Bioethics Discussion Blog: Criminal Punishment: Does It Include Denial of Scarce Medical Resources?





Thursday, January 18, 2007

Criminal Punishment: Does It Include Denial of Scarce Medical Resources?

A nursing student wrote me the following: "This reason for my e-mail is we are having to do a Ethical Presentation and our group has the Ethical dilemma of 'Should Scarce Medical Resources Be Used On Prisoners'? I was wondering if you or someone else had some information they would like to offer to us as research or questions that would be good to ask our fellow classmates while presenting this information to them to get their feedback and opinions on this matter that we are faced with on an everyday basis."

I wrote her back the following:
"One issue that should be discussed is whether the courts or even the U.S. Constitution would permit punishment of criminals to extend beyond incarceration to the denial of a prisoner the same possibility of healthcare as any other person. I doubt it. For example, a prisoner deserves the same opportunity for a life-saving organ transplant as any other patient. The same considerations should be applied including the probability of benefit including the absence of other diseases or conditions which would limit the value of the transplant and the capacity of the patient to follow through on the essential lifetime post transplant medical management. Best wishes on your presentation."

My question to my blog visitors would be: does everyone agree with my reply. If not, why not. In addition, are there any other issues that should be covered by the nursing student in her presentation regarding the use of scarce medical resources on prisoners? ..Maurice.


At Friday, January 19, 2007 7:13:00 AM, Blogger The Independent Urologist said...

What an interesting concept. Prisoners should be entitled to the same medical care that anyone else in the US is entitled to. The problem is that 10's of millions of tax paying and non-incarcerated Americans are "entitled" to no health care, other than what they can afford using cash, check, or enormous debt. From July 01 to December 01, I had no health insurance. Should prisoners be given better health insurance than me or other people without any insurance? I think not.

At Friday, January 19, 2007 8:08:00 AM, Blogger Maurice Bernstein, M.D. said...

To the Independent Urologist: I was anticipating someone to bring up the point you made regarding the affording of medical care by the rest of the U.S. population beyond those who are prisoners--and by golly, you, as the first commentator brought it up! And, of course, you are perfectly correct in your concern. I suspect many people may fail to realize or consider this issue. But, the reality is that in our United States justice system, ignoring the health of criminals when they are incarcerated, even to the extent of the utilization of scarce resources, is not considered a part of their punishment for the crime to which they are sentenced. ..Maurice.

At Friday, January 19, 2007 10:58:00 AM, Anonymous Anonymous said...

i see no conflict at all with withholding scarce medical resources from prisoners.

there is no right to healthcare excep in the acute life threatening scenarios. healthcare remains an individual's responsibility so when you are incarcerated it should remain your responsibility. to argue that incarceration prevents a person from obtaining the means to provide for their healthcare needs flies in the face of the reality that we do not assume responsibility for other individual responsibilites. for example, we do not pay for other personal expenses just because being incarcerated may prevent a prisoner from obtaining monetary resources to pay their bills while they do their time.

prisoners should definately have healthcare access, but at their own expense...same as the rest of us.


At Friday, January 19, 2007 7:58:00 PM, Blogger Maurice Bernstein, M.D. said...

Kenneth Kipnis, ethicist from the University of Hawaii, says "The short answer is, if a treatment is 'medically indicated,' prisoners (alone among USA citizens) have a Constitutional right to it." Ken, has given me permission to publish here an excerpt of his chapter in Conflict of Interest in the Professions, edited by Michael Davis and Andrew Stark. Oxford University Press, 2001 ..Maurice.
Excerpt from "Ethical Conflict in Correctional Health Services" by Kenneth Kipnis:

Although prison medicine has had a long but not entirely illustrious history in the United States, courts have only occasionally scrutinized the sources and scope of the duty to treat. In 1926, for example, a North Carolina court opined in Spicer v. Williamson: "it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself." But was not until 1973 that the Supreme Court saw fit to set what one might take to be a minimum requirement. Appealing to the Constitutional prohibition of "cruel and unusual punishment," the Court ruled, in Estelle v. Gamble, that:

deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain" . . . proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their reponse to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under Sec. 1983.

Thus, surprisingly and thanks to Estelle, convicted felons are the only population in the United States with a Constitutional right to health care.

It is perhaps useful to tease apart these two quite distinct arguments for the prisoner's right to indicated medical treatment. Estelle -- the more recent Supreme Court case -- bases it on the Constitutional prohibition against "cruel and unusual" punishment. Since "deliberate" indifference to the inmate's medical needs adds an extra and illicit measure of suffering to that which is incident to the licit penalty of imprisonment ( i.e., loss of liberty), the warden (and all those accountable to that office) have derivative duties to respond to evident medical needs. It is unconstitutional cruelty to withhold needed health care. Having commonly been merely an important part of good penological practice, responsiveness to the inmate's medical requirements has evolved into a Constitutionally mandated entitlement.

On the other hand, Spicer, the earlier North Carolina case, derives the right from custodial obligations flowing from the prisoner's societally-imposed deprivation of liberty. In this context, inmates resemble children in a jurisprudential sense. Although there are differences, it is revealing to observe how the legally narrowed liberty rights of children are comparably paired with a reciprocal prohibition against parental neglect. It is, in part, because children -- like inmates -- are systematically denied the legal powers needed to provide for themselves, that parents and guardians -- like wardens -- are properly charged with a legal duty to make needed medical services available to those in their custody. In Hohfeldian terms, the constriction of the standard range of liberty-rights is tolerable, in part, because of the presence of special claim-rights. Upon emancipation or completion of a sentence, the legal adult and the parolee enjoy an enhanced liberty even as they lose their claims to bed, board, and various other necessities of life.

On either of these two jurisprudential analyses, what brings health-care professionals into prison are, first, the legal requirement that prison administrators attend to the serious health needs of inmates, and second, the legal prohibition on the unlicensed practice of medicine and nursing. Legally, wardens must provide needed health care. But -- equally legally -- they are generally not licensed to provide it themselves. When we take the duty (as in Spicer and Estelle) to make appropriate medical and nursing services available, and add it to the prevailing practice of health-care licensure, what precipitates is the warden's special obligation to retain HCPs to deliver health-related services in the corrections setting.

At Monday, January 22, 2007 5:39:00 PM, Blogger Maurice Bernstein, M.D. said...

To give my visitors another view, perhaps contrasting but also developing further the view of Kenneth Kipnis above, I would like to present the paper written by ethicists LAWRENCE J. SCHNEIDERMAN AND NANCY S. JECKER some 10 years ago and published in Theoretical Medicine 1996;17:33-44.
Because difficulty my visitors might find in accessing the journal to read the entire article and since one should read the entire article to understand the basis for the conclusions, I have elected, with the kind permission of Dr. Schneiderman, to include the entire article here. ..Maurice.


LAWRENCE J. SCHNEIDERMAN AND NANCY S. JECKER(b) Departments of Family and Preventive Medicine and Medicine, University of California, San Diego, School of Medicine, La Jolla, California 92093-0622, U.S.A.
b Department of Medical History and Ethics, University of Washington, School of Medicine, Seattle, Washington 98195, U,S.A.

ABSTRACT. Should the nation provide expensive care and scarce organs to convicted felons? We distinguish between two fields of justice: Medical Justice and Societal Justice. Although there is general acceptance within the medical profession that physicians may distribute limited treatments based solely on potential medical benefits without regard to nonmedical factors, that does not mean that society cannot impose limits based on societal factors. If a society considers the convicted felon to be a full member, then that person would be entitled to at least a "decent minimum" level of care - which might include access to scarce life- saving organs. However, if criminals forfeit their entitlement to the same level of medical care afforded to all members of society, they still would be entitled to a kind of "rudimentary decent minimum" granted to all persons on simple humanitarian grounds. Almost certainly this entitlement would not include access to organ transplants.
Key words: allocation of scarce resources, candidate selection, convicted criminals, justice, organ transplants


DeWayne Murphy was described in a New York Times article as "desperately ill with cardiomyopathy, a progressive weakening of the heart muscle. ''1 The story went on to say that under ordinary circumstances he would be a candidate for a heart transplant. But Mr. Murphy's circumstances are not ordinary: he is in a federal prison hospital in Rochester, Minnesota, and the Federal Bureau of Prisons which is responsible for his medical costs refuses to pay for a heart transplant. The reporter suggested that the case "raises troubling questions about access to health care for those in the criminal justice system, ''2 and enumerated them as follows: Should the nation provide expensive care and scarce organs to convicted felons? Can it justify a system in which an estimated one in four employed Americans cannot have a transplant because they are uninsured for underinsured, yet ask the Bureau of Prisons to provide them for prisoners? If the Bureau will not pay for a transplant, should it pay for a quadruple bypass?

Or looking at it in another way, should a nonviolent criminal like Mr. Murphy get a heart but a murderer or rapist not? What about someone convicted of a white collar crime, like tax fraud? Where, if at all, should society draw the line? 3 The reporter went to two prominent medical ethicists for opinions on the case. Their comments suggested that from an ethical perspective such detailed questions were entirely out of place. Arthur Caplan, then Director for the Center for Bioethics at the University of Minnesota, responded: "For me, it's open and shut. It is absolutely wrong to make judgments about past behavior, criminal conduct, moral worth, indictments, charges or convictions. ''4 Nancy Dubler, the Director of the division of Bioethics at the Montefiore Medical Center in the Bronx, was quoted as saying that "the clear movement since [the time when citizen committees decided access to renal dialysis] has been to establish rigorously abstract criteria so that the worth of an individual is not factored in" [when deciding who should get organs or other lifesaving medical treatments]. 5

Both experts, therefore, apparently took the position that it was unethical even to consider withholding a treatment of restricted availability to Mr. Murphy on the grounds that he is a convicted criminal. In our view, however, these ethicists gave inappropriately short shrift to the journalist's questions by conflating two fields of justice. Although our phrase, "fields of justice," resonates with philosopher Michael Walzer's term, "spheres of justice, ''6 we distinguish between the two concepts as follows: "spheres of justice" describes the array of resources, such as money, professional rewards, leisure time, and education, that a just society would attempt to distribute justly; "fields of justice" indicates the array of criteria (medical and societal), such as urgency of need, capacity to benefit, value to society, and ability to pay, that a just society considers in distributing a single resource, namely health care.

We will argue in this paper that physicians lack the moral authority to deny beneficial medical treatments on any grounds, but that society can ethically choose whom to deny beneficial treatments, on medical or non-medical grounds, if the availability of those treatments is limited. Expressed differently: although in the field of medical justice it is ethically unacceptable to withhold treatments on the basis of societal worth, since societal worth has no moral relevance in medical decision-making, the same ethical principle does not apply in the field of societal justice. Therefore, to give Mr. Murphy's case due consideration requires examining separately two fields of justice, medical and societal justice. In our opinion, the ethicists quoted above consider only the field of medical justice and fail to consider criteria of societal justice.


In an episode from his turn of the century autobiography, Hans Zinsser describes the efforts expended to rescue a dying patient named Konig, who strangled a woman to death then stabbed himself in the abdomen with a bread knife]7 Although no one doubted that the "blond and stocky ruffian" was a brutal murderer, an eminent surgeon rapidly mobilized his team of expert assistants and saved the man's life. After three months of hospital convalescence, Konig recovered, was duly put on trial, found guilty and electrocuted. Zinsser, a medical intern at the time, took a dim view of what he regarded as wasted effort, but the response of the doctors was clearly in keeping with the time-honored tradition of medical justice. As a profession, physicians owe (even if they do not always uphold) the ideal of service to anyone in need who can benefit from medical treatments - even murderers - without regard to ethnic, racial, societal or economic factors. And although this ideal may be compromised when physicians face resource limitations, such as ICU bed shortages, we would argue that the ideal nevertheless remains.

Haavi Morreim 8 argues that, in this era of soaring medical costs, physicians have acquired a new duty, to exercise responsible stewardship over medical resources. She states that it is simply unrealistic to suppose that physicians can wait until society's allocation scheme is just, before they begin to participate in serious cost containment .... [Moreover,] while he cannot assure that resources saved in one instance will be devoted to other needier patients, the physician nevertheless can be sure in a negative sense that whatever he spends on one patient will not be available to others .... Thus the physician cannot escape a direct role [in rationing medical care.] 9

Despite Morreim's excellent point, we would still argue that the primary obligation of physicians remains to act in the best interests of their patients. Although as citizens in society, physicians can and should contribute to social health policy decisions, at the bedside of an individual patient they should avoid making unilateral rationing decisions.

In support of our account of medical justice, it can be said, first, that bedside rationing by physicians runs the risk of not being thoroughly reasoned, consistently applied, held accountable to the public, or insulated from arbitrary and unfair manipulation. Second, physician decisions made on the basis of social factors would have adverse effects, such as under- mining trust in the physician-patient relationship. Third, society at large, not physicians, has the ethical and political mandate to make allocation decisions. Fourth, rationing should not occur at the bedside because health professionals do not possess the knowledge or expertise to do it right. According to a recent survey, only 8% of all physicians report receiving formal training in cost containment measures. 10 Finally, it can be noted that requiring physicians to make medical decisions without regard to the perceived social worth of their patients accords best with the historical traditions of ethics in medicine. The Hippocratic Oath, for example, requires physicians to swear allegiance to the welfare of patients. The Oath states, "I swear.., to follow the method of treatment which, according to my ability and judgment, I consider for the benefit of my patients."

Whenever physicians violate this obligation - as for example when evidence appears that their actions are affected by financial self-interest, such as ownership of laboratory or X-ray facilities - the profession as well as society protests. 11

Prognostic data systems, such as APACHE and PRISM, now being developed by researchers to guide physicians in decision-making, involve only medical factors, namely physiologic measures and mortality outcomes.12 In addition to these prognostic systems based primarily on mortality, health care researchers also have developed methods that measure quality of well-being as a way of assessing treatment effectiveness. In these latter approaches, preference-weighted measures of symptoms and functioning provide a numerical point-in-time expression of quality of well- being (QWB).13 In arguing for the application of these systems, health policy experts make the case that if a particular treatment produces no improvement in QWB then the treatment would have no basis for its use nor for the expenditure required. Or, if two or more treatments are being considered, then the treatment that produces the best improvement in QWB for the least cost has a claim to priority.14 Once again, medical benefit is the outcome criterion physicians apply. This criterion is appropriate within the field of medical justice.

At this point it is worth noting that Mr. Murphy, albeit limited in his capacity to make full use of his health because of his imposed confinement, would not be disadvantaged by any contemporary prognostic data system, such as APACHE or QWB, since his limitations have nothing to do with medical factors. Thus, from the perspective of medical justice, physicians should not deny him a transplant.

Physicians' clinical evaluations of new drugs or techniques also base their conclusions on morbidity and mortality outcomes exclusively. And even those medical journal articles calling for restraint in the use of techniques, such as cardiopulmonary resuscitation in various clinical circum- stances, base their recommendations only on factors that influence medical outcomes, such as quality, length, and likelihood of medical benefit)15 The rare study that draws attention to the age of patients does so only because age seems to influence these medical outcomes.16

On those occasions when physicians did attempt to restrict treatments based on societal factors, it was in the belief that such factors had prog- nostic medical significance. Liver failure secondary to alcoholism, for example, was first assumed to be a contraindication to hepatic transplan- tation because of the expected increased mortality.17 Patient compliance, an essential component of successful transplantation, seemed unlikely in those with a history of chronic alcoholism. But when outcomes studies disclosed no empirical difference in outcomes compared with other forms of liver disease, therefore no rationale for such discrimination, medicine itself moved to change that policy.18

Sometimes physicians go to great lengths to avoid even the appearance that their medical decisions might be influenced by societal factors. For example, when the physicians caring for Helga Wanglie sought court approval to withdraw her life support, they took into account that she was supported by a combination of public and private insurance, reasoning that treatment withdrawal therefore could not be construed as providing a financial advantage for the hospital. In the same hospital at the same time was another patient in the permanent vegetative state who was a member of a minority group and on welfare. The physicians purposely did not seek court approval to withdraw life support from this latter patient, because they feared that these social factors would create the impression of social bias and therefore taint their arguments.19

All the above suggests that there is general acceptance within the medical profession that physicians owe patients consideration based solely on poten- tial medical benefits and without any regard to nonmedical factors. Ideally, the field of medical justice would be noncomparative, to use Beauchamp and Childress's term.20 That is, physicians would provide or withhold treat- ments without comparing the potential medical benefit of treating one patient against the potential medical benefit of treating another patient.

However, realities within the field of medical justice dictate that some treatments, such as heart transplantation, are comparative (again to use the term of Beauchamp and Childress) in that their limited availability requires that their provision to specific patients take into account the competing claims of others. Medical justice enjoins physicians to provide the treatment to the patient most likely to benefit, as measured by medical outcomes, such as quality of well-being and lifespan. This would be an ethical requirement of medical justice.

We acknowledge, however, that in the real world medical justice does not exist in a pure form but rather is tainted by societal factors. Obviously, when treatments of limited availability provide more benefit (such as greater reduction in mortality or greater improvement in QWB) to one category of patients over another, members of the more favored category of patients enjoy distinct societal advantages that place them in this category in the first place. Conversely, persons who stand to gain less medical benefit from treatments may owe their medical disadvantage to their impaired access to early preventive care, rapid emergency care, adequate nutrition and sanitation, employment, education, and other pro- visions. The process of assigning any person's location in society might be just, or morally arbitrary and unjust.

We submit, however, that the different availability of societal resources does not alter the requirements of medical justice. Medical justice continues to require distributing resources based on medical benefit whether it operates within the variations of a just or an unjust society. In our view, ethicists should acknowledge that social variables influence medical benefits, while deploring and calling for the correction of those social variables that are irrational and unjust. Calling all variations in the availability of beneficial medical treatments unjust, however, strikes us as inappropriately avoiding drawing distinctions.


In contrast to the longstanding tradition of medical justice, societal justice first gained public attention in the 1960s, when renal dialysis became avail- able to a limited number of patients as a life-saving treatment. Physicians recognized that many patients were potential beneficiaries of this new treatment and that unprecedented choices had to be made. To help make these choices, physicians enlisted the formal assistance of lay committees, as representatives of society - soon disparaged as "God Squads." Although this process was roundly condemned, it is probably more accurate to call it the first attempt to confront society with the distressing reality of rationing, without any preparation. Notions of medical justice (some patients will benefit more than others) and societal justice (choices inevitably have to be made) were unfamiliar to those early participants.21 Later, governmental agencies, as official representatives of society, also had difficulty facing these issues. The Department of Health and Human Services, for example, balked at funding Standford's heart transplant program because potential recipients were excluded on the basis of what were deemed to be social criteria, including "a history of alcoholism, job instability, antisocial behavior or psychiatric illness," while recipients were favored who had "a stable, rewarding family and/or vocational environment to return to posttransplant. ''22 Although the Stanford health care providers probably lacked conclusive empirical evidence, almost certainly they were considering their choices from the perspective of medical justice, namely, that in their experience the stormy, complex, emotionally wrenching and tediously difficult course of a transplant patient would more likely be traversed successfully by someone with a "stable, rewarding family" than someone with "job instability" and "antisocial behavior." In any event, it is not clear whether the government agency's resistance was based on the absence of empirical evidence to support such categories, or rather on the disagreeableness of confronting the reality of medical justice and the unwillingness to offer explicit guidance in terms of societal justice.

In a just society principles of distributive justice govern the distribution of burdens and benefits. Societal justice is necessarily comparative, since in every community composed of individuals of varying ages, fortunes, skills, talents, capacities, strengths and weaknesses, unless deliberate redistributive mechanisms are put in place, morally arbitrary apportionment of burdens and benefits will occur. John Rawls has proposed applying the principles of fair equality of opportunity, and the "difference principle," favoring the least advantaged, as the best approach to redistributing primary goods, such as income, wealth, power, and authority.23 However, rather than attempting to apply such principles to health care distributions, we invoke Rawls' conception of an original position behind a "veil of ignorance" as a prior starting point for deliberating about the requirements of societal justice.

Parties in an original position might first ask: Who should be considered a member of the society in which benefits and burdens are to be redistributed? Starting from this position, one might ask: If a person has already taken (or attempted to take) more than his or her just share of society's benefits, or unfairly caused undue burdens to others, should that person forfeit membership in society? The question of whether or not Mr. Murphy is entitled to a heart transplant then becomes generalized as: If I were to enter a society in which certain life-saving medical treatments were limited, would I want persons who have already taken benefits away from those who have attempted to live justly to be eligible for further benefits, such as these limited treatments? It is hard to imagine that persons in an original position would answer affirmatively.

A counter-argument might be made, of course: But the criminal has already been punished for that act of injustice by being sentenced to prison. Therefore, it would be unfair for society to impose an additional burden of withholding lifesaving treatments accorded to all other members of society.

In response, we ask: What levels of health care are we talking about anyway? If society considers the criminal to be a full member of a just society, then that person would be entitled to at least a "decent minimum," namely, that level of care considered basic to all members of that society.24 The question would then follow: Does that level of health care include equal access to beneficial heart transplants? But even if criminals are not considered entitled to the same level of medical care afforded all members of a society, that does not mean they are not entitled to receive any medical care at all. For there is actually a lower level of care, a kind of "rudimentary decent minimum," granted to persons on simple humanitarian grounds, even though they are not considered members of our society. We refer, of course, to treatments like emergency care given to illegal immigrants. The question then follows: Does that "rudimentary decent minimum" - which is the entitlement to medical care accorded to anyone, regardless of whether or not they are members of the society, and whose deprivation would constitute an inhumane burden - include access to heart transplants?

To address these questions, we first must consider whether or not society should accord Mr. Murphy the rights and privileges of a full member of a just society, retaining his entitlements, having paid his debts through imprisonment. This question inevitably touches on another debate that sociobiologists and psychologists and policy-makers endlessly engage in, namely: should society hold criminals accountable for their own actions and therefore responsible for whatever befalls them, or are they handicapped and unfortunate in the natural lottery of life in that they are more likely to arise out of disadvantaged populations? Clearly, one's answer to this question will determine one's answer to: is it morally right or wrong for society to exclude criminals from access to certain kinds of scarce medical treatments? If one takes the position that criminality is an unfortunate consequence of factors beyond a person's control, then depriving the criminal of any chance at limited medical resources would in effect be "blaming the victim." If one concludes that criminals are accountable for violations of the social contract, and therefore should pay a price for these violations, that imprisonment may constitute adequate payment, then they are entitled at least to a "decent minimum." One would still have to decide whether or not such a minimum includes equal access to heart transplants. Finally, if one concludes that criminals are accountable for their violations of the social contract, that certain crimes can never be adequately compensated for by imprisonment, then they may be entitled only to a "rudimentary decent minimum." Such a level of health care would not include heart transplants, if precedents in our society are any guide.

Interestingly, in at least one respect, society regards prisoners as deserving greater health protection than the general population. Because they are deemed vulnerable to coercion and exploitation, prisoners are not allowed to be enrolled in voluntary human experimentation.25

Although societal justice has gained prominence only recently, the notion that in a just society some individuals should be denied what others receive did not originate with modern medical technology. To the contrary, it is as old as Plato, who discussed different criteria for distributing of benefits and burdens in a just republic.26 The proposal advanced by Paul Ramsey that society should allocate limited medical treatments by random lottery has never met with the approval one might have expected from this seemingly objective standard.27 To the contrary, within the field of societal justice, failing to make discriminating judgments in medical matters seems unfair.

Would society accept that a young mother with life-threatening septicemia ought not be given priority for the last remaining ICU bed over a recidivist drug addict with bacterial endocarditis? It should come as no surprise that those in charge of the ICU bed allocation often make such allocation decisions. Are those physicians basing their decisions purely on principles of medical justice, or have societal factors intruded? And are those societal intrusions inappropriate? The answers depend in large part on what are taken to be the goals of society and who is supposed to decide. If society's first goal is self protection - or protection of the state during warfare - then selection ought to be based on utilitarian criteria. If in choosing one life over another, society's foremost criterion should be value of present and future services to society, then a person's social value should be weighed.28 On the battlefield, combat readiness is the overriding priority and triage physicians routinely decide. If, on the other hand, society's first goal is to uphold the ideal of protecting the interests of individual members according to egalitarian criteria - that is giving everyone equal access to limited medical benefits as an expression of that society's value system, allowing exclusions only under unusual and desperate circumstances - then such utilitarian criteria rationally would be called upon only in unusual and desperate circumstances.


Let us return to Mr. Dewayne Murphy, the federal prisoner suffering from cardiomyopathy whose life depends on a heart transplant, and to the questions raised by the journalist.

Should the nation provide expensive care and scarce organs to convicted felons? Our answer is: Perhaps not. It depends on how one answers several further questions. If convicted felons are not accepted as full members of a just society because they violated a social agreement regarding the distribution of benefits and burdens, then they are not entitled to deprive other members of society, who did not violate the societal contract, of scarce life- saving organs. Thus, societal justice would impose limits on medical justice by providing convicted felons with only a "rudimentary decent minimum," which almost certainly would not include access to heart transplants.

Can society justify a system in which an estimated one in four employed Americans cannot have a transplant because they are uninsured or under- insured, yet ask the Bureau of Prisons to provide them for prisoners? Our answer is, probably not, because such a system imposes an additional finan- cial burden on members of society in order to bring about a benefit that they themselves are denied. However, if one can make the case that pris- oners are more vulnerable than uninsured working members of society, then perhaps the Bureau should fund transplants. This position is in the spirit of Rawls' "difference principle," which requires distributing limited benefits to the maximum advantage of those who are most disadvantaged. We do not support the suggestion that prisoners represent "the most disadvantaged."

If the Bureau will not pay for a transplant, should it pay for a quadruple bypass? Our answer is, since quadruple bypass is not necessarily limited by resource availability, it may represent a "decent minimum" treatment to which all members of society are entitled. Therefore, a criminal should not necessarily be deprived of it as a matter of societal justice, so long as that criminal is considered a full member of society. However, a quadruple bypass is not likely to be available as a "rudimentary decent minimum," and therefore might not be available to a criminal who is considered to have forfeited membership in a just society.

Should a nonviolent criminal such as Mr. Murphy obtain a heart but a murderer or rapist not? What about someone convicted of a white collar crime, like tax fraud? Where, if at all, should society draw the line? Our answer to these related questions is that the answer may depend on applications of both medical and societal justice. Even if Mr. Murphy were imprisoned for life, he would be entitled to the "rudimentary decent minimum" benefits of life-saving treatments in terms of medical justice. However, in the case of any limited medical treatment, such as heart transplants, in which medical justice is comparative, one might argue that if a criminal's incarceration exceeded the length of lifespan expected as a result of a treatment, then the treatment might be denied on the grounds of inadequate (or comparatively less) medical benefits.

In terms of societal justice, if society decides one crime is not so bad as another, and therefore one criminal more deserving to participate in the distribution of societal benefits, then this discrimination might allow heart transplants for some criminals and not for others. But, society's act of permanently removing someone sentenced to life imprisonment from membership could be interpreted as indicating that he has violated the contract experienced by all citizens in the sharing of benefits and burdens and is entitled only 1:o the "rudimentary decent minimum" level of care, which almost certainly would not include access to a heart transplant.

In summary, we believe it is important for medical ethicists commenting before the public at large either in the media or at the governmental policy level to distinguish between the fields of medical and societal justice. Although we agree with Caplan and Dubler that medical justice prohibits differential treatment based on nonmedical criteria, we also submit that comparative medical justice, as well as societal justice standards, may require acknowledging differential entitlement in distributing scarce resources.


1. Kolata G. U.S. refuses to finance prison heart transplant. The New York Times February 5, 1994, 6Y.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Walzer M. Spheres of Justice: A Defense of Pluralism and Equality. Basic Books, 1983.
7. Zinsser H. As 1 Remember Him: The Biography of R.S. Boston: Little Brown, 1940, pp. 149-150.
8. Morreim H. Cost containment: challenging fidelity and justice. Hastings Cent Rep 1988;18(6):20-25.
9. Morreim: 23.
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15. Kellermann AL, Staves DR, Heckman BB. In-hospital resuscitation following unsuccessful prehospital advanced cardiac life support: "heroic efforts" or an exercise in futility? Ann Emer Med 1988;17(6):589-594; Lantos JD, Miles SH, Silverstein MD, Stocking CB. Survival after cardiopulmonary resuscitation in babies of very low birth weight: is CPR futile? N Engl J Med 1988;318:91-95; Faber-Langendoen K. Resuscitation of patients with metastatic cancer: is transient benefit still futile? Arch Intern Med 1991;151:235-239; Gray WA, Capone RJ, Most AS. Unsuccessful emergency medical resuscitation - are continued efforts in the emergency department justified? N Engl M Med 1991;329:1393-1398.
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At Wednesday, February 14, 2007 7:34:00 PM, Anonymous Anonymous said...

Prisoners have whatever entitlement to healthcare that the legislature of the governing body holding the grants them. Common decency demands that the legislature grant them at least a certain rudimentary minimum. Justice demands that the government not confiscate tax money fromt the victims of the criminals to provide the criminals with services that the victim is unable to provide for himself. Common sense dictates that a swindler in for ten years who we expect to return to society and work productively be given his atenolol for his blood pressure--having a stroke was not part of the sentence. Common sense also dictates that life prolonging treatment not be provided to lifers and that extraordinary treatment not available to many free persons be not considered an entitlement.

At Monday, March 19, 2012 7:27:00 PM, Blogger Maurice Bernstein, M.D. said...

Here is a comment on this subject which I received by e-mail today. ..Maurice.

"I am young, barely in my teens, but I have seen horrible things. i have read
story upon story of the horrors people commit. My cousin, just three years old,
was murdered by his father. These people have done something horrible, and to
give them another chance at life so that they can die later on or even live to
see their sentence repealed leaves a sick feeling in my stomach. They have
committed an atrocity so horrid that a jury of their peers has determined that
the rest of society is better off with them dead, and to let them continue to
live on borrowed time, using resources that could better be used in free clinics
or pro bono cases in hospitals is not just. The requirements for a person to get
on death row are strict, and while at times it seems that this is inhumane, it
is also important to remember that California is not in a good place right now.
The entire world is teetering on the edge of an economical crisis, and to give
much needed money and research to people who should /not/ be our top priority
is less than genius.

I might only be a kid in most peoples eyes, but I'm not stupid. There must be
humanity in analyzing this problem, but also logic. And logic dictates that to
provide advanced medical care to inmates is wrong. We've spent four BILLION
dollars on these people. Are we also going to give them organs and blood and the
use of machines that could save peoples lives'? "


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