Assessing the risk of legal liability for ethics committees.

Assessing the Risk of Legal Liability for Ethics Committees As ethics committees grow in numbers and influence, committee members may seek a clearer understanding of whether they are potentially at legal risk by serving on them. Their concern is underscored by Elizabeth Bouvia's suit against members of the ethics committee that, she alleges, concurred in a decision to force-feed her with a nasaogastric tube (Bouvia v. Glenchur, L.A. Superiro Court, C 583828, Oct. 7, 1986). That case has not, however, reached trial, and no court has yet decided whether or when ethics committees might be held legally responsible for advising about ethical issues in the treatment of a patient who believes he or she has been injured as a result of that advice. Most states have special statutes that protect some kinds of hospital committees from the threat of lawsuits. Although courts could construe some of these statutes as protecting ethics committees, in many states it is doubtful they would do so. Legislatures did not have ethics committees in mind when they drafted these laws. They sought to protect traditional peer review committees, which assess the quality of work of professional staff members after care has been administered. In contrast, ethics committees most frequently offer advice about the treatment of a patient before care is administered. Even if there statutes are found to apply to ethics committees, moreover, many provide only minimal protection. In some states, for example, committee members are protected only for "reasonable" investigations or advice; any unreasonable or careless advice could lead to liability. In short, it is doubtful that existing statutes will provide much protection to ethics committees, although that may be the case in some states. Committeess and their members, therefore, will wish to assess their risk of liability under common law negligence principles. These would require that the individual bringing suit show that the committee had a duty of care that it breached, thereby causing the plaintiff injury. What chances are there that courts would recognize such a suit? The answer will turn on the particular role that the committee performs. Many committees consult on ethically troubling problems in the treatment of individual patients. Traditional legal concepts suggest some realistic threat of liability for such committees. Three lines of argument could persuade courts to permit suits against these ethics committees. First, courts have been willing to impose liability whenever a person's misconduct foreseeably could injure another. Courts might reason that ethics committee members should shoulder responsibility for injurious decisions that physicians make in reliance on their advice because it is foreseeable that their advice--even if not binding--will be followed. Second, many cases (outside of the medical context) hold that individuals who directly encourage the wrongful actions of another share legal responsibility for the actor's conduct. Drawing on such cases, courts might reason that ethics committees should be held liable when physicians, acting on their advice, engage in wrongful conduct. Finally, courts might construct a malpractice theory against members of ethics committees who, it is claimed, gave harmful advice by regarding the patient as the "client" of committee members--even though a physician rather than the patient may have convened the committee. Many states recognize that a professional owes a duty to those for whose benefit advice is sought, even if it is not the potential beneficiary, but another person, who employs or consults the professional. Ethics committees, of course, could make several responses to these arguments. They might urge that injured plaintiffs have not demonstrated any practical need for additional sources of compensation and that imposing liability would chill ethics committee's growing contribution to ethically informed decisionmaking. …