Bioethics on Trial

Abstract

Bioethics on Trial Let's play brief game of name bioethicist. Who was it who, asked to testify as an expert witness at trial to determine whether Mary Beth Whitehead or Stern family would be granted custody of Baby M, said that a courtroom is simply no place for an ethicist? Don't know? Here's another clue. This same person once declared during panel discussion at meeting of American Philosophical Association that the only likely consequence of ethicists appearing in courtrooms is that they will acquire same glorious reputation enjoyed by psychiatrists and psychologists who are available for hire as expert witnesses. Still stumped? Well, perhaps more recent expostulation on matter of ethicists declaiming in courtrooms might jog your thinking processes. In an article in December 1990 issue of The New Physician this same bioethicist says, don't mind being paid for lecture. But I won't go to court. The court is an adversary situation where you have to come in as an advocate. If you still cannot tell, you could have seen this bioethicist testifying in courtroom as an expert witness on 7 January 1991, less than month after publication of that unequivocal pronouncement. I know, since person testifying at trial of Dr. Jack Kevorkian in an Oakland County, Michigan District Court was me. Why was I there? The short answer is that Oakland County prosecutor Mike Modelski called and asked me to come. But to claim that I testified because I was asked is, at best, disingenuous. I have been asked to testify many times in all manner of trials and, up until Kevorkian trial, had agreed to do so on only one other occasion. That one appearance did, however, make me very doubtful that ethicists belong in courtrooms. I testified in court in Ames, Iowa, ten years ago in case brought by William Head, Shreveport, Louisiana geologist and father of two children. Head asked court to order University of Iowa to release name of one of their patients so that he could make direct appeal to that person for marrow for transplant that would allow his doctors to treat his leukemia. I thought disclosure of patient's name in such circumstances was both unnecessary and wrong, and went to court to say so. Mr. Head's attorney was not inclined to allow me to give court benefit of my wisdom. He spent better part of an hour challenging my credentials and impugning field of bioethics. The key to my certification as an expert came when Mr. Head's attorney asked how much money I was being paid to dispense my expertise. I said nothing, whereupon judge, much impressed, declared me to be an expert. From that point, matters continued downhill. The judge asked me many times whether some act, view, or behavior was ethical. When I said I could not say, that I could only comment on content of existing regulations governing human experimentation (marrow transplants from nonbiologically related donors were then highly experimental), judge, prosecutor, and defense regarded me with expressions that ran gamut from utter contempt to complete disgust. Ten years later little had changed with respect to role expert witnesses were expected to play. Dr. Kevorkian had been charged with murder of Janet Adkins last June, shortly after he assisted in her by making his suicide machine available to her in back of his VW van in Michigan campground. When case came to trial last October it was quickly tossed out by presiding judge, who said that since Michigan had no laws against assisting in and Janet Adkins's death was not murder, there was no legal basis for prosecution. The county attorney then decided to seek permanent restraining order to prohibit Dr. Kevorkian from using his device again in Oakland County. …