Category Archives: Ethics

Let’s talk about rapist doctors.

I’m not talking about doctors who take advantage of anesthetized patients. That’s a problem law enforcement can deal with. What I’m talking about is someone like Dr. Michael Parsa, who works at the University Medical Center of El Paso, and who essentially raped an unidentified woman for the police, according to a lawsuit filed by the ACLU:

39. After the X-ray, Ms. Doe was again handcuffed to the examination table. CBP agents Portillo and Herrera and Medical Center personnel were present in the room. Defendants left the door to the examining room open, and Ms. Doe could see hospital personnel at the nurses’ station in the hallway. She was angry that CBP had not released her and scared about what would happen next.

40. Defendant Parsa entered the examination room and barked an order that Ms. Doe spread her legs. She complied.

41. Ms. Doe was mortified. Defendants did not even have the decency to close the door to the examining room so that Ms. Doe would not also be subjected to being observed by passersby as she endured a forced gynecological exam.

42. Defendant Parsa then conducted a series of examinations. While agents Portillo and Herrera and other Medical Center staff watched, he inserted a speculum into Ms. Doe’s vagina and observed the interior cavity. According to medical records, Defendant Parsa did not see any foreign objects or evidence of internal drug smuggling.

43. Defendant Parsa also stuck his fingers into Ms. Doe’s vagina while palpitating her abdomen. This bimanual cavity search was negative: According to medical records, Defendant Parsa did not feel any foreign objects or evidence of internal drug smuggling.

44. Defendant Parsa also conducted a rectal examination: he inserted his fingers into Ms. Doe’s rectum and probed the orifice for foreign bodies. According to medical records, Defendant Parsa did not feel any or find evidence of internal drug smuggling.

45. While her rectum was being probed, agents Portillo and Herrera and Medical Center staff watched. Ms. Doe felt that she was being treated less than human, like an animal.

The police didn’t even have a warrant, which means that if these allegations are true, then a bunch of people brought a woman into the University Medical Center of El Paso against her will, and just because they asked him to, Dr. Michael Parsa inserted his fingers and a foreign object into her vagina and rectum against her will. That sounds like rape to me.

When something similar happened to David Eckert at the Gila Regional Medical Center last January — multiple medical explorations of his rectum — the police had at least gone through the trouble of obtaining a search warrant. I’m not convinced that getting an okay from a judge for this kind of violation makes it any better, but in theory the warrant compelled David Eckert to comply with the probings.

It did not, however, compel the doctors to perform the probings. I’m not a lawyer, so don’t use this as legal advice, but until the doctors performed their examinations, they were completely uninvolved with the investigation, and therefore beyond the judge’s jurisdiction. Judges can compel people to produce evidence and reveal knowledge that they already have, but they don’t generally have the authority to order random third parties to obtain evidence and discover knowledge. They can’t, for example, order random photographers to go take pictures of a crime scene for them. David Eckert may not have had a choice, but the doctors did, and I think they chose unethically.

As I pointed out a few years ago, when the subject of forced catheterization came up in connection with a DUI testing incident, the general ethical requirement is that medical procedures should only be done with the informed consent of the patient, and for the benefit of the patient. Consent has its exceptions — in cases where the patient is incompetent to consent, due to mental defect, unconsciousness, or minor status, certain family members can give consent, and there have been cases where a judge overrode a guardian’s refusal to give consent (e.g. had religious objections) to a lifesaving medical procedure, but in each of these cases the treatments were still done for the patient’s benefit.

That’s not what happened here. The examinations performed in all of these cases were not done in any way to benefit the patient, but to benefit the government’s war on drugs. I think the only ethical response to such requests is to refuse to do them.

There’s plenty of precedent for physicians refusing for ethical reasons to do things which they government wants them to do, the most prominent example being the refusal by nearly all American physicians to perform court-ordered executions. And although I can’t find any AMA ethics rules that specifically address forensic examinations conducted against the patient’s will, the AMA rules about participating in court-ordered medical treatments seem sort-of relevant:

Physicians can ethically participate in court-initiated medical treatments only if the procedure being mandated is therapeutically efficacious and is therefore undoubtedly not a form of punishment or solely a mechanism of social control.

So, for example, doctors might use drugs to calm a prisoner with a mental disorder that causes extreme agitation and self-harm, but they shouldn’t simply drug prisoners to make them more manageable for the benefit of the prison staff. Since the examinations conducted in these incidents have no clear medical purpose, they seem a lot more like the latter than the former.

I should note that I’m not saying that Dr. Parsa (or any of these other genital-handling doctors) is a rapist in the usual sense of the word: There’s no indication they did any of these things for their own enjoyment, and they certainly weren’t charged with the crime of rape. My guess is that they were all just having another busy day in the emergency department when someone in charge said “Go help those officers,” and so they did their thing and moved on to the next patient without thinking it through. But here are a few things they should probably think about next time some cops come in wanting someone examined:

Dr. Parsa and the others may not have been charged with rape, but I’ll bet that at least a few of them are rapists in the legal sense of the word. The key to most rape laws is the consent of the victim, not the motivation of the rapist. I’m pretty sure prosecutors never have to prove that the rapist enjoyed it.

And while you might think a doctor would be immune from prosecution because they were working with the police or participating in a court-ordered exam, the thing is that many states’ criminal statutes are notoriously poor at exempting law enforcement actions. For example, in states with the death penalty, the legal definition of murder might not include an exemption for legal executions. My guess is that the rape statutes in many states are no more thoughtfully written and do not include exemptions for law enforcement cavity searches, because no prosecutor would ever charge that. This does mean, however, that any doctor who participates in such searches is probably at the mercy of the District Attorney — and any succeeding District Attorneys — until the statute of limitations runs out.

Or perhaps more to the point, do you really want to do anything to an unconsenting human being that might or might not be rape only because a judge or a cop told you it would be okay? Shouldn’t you make that decision for yourself? And shouldn’t the right answer be obvious?

The title of this post is a lie. No means no. There is no medical exception.

In Jack Marshall’s list of 24 unethical rationalizations for bad behavior, the number one rationalization — the king of all rationalizations — is “Everybody Does It.” Although I agree in principle, I find it interesting to explore the nuances and exceptions. In Part 1 I discussed cultural norms, and how sometimes ethical behavior is defined by what everybody does.

This time around, I’d like to talk about a much broader exception to the rule which occurs when you’re applying the ethical analysis not to yourself but to other people in a group.

Suppose it’s right before an election, and you read a credible news story claiming that one of the candidates for office used his official position to do small favors for friends. That probably counts against him in terms of gaining your vote. But supposed that the next day you read another credible story claiming that all the other candidates for that office also did small favors for friends. That kind of negates the information you had about the first candidate.

It’s not that “everybody does it” makes it better. It’s that your knowledge of one particular person’s bad behavior isn’t helpful if you know all the other people are engaged in the same bad behavior. When you’re making decisions about the relative merits of other people, the absolutism of rejecting “everybody does it” won’t help you. It would be irrational to hold one person more responsible than others for the exact same bad behavior.

Marshall himself uses this form of “everybody does it” in defending Mitt Romney over stories about his bad behavior when is was a very young man:

The Washington Post’s despicable exposition of ancient recollections of Mitt Romney’s mean-spirited and boorish conduct while being enrolled in that well-known cauldron of mean-spirited and boorish conduct–prep school–has caused me serial episodes of shock. […]

Guys in school assault each other, batter each other, punch each other, and do horrible things to each other that would get them arrested if they did it to a stranger on the street. That doesn’t make them “criminal,” and it doesn’t make them sociopaths. It’s called “growing up.” […] Why does Rick assume that Mitt Romney is different? Why doesn’t he see that it is unfair to assume that he is?

Obviously, if there are nuances to bad behavior, you can (and should) make judgements on those nuances. If all of your candidates are 35-year-old men who had sex with 16-year-old girls, it probably makes a difference if the relationship was a drunken hookup at a party, a teacher and his student, a client and a prostitute, or a father and his daughter.

But if the situations are identical (or at least somewhat comparable), then it doesn’t matter how reprehensible the conduct, nor how high the stakes, as long as you have to choose among a fixed group of people and there’s no way to postpone the decision or add other candidates. If it comes to light on election eve that all our presidential candidates are child molesters, then you’re going to have to hold your nose in the voting booth and choose which child molester you want to be President.

A couple of days ago, I posted about this silly graph, which shows the wage gap between men and women:

The dotted gray line on the graph at first seems to show that “Women’s Wages as a Percentage of Men’s Wages” are dropping, but that turns out to be because the dotted gray line is plotted against the right-hand scale, which is printed upside down, with the larger numbers at the bottom. I called this a sin against graph design.

My co-blogger Ken suggested in a comment that this might not be such a terrible sin:

I often run into a graph like that where the right-hand scale is reversed when reading scientific papers. It’s often used to emphasize a reduction such as this one. The graph clearly shows an overall reduction in the gap between wages and demonstrates the variations by time.

It’s actually a good graph, but fails to make the point James Park was trying to make. The question is if James Park created the graph with the intention of deceiving, or just copied the graph from an analysis done that Park failed to understand.

A little research indicates it was the second option. The graph appears to be Figure 8 from the report “Women and the Economy 2010: 25 Years of Progress But Challenges Remain” dated August 2010, which appears on the “Women and the Economy 2010 Series” website. The report is credited to “the Majority Staff of the Joint Economic Committee” of the United States Congress.

So, it’s your tax dollars at work. I imagine James Park probably just took the graph from that report without worrying too much about the details. After all, it’s from Congress, right?

In any case, it’s still a bad way to show data. I realize that data sometimes has to be massaged to show results–such as plotting data against a reciprocol or logarithmic scale–but inverting the scale like this just seems wrong, especially since you could just as easily plotted the size of the gap itself, which really would slant downward on a normally-oriented scale.

I suppose one possibility is that for some historical reason wage differential graphs are always presented in this format. That sort of thing sometimes happens. For example, the traditional way to draw supply and demand curves in economics is to put price on the vertical scale and demand on the horizontal scale, which swaps the dependent and independent variables from the usual scientific practice. However, since it was an economist’s blog that first brought his to my attention, this seems unlikely.

Some of the lawyers on my blogroll have been poking fun at a guy named Jack Marshall. He calls himself an “ethicist,” runs a consulting firm called ProEthics, and has a blog called Ethics Alarms. I don’t really know anything about him, but I thought his blog might make a good source of stuff for me to write about.

For the most part, his blog turns out to be about ethical situations I don’t find interesting — baseball, politics, frivolous lawsuits — but then I found one from a few days ago that I can work with:

Ethics Pop Quiz: “What’s Unethical About Auctioning Intern Positions?”

Are you ready to exercise those ethics brain cells?

The News Alert blog is reporting that the Huffington Post auctioned off an intern position for $9000, and another internship–three weeks of it with Richard Branson, founder of Virgin Atlantic Airways, and three weeks with hip-hop entrepreneur Russell Simmons — was auctioned off for $85,000, to benefit Simmons’s charity, Rush Philanthropic.

Question: Is there anything unethical about this, and if so, what?

My answer will not surprise my regular readers: No, there is nothing unethical about this. Neither the organizations providing the internships nor the people bidding for them are being coerced. The transaction would not have gone through unless all parties found it acceptable. Since everyone involved likes the outcome, there’s no ethical objection.

Marshall, however, sees a problem:

Answer: It is unethical to have interns do substantive work without paying them, and it is more unethical to make them pay for the privilege of being exploited.

How did HuffPo or Virgin make people pay? It’s hard to imagine a more voluntary market activity than casting bids in an auction.

When a for-profit organization allows an intern to work without compensation, it is 1) taking advantage of workers desperate for experience, 2) skirting the minimum wage laws, and frequently 3) using unpaid interns to take a job that an unemployed worker could fill.

Wow. That single sentence has an amazing amount of muddled thinking. Start with the qualifier “for-profit.” None of the issues he mentions in the rest of the sentence depend on the for-profit or non-profit status of the organization. Marshall is saying these interns are being exploited, but by singling out for-profit organizations, he’s implying that it’s okay for non-profit organizations to exploit people. I suspect he thinks there’s nothing wrong with non-profit organizations accepting volunteers, and he’s trying to hand-wave the distinction.

The first issues he raises, “taking advantage of workers desperate for experience,” is probably the strongest one, in the sense that not paying people for productive work seems exploitive to a lot of people. However, the fact that people have volunteered for these positions, and even paid for them, implies that they must believe they are getting something valuable in return. I think “taking advantage of workers desperate for experience” is probably better read as “providing experience to people desperate to acquire it.”

The second issue, “skirting the minimum wage laws,” is a mind-boggling muddle all by itself. First of all, correct me if I’m wrong, but if you’re skirting the laws, aren’t you obeying them? Second, the minimum wage laws have the same logical form as the ethical issue itself, so appealing to them is a form of begging the question. Third, it implicitly assumes that anything illegal is also unethical, which seems to make it impossible to ever change the law.

The third issue, “using unpaid interns to take a job that an unemployed worker could fill,” is the silliest of them all. What possible change could we make to the intern’s terms of employment that would not take a job that an unemployed worker could fill? Even if the company paid their interns 10 million dollars per hour, the other guy would still be out of a job. And if we give the intern’s job to the other guy, doesn’t that leave the intern unemployed?

If the internship has no real educational value and consists of medial tasks, it’s unfair to the intern for that reason too.

If the internship has no real educational value and consists of menial tasks, don’t you think the intern would quit? I’m sure people wanted these internships because they expected to get something out of them.

The fact that someone agrees to be mistreated doesn’t relieve a person or an organization from the ethical obligation not to mistreat them. Just because you know you can get someone to work for unfair compensation doesn’t make the compensation fair.

I’m not sure why you need a concept of “fair” beyond the fact that people are willing to work for it. To put it another way, if the people who accept the compensation think it’s fair enough for them, who are we to question their judgement?

Auctioning off the exploitive internship to the highest bidder just compounds the unfairness. The interns are now being chosen according to financial means rather than merit. Whether or not the money goes to charity, this is ethically indistinguishable from a bribe or a kickback.  “Okay: we have ten good candidates for this internship. Who’s willing to pay the most for it? Cash only!” This method of choosing interns would be unethical for paid internships.

What makes bribes unethical is that the person receiving the bribe is dishonoring a duty. A facilities manager who picks a roofing contractor because he got a kickback is betraying the interests of his employer in finding a good roofer, and a building inspector who overlooks faulty wiring because of a bribe is betraying the city that pays him to keep buildings safe. In the case of the auctioned internships, no one is being betrayed. A professional ethicist should be able to spot a distinction like this.

I imagine that spending time at a major media organization or hanging out with captains of industry is a pretty educational experience. I’m sure plenty of people are willing to pay for those experiences. If there’s an ethics issue here, it’s not that people paid for internships, it’s whether or not they got good value for their money…which is the same question we have about any purchase.