Doing Good and Avoiding Evil
Part II. Selected Cases
by Lisa Newton

Case 16

Bartholomew Holmes has just assumed the duties of a parish priest in an East Coast suburb. Shortly after he and his family have settled into the rectory, he receives a phone call from the highest elected official of his town who has a "special favor" to ask. It seems that the McKinney Foundation has purchased a duplex house in town, not far from his church, and plans to move in eight homeless victims of AIDS. Following the lead of Fairfield, Connecticut, the last town where this happened, the elected official intends to establish a blue-ribbon Commission to look into the matter and see if any special restrictions or conditions might be appropriate "for health and public safety." There will be physicians and public health experts on the Commission, of course. Will Bartholomew be willing to chair it? He has asked for 24 hours to think about it.

In that 24 hours, Bart has found out that (a) one of his parishioners is president of the Neighborhood Protection Association that is opposing the use of the house for AIDS victims, (b) his senior warden roundly condemned his predecessor for "mucking in politics" when he accepted a similar post, (c) there is a Concerned Clergy association in town forming to support the McKinney Foundation and minister to the residents of the shelter when they move in, and (d) there is no record, as far as anyone can discover, of any real "health and public safety" problems associated with AIDS facilities. The problem, if any, seems to have only to do with property values.

Should Bart accept the post? If not, why not? If so, what should he try to get that Commission to do?

Case 17

Michael Harrison is an excellent pharmacist, very proud of his new store in Harborville. He is already acquiring customers, as the physicians of the area are pleased with his work. Now Mrs. Jones arrives with a prescription for a pain relief medicine that Michael recognizes as somewhat dangerous, especially if an accidental overdose is taken, very addictive, and very little used. He is familiar with several recent articles in the medical and pharmacological literature essentially discrediting the drug. He wonders if the prescribing physician, the oldest in town and the one with the largest practice, is equally familiar with the literature on this medication.

Telling the waiting customer that he wants to "clarify" the prescription, Michael calls the physician and timidly asks if what he's reading is really what the physician wanted, given recent doubts on this particular medication... The answer is swift and sure--"I know the drug well, thank you, you do your job and I'll do mine." Michael isn't sure he knows just what his job is, at this point.

  1. To be a storekeeper, dish out the product to the customer, take her payment, and forget the situation? He needs that physician's referrals, after all.
  2. To be a good health care professional, go over the advantages and disadvantages of the medicine with Mrs. Jones, so that she can make an informed choice to buy the substance or not? That might be suicidal, as far as his business is concerned.
  3. To be a good citizen, given the unmistakable evidence of dangerous incompetence, and call the County Medical Society (or the state licensing board)?
  4. To tell Mrs. Jones that he is fresh out of the medication, and to find another pharmacy for that substance?

Case 18

Natalie Goren has been practicing law in the small town of Hampton for 22 years, and has formed some close friendships in the town. Mary Forbes is one of those friends. Jim and Mary are pillars of the town's United Way, the PTA, and the YMCA, which always holds its annual ball in the Forbes' ample house. This morning Mary Forbes came to Natalie's office with her 16-year-old son Jimmy. Jimmy, Mary explains, has been accused of car theft. It seems that a car was stolen from the parking lot at the train station yesterday, and that one of the thieves, a boy from the "other side" of town was seen but not apprehended, giving the police some leads as to where to look. The thief was not found, but his girl friend was, and she had named Jimmy as the leader of the group! Ridiculous, but the prosecutor said he had to follow up the case. Would Natalie represent Jimmy? And please, try to keep the whole thing as quiet as possible? Natalie had agreed, and asked Jimmy to come back early in the afternoon to discuss the details of his whereabouts, the possibility that he might have known the thieves, and so on, to help her build up the case. He had come back, and they had had a very interesting discussion. Now Natalie had to decide how to proceed.

Jimmy, it seems, had indeed stolen the car, not his first. His parents were unaware that he even knew any of the boys from the "other side" of town (largely Italian in extraction, perceived by the Forbes' social circles as a bunch of hoodlums); in fact he had been hanging around with them for a year, after winning their confidence with a succession of small thefts, all the easier for him since his presence in a local store would not arouse suspicion. He was not the happy, industrious boy his parents had always instructed and assumed him to be; his adequate school record concealed truancy, minor vandalism, petty theft from school storage rooms, and experimentation with drugs. "But you're not going to tell my parents any of this, are you?" he had asked, concluding his narrative. "You're my lawyer, right? so you've got to keep this confidential. All I want to know is, can you get me off? I'll cooperate any way I have to so I don't have to go to jail." Natalie had sent Jimmy home, urged him to talk to his parents, knowing he wouldn't, and had made a few phone calls. She knew now that the car had been recovered, the gang member who had been seen taking the car had not been found, and she guessed that no one would believe the girl friend. Jimmy did not have a plausible alibi, but he was willing to lie about what he'd been doing that night, and as the success of his deception of his parents indicated, he was a very good liar. So she probably could "get Jimmy off," and keep his parents satisfied, by vigorously defending his lies. Should she?

The following considerations ran through her mind as she looked out the window and wondered what to do:

  • The Bar Association's ethical code has certain reservations about the use of a client's perjured testimony in his defense, but there is enough doubt about its permissibility to allow her to proceed; maybe she won't need it anyway.
  • Jimmy is 16, and he won't just be rapped on the knuckles and sent home as a juvenile. If the truth comes out, this affair will be devastating for the parents. It will be in all the papers, the more so because Jimmy is the last one anyone would suspect.
  • On the other hand, he won't be sent to jail. He'll be required to do community service, right out in public, and to report to a probation board, which in Hampton is made up of a very good group of older lawyers and judges. They are likely to be far firmer, but far more understanding, than Jimmy's parents; this might just be a chance for his life to turn around.
  • On the other hand, it might not be. Whatever comes of the rehabilitation, as the courts call it, Jimmy will have a criminal record and his parents will be publicly humiliated. Maybe better to get him off, whatever that takes, and then try to get Jimmy turned around.
    Should she call Jim and Mary? That would be a violation of Jimmy's confidentiality, of course, but after all, it was Mary who retained her, and Jim will be paying for her services. Who is the client here, anyway?
  • Setting that question aside for the moment, what does she owe Jim and Mary as a friend?

III. Three representative forms of moral reasoning are given in the text: reasoning from duties (deontological), reasoning from consequences, (teleological), and reasoning from virtue (ontological). It is entirely possible that courses of action that can be shown to be good from one derivation are demonstrably inadequate from another. Again, no easy formula will tell us line to follow, in each case or in general.

Case 19

Marcia Bonacre is a 32-year old salesman, and a single parent to three small children. Her company has been having a harder time than usual competing in its changing markets, and to make life a bit easier for themselves, they've started, very quietly, getting together with similarly situated competitors to divide up the market and establish prices for products that they all sell. Marcia is expected to go along with this practice, and she finds it troubling. "I can't blow the whistle on them," she says, "I need the job too much. If the Department of Justice finds out about this price-fixing activity, I might possibly go to jail--but the company would take good care of me if that happened. Ironically, I might be better off going to jail than being fired, as far as the consequences to my career are concerned. But even though the whole industry is doing it, I still feel guilty about my participation in an illegal scheme. Should I resign, try to find another job somehow, move to another city? Should I blow the whistle even though it will wreck my family? What should I do?" Incidentally, there is no money in the family beyond that brought in by Marcia.

Case 20

Bob and Jean Whittaker have lived in Middletown for twenty-five years, in the same large and comfortable house on a wooded lot. They have never had any trouble with the neighbors, because, as they point out happily, they don't really have any: their lot is bounded on three sides by local roads and on the fourth by the Sherman Parkway, built in the 1930's and named in honor of a former governor of their state. The Sherman Parkway carries a good deal of traffic, but the noise is not particularly bothersome; while the right-of-way of the Parkway is very close to the house, the actual travel lanes are over a hundred yards away, with many trees in between. To relieve rush hour congestion, the state periodically announces plans to restructure the Parkway, to put another set of travel lanes on the hundred-yard stretch between the Whittakers' house and the present roadway. This course would ruin the property, along with all others along the Parkway, putting an eight-lane superhighway twenty-five feet from their back door.

The Whittakers are dedicated environmentalists, and fight the state's proposals to blacktop this (or any other) stretch of woods and fields every chance they get--fully aware of their own mixed motives in this case. The last time the state developed plans to put in new travel lanes, the Whittakers had organized a regional environmental coalition that defeated the plan. In the course of the fight, they had strongly recommended further consideration of mass transportation to ferry commuters during the rush hours, and they thought the state had listened. But nothing had been done.

Now the state has revived plans for the road widening. But the Whittakers find that while the environmental considerations remain the same, their personal interests are affected in a different way this time. Their children have left home, and for very good reasons, are in need of money--one is buying a first house in a fine area, where the house is a good investment as well as a pleasant place to live, one has just decided to go to graduate school, a third is starting up a very attractive business. To help them out, the Whittakers would like to sell the house and move to a much smaller place, closer to town. Are they obligated by their commitments in the past to reorganize the environmental group? What are their obligations of candor: to their neighbors, to their children, to the state, to the potential buyers of the house?

Case 21

After coming home from his last business trip, Jim O'Hara sat down for the first time in months, looked over his accounts and his position with the company, and found himself in a mess. On the down side, he was sure that his immediate supervisor was gunning for him (probably, he figured, because Jim was substantially older than she was, and knew the business inside and out, and she couldn't stand that), and had sent him one more nasty memo questioning his expenses on the previous trip and warning against asking for reimbursement for more than one night in a motel for this last trip. Beside that note on the desk was a printout from Accounting showing that a set of expenses for supplies ($325.00) had again, through Accounting's error, been charged to his travel budget; the last time that had happened it had taken two months to straighten out, and his supervisor had made some even nastier remarks about his apparent inability to exercise appropriate oversight. On the up side, he had just received a check for $318.00 as a refund for some computer software that had been returned as defective; the check was made out to him, but had to be returned to the supplies budget. After he had done that, he figured, he'd go argue with accounting about shifting the mischarged funds back from the supplies budget to the travel budget, and after that he's go argue with his supervisor and explain that because of the snowstorm he had to stay two extra days in the motel, for about $340.00 over what he had expected to spend.

Then a small thought crept into his head: why do anything? the supplies budget was reimbursed for the software by the erroneous charge on the travel budget; the travel budget owes him over $300.00 anyway; why not avoid all the hassles with Accounting and the supervisor by just banking the check for $318.00 and calling it square?

Case 22

G. David Thorsten, company ethicist for UXL, one of the country's largest (remaining) steel producers, had just settled into his office for the morning when Tony Francato, the new hire in the legal department, came to the door in a state of obvious agitation. "Can I talk to you for a minute?"

"Of course, Tony, what's on your mind?"

"Dave, I just got a call from an OSHA man....uh, that's the local Occupational Safety and Health Administration inspector. He wants me to go with him on an inspection of our Rambo River coke facility. That's the plant that got the citation last year for dirty air--excessive workplace air pollution, they called it. You have to have only so much SO2 and other junk in the air or they close the factory to protect the workers' health. And we had too much. So when I got the call I told him I couldn't talk to him for a minute but could I get right back, and then I called Joe Salvatore, the plant manager at Rambo, and asked are we clean enough to survive an OSHA visit? He said Hell, no, excuse the French, we've got a very high production rate right now and the weather isn't friendly, there's a temperature inversion, the air is stagnant, and it's for sure it wouldn't pass. Look, he thinks they'll close the plant if the inspector sees it like it is now! He said stall. Lie if you have to. There's no one else in today in my office, so I don't know if this has ever come up before and what we've done about it. Dave, can I do this?"

"I don't understand. What would you do?"

"Every OSHA inspection is accompanied by a man from the legal department and by the occupational safety manager, in this plant Bob Watson. Watson's a good man, not likely to blow any whistles. I can just call OSHA back and tell them Watson's out of town--I already told Joe I might do that, in case OSHA calls the plant to check--but he'll be back Thursday and we can go first thing in the morning."

"What good would that do?"

"By Thursday we can have that place clean as a whistle. Cut production way down, set up fans, really blow the place out. That way we'd pass the inspection and they'd leave us alone for another year. If we fail, they're very likely to start proceedings to close the plant."

"But look, Tony, when production started up again, the conditions would be just as bad as they are now, right? And that's bad for the workers, isn't it? OSHA didn't just make up these standards out of the blue, right? OSHA or not, we have a responsibility to take care of our workers' health. Why don't we play it straight? Go through the inspection, get together with OSHA on the results, and settle on some way to clean up that air for good."

"Dave, UXL isn't going to clean up that plant. The kind of pollution control machinery they need costs millions, and they wouldn't spend that money. You know the state of the steel industry, I guess. UXL used to be the biggest steel producer there was, but that was before it diversified. Now it's mostly into insurance and that chain of fast food restaurants, and..."

"OK, so they won't spend the money. How long is the OSHA man going to wait for you to return his call, by the way?"

"I said something about this intestinal problem I've got. No, they won't spend the money, and the way the industry is going, there aren't any more jobs out there for these workers. This plant is only marginally profitable as it is. At present levels, though, it can keep making money for another ten years at least."

"But Tony, we can't leave the men in that atmosphere for ten years, or ten weeks! Pollution kills! It causes lung cancer, emphysema, heart disease, all manner of dreadful things. I'm not sure that we wouldn't be legally liable, if one of the workers came down with lung cancer, decided it was our fault, and sued, although you'd know more about that than I would. But it's simply wrong to poison them, under the compulsion of threat to their jobs."

"Yeah, but they say they'll take that chance. The union's said they want the plant open, and so have individual workers--they won't sue. It's jobs now--food on the table, clothes for the kids, not to mention self-respect--or health later, the way it looks to them. And health later doesn't seem anywhere near as important. The way I see it, I think, it's their health and their choice. I'm not even sure that we have a right to make that choice for them. But what do you think? When I call the guy back, what do I say?"

Well, what does he say? What do you say? And why? what's at stake here? What takes priority: the law? the health of the workers in the long run? the workers' choice, whatever it may be? job security? profits? what?

Case 23

John and Bobbie Madigan, 24 and 23 years old respectively, are griefstricken. Their first child has been born with spina bifida and meningomyelocele (the backbone did not close, and the nerves that make up the spinal cord continue downward no further than a wound, about halfway down the baby's back, from which they protrude). As is normal in such cases, the baby suffers further from hydrocephaly (spinal fluid, essentially water, gathering on the brain with no outlet, putting damaging pressure on the brain) and occasional seizures (destructive electrical anomalies in the brain). The prognosis for the baby, if it lives, is for a life in a wheelchair, with probable severe mental retardation. Of more immediate concern to the parents right now is that several surgical interventions will be necessary, starting immediately and continuing over the next few years, just to ensure that survival.

Their pediatrician has told them that they must authorize the surgery immediately if the baby is to live; however, if they feel that the surgery will be "too burdensome" for the baby, they have the right to refuse it. If they refuse it, he indicates, the baby will surely die of meningitis in a short time. Their obstetrician, after commiserating with them, dropped a suggestion that another baby would most likely not suffer from this syndrome, which is not believed to be genetic in origin. It's always sad when a baby has to die, but after all, they're young; they will surely try again.

On the other hand, no law says the baby "has to die." The baby is very much alive, and can probably be kept so with appropriate aggressive treatment. Should we deliberately deny a child medical treatment necessary for survival on the grounds that the quality of the child's life will not be what we, or her middle-class parents, might desire? A member of a local Advocacy for the Handicapped group has already cornered Bobbie and spoken persuasively about the love that a very handicapped child can bring to a family. Meanwhile, a local "Right to Life" group has indicated that it may seek a court order on the baby's behalf to order the surgery (should the parents refuse).

What is the Madigans ethical obligation at this point?

To do what is best for their own future, and that of others, possibly including the baby--namely, let the baby die and go home, grieve, and try again?

To fulfill their parental duty to preserve the life of this child?

To act as virtuous parents? What would be entailed by that?

Once you have decided that, take on the peripheral concerns--the specifications of the medical treatment, the interaction with the health care team, the interaction with the various advocacy and other groups. Suggestion: as with the Weston case, adopt different roles: physicians, nurses, hospital administrators, advocates, parents.

Materials prepared by Lisa H. Newton, Ph.D. 1998

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