What If Bishop Olmsted Had Been the Decider?
I have a post below on technical issues of moral theology on whether St. Joseph’s Hospital in Phoenix actually participated in an “abortion” in the sense condemned by the Catholic Church.
Here, I’d like to raise a distinct and hypothetical set of issues: What would have happened if it had been Bishop Olmsted rather than Sr. McBride making the decisions? It seems that: 1) the patient was admitted on an emergency basis to the hospital, and 2) was too ill to be moved–not only to another hospital, but even to an operating room. The Bishop has stated that were he in a position to make the decision, the operation wouldn’t have been performed. Both mother and baby would have died. I’m not sure he would have agreed to transfer a patient–which might on his view also count as formal cooperation with evil. In an case, it appears that if the transfer had been attempted the mother and baby likely would have died.
If this is the case, what would follow from the perspective of secular law?
1. Would there be civil liability? While normally, there is no duty to rescue or to save another person under American law, such a duty does exist if there is a special relationship between two parties– a parent and child, a husband and wife, and a doctor and patient, and a hospital and patient. By taking the patient in, the hospital normally a relationship that would be the basis of a requirement to provide competent care. In refusing to perform the procedure, would the hospital be guilty of negligence or even gross negligence?
2. Would there be criminal liability? In some states, Christian scientists and scientologists have been charged with criminal neglect with failing to provide care to patients in accordance with customary standards of care. Would that be possible here? Or would there be a possible homicide charge , such as involuntary or even voluntary manslaughter? (Dr. Conrad Murray, Michael Jackson’s doctor, is charged with involuntary manslaughter.)
3. Would the hospital’s good standing under the Medicaid and Medicare programs be affected? It seems that the patient was brought to the emergency room of the hospital, which holds itself out as capable of treating emergencies. EMTLA requires such hospitals to treat patients to the best of their ability to stabilize them before transferring them. So transferring this patient before she was stable wasn’t an option.
4. Would the hospital have jeopardized its accreditation status with private accrediting bodies, such as the Joint Commission on Health Care Organizations?
5. How do questions 1-3 (and to a lesser extent, 4) interact with conscience protections, such as the Church Amendment, which protect the right of religiously affiliated hospitals not to perform abortions–and don’t seem to make exceptions for emergency situations? Here’s a nice (although slightly outdated) summary of federal protections. Do these and or state protections modify the standard of care that is due under civil or criminal law?
These are very tough questions. Any health care or tort or criminal lawyers out there?