Healthcare Ethics: A Reply from Jeff Hammond


My friend Jeff Hammond, Professor of Law at Faulkner University, has agreed to participate in an extended discussion about healthcare ethics and law.  Healthcare law is Jeff’s specialty, so he has a lot of insight to contribute to the conversation.  As I noted in my first blog post in this series, Jeff is more conservative than I am on a variety of issues, including healthcare.  Having read Jeff’s first post, however, we might come to discover that the liberal/conservative labels mask some areas of real agreement.  I’m going to post Jeff’s reply to me without comment, and I’ll link to his personal blog when it is up and running.  Jeff is replying to my post, “Healthcare Ethics: Starting the Conversation.” I hope to extend our conversation with my reply to Jeff’s comments later this week. –Vic

It’s a true pleasure and challenge (!!) to have this virtual conversation with my friend, Vic McCracken.  Vic is making a good name for himself in the theological ethics world.  So, it’s a treat to have a discussion with him as he relaunches his blog and as I launch mine.  This conversation with Vic will be among the first of several posts on my new blog, “A Teacher of the Law”.  Please look for our thoughts, posted here, to be posted there as well (

Now to the task at hand.  In my opinion, it is impossible to fully deal with Vic’s first bullet point in a blog-length essay.  Therefore, I will take up one contemporary example of his premise.  I believe that that a more fulsome answer to Vic’s first premise is found in wrestling with his second bullet point.  That’s for a subsequent blog post.

OK, with those preliminaries out of the way, let me offer thoughts on the first of Vic’s “big ticket” bullet points:

Yes, I affirm, in general, that we (Vic and I) want members of our community to be able to receive the healthcare that they need.  Common human decency, I think, demands that everyone have at least some of the care they require.  I’ve had some health problems over the past few months, and I’ve said the old adage “if you don’t have your health, you don’t have anything,” many times over that span.  I’ve received so much from the healthcare system, that I would have been distressed not to have had the ability to pay for the good care I received.  I want everyone to have the peace of mind that I’ve had while shuttling between hospitals and doctors visits.  And that is why I can agree with President Trump that we don’t want people “dying on the streets”.  The president should know, though, that his backstop (people not dying in the streets) has been codified federal policy since 1989.  The Emergency Medical Treatment and Active Labor Act (EMTALA) allows a person a “medical screening exam,” who, in the words of the law, “comes to the emergency department.”  If an “emergency medical condition” is discovered, then that person is due, under the law, “stabilizing treatment,” which could be quite extensive, and could include surgery and inpatient hospitalization, just to name two examples.

In a sense, and only in a sense, America already has a form of universal care, available to rich or poor, those with “Cadillac” health insurance plans and to those who have no health insurance at all.  To wit: on last semester’s exam in my Health Law class, I asked my students to discuss the federal and common law implications of an emergency room physician throwing a “disheveled bum,” as I described him on the exam, out of her ER.  I wanted my students to be outraged that a physician, ostensibly committed to the ideals of the Hippocratic Oath, could be so callous and mean.  Clearly, my hypothetical ER doc violated the EMTALA law and subjected herself and her hospital to significant legal and reputational liability.  We don’t hear much of hospitals “turfing” “bums” who don’t have health insurance, because such blatant violations of the law put the offending hospital’s Medicare (yet another system of universal care) participation contract in jeopardy.  Medicare is the mother’s milk of any full-service hospital.  If a hospital loses its Medicare participation agreement, that’ll be the day it will shutter its doors.

However, we must recognize EMTALA for what it is: it mandates access but not financial coverage for healthcare goods and services.  To be sure, the protections of EMTALA broke down for my bum, but they did not break down for me.  What if the ER doc in my exam had given the bum loving care?  Even after the first six years of the Affordable Care Act, the bum might not have procured health insurance, and if he’s living on the streets, he probably hasn’t.  Thus, if he got care, the hospital likely would have had to eat his bill.  Ironically, the hospital is more likely to sue the patient who has the resources to pay some, but not all of his bill.  And that is probably the patient about whom Vic is most concerned.

Compare the bum and the working poor person with me.  I’ve taken two ambulance rides and two other car rides to the ER in the past five years, and uniformly, I have received prompt, competent care.  Importantly, I have excellent health insurance through my employer.  I have the financial resources so that in none of those ER visits have I given a second thought to the deductibles I would later pay or the total cost of my hospital visits, which twice included overnight admissions.   The working poor, and even many middle-class Americans, do not have what I have.

Therefore, EMTALA serves as a last line of defense for Americans seeking healthcare, for the law requires that “stabilizing treatment” must be given regardless of the patient’s ability to pay.  However, EMTALA does not create the conditions for care that Vic and those sympathetic to him would likely find sufficient.  For that, we must make some very hard decisions with respect to Vic’s second bullet point concerning scarcity.  More on that later.


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