When A Medical Procedure Becomes Unlawful — Anatomy of a Public Health Hazard.

How could licensed physicians and a prominent state and federally funded hospital in the State of Massachusetts be guilty of unconstitutional behavior?

Everything we do in the practice of Medicine is, in theory, to prolong life or achieve a cure. Sound and reasonable medical practice involves the use of expert consensus, professional judgement and standardized therapies to achieve this end.

It is also a fact that every physician and hospital allowed to legally practice medicine in the United States, operates under a formal license from the jurisdictional state – and is, as such, a representative or agent of that state.

Needless to say, the vast majority of reasonable medical practices or therapies, exist and persist, because they increase the probability of a prolonged life or a cure to disease.

Therefore, by definition, a required element of medical malpractice is that such practice decrease the probability of a prolonged life or of cure to disease - this is the definition of "harm". For legally prosecutable malpractice to have occurred, “harm” to a specific plaintiff must be demonstrable.

It stands to reason that several different pathways of medical malpractice leading to “harm” exist:

1) deviation from expert consensus in the care of a patient

2) weak or absent professional judgement in specific cases

3) breach of an established standard of care in the care of a patient.

When “harm” is done along any one of these three paths, the civil courts can relatively easily serve justice. In fact, often it is the individual practitioner or a group, whose professional service has fit one of these trajectories to harm and who are the subject of a legal complaint in civil court. When attorneys test and demonstrate malpractice as such, the practitioner and his/her insurer become liable for civil damages to the harmed.

Of course, it goes without saying that, if in the course of litigation, it is demonstrated that a practitioner deviated from consensus, exercised poor judgement or breached a standard with the intent to harm a patient, the threshold for criminal behavior is met. In such a case, both the civil and criminal courts execute their duty to the plaintiff.

But there is also another, insidious, pathway to medical harm.

This rarer form of harm is not the result of standard “malpractice”, as described above – though it very certainly meets the most fundamental definition of “negligence” and, thus, remains the subject of economic and non-economic damages. Rather, this rare form of harm results from a far more foundational legal breach and, thus, has a far higher likelihood of meeting the threshold of a constitutional violation — in as much as a state licensed physician and any certified/government-funded healthcare facilities are “agents of the state”.

But, what is the anatomy of this rare form of medical harm?

In this insidious form of medical harm, expert consensus, professional judgement and an established standard-of-care, some or all, collude to cause a decreased probability of prolonged life or to prevent a cure, reproducibly, and in a "specific and discretely definable subset” of patients. Of course, it goes without saying that the cost to the "specific and discretely definable subset” of patients is being accepted by state-licensed physicians and healthcare facilities – specifically, because a utilitarian equation is often at work and provides good economic justification for accepting the collateral damage for the sake of a real or perceived “majority benefit” or for “economic benefit”.

But, of course, our nation, our constitution, and the laws legislated based upon it, are all centered on the fundamental premise that no state or its representative(s) shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Fourteenth Amendment to the US Constitution). Therefore, any utilitarian economic construct created and sustained by the state or its professional representatives (e.g., persons with official state licenses to practice any profession, like medicine), and which repeatedly and reproducibly harms or kills individual citizens of the United States who belong to a “specific and discretely definable subset”, without their explicit consent accepting the specific risk of harm, is highly likely to be in breach of the United States Constitutional herself. Very certainly, the constitutionality (or criminality) of the actions taken, as such, by the state or its representatives must become the subject of proper “legal due process” in accordance with the Constitution - in order that the constitutionality (or even criminality) of such behavior by representatives of the state be properly adjudicated.

The Brigham and Women’s Hospital and its practitioners, by virtue of holding legal licenses and certifications in the State of Massachusetts, and because they are powered in part by state and federal funds, are “agents of the state” when delivering healthcare services to the citizens and residents of the United States.

Let us, then, analyze, in theory, such an instance of medical harm, wherein state licensed physicians accept “harm” to a “specific and discretely definable subset” of patients as part a utilitarian economic calculus - wherein “majority benefit” is invoked as their justification for repeated imposition of harm upon this, presumably minority, subset of persons whose “lives, liberty and property” are devastated, because of a specific professional practice exercised by licensed physicians who are agents of the state.

When such an instance is alleged, the foremost question is: whether the professional practice that brought about the decreased probability of a prolonged life or a cure (i.e., deprivation of life, liberty and property), was delivered to the plaintiff patient with his/her full and uncoerced consent to the said risk?

If the answer be "yes", the practice can, perhaps, be shielded from litigation. In such an instance, one would hope that in a just society and profession, the practitioner and his/her professional body would move to examine the allegedly harmful practice and subject it to intra- or inter-specialty discourse for reasonable changes to be made and a reasonable determination of how best to discharge ethical duty is codified. Of course, such professional “self-examination” is a complex and corruptible path, because economic interests can easily contaminate the ethical precept of professional "duty" in utilitarian equations, where “majority benefit” is seen as sacrosanct. It is such, that “consent” alone is a complex and corruptible mechanism for preventing harm by professionals empowered by the state – but this is the subject of another discourse.

If, on the other hand, the answer to the above-mentioned question be "no" – that is, harm was done without consent to a specific risk from the patient, who is a member of a “specific and discretely definable subset” of citizens then, a subsequent question becomes paramount:

Did the state-licensed practitioner(s) or healthcare facility know that a "specific and discretely definable subset of patients", of which the plaintiff patient is a member, can be harmed or killed by the practice to which he/she has not willfully, or at all, consented?

If the answer be "no", then there may be a possibility of deniability or deflection/reduction of liability for harm by the defendant.

But, if the answer be "yes", then two logical conclusions are reached:

1) that the practice exercised by the professional agent(s) of the state (i.e., state licensed physicians or institutions) is broadly, almost nefariously, negligent,

2) the practitioner, institution or specialty, are guilty of knowingly depriving the harmed or killed patient, and the "specific and discretely definable subset” of citizens to whom he/she belongs, of life, liberty and property – using their state granted professional powers.

It is the central theory of this essay that an insidious and systemic form of medical “harm”, as described above, resides outside the most common definitions of medical malpractice in civil law – and, instead, exists in the far more foundational legal domain of constitutional law.

The women with “missed” or “occult” cancers of the uterus belong to a “specific and discretely definable subset” of US citizens and residents deprived of their constitutional rights to “life, liberty and property” by Gynecologists and Hospitals practicing morcellation, who by virtue of their licensure, certifications, and funding, are agents of “the state”.

Enter, the subset of women with “missed/occult” Uterine cancers – harmed or killed, prematurely or unnecessarily, for well over 3 decades in the United States by the practice of morcellation and power morcellation by state-licensed physicians practicing the specialty of Gynecology.

These women belong to a "specific and discretely definable subset” of US citizens and residents.

Therefore, the above analysis would state that: 1) if these women did NOT consent to the specific risk of their operations involving morcellation or power morcellation by a state-licensed physician, in an informed, uncoerced and willful fashion, 2) if the group of state-licensed physicians and healthcare facilities exercising morcellation upon this subset of women knew that it can substantially reduce the probability of their survival or their cure, and 3) if any of these women were deprived of their “lives, liberty and property” by the practices of physicians and institutions, whose powers are granted by the state - then we have, in fact, identified an example of this insidious form of medical harm, which supersedes the boundaries of civil law and monetary damages, alone, and veers into constitutional territory.

Indeed, in what must be hoped will remain a rare form of harm described herein, professional negligence veers into the constitutional domain of law – wherein, the harm must be restrained well by the judiciary.

By definition, the type of harm, described herein, will find its voice in the form of individual harmed plaintiffs standing before our civil courts, at the state or federal levels, in pursuit of justice and damage-control for harm done by professional agents of the state. But, of course, such individual cases will be representative examples of a systemic threat to a “specific and discretely definable subset” of citizens, who are consumers of services provided by state-empowered professionals.

One can hope that in the United States our civil courts and the attorneys litigating such individual cases can operate with sufficient clarity to recognize the anatomy of these rare forms of harm. For these will not simply be examples of civil malpractice or professional negligence. Any instances of professional harm that fall within the bounds of the described theory may, in fact, be paradigms of legally demonstrable constitutional violation - all of which will represent systemic threats to the health of our republic, because they irreversibly damage the lives, liberty and property of "specific and discretely definable subsets" of the citizenry.

Let us hope that the civil courts and the attorneys representing plaintiffs in such cases do not forget that our judiciary was designed, at its framing, to expunge such constitutional violations anywhere in the body of American society. For professional negligence that violates the United States Constitution is not simply a matter of isolated economic and spiritual damage to an individual and her kin. It is, rather, a threat to the Republic’s very body.

Let the rule of law and the power of the United States Constitution not be excluded from any corner of our society – nor any corner of our judicial system.

Hooman Noorchashm MD, PhD is a physician-scientist. He is an advocate for ethics, patient safety and women’s health. He and his 6 children live in Pennsylvania.