3.1 Organizing Medical Work: Consumerism, Professionalism, or Statism

3.1.1 Introduction

Both the core values of health care professionals and the place of health care professionals in contemporary society are often taken for granted. For many people, the modern structures and ideals of professionalism in health care seem so obvious as to be unquestioned features of the landscape. They are the air we breathe, the water in which we swim—little noticed, at least until they are polluted. It may seem natural that one must be properly trained and licensed to practice medicine. It may be equally obvious that potentially dangerous medications must be tested by medical researchers and approved by medical regulators before they can be used, or that health professionals must establish and enforce educational, ethical and practice standards for themselves. Perhaps the only aspect of modern health care professionalism even more obvious than these structural features is its moral focus: health care professionals must be altruistically devoted to protecting the well-being of their patients. But it has not always been so. In fact, the Holocaus—coming as it did during the formative years of modern health care professionalism, and just before the birth of Bioethics as a field—was tremendously influential in the development of current professional structures and ideals.

3.1.2 Professionalism is a Choice

Medicine, and health care more broadly, along with the clerical and legal fields are classic “learned professions.” The health care fields have been so successful in building and sustaining the core structures of professionalism over the last 150 years that one could be forgiven for thinking that health care work, by its very nature, is such that it must be organized as a profession, and it must have an internal morality of altruistic devotion to the sick at its heart. Indeed, some of the most influential founders of the field of Bioethics have argued as much (Pellegrino and Thomasma 1981), and many still believe in the existence of a natural internal morality of medicine today (Sulmasy Daniel 2019). Skeptics, however, argue that professionalism in medicine is simply a form of organization whose ethics amounts to whatever its members deem best suits their interests to proclaim (Applbaum 1999).

The view that professionalism in health care must be predicated on an internal morality focused on protecting patients as its core value is appealing, not least because such a belief is a direct rebuke to the Nazi doctors, who embraced a conception of medical science that explicitly rejected this view. Holding this belief allows medical professionals to say that what Nazi doctors and other German health care workers did during the 1930–40s was a betrayal of the essence of medical work. They were not really health professionals at all, having rejected the essential nature of the field. Not coincidentally, however, this is a tautological way of separating us from them, since health care professionals, as we define the field today, by definition differ from the Nazi doctors, as they defined themselves.

Regardless of whether essentialist views about the internal morality of medicine hold, the existence of the Nazi doctors clearly proves two things about health care professionalism. First, professionalism is just one choice for how to organize and deliver health care services; other choices are possible. Second, the traditional health care ethics of altruistic devotion to individuals who are sick, wounded or vulnerable to disease is just one possible aim of health care services; other aims are possible.

3.1.3 Defining Professionalism

In considering these issues, it is helpful first to consider the origins of the term, professionalism (Wynia 2010). The root of the word is the Latin verb, profere, which means, to promise. To profess something is to publicly affirm or announce something, such as one’s faith. A couple will profess their commitment to each other in a marriage ceremony, and professors affirm their beliefs in their teachings to students. These examples illustrate an important feature of the word, profess; to profess something is not a private act, it is an open, public declaration.

The noun “profession” designates a group of people who make such public declarations together. Hence the professions of medicine, teaching, law, engineering and more—all are groups who make public promises about the competencies, training and ethics the public can expect when interacting with members of their group. Professions also make declarations about why they should be trusted to uphold these promises, describing how they will regulate themselves. Importantly, many core structures of professions, such as codes of ethics, educational standards, and legal self-regulatory mechanisms, like licensure boards, are intended to reinforce public trust in the professed promises of the group.

Building further on this foundation, the word “professional,” is either a noun, naming someone as a member of the group, or it can be an adjective describing knowledge, actions or attitudes that are in conformance with the declared standards of the group (these are professional behaviors or attitudes) or not (which would be unprofessional behaviors or attitudes).

What, then, is “professional-ism”? In short, it is an -ism. That is, professionalism, like other words that end in -ism—such as Catholicism, pragmatism, capitalism, consumerism, communism, racism, sexism and many others—are fundamentally systems of acting and believing. The -ism examples just listed reflect ways of acting towards and thinking about a deity, goods, services, or people with designated racial and/or and gender roles (Wynia et al. 2014). These examples also illustrate that each “-ism” is attached to a root word that is at the heart of its system of beliefs and behaviors. So, racism posits (incorrectly, we hasten to add) that differences between human ‘races’ should be organizing features of society. Capitalism posits the free movement of capital as a central organizing principle of a good society. Libertarianism focuses on personal and organizational liberties in free markets as a means of producing optimal benefits across a society. Similarly, “professionalism” posits a critical role for professional groups (i.e., groups with specialized expertise that are granted the privilege of setting and enforcing their own practice standards) in creating and sustaining a good society.

To summarize, professionalism is the belief that the best way to organize and deliver a particular type of goods or services is to have a group of people dedicated to the task, and that this dedicated group should be charged with—and trusted to—establish, articulate (profess) and enforce standards of training and practice for the group, including its ethical standards. Health care professionalism more specifically (or medical professionalism, nursing professionalism, dental professionalism, and so on), is the belief that health care work is the type of work that ought to be organized, delivered and overseen as a profession.

3.1.4 Why Choose Professionalism in Health Care?

The primary reason to argue that health care work ought to be organized and delivered under a professionalism model is the combined moral and practical features of health care work. From a moral standpoint, people seeking health care services are often in a position of vulnerability, due to illness or their relative lack of knowledge about the technical aspects of health care treatments, and so may be vulnerable to exploitation—feeling they have no choice but to do as the health professional says and pay what the health professional charges. Thus, whereas “buyer beware” (caveat emptor) might work for many other consumer goods and services, it is an insufficient method for protecting people seeking assistance as they battle disease. Modern health care professionalism promises that due to codes of ethics and extensive socialization into the moral norms of the profession—which focus largely on protecting patients—patients today can and should regard health professionals as their trusted agents, rather than sales agents (so-called “snake oil” hucksters), corporate agents, or agents of the state.

As a practical matter, the rapidly evolving and often technical nature of health care work—requiring literally years of study and lifelong “practice”—makes it impractical for individual patients or even regulators external to the profession to fully understand the nuances of how best to establish and monitor practice standards. Consequently, the self-regulation promised by the profession is asserted to be more effective than regulation by the state or through the free market—assuming, of course, that the profession lives up to its promises.

These are strong theoretical moral and practical reasons for preferring to organize health care as a profession. But the existence of the Nazi doctors also offers tangible historical evidence of the potential risks in adopting alternative mechanisms for organizing health care and its ethics. We will have more to say on this below, but in brief, the history of health care’s involvement in Nazi medical crimes provides perhaps the most compelling argument today supporting the notion that health care should be organized around a group of independent professionals (i.e., professionalism) and that this group should be primarily dedicated to the well-being of individual patients.

3.1.5 Options Other Than Professionalism

The two main alternatives to professionalism in health care we will call health care consumerism and health care statism.Footnote 1 In each of these alternatives, there is a central role for a different actor in establishing and enforcing standards, setting prices, and otherwise governing health care work. In health care consumerism, consumers of health care goods and services (who are called patients in the professionalism model) play central roles in deciding which practice standards matter most to them, and they are also responsible for determining for themselves whether a health care practitioner is living up to those standards. Tools supporting consumerism include those that promote transparency about costs and quality, to help informed consumers make better choices about which services they prefer to receive, which practitioners to hire, and at what price.

While consumerism is different from professionalism in its basic beliefs, and they sometimes directly conflict with each other, there are areas where consumerism and professionalism complement each other and can provide balancing forces more effective at producing high quality care at reasonable cost than either approach alone. In other words, it is possible, and probably desirable, that a health care system incorporate some features reflecting a belief in professionalism and some reflecting a belief in consumerism.

Statist systems place the state/government in a central role in organizing and monitoring the quality of health care services, which offers important opportunities for the coordination of health care personnel and services to achieve broad social aims that would be much more challenging, or even impossible, to achieve using a consumerism model. For example, statist systems are well-suited to implement public health initiatives, such as the Nazi public health programs banning tobacco to prevent cancer and encouraging consumption of whole grain breads (Proctor 1988, 1999), and to implementing cost controls, like setting prices for medical services (Haedenkamp 1938) and increasing the numbers of patients cared for in German “sickness funds” (Levine et al. 2020). Moreover, insofar as governments reflect the will of the people, there is ethical legitimacy to using the power of the state to regulate health care in ways that seek to ensure it is marshalled to achieve societal aims.

As with consumerism, there are times when professionalism and statism come into direct conflict, and others when they can be mutually reinforcing. The Nazis, however, exerted strong state control over health care ethics, with a sole focus on the German people (Volk) as the primary “patient” for all doctors. This led German medical personnel to act in ways directly contrary to Hippocratic traditions. But to understand the path to statism that Nazi medicine followed, we must trace some international trends in medicine-state relations leading up to the 1930s.

3.1.6 Ancient Arguments About the Ethics of Health Care

For generations prior to the Holocaust, there had been disagreement among physicians and other health workers about their proper social roles and ethics. These disagreements were not always explicit, since it was not always obvious to those putting forth the arguments that people working in health care comprised a clear social group, and the language of “professionalism” in health care or any other field was not used until the 1800s. Still, for over 2000 years before the Holocaust, different visions for medical ethics had been proposed.

These differing visions, which remain important today, are illustrated in two brief historical vignettes about the actions of two ancient physicians, both of whom lived about 400 years after Hippocrates. First, is the story of Agrippina (AD15-59), the wife of the Emperor Claudius (AD41-54). When their marital relationship soured, she reportedly called on his doctor (Gaius Stertinius Xenophon, c. 10 BC–54 AD) for help in poisoning her husband. Apparently, he agreed to use his technical expertise on herbs and potions to help her, without particular concern for his reputation as a doctor (Tacitus, The Annals Book XIV, 1–16). His expertise was purely technical, with no necessary moral underpinning separate from serving his client, the Empress.

An alternative ideal of medical ethics was described by Scribonius Largus (fl. ca. 14–54), a military physician who served in the armies and at the court of the Emperor Claudius. As a follower of Hippocrates, Scribonius took seriously the Hippocratic injunction to “do no harm.” When allegations arose from Cato the Elder (234–139 BCE) and Pliny the Elder (23–79) that “Greek doctors exploit[ed] the sick [prisoners]…[by] testing remedies at the expense of human lives,” Scribonius defended his fellow Greek physicians by invoking the Hippocratic Oath, writing:

No man bound by the medical profession [i.e., the Hippocratic Oath] will give dangerous drugs to anyone, even to enemies of the state, although when events demand, the same physician will fight against these men as a soldier and good citizen with every means at his disposal. This is because Medicine truly promises her assistance in equal measure to all who seek her aid, and she swears never to injure anyone deliberately, for she judges men neither by their fortune or their character…For medicine is a science of healing, not of harming. Unless Medicine fully devotes herself with all her resources to the aid of the suffering, she does not provide the mercy promised to all of mankind. (Tempkin 1991, 60; Hamilton 1986, 213–214)

These contrasting stories—one of a physician prioritizing his empress’s request to kill her husband, the other of a physician prioritizing healing even over the interests of his state—suggest that, as the anthropologist Margaret Mead noted, Hippocratic physicians may have been the first to distinguish the social roles of physician as healer from that of a mere expert purveyor of benign or deadly drugs (Bulger and Barbato 2000).

3.1.7 Early Development of Modern Professionalism

Medical practitioners would wait through the Middle Ages (Geraghty and Wynia 2000a, b), until Thomas Percival (1740–1804), would first coin the terms “medical ethics” and “professional ethics” in the late 1700s (Baker et al. 1999, xix). Percival also articulated a practical rationale for establishing and enforcing shared ethical responsibilities for all doctors: the urgent need for better teamwork. His own hospital, the Manchester Infirmary, had been riven by public feuds between competing doctors (Baker et al. 1999; Pickstone 1993; Wynia and Kurlander 2007).

But Percival’s notion of a profession was never widely adopted in nineteenth-century England. The British medical establishment saw a shared code of ethics as unnecessary because English doctors were gentlemen who already knew how to behave. Proposing the need for a code was insulting, and some thought a written code could be counterproductive, “useful only to persons who, lacking decent character, wish to pretend that they had one” (Baker 2013, 97).

American medicine, in contrast, was ripe for development and adoption of an explicit, shared code of medical ethics. Like their English counterparts, American doctors were suffering from medical chaos at the time, with multiple competing ideologies of medical practice (Thomsonianism, Eclecticism, and more), no medical training standards, and widely disparate values among practitioners, many of whom were blatantly commercial.Footnote 2 Internecine conflict among these competing practitioners led to pamphlet wars and sometimes duels but, unlike in England, Americans were not steeped in presumptions of class-based virtue and were more inclined toward social mobility, free contracts between equals, and French enlightenment ideals of social contracts as governing relations within communities. Following local efforts especially in Baltimore and New York, an explicit social contract for the entire US medical profession was first published as the Code of Medical Ethics of the American Medical Association, at the organization’s founding meeting in 1847 (Baker et al. 1999, Appendices A, B, C).

As the first code of ethics adopted nationally by any professional medical society anywhere, the AMA’s code was widely hailed as revolutionary. One commentator at the time called it “the most important public document since the Declaration of Independence” (Baker et al.1999), because it made an explicit, combined and integrated set of promises from doctors—as a group—to their patients, their colleagues and their communities regarding their scientific, ethical and service orientation. For example, it promised that all physicians would undergo training in “scientific medicine” and be “conservators of the public health.” Through it, doctors also promised to protect patient confidences, treat the poor free of charge, and during epidemics “face the danger, and continue their labors for the alleviation of the suffering even at the jeopardy of their own lives” (Baker et al. 1999, 333).

Philosophically, the 1847 AMA Code was based on moral notions of reciprocity, with society, physicians and individual patients all receiving explicit benefits and having explicit reciprocal obligations. The Code thus followed in the tradition of Hippocrates, Gregory and Percival—but it succeeded where the others had not in making the profession’s social promises as a collective, that is, as a profession, rather than as individual commitments. And, presciently, the Code emphasized a careful balance of obligations for physicians to patients, the community and each other.

How best to achieve this balance has remained a matter for debate to the current day (Wynia and Kurlander 2007; Geraghty and Wynia 2000b), but by the eighteenth century in Europe the concepts of “social medicine” and “medical police” of Johann Peter Frank (1745–1821) had been adopted across the German speaking countries and Italy (Lindemann 1996). Moreover, across Europe medicine was increasingly seen as valuable for achieving civic aims, with medical personnel acting as agents of an enlightened state. This became apparent during the French Revolution (1789–1799), which included a bloody experiment with a completely “free market” in health care. Disabused of the virtues of free enterprise in medicine the French government created a national system of physician training and licensure by 1803 (Geraghty and Wynia 2000b). Meanwhile radicalized European physicians came to view medicine as not just affected by, but as integral with, public policy. For example, the 1848 famine and typhus outbreak in Upper Silesia (modern-day Poland) was famously investigated by Rudolph Virchow (1821–1902), and the experience led him to conclude that:

Medicine has imperceptibly led us into the social field and placed us in a position of confronting directly the great problems of our time. Let it be well understood, it is no longer a question of treating one typhus patient or another by drugs or by the regulation of food, housing and clothing. Our task now consists in [improving] the culture of 1½ millions of our fellow citizens who are at the lowest level of moral and physical degradation. (Virchow 1848, reprinted in 2006)

In brief, for Virchow and an increasing number of physicians of his age, free enterprise medicine had to be supplanted by social medicine, and health care should be strongly influential in and strongly supported by state policies.

3.2 Nazi Statist Professionalism and Race-Based Medical Ethics

3.2.1 German Medicine’s Embrace of a Pure Statist Approach

When the National Socialist German Workers party (Nationalsozialistische Deutsche Arbeiterpartei—the NSDAP or NAZI party) assumed control of the German state in early 1933–1934 they inherited a statist model of national health insurance, which had been initiated in 1884 by Prince Otto von Bismarck, Chancellor of Germany, as one of many ways to unify the young German State (created from various German states and principalities in 1871). Thus, the Nazi government was in command of a statist system of health care financing, and like many European and American doctors of the time, many German doctors already believed in combining state powers and “social medicine” to improve public health. There was also, in the wake of Germany’s defeat in World War I, an oversupply of physicians—11% of whom were Jewish (US Holocaust Museum)—rising physician unemployment, and physician financial distress. These were often blamed on Jews and communists, who were accused of “stabbing Germany in the back” at the end of the war (Levine et al. 2020), a factor that amplified the number of German physicians supporting the Nazi’s call to “synchronize” the profession (Kater 1989) around a “radical nationalist consensus on national rebirth” (Jarausch 2001, 8).

Still, when the Nazis came to power independent medical professional associations published medical journals and set professional standards. By October 1933, however, all prior independent associations were disbanded and replaced by a single German Federal Chamber of Physicians (Seidelman 1996a, b), from which Jewish physicians were excluded and with a single medical journal that would be strongly supportive of Nazi health policies (Image 3.1). By 1938, the German medical practice law was re-issued. According to an approving commentary by Karl Haedenkamp the new law would achieve the “reform and unification of medical practice throughout Germany” (Haedenkamp 1938, 1749). Doctors were required to “actively support all State measures for increasing the numbers and racial purity of the population…(1749)” and “the doctor must not charge a fee higher than that permitted by the statutory scale of charges, (1750)” and use of contraceptives and abortions were prohibited without state approval, though for eugenic purposes “sterilization can be performed without the subject’s consent” (Haedenkamp 1938, 1750). Overall, the new law had three explicit aims: first, to unify the profession around their duties toward the state (e.g., it’s preamble said, “the duty of the medical profession as a group [is] to preserve and promote the nation’s health, sound heredity, and racial purity” (Seidelman, 1996a, 1695); second, to turn away from consumerism (i.e., to “protect the medical calling from becoming commercialized;” (Haedenkamp 1938, 1751)) and third, to reduce the independence of physicians (e.g., it “abolishes or limits many of the liberties which the medical practitioner previously enjoyed.” (Haedenkamp 1938, 1751).

Image 3.1
figure 1

German Medical Journal, “Deutsches Ärtzeblatt”, July 1, 1933

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By 1938 the Nazi’s had amplified and expanded the statist health care financing system they inherited and introduced statist ways of organizing, delivering, and thinking about health, including standards of practice and ethics. They also took multiple steps to explicitly diminish any role for consumerism or professionalism (Ramm 1943). These steps were designed to achieve the “Nazification” of German medicine, with health care professionals working in concert to achieve the aims of the Nazi state, which Nazi leaders saw as fundamentally medical in nature. As such, they believed success for the Nazi project would require not just medical participation but medical leadership. Hitler’s deputy, Rudolph Hess, called Nazism “applied biology,” (Kakel 2011) and Joseph Goebbels, the Nazi Minister of Propaganda, said, “Our starting point is not the individual, and we do not subscribe to the view that one should feed the hungry, give drink to the thirsty, or clothe the naked… Our objectives are entirely different: we must have a healthy people in order to prevail in the world” (US Holocaust Memorial Museum, Deadly Medicine: Creating a Master Race, available at: https://encyclopedia.ushmm.org/content/en/article/deadly-medicine-creating-the-master-race). In 1933, Dr. Ernst Rudin (1874–1952), the prominent Swiss psychiatrist and fervent eugenicist (who would receive awards from Hitler for his work on the Nazi forcible sterilization program) said that doctors should be primarily responsible for “preservation of the healthy hereditary elements and eradication of the pathologic elements” in society (Seidelman 1996a,1694). Hitler himself, who was portrayed in propaganda images as the “Doctor of the German People” (Image 3.2) argued in an early speech before the National Socialist Physicians’ League, that he could, if need be, do without lawyers, engineers, and builders, but that “you, you National Socialist doctors, I cannot do without you for a single day, not a single hour. If not for you, if you fail me, then all is lost” (Proctor 1988, 64).

Image 3.2
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“Adolf Hitler: Doctor of the German People” Die Volksgesundheitswacht Ostermond 1935, p. 3—from USHMM

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In the end, the Nazis rewrote the German medical profession’s basic ethical promises to society along statist lines. In doing so, they replaced traditional medical ethics with a eugenic ethics whose primary focus was promotion of “racial hygeine,“ Rassenhygiene, a concept that was initially proposed by Alfred Ploetz (1860–1940) in his 1895 book, The Foundations of Racial Hygiene, and later revised by Nazi intelligentsia, like Ernst Rüdin, who brought his eugenic beliefs to a series of psychiatric inheritance studies and eventually became the director of the Max Planck Institute of Psychiatry in Munich and an infamous Nazi leader. The German medical profession’s new ethical promise placed the genetic purity and health of the German Volk, i.e., a people connected to each other genetically and culturally, above the needs of individual people; in effect, prioritizing the nation’s genetic future above the welfare of anyone living in the present. (Proctor 1988). These linguistic distinctions might be dismissed as mere ideological semantics, political correctness, so to speak, had they not laid the foundations for a moral revolution affecting medical practice as the Nazi government officially proclaimed the state and its medical professions “Guardian of the Health of the Volk” (Baker 2019). As Rudolf Ramm (1887–1945) explained in his textbook on medical jurisprudence—the only medical ethics textbook used in German medical schools from 1942 through 1945—this meant that the traditional focus on curing the sick and ameliorating their suffering was secondary to a new primary objective of German health care, “the maintenance and promotion of a healthy genetic makeup and racial purity of the German Volk.” (Ramm (1943) 2019) By virtue of Bevolkerungpolitiks, i.e., a politics for the Volk, the medical and political were intertwined as one (Bruns and Chelouche 2017; Ramm (1943) 2019). As guardians of the health of the Volk, public health authorities promoted healthy eating (whole grain rather than white bread, for example), and prohibited acts that “weaken the Volk community through the abortion of a fetus” (Ramm (1943) 2019, 92) and forbade euthanasia, although both acts were permissible or even ethically required for non-Volk or for so-called “useless eaters,” i.e., people with mental or physical disability (Ramm (1943) 2019).

Notoriously, such non-Volk as Jews and Roma, as well as dysgenic Volk with physical or mental disabilities, including, in the view of the Nazis, homosexuals, came to be viewed as threats to the genetic purity of the Volk. The 1933 law “For the Prevention of Progeny of Sufferers from Hereditary Diseases,” became the rationale for the 1939 genetic health care initiative, for the eugenic euthanasie (euthanasia) of dysgenic children: a systematic program for protecting the German Volk’s gene pool by culling, i.e., killing, children with disabilities. To implement this initiative physicians, nurses, and midwives were required to report infants and children who showed signs of mental or physical disability to public health authorities (Ramm (1943) 2019). They were also to encourage parents of such children to admit them to “special children’s wards,” where the children were covertly “euthanized,” i.e., killed by health care practitioners. In 1939 the child “euthanasia” program was expanded to include euthanasieFootnote 3 for institutionalized adults with disabilities, in the Aktion T4 program, which later served as a model for the wholesale extermination of Jews and Roma in the Holocaust. And, of course, medical personnel led the most infamous of Nazi medical crimes, the heinous experiments carried out on unwilling victims.

International revulsion over these medical crimes would come to permeate thinking around medical professionalism in subsequent decades. Sometimes, the links to contemporary ethical issues would be more explicit (such as in debates about assisted dying or abortion, or around genetic ethics), in others it would be more implicit (such as in debates about appropriate roles for physicians in cost-control, or in public health ethics). But more important than a link to any specific issue is the fact that international responses to this history would come to frame the medical profession’s way of thinking about its social role.

3.3 Medicine’s Response to the Nazi Challenges to Professional Ethics

3.3.1 Western Medical Professions’ Reaction to the Holocaust

“We read the world wrong and say that it deceives us” (Tagore 1972). Physician Elisabeth Kübler-Ross (1926–2004) quotes this line from Indian poet Rabindranath Tagore (1861–1941) to explain the phenomenon of denial: peoples’ initial impulse to reject bad news as, somehow, false (Kübler-Ross 1972, 50). Tagore’s line also encapsulates Western health care professionals’ initial reaction to information about their German colleagues’ complicity in the so-called “child euthanasia” program, Aktion T4 and the Holocaust, and the use of people as involuntary human guinea pigs. They were incredulous! In 1946, for example, the eminent British scientist Sir Kenneth Mellanby, OBE (1908–1993) confessed “a great deal of sympathy for some of those [German medical professionals] who were responsible for carrying out [controversial medical] experiments…. especially serious research workers….Given the chance of using prisoners for experiments, which one believed to be of great importance and value to mankind… if…the victims were dangerous criminals who were anyhow condemned to death and likely to die in some particularly abominable manner?” Mellanby was “not sure what [he] should have done” (Mellanby 1946, 850).

Dr. Klaus Karl Schilling (1871–1946) was one of the German researchers that Mellanby defended. He described Schilling as an

eminent malariologist, [who] was hanged for his part in experiments in which some 1200 prisoners were infected with malaria.… He was over 70 when these experiments were carried out. Believing that the experiments would provide an unequalled opportunity for the advancement of malariology he used a mild strain of benign tertian malaria which would be unlikely to prove fatal in healthy individuals, and he himself appears always to have administered drugs carefully and scientifically. He is said usually to have obtained the consent of the prisoners before he infected them. (Mellanby 1947, 148–150)

As late as 1973 Mellanby was defending Schilling as “a scientist of international reputation, for some years a leading member of the League of Nations Malaria Commission… [who] infected over a thousand prisoners with malaria, and, according to the indictment, several hundred died of the disease. I simply do not believe this.” Citing a reason for his disbelief, Mellanby remarked that, “Those who knew and worked with [Schilling] did not think that he would be a party to serious and inhumane crimes.” (Mellanby 1973, 106–107). For Mellanby, his profession was an old boys’ club whose rules, written and unwritten, protected and advanced the interests of fellow gentlemen like himself, i.e., men who had gone to the right schools, who talked the right way, and who instinctively knew what was and was not, “the done thing.” It was simply unthinkable to Mellanby that Schilling, “a scientist of international reputation, for some years a leading member of the League of Nations Malaria Commission,” could have done the deeds attributed to him. After all, other club members “who knew and worked with him did not think that he would be a party to serious and inhumane crimes.” (Baker 2020a, b; Wilson 2014).

“When the first stage of denial cannot be maintained any longer,” Kübler-Ross observes, “it is replaced by feelings of anger, rage…and resentment…. This anger is displaced in all directions and projected onto the environment at times almost at random” (Kübler-Ross 1972, 50). As if following Kübler-Ross’s script, Mellanby and others of his generation projected their anger onto the Nuremberg War Crimes Tribunal. They failed to appreciate that, by focusing attention on a few bad actors, like Schilling, the Tribunal shielded the bulk of German health care professionals, such as the midwives, nurses and physicians who, acting in response to the law “For the Prevention of Progeny of Sufferers from Hereditary Diseases,” reported children with disabilities to authorities, who, in turn, covertly, “euthanized” them. In effect, an implicit bargain was struck between the allied groups occupying Germany and the German health care professions: prosecute and punish a few notorious malefactors but allow the great majority of health care professionals who were complicit in less nefarious deeds to go unpunished so that they could serve the needs of the public—provided that these professionals promised to behave themselves in the future. This implicit bargain was formalized in two promissory notes, both issued in 1947: the Nuremberg Code and the Declaration of Geneva.

3.3.2 The 1947 Nuremberg Code and the Declaration of Geneva as Promissory Notes

The first of the foundational documents of modern professional medical ethics, now known as “the Nuremberg Code,” was initially an addendum to the verdict in the case of US vs. Karl Brandt, et al. (the “Nuremberg Doctors’ Trial”) (Nuremberg Tribunal 1949). It stipulated ten sets of presumptively universally accepted do’s and don’ts for ethical research on humans. By spelling out this code the Tribunal camouflaged the embarrassing truth that, in fact, there was no such universal code: not in America, not in Britain, not in continental Europe—except, perhaps, for a 1931 German Health Council (Reichgesundheitsrat) regulation addressing research on patients, and a Prussian precursor. Neither of these addressed experiments on prisoners, and both had been purged in the 1930s, because they were inconsistent with the Nazi ethics of Rassenhygiene (Grodin 1992).

To cope with the embarrassing absence of professional ethics standards governing research on humans, prosecutors and their witnesses turned to the oldest and best-known formulation of medical ethics in the Western canon, the Hippocratic Oath. Appealing to this purportedly universal statement of the internal morality of the health care professions, the lead prosecutor, Brigadier General Telford Taylor (1908–1998), opened the trial by proclaiming that this was “‘no mere murder trial” because the defendants were physicians who had sworn to “do no harm” and to “abide by the Hippocratic Oath” (Shuster 1997, 1437). Taylor’s claim was historically inaccurate. Although Hippocratic matriculation, graduation, and induction oaths were once common in Europe, they were abandoned during the interwar period and were often supplanted in communist and fascist regimes by pledges of loyalty to a class, a leader, a party, a people, or a race (Lifton 1986; Weindling 2004) Yet, since necessity is, as always, mother of invention, fictions can and often do displace irritating facts, and the German researchers’ violations of the oath became a recurring theme throughout the trial. Thus, Andrew Conway Ivy (1893–1978), the AMA’s observer at the trial, testified that “the Hippocratic Oath represents the Golden Rule of the medical profession…throughout the world,” consequently researchers should “have respect for life and the human Rights of his experimental patient” (Ivy 1946; Schuster 1997, 1439).

Prosecutors focused on two very different types of experiments at the Nuremberg trials: experiments on therapeutics, like Schillings’ malaria experiments, and so-called “thanatological” experiments like those at Auschwitz and Ravensbrueck concentration camps designed to perfect methods of mass sterilization or mass killing in furtherance of Rassenhygiene initiatives. The Nuremberg Tribunal had no difficulty condemning health care practitioners and administrators involved in thanatological experiments or in Aktion T4 mass killing of people with disabilities, since these comprised murder, as well as war crimes and experiments on human subjects directed at biomedical issues related to the war itself, however, were not as easily condemned. Armies confronting each other on the same battlefields encountered many of the same biomedical issues and their scientists conducted seemingly similar experiments: experiments to improve treatments for wounded soldiers, for pilots downed in freezing waters, to find cures for diseases like malaria, and so forth. Thus, to condemn presumptively “immoral” experiments conducted by German researchers like Schilling, prosecutors had to distinguish his experiments from seemingly similar experiments conducted by American or British scientists.

At issue, for example, were experiments on anti-malarial drugs conducted by the University of Chicago’s Malaria Research Unit at Jolliet-Stateville prison from 1944 to 1946. In these experiments researchers infected 500 healthy white male inmates with malaria to test the efficacy of various anti-malaria drugs (Alving et al. 1948; Miller 2013). Although these experiments were superficially similar to Schilling’s, prosecutors pointed out that no deaths were associated with the Jolliet-Stateville experiments; in contrast, as Schilling’s assistant, Czech prisoner Dr. Franz Blaha (1890–1980) testified, hundreds of deaths were associated with Schilling’s Dachau experiments. Blaha also testified that none of Schilling subjects were volunteers (Blaha 1946); whereas, prosecutors emphasized, all of the subjects involved in the Jolliet-Stateville experiment had signed a written informed consent form (Green 1948, 457).

Based on the contrasting mortality outcomes and the presence of signed consent forms in the one case and their absence in the other, the Nuremberg Tribunal dismissed claims of similarity between the Dachau and Jolliet-Stateville experiments. Thus, written voluntary informed consent of the research subject became a primary differentiator to distinguish the unethical experiments by Nazi scientists from the ethical experiments by American scientists. Not coincidentally, the first principle of the Nuremberg Code stipulates that “The voluntary consent of the human subject is absolutely essential” (Annas and Grodin 1992, 2). Later in the post-World War II era, the informed voluntary consent of autonomous agents or their surrogates became foundational to Bioethics reforms in research ethics and the ethics of clinical practice.

3.3.3 The 1947 Declaration of Geneva

In 1947, the World Medical Association (WMA) was founded by physicians who served in the allied armies during WWII. Its initial objectives were to provide health care for war-ravaged Europe and to rebuild European medical education. As news of German physicians’ participation in the Holocaust surfaced, however, the newly founded WMA embraced a third commitment. They “endorse[ed] the judicial action taken [at Nuremberg] to punish those members of the medical profession who share in the crimes and…solemnly condemn[ed] the crimes and inhumanity committed by doctors in Germany and elsewhere against human beings, both during the Second World War and in the years preceding the war”(WMA 1949, 6), and took note of “evidence…offered of crimes against humanity committed by medical men… [that] shocked the whole profession.” In so doing, they also undertook to restore the integrity of medicine (WMA 1949, 6). Noting that the tradition of swearing the Hippocratic Oath had “fallen into disuse in many countries” during the interwar period, the WMA issued an updated Hippocratic Oath to ensure that never again would physicians abandon medicine’s traditional ethics of “the care of the individual patient.” (WMA 1949, 8). They were also aware that Nazi doctors, like Karl Brandt (1904-executed in 1948 by judgment of the Nuremberg Court), justified their role in the Aktion T4 eugenic euthanasie initiative by appealing to the medical ethics of Rassenhygiene. “We German physicians” Brandt had proclaimed, “look upon the state as an individual to whom we owe prime obedience, and we therefore do not hesitate to destroy an aggregate of, for instance, a trillion cells in the form of a number of individual human beings if we believe they are harmful to the total organism—the state.” Asked about the traditional medical ethics of the Hippocratic Oath, Brandt, a good statist physician, replied, that had Hippocrates been a German physician in the 1930s he would revise his oath (Schmidt 2007, 376).

Reacting to these phenomena, the WMA created another foundational document for professional medical ethics. Taking as its goal “impress[ing] on newly qualified doctors the fundamental ethics of medicine” in a way applicable to “every age and every country,” and mindful that “In view of the recent war crimes and continued troubled state of the world,” they drafted a new version of the Hippocratic Oath to serve as a “common promise, given by every newly qualified doctor…[to] afford a world-wide bond uniting them in a common service to humanity” (WMA 1949, 12). As in the original, the new version of the Oath required neophyte physicians to pledge, “The health of my patient will be my first consideration”—note, not the health of the Volk, but the health of individual patients—and it also required those entering a health care profession to pledge that they “will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient… even under threat, I will not use my medical knowledge contrary to the laws of humanity (WMA 1948, 1(1),13).Footnote 4

The WMA also offered to admit fellow German medical professionals (represented by the Arbeitsgemeinschaft Westdeutscher Artzekammern, (AWA)) into their organization. They were, however, “Astonish[ed] … that no sign whatever had come from Germany that the doctors were ashamed of their share of the crimes, or even that they were fully aware of the enormity of their conduct” (WMA 1949, Vol. 1, 7). So the WMA pressured the AWA into distributing copies of the Nuremberg Trial’s findings and the Nuremberg Code to every German physician and to apologize formally for crimes against humanity by stating that it “deeply regret[s] that men of their own rank committed such horrifying crimes,” and “mourn[ed] for the victims sacrificed by a despotic régime which availed itself of science as one of its instruments, and was assisted in so doing by doctors” (WMA 1949, Vol. 1, 9). As a further condition of admission into the international medical arena, AWA was also to require German physicians to swear to the Declaration of Geneva as a condition of receiving a license to practice (Lederer 2004, 202).Footnote 5 On the basis of the AWA’s acceptance of these and other conditions,Footnote 6 and despite ongoing AWA leadership by active supporters of the Nazi regime, like Karl Heidenkamp (Seidelman 1996a, b), the WMA admitted the AWA to membership by a nearly unanimous vote.

Health care professionals varied reactions to their German colleagues’ involvement in the Holocaust were shaped by three somewhat different notions that are compounded in our modern concept of a profession (Baker and McCullough 2009). Some envisioned professions as occupations in which members assume [1] a role governed by an internal morality of service to others stated in public promises, often in the form of oaths, codes or declarations; whereas others held the statist view [2] that their social and legal privileges were conferred on them in exchange for social obligations to serve society [e.g., the Volk] or the state; and still others [3] viewed professions as merely social clubs bound by self-imposed rules that serve members’ collective interests. Mellanby, for example, seemed to subscribe to the notion of health care professions as a fraternal society, a self-serving old boys club. Thus, since Shilling and other eminent Nazi researchers had been vouched for by eminent members of the club, he could not, and did not, view their conduct as either unprofessional or unethical. In contrast, Alexander, Ivy, Taylor and the WMA invoked the Hippocratic Oath as a universally accepted internal morality of health care, thereby appealing to the notion of health care professionals as inhabiting a role governed by its own internal morality, formalized, in this example, by the Hippocratic Oath. Thus, they could and did contend that it was unprofessional and unethical for anyone in health care to have accepted the Nazi’s medical ethics of Rassenhygiene. Brandt, in contrast, asserted a contractarian conception of medicine, viewing medical ethics as a social construct negotiated between medical professionals and the state. For him “the content of the role of doctoring [was] largely conventional, not natural…. Thus…those with medical training [could] question whether they are bound by [traditional] rules of doctoring which they did not shape and did not chose.” (Baker et al. 1999, 155). Hence his remark that, had Hippocrates been alive in the 1930s, he would have revised his oath.

3.3.4 Broken Promises, Scandals, and Reform

“Promises associated with quiet guilt” are seldom kept (Kübler-Ross 1972, 84). Not surprisingly therefore, as the Cold War between the West and the Soviet Block heated up (1945–1990), retrograde amnesia about Nazi doctors became widespread in the West; and “The Nuremberg Code…was routinely ignored by researchers in Britain…who believed the guidelines… did not apply to them” (Wilson 2014, 44), and in America, “Neither the horrors described at the Nuremberg Trial nor the ethical principles that emerged from it had a significant impact on the American research establishment” (Rothman 1991, 61). Yet, even as the Western health care professions found it convenient to consign memories of the Holocaust and Nuremberg Code to the dustbin of history, it remained seared into the memories of Jews, and was meaningful for some World War II military physicians. One of them, Harvard medical researcher Henry Beecher (1904–1976), a Cold War warrior, had hoped to glean useful information from the Nazi experiments. As he did so, however, it dawned on him that some of his own Cold War experiments were morally suspect and, in what might be construed as an act of contrition, he publicly condemned research published in leading medical journals for violating the Nuremberg Code’s informed consent standards (Beecher 1966; Harkness et al. 2001; McCoy 2007; Moreno 2016).

Beecher soon found a kindred spirit in fellow physician and World War II veteran, Maurice Pappworth (1910–1994), and the two whistle-blowing physicians supported each other in a transatlantic correspondence (Gaw 2012). Pappworth had once been denied appointments at teaching hospitals because, as he was informed, such positions were reserved for gentlemen and “no Jew could ever be a gentleman” (Booth 1994, 1577–1578). Thus unburdened of the club morality of so-called “gentlemanly” practitioners, Pappworth alerted the British medical community and the public to unethical experiments conducted on patients in the British National Health Service and elsewhere that violated the Nuremberg Code’s informed consent standard (Pappworth 1962, 1967). When the gentlemen of the British medical establishment expressed outrage, Pappworth responded, “those who dirty the linen and not those who wash it should be criticized” (Pappworth 1990, 1456–1460).

Although the Nuremberg-inspired whistleblowing activities of Beecher and Pappworth initiated the first stages of research ethics reform in America and Britain, the American inflection point was catalyzed by Peter Buxtun, a former army medic who served as a United States Public Health Service (USPHS) contact tracer for sexually transmitted diseases. Several people had previously raised questions about the ethics of USPHS’s Tuskegee Syphilis Study of untreated syphilis in 400 African American men (1932–1972): most notably, William C. Jenkins (1946–2019) an African American statistician employed by the USPHS, and Irwin J. Schatz (1932–2015), a Jewish cardiologist. What differentiated Buxton’s complaints from theirs, however, was that Buxton, the son of Holocaust refugees who had done graduate work on German history, buttressed his complaints with a report to the USPHS comparing the Tuskegee study to the Nazi experiments condemned at Nuremberg. After formal consideration of Buxton’s report, the USPHS discounted his objections and decided to continue the study. Frustrated, Buxton took his concerns to the Associated Press (Government Accountability Project 2014; Heller 1972). The resulting scandal led to congressional investigations that culminated in the current research ethics review system and the 1976 Belmont Report articulating three ethical principles to guide researchers and IRBs in assessing the ethics of experiments on human subjects (National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research 1978). First among these principles was the precept that was highlighted in the first article in the Nuremberg Code; respect for persons’ autonomy; however, this was now to be balanced by principles of beneficence (and later, non-maleficence) and justice. These principles were foundational to a transition from traditional paternalistic medical ethics of “doctor/researcher knows best” to an anti-paternalistic Bioethics paradigm based on respect for patients’ and subjects’ rights (Office for Human Research Protections 2016).

3.4 Concluding Reflections

In this chapter we reviewed different ways of organizing health care delivery—commercialism, professionalism, and statism—as well as various conceptions of how professionalism works and to whose benefit. We also sketched the tragic convergence of statism and Nazism during the 1930s that led to mass sterilizations, child murders, the Aktion T4 program, the abuse of humans as experimental subjects and ultimately, the Holocaust. We then tracked the evolution of Western medicine’s reactions to these activities, from incredulity to denial, anger, and then acceptance of the fact that German health care practitioners had committed acts that violated the traditional ethical core of Western medicine. As a practical matter, most Nazi health care personnel were excused and just a few of the most notorious were punished. This reflected a tacit and sometimes explicit compromise with German doctors, which was conditional on promissory commitments to future good conduct spelled out in the Nuremberg Code and the Declaration of Geneva. However, having written these documents for Nazi monsters, the international medical community soon entered a stage of retrograde amnesia about medicine’s integral involvement in the heinous crimes of the Nazi regime. Memories of these events were kept alive only by a handful of reformers who had been personally touched by this history. They eventually forced fellow professionals to recollect past misdeeds and recognize their resemblance to then-current practices. These reformers would catalyze a Bioethics revolution predicated upon recognizing patients and research subjects’ as autonomous agents whose informed voluntary consent was a prerequisite to treatment and to ethical research on humans.

Today the relationship between consumerism, professionalism, and statism remains in flux, as do various conceptions of the health care professions. Some still invoke the Hippocratic Oath as a formulation of the internal (or essential) morality of medicine to critique such actions as physicians’ complicity in torture (Miles 2004, 2009); others regard the structures of professionalism, including the contents of codes of ethics, as entirely flexible and potentially self-serving (Applbaum 1999); still others pronounce “The Hippocratic ethic, or similar [one-sided proclamations of professional ethics] ethics… dead” (Veatch 2012, 159), believing that professional ethics should be agreed upon in more explicit negotiations between practitioners, their patients and the public (Veatch 2012). The future of health care professionalism remains open. As this brief overview suggests, however, modern professional ethics—as laid out in the Nuremberg Code, the Declaration of Geneva, and the Belmont Report—with its emphasis on the informed voluntary consent of autonomous individuals and with health professionals cast as protectors of individual patients against both commercial and state forces, began in reaction to, and rejection of, Nazi medical ethics. Virtually every aspect of contemporary professionalism is, in the end, predicated on the vow that never again would health care professionals treat people, or research subjects, as German health care professionals did during the Nazi era.