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How to Make the Massachusetts Patients’ Bill of Rights Work

Published online by Cambridge University Press:  01 January 2021

George J. Annas
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Extract

At one point in Edgar Allan Poe's Narrative of Arthur Gordon Pym of Nantucket, Pym, who has stowed away in the hold of a whaling vessel, believes he has been abandoned and that the hold will be his tomb. He expresses sensations of “extreme horror and dismay,” and “the most gloomy imaginings, in which the dreadful deaths of thirst, famine, suffocation, and premature interment, crowded in as the prominent disasters to be encountered.”

It is probably uncommon for hospitalized patients to feel as gloomy as Pym. Nevertheless, installed in a strange institution, separated from friends and family, forced to wear a degrading costume, confined to bed, and attended to by a variety of strangers who may or may not keep the patient informed of what they are doing, the average patient is intimidated and disoriented. Such an atmosphere encourages dependence and discourages the assertion of individual rights.

Type
Article
Information
Medicolegal News , Volume 8 , Issue 1 , February 1980 , pp. 6 - 31
Copyright
Copyright © American Society of Law, Medicine and Ethics 1980

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References

See generally, Annas, G.J., The Rights of Hospital Patients (Avon, N.Y., 1975).Google Scholar
E.g., Margolis, Conceptual Aspects of a Patients' Bill of Rights, Connecticut Medicine Supplement 43: 9 (Oct. 1979). Also see Ladd, , Legalism and Medical Ethics in Davis, Hoffmaster, and Shorten, , editors, Contemporary Issues in Biomedical Ethics (Humana Press, New Jersey, 1978).Google Scholar
Examples of patient abuse based on provider misunderstanding of the law after the Saikewicz case in Massachusetts are cited in Annas, G.J., Reconciling Quinlan and Saikewicz: Decision-Making for the Terminally Ill Incompetent, American Journal of Law & Medicine 4(4): 367, 387 (1979).Google ScholarPubMed
Rawls, J., A Theory of Justice (Harvard University Press, Cambridge, MA, 1971).Google Scholar
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Id. at 205.Google Scholar
Reprinted in Annas, note 1 Supra, at 25–27.Google Scholar
Mass. Gen. Law c. III, § 70E.Google Scholar
Patients' Rights, Massachusetts Medical Society Newsletter (September 1975) at 7–8, reprinted in New England Journal of Medicine 293: 828 (1975).CrossRefGoogle Scholar
Knox, R., A Bill of Rights for Patients, Boston Globe, August 20, 1979, at 10.Google Scholar
Id.Google Scholar
Statement of Grant Rodkey to Massachusetts Health Care Committee; reprinted in Massachusetts Medical Society Newsletter (October/November 1979) at 4–5.Google Scholar
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Id. at 1. This policy was restated at a conference on the law sponsored by the MHA on October 24, 1979.Google Scholar
Rodkey, , note 12 supra. Physicians wondering what to tell patients might consult a two part “Medical Progress” article on Cancer of the Breast by Henderson and Canellos in the January 3 and 10, 1980, issues of the New England Journal of Medicine. Among their conclusions: “The routine use of the classical radical mastectomy or of adjuvant radiotherapy, both standard practices a decade ago, should now be abandoned …”(at 87) and, “It is no longer acceptable for one specialist to treat a patient without early consultation with the other specialties involved. With so many treatments available, the possibilities for cures are real, and there is no justification for a nihilistic approach to the treatment of breast cancer” (at 88).Google Scholar
While there has been no Massachusetts case formally recognizing informed consent as a common law basis for a civil action against a physician, in Belchertown v. Saikewicz, 370 N.E.2d 417 (Mass. 1977), the doctrine was described as one with origins in the constitutional right of privacy and self–determination, and a federal judge, applying Massachusetts law, has implicitly accepted the informed consent doctrine. See Rogers v. Okin, 478 F. Supp. 1342 (D.C. Mass. 1979).Google Scholar
See Annas, G.J., The Hospital: A Human Rights Wasteland, 7 Civil Liberties Review 1: (Fall 1974).Google Scholar
For a detailed discussion of this proposal, see Annas, G.J. and Healey, J.M. Jr., The Patient Rights Advocate: Redefining the Doctor-Patient Relationship in the Hospital Context, Vanderbilt Law Review 27: 243 (1974).Google ScholarPubMed