Monday, February 4, 2013
Martin Hirschsprung (J.D. Candidate 2013, University of Pennslyvania School of Law) recently published an easy entitled, Terminal Stress: An Analysis of Jewish and Common Law Doctrines Related To The Effects of Stress on Seriously Ill Patients, 16 Mich. St. U. J. Med. & L. 401-428 (2012). The abstract from SSRN is provided below:
This essay compares two American legal doctrines - deathbed bequests and the therapeutic exception to informed consent - with their Jewish law counterparts in order to contribute to the literature on these doctrines, evaluate recent empirical data and make suggestions concerning the current position of academics and practitioners. In this essay, I will explore the history and theory underlying the laws of delivery for deathbed bequests and the therapeutic exception to informed consent. In order to highlight the principles motivating the common law, I examine the Jewish law’s approach to these doctrines. I posit that Jewish law and common law doctrines reveal contrasting attitudes about the appropriate balance of autonomy and beneficence in law. The well-recognized effects of stress on the terminally ill raise serious bioethical questions, and recent empirical medical data suggest that the common law’s position should be reevaluated. In this essay I survey current law, physician practices and the relevant empirical medical data. I then challenge the prevailing American view, and recommend bolstering the therapeutic exception to informed consent; at the same time, I endorse the status quo of the laws of deathbed bequests.