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Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Monday, December 7, 2009

Hurley v. Eddingfield: It's the Law and It's Ethical

Physician  I always start my contracts course with Hurley v. Eddingfield, in which the court held that a doctor has no contractual obligation to treat his own patient and need give no reason or excuse for his refusal to do so.  The case illustrates the strength of our notions of freedom of contract and also permits us to discuss the interaction of common law doctrines with other legal or regulatory regimes.  

Now I have in the past crossed swords with The New York Times Magazine's ethicist, Randy Cohen.  I have chided him for too readily conflating the lawful with the ethical.  Mr. Cohen has always responded to my criticisms, which is all one can ask for, but he gives no ground.  Still, I was cheered by a recent column addressing the etiquette of car phones.  The writer boasted of her hands-free car phone and of her habit of informing people when other people are in the car.  Cohen responded, in part, as follows:

This should be handled by never using the phone while driving. To do so increases your chance of an accident fourfold, akin to driving drunk. And there is no significant difference between speaking on a hand-held or hands-free device. (As your local legislators knew or should have known when they legalized the latter. Ignorant or cynical? Let’s not rush to judgment. They might merely have been possessed by demons.)
My point exactly.  But the comment applies to much of what emerges from our legislature.  

In any case, having criticized Mr. Cohen in the past. I must now give him his props for his nuanced response to a Hurley-like question that arose in yesterday's column. The writer is a doctor who did not want to take on a notorious med-mal attorney who had in the past sued the doctor's wife.  Cohen answered as follows:

As to this particular would-be patient, you acted reasonably. Because you and your wife have a history that causes you to resent him and his cohort, your ability to view him dispassionately and thus act in his best medical interest may be compromised. Therefore, not only may you decline to take him on; you should decline. I might feel different if you practiced medicine in a provincial town on the Russian steppes, like some brooding doctor out of Chekhov, with no other physician within a thousand miles. But in your actual situation, go forth guiltlessly.
And the good doctor can do so all the more easily, as the attorney found some other sucker -- oops, typo -- doctor to treat him.

[Jeremy Telman]

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