December 11, 2022
Dear Healthcare Provider,
I am writing to you today to share some learnings that I gathered over the past two years of providing pro bono legal assistance to hospital patients and their family members. From these experiences, I have identified Five Basic (Inalienable) Patient Rights:
1) The Right to Food (i.e. proper nutrition in accordance with Patient’s reasonable preferences and medical and religious requirements)
2) The Right to Water (including IV fluids and appropriate fluid management)
3) The Right to Family or delegee at the Bedside 24/7 (in person, and virtual audio/visual when in person is not possible)
4) The Right to voluntary informed consent for all medical testing, treatment and procedures and the right to participate in determining your treatment plan. When a procedure carries with it a risk of injury or death, or invasion of privacy, the patient has a right to refuse and consent must be documented in writing.
5) The Right to be Released Home Upon Request (patients cannot be against their will in a healthcare facility).
My message to you today is simple. Any law, rule, regulation, order, guideline or hospital policy that violates any of the above Five Basic Patient Rights is fundamentally and manifestly unlawful, and therefore unacceptable. Remember your Hippocratic Oath to First Do No Harm.
Under Article 33 of the Rome Statute of 1998 “Superior orders and prescription of law,” orders to commit crimes against humanity are manifestly unlawful.
According to Nuremberg Principle IV, an order issued at the level of national law, can be “unlawful” according to international law. A person who accepts such an unlawful order faces the possibility of legal punishment at the international level (e.g. Nuremberg Trials the Sequel, coming soon to a courthouse near you).
According to Nuremberg Principle II: “The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.”
According to Nuremberg Principle IV, the individual has a moral choice. “The fact that a person acted pursuant to an order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”
In “moral choices” or ethical dilemmas an ethical decision is often made by appealing to a “higher ethic” such as ethics in religion or secular ethics. One such “higher ethic” is found in many religions and in secular ethics, is the ethic of reciprocity, or the Golden Rule. According to the Golden Rule, one has a right to just treatment, and therefore has a reciprocal responsibility to ensure justice for others. Higher ethics, such as those, could be used by an individual to solve the legal dilemma presented by the superior orders defense.
Although messengers are not usually responsible for the message that their superior sends with them, the Babylonian Talmud (3rd to 5th century corpus of Jewish law) states, “There is no messenger in a case of sin.” Joseph Telushkin interprets the precept to mean that “if a person is sent to perform an evil act, he cannot defend his behavior by saying he was only acting as another’s messenger. … [T]he person who carries out the evil act bears responsibility for the evil he or she does.” This is because God’s law (i.e. morality) supersedes human law. While these resources are Jewish resources, Christianity and Islam stem from Judaism, as do many other religions of the world and certain all people can draw guidance from these ancient sources of wisdom.
In summary, under the Doctrine of Superior Orders, if you are a healthcare provider that was instructed to follow a law, rule, regulation, order, guideline or hospital policy that is manifestly immoral or unethical, if you comply with such order, you will not be protected from legal liability. On the contrary, under the Doctrine of Superior Orders you are required to Refuse to Comply.
If you are not sure if a law, rule, regulation, order, guideline or hospital policy is manifestly unlawful, immoral or unethical, then I suggest you apply the Golden Rule, otherwise known as the “Do not unto others” test. It is simple. Do Not Unto Others what is Hateful to You. Would you want to be denied food or water if you were a patient in the hospital? Would you want to be isolated from your family and left to die alone without your loved ones at your side? Would you want to be forced to undergo a medical test, treatment or procedure without your consent or the consent of your healthcare proxy if you are unable to express your wishes?
If the answer to any of the above is No, then the solution is clear. Follow your conscience and uphold your Oath.
I look forward to hearing your thoughts on the above.
Yours Sincerely,
Rachel Abramovitz
369 Lexington Ave., New York, NY 10017
Tel: 646‐665‐1560
www.ablaw.nyc