OBLIGING SURGEONS TO ENHANCE: NEGLIGENCE LIABILITY FOR UNCORRECTED FATIGUE AND PROBLEMS WITH PROVING CAUSATION

Increasing interest in the use of cognitive enhancing pharmaceuticals, such as modafinil, has led to considerable ethical debate about issues around authenticity, fairness and even whether there is a moral obligation to enhance. This latter question has raised questions as to whether there might be a legal obligation to enhance. We have argued elsewhere that the law will not oblige a professional to self-enhance. In this article, we explore a second reason why a claim of negligence for a failure to enhance would be unlikely to succeed: the problem of establishing causation. As the science on enhancers and what they are capable of currently stands, it would be almost invariably impossible to establish a causal link between failure to enhance to redress fatigue, and the harm that allegedly resulted. Even where a link between fatigue and harm can be established, it will be extremely difficult to show that taking an enhancer would have averted the harm. We focus on the most likely context in which such claims might arise--clinical negligence--and on the most efficacious enhancing drug currently available-modafinil.