Divided Loyalties: Legal and Bioethical Considerations of Physician-Pregnant Patient Confidentiality and Prenatal Drug Abuse

References

• 10 GREAT BOOKS OF THE WESTERN WORLD xiii (Robert Maynard Hutchins ed., 1952). Hippocrates composed the oath circa 400 B.C.
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• Beneficence is defined as "providing benefits and balancing risks or burdens against those benefits." Linda Farber Post, Mandatory Testing of Pregnant Women and Newboms: HIV, Drug Use and Welfare Policy: Bioethical Consideration of Maternal-Fetal Issues, 24 FORDHAM URB. L.J. 757, 758 (1997). It generally "connotes acts of mercy, kindness and charity" and the principle of beneficence "refers to a moral obligation to act for the benefit of others." TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 421 (4th ed. 1994).
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• Principle IV of the American Medical Association's Code of Medical Ethics is a less absolute statement of the duty of confidentiality than is the Hippocractic Oath. That principle states that a physician "shall safeguard patient confidences within the constraints of the law." AMERICAN MEDICAL ASSOCIATION, COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, PRINCIPLES OF MEDEAL ETHES, available at http://www.ama-assn.org/ama/pub/category/2512.html. See infra Section II (regarding the physician-patient relationship and the duty of confidentiality).
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• See Charity Scott, Is Too Much Privacy Bad for Your Health? An Introduction to the Law, Ethics and HIPAA Rule on Medical Privacy, 17 GA. ST. U.L. REV. 481, 495-98 (listing losses of a patient's privacy that ate considered tolerable, such as disclosing to family members or public agencies when a patient has a highly contagious, infectious disease, as well as mandatory reporting of gunshot wounds, domestic violence, and child abuse). See also Michelle Oberman, Mothers and Doctors' Orders: Unmasking the Doctor's Fiduciary Role in Maternal-Fetal Conflicts, 94 Nw. U.L. REV. 451, 462 nn.50-51 (2000) (citing statutes requiring physicians to report certain conditions); Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976) (establishing legal duty of psychiatrists to breach confidentiality and warn third parties if a patient threatens to kill or injure that person); Reisner v. Regents of the Univ. of Cal., 37 Cal. Rptr. 2d 518 (Ct. App. 1995) (extending that duty to warn to a third person with whom there is no special relationship--such as a physician-patient relationship--even an unknown and unidentifiable third party).
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• The effect of maternal substance abuse on babies has captured the public interest. As well as the obvious fixation on the tragedy of suffering babies, concerns also have grown regarding the high financial cost of caring for children born to addicts. See Rachel H. Nicholson, No (Pregnant) Woman Is an Island: The Case for a Carefully Delimited Use of Criminal Sanctions to Enforce Gestational Responsibility, 1 HEALTH MATRIX 101, 104 (1991).
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• See Lynn M. Paltrow, Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, 62 ALBANY L. REV. 999, 1002-04 (1999) (discussing the hostile attitude of the public toward pregnant women who use crack-cocaine).
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• "Teratogenic" is derived from the Greek "terrato" (monsters) and "genes"-literally, to make monsters. It means "causing abnormal development" and is used in reference to a "drug or other agent." THOMAS LATHROP STEDMAN, ILLUSTRATED STEDMAN'S MEDEAL DICTIONARY 1418 (24th ed. 1982).
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• There is no definitive answer in the law to the question of when a fetus becomes a person. In some cases, the line is drawn at viability, which is a question of fact and not law. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 102 (1976). In others, the dividing line between nonperson and person is drawn at conception. See City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (striking down a city ordinance that restricted access to abortion and included a provision requiring physicians to inform women that an unborn child is a human life from the moment of its conception). A good illustration of the variation in approaches to analysis of fetal legal personhood can be found in Tony Hartsoe, Person or Thing--In Search of the Legal Status of a Fetus: A Survey of North Carolina Law, 17 CAMPBELL L. REV. 169 (1995) (discussing civil remedies for unborn children killed in utero in each of the states).
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• Fetal Alcohol Syndrome (FAS) was first identified as such in a landmark 1973 study. Kenneth L. Jones et al., Pattern of Malformation in Offspring of Chronic Alcoholic Mothers, 1 LANCET 1267 (1973). Earlier studies already had revealed the connection between alcohol exposure and birth defects. See Sterling K. Clarren, Recognition of Fetal Alcohol Syndrome, 245 J.A.M.A. 2436 (1981) (giving an historical analysis of studies on alcohol exposure and birth defects from 1899 on). The causal link between alcohol consumption by pregnant women and birth defects was not fully accepted by the medical community until about the last decade. MICHAEL DORRIS, BROKEN CORD 145 (1989) (discussing societal responses to the "discovery" of FAS in 1973).
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• See Joseph R. DiFranza & Robert A. Lew, Effect of Maternal Cigarette Smoking on Pregnancy Complications and Sudden Infant Death Syndrome, 40 J. FAM. PRAC. 385 (1995).
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• Jeffrey C. King, Substance Abuse in Pregnancy: A Bigger Problem Than You Think, 102(3) POST GRAD. MED. 139(1997).
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• Ira Chasnoff, Perinatal Effects of Cocaine, CONTEMP. OB/GYN, May, 1987, at 63.
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• See Mayes et al., supra note 17. The problem of poly drug use and other factors that may be at the root of problems attributed to cocaine exposure in the womb and cocaine use by parents afterbirth has been more widely acknowledged in recent years. See also Andrew S. Lustbader et al., Incidence of Passive Exposure to Crack/Cocaine and Clinical Findings in Infants Seen in an Outpatient Service, 102 PEDS. e5 (1998) (study of passive exposure to smoked cocaine in children under one year of age, noting the alternative explanations and/or correlated factors for the negative effects of exposure, such as exposure to nicotine smoke, other drugs, or neglect by drug-using parent). It may be difficult, if not impossible, to pinpoint the effects of exposure to cocaine. Early studies of these effects did not necessarily account for other nonteratogeni c factors, such as chaotic home environment s and malnutrition. See King, supra note 72.
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• In most criminal cases, the focus is on the nature of the conduct of the defendant. In many of these cases concerning substance abuse during pregnancy, however, what tends to be punished is the consequence of the action of the wrongdoer, rather than the action itself. This is due to the problems that exist in identifying specific causal connections between the use of one particular substance and a particular birth defect or problem, and due to the fact that the threshold of exposure to substances necessary to cause particular symptoms in the fetus or problems for the child varies widely from case to case. See Frank L. Iber, Fetal Alcohol Syndrome, 15(5) NUTRITION TODAY 3, 9 (1980) (discussing the connection between substance abuse and other behaviors that are not subject to state regulation but also affect the developing fetus related to nutrition). This point also was made in Reinesto v. Arizona, 894 P.2d 733, 736 (Ariz. App. 199S) ("If we adopt the state's position, we would be focusing not on petitioner's conduct of ingesting heroin--conduct for which the state brought no criminal charge--but rather on the child's status as heroin-addicted.").
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• Carolyn Coffey, Note, Whitner v. State: Aberrational Judicial Response or Wave of the Future for Maternal Substance Abuse Cases?, 14 J. CONTEMP. HEALTH L. & PDL'Y 211, 212 (1997).
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• Robert L. Bratton, Fetal Alcohol Syndrome: How You Can Help Prevent It, 98(5) POST CHAD. MED. 13 (1995). Exposure to alcohol is the third most common cause of birth defects overall, behind Down Syndrome and spina bifida. Id.
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• Id (citing Katha Pollitt, A New Assault on Feminism, THE NATION, Mar. 26, 1990, at 410-11).
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• Oberman, supra note 4, at 455-56. The fiduciary model has been applied in this context since at least the mid-1960s in the United States. See also Marc A. Rodwin, Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System, 21 AM. J.L. & MED. 241 (1995).
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• For a discussion of court decisions treating physicians as fiduciaries, see Lonette E. Lamb, Note, To Tell or Not to Tell: Physician's Liability for Disclosure of Confidential Information About a Patient, 13 CUMB. L. REV. 617 (1983).
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• See Kary Moss, Substance Abuse During Pregnancy, 13 HARV. WOMEN'S L.J. 278, 293 (1990) (listing state statutes modified to specifically exclude liability for physicians who report prenatal drug use by pregnant women). See also Scott, supra note 4, at 495-98; Oberman, supra note 4, at 462 nn.50-51.
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• Id at 546. The negative impact of violations of confidentiality on the physician-patient relationship has been much discussed in a variety of contexts. See Sharon J. Hussong, Medical Records and Your Privacy: Developing Federal Legislation to Protect Patient Privacy Rights, 26 AM. J. L. & MED. 453, 455-57 (2000).
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• Further, exposure to alcohol and/or tobacco smoke, both legal substances, in no way addressed by the MUSC's policy, cause many of the same problems as cocaine. See Ira J. Chasnoff, Silent Violence: Is Prevention a Moral Obligation?, 102 PEDS. 145 (1998) (describing the increased risk of prematurity due to exposure to alcohol in utero); Carol S. North, Alcoholism in Women, 100(4) POST GRAD. MED. 221 (1996) (noting that higher rates of miscarriage and neonatal mortality may be due to alcohol consumption during pregnancy); Bratton, supra note 109 (explaining the link between alcohol and tremors, seizures, increased respiratory rate, and jitteriness in newborn s); darren, supra note 15, at 2436 (citing growth deficiencies and serious major organ system malformations as potential results of exposure to alcohol in the womb); Claudia Holzman et al., Perinatal Brain Injury in Premature Infants Born to Mothers Using Alcohol in Pregnancy, 95 PEDS. 66 (1995) (explaining the link between alcohol exposure and brain hemorrhage and/or white matter damage, which lead to serious mental and physical handicaps).
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• See Lisa M. Noller, Comment, Taking Care of Two: Criminalizing the Ingestion of Controlled Substances During Pregnancy, 2 U. CHI. L. SCH. ROUNDTABLE 367 (1995) (requiring drug counseling does not seem to create a particularly onerous burden on pregnant women and in light of the harm that exposure to some drugs may cause to a developing fetus, many people believe it to be justified).
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• Charlie Condon, Supreme Court Ruled Wisely on "Fetal Abuse," POST AMD COURIER (Charleston, S.C.), Aug. 11, 1996, at A23 (Mr. Condon is Attorney General in South Carolina).
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• Jessica M. Dubin, Fourth Circuit Upholds Cocaine Testing of Pregnant Women, 27 J.L., MED. & ETHICS 279, 282 (1999).
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• A decade ago, cocaine and its derivative, crack, were thought to be the "most widely used and most harmful" drugs. Shona B. Clink, The Prosecution of Maternal Fetal Abuse: Is This the Answer?, 2 U. ILL. L. REV. 533, 537 n.30 (1991). This assessment has been called into question by more recent studies. See, e.g., Linda Mayes et al., The Problem of Prenatal Cocaine Exposure: A Rush to Judgment, 267 J.A.M.A. 406 (1992) (evidence from studies insufficient to support clear predictions about growth and development of a child exposed to cocaine in utero).
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• See In re Jamaica Hosp., 491 N.Y.S.2d 898 (App. Div. 1985); In re President and Dir. of Georgetown College, 331 F.2d 1000 (D.C. Cir. 1964); Crouse-Irving Mem'1 Hosp. v. Paddock, 485 N.Y.S.2d 443 (App. Div. 1985). For a full discussion of these cases and their implications, see James A. Filkins, A Pregnant Mother's Right to Refuse Treatment Beneficial to Her Fetus: Refusing Blood Transfusions, 2 DEPAUL J. HEALTH CARE L. 361 (1998).
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• See Andre Panossian et al., Criminalization of Perinatal HIV Transmission, 19 J. LEGAL MED. 223 (1998).
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• Cocaine and its derivative, crack cocaine, are chemically the same. See Janet L. DoIgin, The Law's Response to Parental Alcohol and "Crack" Abuse, 56 BROOKLYN L. REV. 1213, 1222-27 (1991) (discussing differences and similarities between the two substances). They are sometimes collectively referred to as "cocaine" in this article.
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