Outside the Community

Twenty years ago, when the Washington Star told the public that the United States Public Health Service had, since 1932, maintained a study of untreated syphilis in the Negro male that was still going on, my reaction was, How could people have done this? I later worked on the participants' lawsuit, and I learned of the study's many complexities. In the end, though, the best explanation of "how" it could have happened is the obvious one: the researchers did not see the participants as part of "their" community or, indeed, as people whose lives could or would be much affected by what the researchers did. Looking back on those events after two decades, there are a number of observations I'd like to make. Tuskegee under the Law First, I should like to describe some aspects of the legal landscape of the Tuskegee litigation. The injustices done to the participants did not fit easily into the framework of an adjudicable lawsuit. The issues that faced Fred Gray, an Alabama civil rights lawyer, and me could have filled a book. Among them: the United States cannot be sued in tort without its consent. However, in 1946 by act of Congress the government became responsible in damages, like any employer, if an employee exercising a nondiscretionary authority causes an injury cognizable under state law. Did the act permit recovery for harm done between 1932 to 1945 to people (many of whom were dead by 1946), on the theory that there had been an ongoing project whose success depended upon keeping the facts secret from the participants? Second, could unwitting (and unwilling) service in an experiment give rise to a contract claim against the government, or even a claim that government had taken property and owed compensation? Third, what relevancy, if any, did Nuremberg have? There, the United States had conducted in its own name criminal proceedings against German doctors on the theory that their criminal homicides and assaults could not be justified by their desire to gain useful information by experiments. Fundamental principles of medical ethics recognized everywhere, the prosecutors claimed, permitted experiments only with informed consent. Had our government's conduct, therefore, violated the fundamental principles of liberty and justice embodied in the American conception of due process? If so, can the United States be held responsible for its employees' "constitutional torts" under the 1946 act on a theory that "state" law includes federal law? How could we prove damages, particularly when people had died from causes not obviously related to syphilis? Could we use in evidence against the government the chief finding of the study--that syphilis seems to cause pervasive medical problems previously not thought to have been caused by syphilis? If so, could we shift the burden of proof to the government and require it to disprove the relationship between syphilis and any individual's medical condition? If not, could we use aggregate data about the men as a group (so much extra heart disease, for example), and then value the excess and award it proportionally to individuals? The complexity of sustaining such a suit through a verdict and appeals was matched by its futility, if the ambition was to put money into the hands of those who had personally suffered injustice. Even if ultimately successful, litigation would take years, and fewer people would actually have the advantage of monetary payment. And yet was it fair to settle the action on a class basis without regard to individualized damages? We believed there were major barriers to any recovery, and it was futile to attempt to ascertain the medical damages each person sustained. The victims' class representatives themselves made the decision to settle, and I had no doubt then nor do I now that this was a wise thing to do. As further proof that law marches to the slowest of beats, it is just this past year that the last payments of a few persons pursuant to the settlement agreements have been made. …