Abstract
If bioethics testimony is like “strands to a rope,” it is important to separate the distinctively ethical strands from other strands, using reliability criteria appropriate for each type of reasoning. In Chapter 6, we looked at two general approaches to distinctively ethical reasoning in bioethics testimony and applied the general acceptance criteria to excerpts of them from Izidor v. Knight and In re Baby K. However, bioethics experts are not methodological purists. Even the distinctively ethical strands of their reasoning are rarely, if ever, purely casuist or principlist. As a result, the noncasuist and nonprinciplist steps must meet some other criteria of reliability. This chapter focuses on peer review, which may serve as a default reliability criterion for steps of bioethics testimony that are not identifiably casuist or principlist. We examine steps in testimony from In re Baby K to which the peer review criterion could be applied. In addition, we look at testimony from a criminal case, State v. Weitzel,1 and apply the peer review criterion to it.
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Endnotes
http://www.weitzelcharts.com (last visited January 27, 2006). Weitzel v. Div. of Occupational & Professional Licensing of the Dept. of Commerce of the State of Utah, 240 F.2d 871 (2001) was brought after the criminal case was dropped. Psychiatrist ‘innocent’ in 5 Utah deaths, United Press International, Salt Lake City, November 23, 2002.
Sales BD, Shuman DW. Experts in court: Reconciling law, science, and professional knowledge. Washington, D.C.: American Psychological Association, 2005 at 58.
See National Commission on Egg Nutrition and Richard Weiner, Inc., Petitioners-Appellants, v. Federal Trade Commission, Respondent-Appellee, 570 F.2d 157 (1977); AFL-CIO v. Marshall, 199 U.S. App. D.C 54 (1979); Peter H. Forsham, et al., Appellants, v. Joseph A. Califano, Secretary of the Department of Health, Education and Welfare, et al., 190 U.S. App. D.C. 231 (1978).
Daubert v. Merrell Dow Pharmaceuticals, 727 F. Supp. 570, 575 (1989).
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157 (1999).
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Fairfax Hospital v. Baby K, deposition of John C. Fletcher on April 13, 1993 at p. 39 line 3 to p. 40 line 5.
Joel Feinberg’s Harm to Others, which describes the concept of moral harm as central to the teaching of Socrates, Plato, and the Stoics had been published several years before. However, Feinberg understood the moral harm discussion to be regarding whether a morally degraded character is itself a harm independent of its effect on its possessors’ interests. Feinberg J. The moral limits of the criminal law: harm to others. New York: Oxford University Press, 1984–1988.
Warwick DP. Types of harm in social research. In: Beauchamp TL, Faden RR, Wallace RJ Jr., Walters L, eds. Ethical issues in social science research. Baltimore and London: Johns Hopkins University Press 1982:101–124.
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Fairfax Hospital v. Baby K, deposition of John C. Fletcher on April 13, 1993 at p. 49 line 9 to p. 51 line 7.
See Veatch RM, Spicer CM. Medically futile care: The role of the physician in setting limits. Am J L & Med 1992;18:15–36; Youngner SJ. Who defines futility? JAMA 1988;260:2094–2095 at 2094; Guidelines on the termination of life-sustaining treatment and the care of the dying: a report of the Hastings Center. Briarcliff Manor, NY: Hastings Center; 1987 at 32.
Most notably Veatch RM, Spicer CM. Medically futile care; The role of the physician in setting limits. Am J L Med 1992;18:15–36.
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Fairfax Hospital v. Baby K, deposition of Robert M. Veatch on March 31, 1993 at p. 146 line 10 to p. 149.
Beauchamp TL, Childress JF. Principles of biomedical ethics. 5th ed. New York, NY: Oxford University Press, 2001 at 160, ftnt. 37.
Weitzel v. Div. of Occupational & Professional Licensing of the Dept. of Commerce of the State of Utah, 240 F.2d 871 (2001).
See Rothwell P, Martyn CN. Reproducibility of peer review in clinical neuroscience. Brain 2000;123:1964–1969. See also Cole S, Cole JR, and Simon GA. Chance and consensus in peer review. Science 1981;214:881–886.
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See Koren G. A simple way to improve the chances for acceptance of your scientific paper. New Eng J Med 1986;315:1298; Rothwell P, Martyn CN. Reproducibility of peer review in clinical neuroscience. Brain 2000;123:1964–1969 at 1968.
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(2007). Reliability of Bioethics Testimony. In: Bioethics in Law. Humana Press. https://doi.org/10.1007/978-1-59745-295-3_8
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