Legalism and Medical Ethics JOHN LADD*

This article is an abbreviated version of John Ladd, "Legalism and Medical Ethics," in Davis, Hoffmaster, and Shorten (1978). I am grateful to the Humana Press for permission to publish this version here. * Department of Philosophy, Brown University. 1 This view of the relationship between metaethics and normative ethics is set forth in Ladd (1973). This article was published in Polish; a typewritten copy of the original English version is available from the author. The Journal of Medicine and Philosophy, 1979, vol. 4, no. 1 © 1979 by The Society for Health and Human Values. 0360-5310/79/0401-0005$01.02 70

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This essay is concerned with some general questions about methodology in medical ethics. As such it belongs under what is generally called "metaethics" or the "logic of ethics," that is, the second-level inquiry into moral concepts, rules, and principles and their logical interrelations. I believe that it is important to get straightened out about some of these methodological questions as a propaedeutic to an inquiry into more substantive moral issues. For, although I believe that metaethics cannot be separated from substantive (or normative) ethics, I also believe that one cannot pursue the latter in any depth without considering metaethical issues. To paraphrase Kant's famous dictum, "Metaethics without normative ethics is empty, but normative ethics without metaethics is blind."1 I want to focus on certain aspects of the kinds of moral problem encountered in medical ethics that raise interesting methodological questions for philosophers. In particular, I shall be concerned with methodological questions created by the concreteness and particularity of moral problems in the medical context, which make it difficult to relate them to the kind of abstract theories that have been generally advanced by philosophers—for example, theories like utilitarianism, Kantianism, intuitionism, natural law and natural rights theories, Rawlsianism, etc. John Stuart Mill called attention to this metaethical problem when he pointed out that the principle of utility is by itself too general and abstract to answer the question, What ought to be done here and now? In order to answer this question, we need, in addition to the principle of utility, secondary principles (namely, practices, rules, concepts, moral notions) to mediate between the abstract super-principle and concrete cases of action or decision making.

John Ladd

GENERAL REMARKS ON LEGALISM By "legalism," I shall mean: "the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules." 3 The term "legalism" will be used extremely broadly in this article to stand for an attitude or a general approach rather than a specific doctrine. The main thrust of legalism, however, is the legalization of morality and the moralization of law, which generally imply the assimilation of moral and legal issues, of moral reasoning and legal reasoning, and, in general, of moral problems and legal problems. The specific aspect of legalism that I 2

The same consideration applies to other super-principles such as the categorical imperative, the common good, conforming to nature, etc. 3 I have borrowed this definition from Shklar (1964, p. 1). See also Scheingold (1974). 71

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"Without such middle principles," Mill wrote, "an universal principle, either in science or in morals, serves for little but a thesaurus of commonplaces for the discussion of questions, instead of a means of deciding them" (Mill 1965, p. 178).2 The task for medical ethics, then, is to find appropriate and legitimate secondary principles and categories for dealing with its special problems. In their quest for secondary principles and categories, writers on medical ethics have generally turned to the law. For law, by its very nature, is designed to deal with particular cases, and legal categories, rules, and concepts are much easier to apply directly to concrete situations than are formal and abstract super-principles like the principle of utility or the categorical imperative. Also, because of its flexibility, law appears well adapted to resolve the new kinds of moral problems that arise in the medical context. Legal answers are readily available for many of these problems, and so it is easy to understand why most problems of medical ethics are discussed in terms of the law. Controversies concerning such diverse matters as euthanasia, paternalism, experimentation, informed consent, organ transplantation, etc., are almost always couched in the language of the law and are treated as ethico-legal issues rather than as either moral or legal issues. As a consequence, it is almost always unclear what the point of issue is in such controversies—for example, Is euthanasia a legal or a moral issue? Still, the uncritical mingling of legal and moral questions, as well as the indiscriminate use of legal rules and concepts for solving moral problems, must be viewed with concern, for they completely distort our perception of the problems and force unacceptable answers on us. I shall refer to this fusion of law and ethics as "legalism."

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THE UTILITY OF LEGALISM We may begin by observing that legalism is not something new, for legalistic ethics or moralistic jurisprudence of the kind I have in mind goes back in Anglo-American society at least as far as Blackstone (1973), who thought that the Common Law was, or ought to be, the embodiment of morality. There are many reasons for the wide appeal of legalism in popular American ethical thinking and in medical ethics in particular. To begin with, it represents our own peculiar brand of rugged individualism and, as such, has deep roots in American history. Alexis de Tocqueville (1959, vol. 1, p. 290) remarked on the importance of lawyers in American public life and suggested that the language of the law was the "vulgar tongue" of American politics. In a pluralistic society such as ours, a melting pot of diverse religions and ideologies, the language of the law serves as a kind of lingua franca for discussions of social and political questions and provides a set of commonly agreed upon ground rules for the settling of conflicts and disagreements, as well as commonly accepted premises for use in public debates. One practical advantage of law and of the concept of rights in particular is that, insofar as they establish rules of conduct, they serve to define 72

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shall focus on is the use of the model of law as a model for the formulation, analysis, and solution of ethical issues. Although I have misgivings about legalism, I do not wish to disparage the law—as such. What I want to emphasize here is that the function of law, of legal argumentation, and of legal concepts (e.g., rights) is different from the function of ethics, ethical argumentation, and ethical concepts. In Wittgensteinian terms, they are two different language games. The assimilation of functions entirely ignores such things as the use of the law as a socially acceptable and effective means of coping with conflicts of interest and of enforcing socially desirable rules and policies. To put it bluntly, we go to lawyers when we are in trouble and not when we need general advice on how to resolve our personal and social problems. Law usually arises out of conflicts—for example, of interests—and is a social mechanism for resolving conflicts. Ethics, on the other hand, arises out of and is concerned with much wider and deeper perplexities about life and our relations with each other. It follows that different modes of argumentation and different organizing concepts will be relevant and appropriate for ethics from those relevant and appropriate for the law. I shall argue, in as much detail as possible, that the failure to bear in mind the essentially different functions of the two kinds of discourse creates a great deal of confusion, particularly for medical ethics, and makes for bad ethics and bad jurisprudence.

John Ladd

THE RIGHTS MODEL5 Whether we are talking about actual or possible legal rights, human rights, or natural rights, there are certain specific logical properties attached to 4

As I have argued elsewhere, formal organizations are not moral beings and cannot, and should not, be perceived as moral persons having moral obligations, moral rights, and moral responsibilities (see Ladd 1970). 5 For a more detailed discussion of the model of rights along the lines suggested here, see Flathman (1976). 73

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our relationships with strangers as well as with people whom we know. In the medical context, this fact about law and rights is especially important practically, for we may find ourselves in a hospital bed in a strange place, with strange company, and confronted by a strange physician and staff. The strangeness of the situation makes the concept of rights, both legal and moral, a very useful tool for defining our relationships to those with whom we have to deal. Yet another useful function of law and of the concept of rights is that they serve to define our relationships to impersonal beings like formal organizations—for example, hospitals.4 This is important because, sooner or later, almost all of the issues relating to such things as euthanasia, the doctor-patient relationship, confidentiality and record keeping, the initiation or termination of treatment, the operations of intensive care units, etc., are tangled up with questions about the rules and regulations of organizations like hospitals or of the medical profession—for example, questions concerning which administrative rules and regulations ought to be adopted, changed, revoked, overriden, ignored, etc. In sum, legalism serves many useful functions in providing standards for evaluating, criticizing, and ordering social and legal rules through the use of, say, the concept of rights. In particular, as a theory of rights, legalism can be used to protect our interests and concerns against the encroachments, not only of government, but also of formal organizations and professional associations. The Lockean theory of natural rights and other theories of rights were, after all, originally conceived as weapons against the pretensions of absolutist governments. It would seem quite appropriate, therefore, to use the same concepts against more modern versions of tyranny. Before we decide that legalism provides the only or the most acceptable approach to moral problems in medical ethics, however, we ought to take a second look at the moral bases of legalism and examine some of its implications and limitations. In order to do this, I shall concentrate on the notion of rights, which is a typical legalistic category and one that is very generally used as a bridge concept between law and ethics in discussions of medical ethics.

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6

When considered as a practice, other parties may be involved, as it were, to support or enforce the rights (see Flathman 1976). 7 Strictly speaking, this statement applies only to what I call "proprietary rights," the kind that hold between individuals. It does not apply to what I elsewhere call "ideal rights," "welfare rights" (McCloskey 1965), or "man74

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rights that distinguish them from other moral (and legal) categories. Since the logical properties of rights have been extensively treated in the literature and I have discussed them in some detail elsewhere, I shall examine only three of these properties here: (1) the peremptory nature of rights, (2) the particular kind of interpersonal relationship implied in the appeal to rights, and (3) the ethical importance of distinguishing between the possession and the exercise of a right (see Ladd 1979). If any of these three conditions is omitted or modified when rights are being claimed, the appeal to rights loses its stringency. The first property of rights is their peremptoriness. That is, unlike other moral considerations, such as appeals for help, rights are the sort of thing that may be demanded peremptorily; to secure them, it is usually permissible to use coercion, either in the form of legal action or in the form of self-help. In general, when a person's rights are involved, many sorts of action are authorized that would otherwise be impermissible. Thus, the right of self-defense, either legal or moral, is used to excuse the killing of another person. A second important logical property of rights is that they represent a relationship between two persons (or parties): the right-holder and the right-owner.6 To have a right is to have a right against someone (or against anyone or everyone). The natural and normal situation in which a person asserts a right is when the person against whom he asserts it threatens, neglects, or otherwise appears unwilling to accede to his requests, needs, or demands. There is a sense, therefore, in which the assertion of a right is reactive, that is, it represents a response to another person's actual, probable, or possible negative behavior. In other words, the concept of rights is most characteristically used in an adversary context. Finally, it is particularly important to note the difference between possessing a right and exercising it. Flathman (1976, pp. 71 ff.) suggests that one can possess a right only if one can choose not to exercise it. In this regard, rights reflect the concept of a person as self-directed or selfgoverned. Strictly speaking, this condition requires that the right-holder be a competent adult capable of self-directed choice. The idea of a proxy who exercises a person's right is, therefore, an anomaly, or at least it has no moral standing; it might still, of course, serve a useful legal purpose. Assuming that these three properties are essential to any meaningful assertion of rights, we can see why it is sometimes quite inappropriate ethically to base medical decisions on the notion of rights alone.7 For

John Ladd

ANOTHER MODEL: MORAL RELATIONSHIPS AND DUTIES The disadvantages of the rights model as a conceptual tool for analyzing moral problems in the medical context suggest that we should investigate other possible models. For there must be some other kinds of relationships besides rights relationships, and other sorts of moral categories besides entitlements, that will give us a better understanding of the moral problems that we are concerned about. What we need is a moral principle to cover such things as caring, providing for another person's needs, helping others, etc. More generally, we need an ethics of giving and receiving, that is, an ethics that gives us a moral principle concerning the lightness of giving and receiving that is not based simply on rights or entitlements. The ethics that I propose bases giving and receiving on certain kinds ifesto rights" (Feinberg 1970). The latter set objectives of social policy and legislation and are not directly relevant to the doctor-patient relationship (see Ladd 1979). 8 I do not wish to suggest that a patient's rights are not sometimes entirely ignored by physicians and hospital staffs when medical decisions are made. But I simply want to point out that honesty and honorableness are not requirements that are based on rights; common decency and respect for the patient are moral desiderata quite apart from any rights he may possess. 9 " . . . and when men are friends they have no need of justice" (Aristotle 1155a25). 75

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medical advice or patients' requests need not be peremptory—that is, put in the form of demands backed by force—and the doctor-patient relationship need not be an adversary relationship. (That is not to say, of course, that it may not turn into an adversary relationship.) Furthermore, most moral problems that arise in connection with medical decision making simply bypass questions about rights, because none of the parties involved feel it necessary to appeal to their rights—that is, to exercise them. For example, although a patient may have the right to refuse treatment or a doctor may have the right to refuse to treat, it is difficult, if not impossible, for them to discuss rationally with each other what treatment should be undertaken if either of them chooses to exercise his right.8 Finally, requests for help from family and friends are not and perhaps ought not to be based on who has a right against whom. For if a request is based on a right, it will more than likely destroy the relationship altogether, because it implies the absence of trust. That is why the appeal to rights is sometimes inappropriate, improper, and immoral, and standing on one's rights is a last-ditch stand, to be taken only after communication has broken down or when there is no communication to begin with.9

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RESPONSIBILITIES The moral duties that stem from interpersonal relationships can be brought together under the more general concept of responsibility. By "responsibility," I mean a concern that a person ought to have for another person's welfare by virtue of a special relationship that obtains between him and the other person. Under "welfare" should be included such things as a person's security, health, education, and moral integrity. The formula given in the preceding section may be revised to cover the responsibility relationship: A is responsible for B's welfare (i.e., B's health, education, etc.) because ArB. 12 In this sense of responsibility, parents are responsible for the welfare of their children; friends are responsible for each other's welfare; doctors and nurses are responsible for the welfare of their patients, and so on. Furthermore, being responsible is a kind of virtue, and being irresponsible is a kind of vice; for it is impossible to be a good parent, a good friend, a good doctor, or a good nurse without taking one's responsibilities for the other seriously, that is, acting responsibly toward him, being responsible. It is obvious, therefore, that fulfilling one's responsibility for a person's welfare differs in important respects from fulfilling a person's rights. To do what a right-holder demands may be inconsistent with one's responsibility to him; for giving someone what he has a right to may in fact not be good for him at all—indeed, it may be quite harmful.13 By the same token, when a person exercises what is clearly one of his rights he may 10

I do not mean relationships of a casual or transient sort, but the kind of relationship that Aristotle called "friendship," which includes family, companions, colleagues, and perhaps even doctors and patients! 11 I have been unable to ascertain the precise source of this slogan, which was already current in French socialist literature before 1848. It is generally attributed to Louis Blanc. 12 For further details about this concept of responsibility, see Ladd (1975). 13 The moral dilemma that this inconsistency between needs and rights presents is familiar to doctors. 76

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of interpersonal relationship.10 The principle may be formulated schematically as follows: A ought to do X for B because A is related to B (ArB) and B needs X (BnZ). For example, a mother ought to feed her baby because it is her baby and the baby needs to be fed. The underlying principle of giving and receiving involved here is nicely expressed in the old socialist slogan: from each according to his abilities, to each according to his needs.11 The mother has the ability, the baby has the need. In the doctor-patient relationship, the doctor has the ability (e.g., the know-how) and the patient has the need.

John Ladd

cause harm to others for whom he is responsible or, for that matter, to himself. For these reasons, therefore, it should be clear that responsibilities belong to a different moral category from the categories of rights-obligations. A COMPARISON OF THE TWO MODELS

14

An ethics of responsibility cannot be applied directly on the impersonal, institutional level simply because responsibility, as conceived here, involves a relationship between persons, whereas formal organizations (e.g., hospitals) are not persons in the sense required (see n. 4). 15 See Aristotle on deliberation (book 3, chap. 3); see also Dewey (1922, pp. 189-209). 16 I call this logical property of rights their "opacity" (see Ladd 1979). 77

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There are at least four important ways in which an ethics of relationships and responsibilities is unlike legalism.14 First, the kinds of consideration that are relevant to moral decisions based on moral responsibility are quite different from those that are relevant to decisions based on moral rights. In deciding questions of responsibilities, a much wider range of factors must be taken into account than in deciding questions of rights; a responsible decision may require consideration of such different things as risks and benefits, other relationships, concerns, needs, and abilities of persons affected by and affecting the decision. In addition, in order to make responsible decisions it is usually necessary to "weigh" a number of factors against each other; the final decision often requires what we generally call "judgment." Moral philosophers customarily say that such decisions are the outcome of deliberation, reflection, consultation, and discussion.15 Decisions based on rights, on the other hand, are quite different. They do not permit taking into account most of the considerations mentioned, and they do not involve the same kind of weighing, deliberation, judgment, etc., that is called for in cases of responsibility. Indeed, one of the special and distinctive logical properties of a right is that normally, in determining whether to comply with it, one is not permitted to consider any factors other than those directly relating to the status of the right itself and one's ability to do what it requires.16 Second, unlike situations where the issue is simply one of rights, attitudes are an essential ingredient of action in an ethics of responsibility; for it is impossible to conceive of moral responsibility apart from an attitude of concern, of caring, and of being solicitous and considerate, etc. Such attitudes are part of the concept of a responsible action. Indeed, even to describe what kind of action is required by a responsibility of a certain sort it often suffices to refer to one of these attitudes. As far as rights are

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17

This kind of equality was called proportional equality by the French socialists who invented the slogan already mentioned. 18 " . . . it is of the essence of proper respect that we encourage others to 78

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concerned, on the other hand, one's attitudes (and motives) are immaterial; the only thing that counts is that one perform the kind of action required by the right. Third, in a relationship of responsibility there is a certain kind of antecedent inequality between the parties as far as their needs and abilities are concerned; one person needs to be helped while the other has the ability to help. The rights relationship, on the other hand, is based on the assumption of a certain kind of antecedent equality between the two parties, as is supposed to exist between those entering into a contractual agreement; of course, in actuality, this presumed equality is more often than not fictional. Nevertheless, the notion of "freedom of contract," a basic concept in the ethic of rights, would make no sense if one party were able to impose its will on the other party because of some sort of inequality between them. Thus, where equality in the sense of independence is required by rights relationships, it is of the very essence of responsibility relations that, in some way or other, one person be dependent on the other person. In that sense, the person in question is not a free operator. The bearing of these conceptual differences between rights and responsibilities on the medical care situation is obvious, for in critically important ways the patient is likely to be in an initial state of dependence and inequality vis-a-vis the doctor; to speak of rights—for example, contractual rights—in such cases is an absurdity. Often, a patient is in no position to assert or exercise a right that he already possesses. Given the prior acceptance of an ethics of rights, the helpfulness of the patient is usually used to justify the assumption of the right to make decisions on the part of the doctor. What I am suggesting is that the unreflective acceptance of an ethics of rights in preference, say, to an ethics of responsibility inevitably leads to moral confusion and irresponsibility of this kind, for the simple reason that the ethics of rights rests on the twin assumptions, often inconsistent, that someone must have the right and that, in the ultimate analysis, rights relationships can only obtain between equals. On the other hand, the ethics of responsibility implies another sort of equality that is not as obviously a part of an ethics of rights, namely, the equal worth and dignity of individuals, those who are helpless and infirm as well as those who are able and powerful. For an ethics of responsibility requires that all persons involved in the relationship treat each other with equal consideration. Equal consideration here means that help should be matched to needs, rather than to interests, demands, or merit.17 It also means that the persons involved in the relationship must treat each other with mutual respect and understanding.18 In other words, persons morally

John Ladd

be co-agents, and accept and welcome them as such, each of us, to engage in this enterprise only in ways that are consistent with this attitude" (MacLagan 1960, p. 294). 19 This is one of the main points made in Cassell (1976). 20 The reader should not conclude that I am advocating paternalism, unless it is assumed that education, counseling, and persuasion are by definition "paternalistic." 79

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responsible for others should treat them as ends and not as mere means—all the way through, as it were, and all the time, rather than just partially and occasionally, as is usually the case when morality is reduced, for example, to contractual relations. One way in which the difference between these two conceptions of equality could be put is to say that in an ethics of rights equality is a terminus a quo, whereas in an ethics of responsibility it is a terminus ad quern. Finally, responsibility relationships are dynamic—that is, they change and develop through time as the needs and abilities of the persons develop and their conditions change. One important way in which such relationships develop is through open discussion, consultation, argumentation, and persuasion. Where there is disparity in, say, knowledge or maturity, the responsibility project may become educational, in the best sense. The doctor-patient relationship is itself, in many ways, often an educational relationship involving teaching as much as treating; sometimes, indeed, the teaching may be mutual.19 A good doctor explains to the patient the nature of his disease, the options as far as treatment is concerned, risks, benefits, prognoses, etc. One of his aims is, or ought to be, to educate and thereby to help the patient to accommodate himself to his disease in various sorts of ways. That accommodation is a dynamic process and inevitably brings about changes in the patient himself, if not in the doctor. The outcome aimed at may be thought of as a kind of equality, the equalization of an initial inequality. An ethics of rights, on the other hand, is static and not subject to the kind of changes and development that characterize the ethics of responsibility. For rights are preexistent and predetermined before the decision process even begins. Thus, the ethics of rights, as such, leaves no room for the kind of mutual education and mutual accommodation that may be necessary to change the situation for the benefit, say, of the patient.20 In this article, I have tried to point out some of the difficulties in using the concept of rights indiscriminately as a tool of analysis in medical ethics. I have suggested, as an alternative, the model of relationships and responsibilities, which sometimes gives us a more subtle and human way of dealing with moral problems in the medical context. In conclusion, I want to emphasize once again that the language of

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ethics is a rich language; it contains a wealth of concepts, principles, and arguments that are available for our use. Therefore, not only ought we to eschew the quest for a slot-machine ethics or jurisprudence, but we ought also to explore other tools of analysis besides those currently in vogue. REFERENCES

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Aristotle. Nicomachean Ethics. Blackstone, William. The Sovereignty of Law. Edited by Gareth Jones. Toronto: University of Toronto Press, 1973. Cassell, Eric. The Art of Healing. Philadelphia: J. B. Lippincott Co., 1976. Davis, John W.; Hoffmaster, C. B.; and Shorten, S., eds. Biomedical Ethics. New York: Humana Press, 1978. Dewey, John. Human Nature and Conduct. New York: Henry Holt & Co., 1922. Feinberg, Joel. "The Nature and Value of Rights." Journal of Value Inquiry 4, no. 4 (Winter 1970): 243-57. Reprinted in Moral Problems in Medicine, edited by Samuel Gorovitz, Andrew Jameton, Ruth Macklin, John M. O'Connor, Eugene V. Perrin, Beverly Page St. Clair, and Susan Sherwin. Englewood Cliffs, N.J: Prentice-Hall, Inc., 1976. Flathman, Richard. The Practice of Rights. Cambridge: Cambridge University Press, 1976. Ladd, John. "Morality and the Ideal of Rationality in Formal Organizations." Monist 54, no. 4 (October 1970): 488-516. Ladd, John. "The Interdependence of Ethical Analysis and Ethics." ETYKA 2 (1973): 139-58. Ladd, John. "The Ethics of Participation." In Participation in Politics, edited by J. Roland Pennock and John Chapman. New York: Atherton-Lieber, 1975. Ladd, John. "The Definition of Death and the Right to Die." In Ethical Issues Relating to Life and Death. New York: Oxford University Press, 1979. McCloskey, H. J. "Rights." Philosophical Quarterly 15 (1965): 115-27. MacLagan, W. G. "Respect for Persons as a Moral Principle. II." Philosophy 35, no. 135 (October 1960): 289-305. Mill, John Stuart. "Dr. Whewell on Moral Philosophy." In Mill's Ethical Writings, edited by J. B. Schneewind. New York: Macmillan Co., 1965. Scheingold, Stuart A. The Politics of Rights. New Haven, Conn.: Yale University Press, 1974. Shklar, Judith. Legalism. Cambridge, Mass.: Harvard University Press, 1964. Tocqueville, Alexis de. Democracy in America. New York: Vintage, 1959.

Legalism and medical ethics.

Legalism and Medical Ethics JOHN LADD* This article is an abbreviated version of John Ladd, "Legalism and Medical Ethics," in Davis, Hoffmaster, and...
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