Welcome to Ethics Consult -- an opportunity to discuss, debate (respectfully), and learn together. We select an ethical dilemma from a true, but anonymized, patient care case, and then we provide an expert's commentary.
Last week, you voted on whether law enforcement can force doctors to remove a bullet from the leg of Wesley, a robbery suspect, against the doctors' will.
Should police be able to have doctors remove the bullet?
Yes: 51%
No: 49%
And now, bioethicist Jacob M. Appel, MD, JD, weighs in.
The issue of the surgical removal of potential evidence arises infrequently but has been the subject of a surprising amount of legal and ethical scholarship. The Fourth Amendment to the U.S. Constitution forbids unreasonable searches and seizures, while the canons of medical ethics generally prohibit involuntary infringements of bodily integrity, at least when performed upon competent patients. Yet the prosecution of alleged criminals is a vital state interest that protects the public, so both physicians and judges have struggled to find the right balance.
In the 1970s, attorney John Cain advanced an argument for distinguishing between major and minor surgeries; under Cain's criteria, major surgery to retrieve evidence was never to be permitted, but minor surgery might be permitted under compelling circumstances. In the Supreme Court case of Winston v. Lee (1985), Justice William Brennan adopted a "reasonableness" standard that incorporated both the seriousness of the operation and the importance of the evidence.
Rather than a blanket rule, Brennan believed these matters ought to be decided on a case-by-case basis. In the particular case of Rudolph Lee Jr., an alleged robber who refused to have a bullet extracted from beneath his collarbone, Brennan noted that the state had "substantial additional evidence" available that made the argument for forced surgery unconvincing.
A factor complicating the involuntary extraction of evidence is the role of physicians. It is one matter for the state to assert a right to retrieve evidence surgically, but quite another for them to commandeer doctors into the process of retrieving it -- especially if those physicians are unwilling. This issue has arisen most frequently with regard to the forcible drawing of blood during traffic stops. Two states, Hawaii and Idaho, now require medical personnel to engage in phlebotomy, even over a patient's objections, when instructed to do so by law enforcement. Only South Dakota law overtly shields physicians who refuse. With surgical procedures, prosecutors largely rely on the willingness of surgeons to perform involuntary evidence extractions. If no surgeons were willing to engage in such procedures, courts would likely prove reluctant to order them to do so.
Some ethicists maintain that any surgical intervention to retrieve evidence, conducted against a patient's will, is always unethical. For them, removing the bullet from Wesley's leg is inherently unacceptable. In contrast, for ethicists who accept Justice Brennan's balancing approach, the case for performing forced surgery upon Wesley appears reasonably strong: the surgery is minor and the alleged crime serious, while the bullet appears to be the decisive piece of evidence.
Jacob M. Appel, MD, JD, is director of ethics education in psychiatry and a member of the institutional review board at the Icahn School of Medicine at Mount Sinai in New York City. He holds an MD from Columbia University, a JD from Harvard Law School, and a bioethics MA from Albany Medical College.
And check out some of our past Ethics Consult cases:
Forcibly Medicate Psychiatric Patient?
Approve a Horn Implantation in Patient's Skull?
Is Doctor Liable for Withholding Patient's Diagnosis From Family?