopted in France in 1968 stated that death is considered to have taken place where there has been a flat electroencephelograph for a period of ten minutes. D. Myers, The Human Body and the Law: A Medicolecal Study 113 (1970).

32 The allocation of authority to decide whether an abortion is appropriate is one example in which the primary area of conflict has been within the “democratic principle,” and not between the two principles. The individual's right to make personal decisions conflicts with the majority's usual right to bind the entire community by its decisions. Insofar as statutes attempt to implement majority will by defining when life begins (for example, the current S. 158), or by enumerating specific circumstances in which physicians may perform abortions, however, the democratic principle is being asserted against the standards of the profession or the professional judgment of individual physicians.

33 Plato, The Statesman 297 a (author's translation).

34 M. Miller, The Philosopher in Plato'S Statesman 97 (1980).

35 Plato, supra note 33, at 298 a-c. Miller, commenting on this passage, asks:

Is it reasonable for those without art to interpret whether a doctor's “burning” is good surgery or torture … ? The suspicion casts doubt on whether the doctor or captain is really a man of art; and once there is this doubt, it becomes impossible and absurd to defer to them for the right interpretation. But then where shall one turn? This makes the next step, however odd, inevitable.

Miller, supra note 34.

36 Plato, supra note 33, at 299 b.d.

37 “Young” Socrates is not the Socrates who was Plato's mentor.

38 Plato, supra note 33, at 299 e.

39 This deference to the judgment of professionals does not take into consideration the possibility of abuse of discretion by physicians.

40 Like Plato, Aristotle comments on physicians in a discussion whose primary focus is political: specifically, how officials should be chosen.

41 Aristotle, The Politics III vi. 8-10 (H. Rackham tr. 1932) (revised by this author).

42 This point, however, must be modified when applied to medicine. A patient can judge whether treatment makes him feel better, but may not be able to judge his state of health as accurately as the physician. One who has studied medicine and has examined many patients has a context in which he can place the complaints of a particular patient; he can evaluate laboratory data that would be meaningless to the patient, and thus, in many ways, he is a better judge of the physical condition of the patient than is the patient himself.

Economist Kenneth J. Arrow goes so far as to say that “[w]ith respect to diagnosis and treatment of illnesses, the physician is expected to know more about a patient than the patient does himself.” Arrow, Government Decision Making and the Preciousness of Life, in Ethics of Health Care 33, 36 (L. Tancredi ed. 1974).

43 There seems to be no truth in the analogy which argues from the arts that it is a bad thing to doctor oneself by book, but preferable to employ the experts in the arts. For they never act contrary to principle from the motives of friendship, but earn their fee when (for instance) they have cured their patients, whereas holders of political office usually do many things out of spite and to win favour; since when people suspect even the physicians of being in the confidence of their enemies and of trying to make away with them for gain, in that case they would sooner look up the treatment in the books. Yet certainly physicians themselves call in other physicians to treat them when they are ill … believing that they are unable to judge truly because they are judging about their own cases and when they are under the influence of feeling.

Aristotle, The Politics, supra note 41, at III xi. 5-6.

44 Id.

45 I. Illich, Medical Nemesis 172 (1976).

48 Bishop, Book Review, Saturday Review, Mar. 1, 1976 at 28, calls Illich's statement “outright fantasy.“

47 Illich would respond that:

These objections are all valid if raised within a society in which consumer expectations shape attitudes to service in which medical resources are carefully packaged for hospital use and in which the mythology of medical efficiency prevails. They would hardly be valid in a world that aimed at the effective pursuit of personal goals that an austere use of technology had put within the range of almost everyone.

I. Illich, supra note 45, at 173.

48 Some writers come close. Sade, Medical Care as a Right: A Refutation, 285 New England J. Med. 1288 (1971) opposes any legal interference with a physician's “best judgment,” but does so on the basis of a general theory of human rights that is not relevant here. McGee, To Hell With All Those Laws—Let's Be Good Doctors!, Med. Econ., Jan. 26, 1976, at 92, lives up to his title, but fails to support his position with any reasons worth analyzing. Ingelfinger, Arrogance, 303 New England J. Med. 1507 (1980), is insufficiently authoritarian for present purposes.

49 The profession, we must remember, gains special occupational autonomy on the basis of its claim that its work is guided by knowledge too esoteric and complex for the layman to even evaluate, let alone share, that the knowledge guiding its work is as systematic and reliable (scientific) as the age permits, and finally, that the knowledge is schooled, stemming from a long period of training through which every practitioner goes.

E. Freidson, Profession of Medicine: A Study of the Sociology of Applied Knowledge 341 (1970).

50 A summary reported in A. Rosoff, Informed Consent 357-58 (1981) found that the physicians canvassed believed that only 15-16% of their patients failed to comprehend the basic information disclosed when it was adequately explained. The studies typically cited to show that many patients or research subjects do not comprehend what is communicated to.them tend to be equally open to the interpretation that the researchers or physicians failed to take adequate steps to communicate. See, e.g., B., Gray, Human Subjects in Medical Experimentation: A Sociological Study of the Conduct and Regulation of Clinical Research 67, 114 (1975).Google Scholar

51 One federal court has stated that “experience demonstrates that juries are capable of sorting out complex factual issues and applying the law to them.” In re U.S. Financial Securities Litigation, 609 F.2d 411, 431 (1979) (citing R. Pound, American Trial Lawyers Foundation, The American Jury System 19 (1977), Final Report of the (1977) Annual Chief Justice Earl Warren Conference on Advocacy in the United States).

52 Gold, Book Review, 6 Am. J.L. Med. 217-18 n.23 (1980).

53 Curran, , Present at the Creation: Health Planning and the Inevitable Reorganization, I Health Care Management Rev. 33, 37, 42 (1976).Google Scholar

54 Curran, Problems of Establishing a Standard of Care, in University of Michican, Medical Malpractice 15, 17 (1966).

55 Curran, , Ethical Issues in Short Term and Long Term Psychiatric Research, in Medical, Moral and Legal Issues in Mental Health Care 18, 24 (F., Ayd ed. 1974).Google Scholar

56 Curran, , Medical-Staff Privileges in Private Hospitals: Can Modern Hospitals Exclude Uncooperative Applicants?, 304 New England J. Med. 589 (1981).CrossRefGoogle ScholarPubMed

57 Curran was referring specifically to the California Supreme Court, and also cited Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972) (a physician's duty to disclose the risks of and the alternatives to complex medical procedures is measured, not by the practice of physicians in good standing within the medical community, but rather by whether the information would be material to the patient's decision); Landeros v. Flood, 17 Cal. 3d 399, 551 P.2d 389, 131 Cal. Rptr. 69 (1976) (a physician who fails to diagnose “battered child syndrome” may be liable for damages sustained by the child after being returned to her mother's custody); Truman v. Thomas, 27 Cal.- 3d 285, 611 P.2d 902, 165 Cal. Rptr. 308 (1980) (a physician who fails to warn his patient of the risks inherent in the patient's refusal to submit to a recommended diagnostic test is liable for injuries resulting from such refusal if a reasonably prudent patient would not have refused the test had he been adequately informed); Miller v. Eisenhower Hospital, 27 Cal. 3d 614, 614 P.2d 258, 166 Cal. Rptr. 826 (1980) (the bylaw of a private hospital that authorized exclusion from staff membership solely on the basis of a physician's “ability to work with others” entails showing that an applicant's lack of such ability presents a real and substantial danger that his patients might receive other than a high quality of medical care). Justice Mosk of the California Supreme Court, who wrote a number of the above opinions, himself approached Curran's general position when, dissenting in a case that Curran could easily have added to his list, he accused the majority of “substitutpng] judicial rather than professional determination of professional qualifications” in extending the common law right of “fair procedure” (due process) to a surgical resident who was dismissed from the residency program of a priyate teaching hospital. Ezekial v. Winkley, 20 Cal. 3d 267, 280, 572 P.2d 32, 40, 142 Cal. Rptr. 418, 426 (1977). This author, however, has criticized Curran's application of the professional principle to expert witness-jury relations. Gold, supra note 52 (reviewing Modern Legal Medicine, Psychiatry, and Forensic Science (W. Curran, A. McGarry & C. Petty eds. 1980)).

58 13 Cal. 3d 177, 529 P.2d 553, 118 Cal. Rptr. 129 (1974), afj'd on rehearing, 17 Cal. 3d 342, 551 P.2d 334, 131 Cal. Rptr. 14 (1976).

59 “If that collective force, the State, is to be the liberator of the individual, it has itself need of some counterbalance; it must be restrained by other collective forces, that is, by … secondary groups … . “ E. Durkheim, Professional Ethics and Civic Morals 62 (C. Brookfield tr. 1958).

60 See note 14 supra.

61 The distinction between society. and state “is in fact and theory negligible; the political community is and should be charged with responsibility for the common good … ; although associations may be formed for purposes contributing to the common good, the political community is entitled to hold these associations to their purposes.” R. Hutchins, Two Faces of Federalism 9-10 (1961). The medical profession may be considered one of these associations. It should be noted that Hutchins wisely balances this viewpoint with a theory of limited government.

62 [P]eople often need to ask others to perform some task for them which ordinarily they would perform for themselves. This replacement is a kind of representation, and “representation itself is a matter of daily occurrence, and common necessity.” As the “vicarious performance” of tasks that “cannot be personally exercised,” it intervenes in commerce, in jurisprudence, in education, and in a thousand other forms. In a multitude of circumstances people are compelled to place themselves or their interests in the hands of others.

” … One person cannot be wise in all matters … . “

It is thus essentially a matter of the division of labor in society, and the more advanced and complex society becomes, the more need exists for representation. “An engineer represents his clients in his work, as does a doctor his patients.“

H. Pitkin, The Concept of Representation 134-35 (1967) (citations omitted). Pitkin ultimately dismisses this viewpoint on the basis of ordinary language. “Theorists may tell us a physician is the agent of his patient,’ but do we ever have cause to say, ‘the patient cured himself by the agency of Dr. Smith? It seems fairly evident that this is not our usual account of medical services.” Id. at 139. This conclusion is unpersuasive. All it proves is that there-are some differences between the representation of a patient by a physician and some other kinds of agency, not that the notion of representation is illegitimate in this context.

63 J ., Keynes, The End of Laissez-Faire 41 (1927).Google Scholar

64 id. It is likely that the will of the people is better expressed through a legislative body than through the courts. However, as Tocqueville pointed out, the tendency in the United States is to make legal questions of political ones. A. De Tocqueville, Democracy in America 270 (G. Lawrence tr. 1966). The accountability of judicial officers may be inadequate, but—since they are chosen by public election or by the public's elected representatives—they are in a better position to speak for the public than is someone who is simply the member of a profession.

65 J. Mill, Considerations on Representative Government 114 (3d ed. 1865).

66 See note 86 infra.

67 At least four distinct elements of the content of professional work may be. distinguished and examined for their characteristics. First, it seems well to distinguish basic concepts or theoretical assumptions from empirical knowledge and technique, assumptions which are similar to what Kuhn called “paradigms.” In medicine, I would suspect that the most important example of this dimension is the etiological notion of disease, today largely based on the germ theory. Second, there is the selective attention implied by professional notions of pathology which lead to the designation of some human states as “diseases” but not others. If there is a theory or paradigm underlying such selective evaluation, it is not etiological like the germ theory, nor is it a theory of disease so much as a moral theory of health, normality,, optimal performance, or some other ideal.. Third, given the general theory guiding the activity, medicine consists of a large and complex body of knowledge about the empirical chemical, physical, and other characteristics of those states chosen to be illnesses, as well as about empirical techniques by which those states may be arrested; cured, repaired, removed, or improved. Such knowledge, in conjunction with its directing concepts and theories, however, still does not exhaust the dimensions of the content of medical work. A fourth dimension is composed of those occupational usages which are sometimes - called techniques of management rather than techniques of treatment. They may also be called the rules determining how knowledge and technique are put into practice or applied. In order to apply “purely” technical knowledge to practical affairs, one must engage in social as well as merely technical activity. The technical activity itself becomes social in that it has social meaning, is embodied in social relationships, and has social consequences for the members of that relationship.

E. Freidson, supra note 49, at 340-41

68 Id. at 342.

69 Id. at 341-42.

70 Id. at 343.

71 The debate over the proper treatment for breast cancer is an obvious example. See, e.g., Crile, Management of Breast Cancer: Limited Mastectomy, 230 J.A.M.A. 95 (1974); Anglem, Management of Breast Cancer: Radical Mastectomy, 230 J.A.M.A. 99 (1974).

72 Second Opinions Found to Differ 30% of Time, Am. Med. News, Jan.,25, 1980, at 6, col. 3.

73 See Crile, supra note 71.

74 See M. Eisenberg, Ulcers (1978).

75 E. Freidsen, supra note 49, at 342.

76 See note 88 infra.

77 This example assumes that the obesity did not result from an underlying pathological cause. If such a cause existed, obesity would be a symptom of the underlying condition rather than a separate medical problem.

78 E. Freidson, supra note 49, at 343.

79 Id.

80 Id. at 336. In an essay on Plato, Renford Bambrough also discussed the role of expertise in serving ends. Bambrough's primary purpose in this passage is to explain a flaw in Plato's analogy of statesmen to physicians. In doing so, however, he suggests that expertise by nature consists of implementing predefined ends; otherwise, there is no standard of success against which to judge expertise.

It is undeniable that the medical man speaks with authority in his special field: but there are no agreed standards of spiritual health as there are of physical health, and the absence of such standards, which is Plato's main reason for pressing the analogy between, morals and medicine, is a strong reason against accepting the analogy. In the absence of agreed standards, a dispute about a^moral question will not be settled by an appeal to experts. Similarly, there are objective criteria for judging shoes and ships and pruning-knives, because shoes and ships and pruning-knives are designed to serve known and agreed purposes. Plato's enemies point out that there are no such agreed ends or purposes to which men and affairs are to be manipulated. The art of looking after sheep operates on wellagreed principles because the object of looking after sheep is well-agreed. The shepherd of men has a much less docile and tractable flock. His sheep are competent and are entitled to be consulted about his aims and methods … . Plato's search for an art, skill or science which would be prescriptive, concerned with choosing ends and not with serving them, is bound to end in failure; not because men are wicked and stupid and ill-informed, but because anything which - can properly be called a skill or technique will by its very nature be instrumental and not prescriptive. The choice of the purposes that a technique is to serve will always lie outside the scope of the technique itself.

Bambrough, Plato's Modern Friends and Enemies, 37 Philosophy 97, 106 (1962). Thus, it is often argued that since the technical knowledge of an expert is not a tool that can be used to choose a purpose, but only to implement one, nonprofessionals should choose ends and professionals should further them.

81 The Philosophy of Aristotle 34-35 (R. Bambrough ed. 1963).

82 Owens, , Aristotelian Ethics, Medicine, and the Changing Nature of Man in Philosophical Medical Ethics: Its Nature And Significance 127, 128 (S., Spicker & H., Engelhardt eds.,1977).Google Scholar

83 Similar problems of application inhere in other proposed allocations of decisionmaking authority. For example, one suggestion is that laymen should determine broad principles of action, while the experts should decide narrower questions, facts, and details. See Wexler, , Expert and Lay Participation in Decision Making, in Participation in Politics: Nomos XVI 186 (J., Pennock & J ., Chapman eds. 1974);Google Scholar Wildavsky, Richer is Safer, Pub. Interest 23, 34 (Summer 1980). But there are always problems within problems, and a given individual or group may feel very strongly about an issue that is relatively narrow.

84 Even if it were possible to separate technical from nontechnical decisions, a rigid separation of function between professional and nonprofessional on this basis would disregard,. the fact that an expert's knowledge may aid the layman in choosing among alternative purposes or principles.

Stephen Wexler has made a good list of ways in which experts can help us decide complex questions. Wexler, supra note 83. (1) They can clarify difficult simplex questions underlying the complex question. (Wexler defines “simplex questions” as “those in which all relevant factors can be measured in the same units,” as opposed to complex questions, whose factors cannot be so measured. Id. at 187-88). (2) They can provide us with their experience of other people making similar decisions or their access to statistics. (3) They can point out relevant factors that we have neglected. (4) They can help us realize how difficult the complex question is.

Wexler prefers that experts limit themselves to providing information. The approach of this Article would treat people as experts only when the issue involved is very like those in their past experience.

85 F. Knight, Intelligence and Democratic Action 165 (1960).

86 See Veatch, Generalization of Expertise, I Hastings Center Stud. 29 (No. 2, 1973). Veatch restricts the phrase to the generalization from scientific/technical expertise to expertise in value judgments, a distinction this author rejected above. However, the concept is useful in the broader sense of generalization from expertise actually possessed to related expertise that is not actually possessed. For example, an ophthalmologist is unlikely to possess expert knowledge of gynecology, even though he has the same M.D. and the same medical license as has every gynecologist.

87 Of course, problems take new forms constantly, and experts are always dealing with constellations of data that are not absolutely identical to those they have seen earlier. But the problems can be more like or less like those in their previous experience. At a certain point, as in the example in the preceding footnote, the issue to be decided is different enough from those the specialist is used to dealing with that he loses the status of expert with regard to that particular issue.

88 jay Katz calls on us

to dissect out those facets of trust and protection from harm which a patient can without question rely on because they belong to the professional expertise of the doctor, and those facets which have nothing to do with trust and more with surrender to the value preferences of another person, albeit a professional. In the light of the variety of treatment modalities available for most medical conditions, and each treatment presenting its particular known and unknown advantages and disadvantages, a physician can rarely without reservations recommend a therapy that is best for his patient and expect his recommendation to be trustingly accepted. How can he, for example, recommend apodictically radical surgery for breast cancer, without first knowing whether prospects of ten to twenty year survival, statistics which look so attractive in medical journals, mean as much to his patient as keeping her attractive breasts surgically intact? The decision in favor of one breast cancer treatment over another is never a purely medical judgment; instead it represents a combination of medical, emotional, aesthetic, religious, philosophical, social, interpersonal and personal judgments. Thus, the question of which of these v component judgments belong to the physician and which to the patient? Moreover, physicians themselves have preferences about which they often violently disagree, not to speak of the fact that patients and doctors may not necessarily share the same preferences.

Katz, Acknowledging Uncertainty: Its Impact on Physicians and Patients (Apr. 16, 1981) (unpublished Samuel Belkin Memorial Lecture, Albert Einstein College of Medicine) at 37-38. It should be added that elsewhere in the same lecture Katz shows his full realization that the component judgments cannot be dichotomized into physician's and patient's, but rather that all elements should be part of the physician-patient dialogue. Id. at 17.

89 This is not to say that science is necessarily more objective than other forms of knowledge. The issue here is not objectivity per se. The scientific method has been more successful in controlling for bias than have other ways of obtaining knowledge, and scientific agreement is therefore less likely to be the result of collective bias.

90 A patient, for example, may strongly prefer a metal scalpel to a laser scalpel. The only strict limitation in this instance is that no one should be able to delegate the decision-making authority of another, provided that that other is competent to decide for himself.

91 Franz Ingelfinger, late Editor of the New England Journal of Medicine, specifically disagreed, stating that it is best for patients to find a physician whom they trust to make their medical decisions for them. Ingelfinger, Arrogance, 303 New England J. Med. 1507 (1980).

92 Id.

93 See text accompanying note 61 supra.

94 Quaere: Is the decision as to what facts are material one that may properly be delegated to experts? There seems to be no reason why this decision could not be as much a matter of expertise as could any other decision.

95 It should be noted that while this Article deals with the medical profession, its general conclusions apply to the relationships between laymen and all health care professionals, not merely physicians.

96 “[T]he scientist has the same responsibility that any other teacher has.” R. Hutchins, The Political Animal 13 (1962).

97 See text accompanying note 41 supra.

98 78 Mass. App. Ct. Adv. Sh. 588, 376 N.E.2d 1232 (1978).

99 Id. at 590, 376 N.E.2d at 1234.

100 See note 110 infra and accompanying text.

101 See Food and Drug Administration, Laetrile, 42 Fed. Reg. 39,767, 39,771 (Aug. 5, 1977).

102 Cal. Health & Safety Code § 1701.1 (Supp. 1979).

103 People v. Privitera, 74 Cal. App. 3d 936, 141 Cal. Rptr. 764 (1977), rev'd, 23 Cal. 3d 697, 591 P.2d 919, 153 Cal. Rptr. 431, cert, denied, 444 U.S. 949 (1979).

104 23 Cal. 3d 697, 591 P.2d 919, 153 Cal. Rptr. 431, cert, denied, 444 U.S. 949 (1979).

105 The Commissioner of the FDA has found that Laetrile is “not generally recognized by qualified experts as a safe and effective cancer drug.” 42 Fed. Reg. 39,775 (emphasis added).

106 The discussion in the text is based on the following sources: Leaf, supra note 3; Knox, Mass. General: No Heart Transplants Here, 209 Science 574 (1980); Francis H. Burr, Memorandum, Proposed Cardiac Transplant Program, Jan. 30, 1980; Statement of MGH Trustees Regarding Cardiac Transplantation, Feb. 1, 1980. The author is grateful to Francis H. Burr, Esq., for supplying the latter two documents, as well as for participating in a telephone discussion of the matter on October 3, 1980.

107 83 Wash. 2d 514, 519 P.2d 981 (1974).

108 See Dahl v. Wagner, 151 P. 1079 (Wash. 1915); McHugh v. Audet, 72 F. Supp. 394 (D.C. Pa. 1947).

109 See notes 86-87 supra and accompanying text.

110 Ladd, Expert Testimony, 5 Vand., L. Rev. 414, 428 (1952). See Osborn, Reasons and Reasoning in Expert Testimony, 2 Law & Contemp. Prob. 488 (1935).