ACHRE Report

Part I

Chapter 2


The American Expert, the American Medical Association, and the Nuremburg Medical Trial

The "Real World" of Human Experimentation

Nuremburg and Research with Patients

American Medical Researchers' Reactions to News of the Nuremburg Medical Trial

New Times, New Codes


Chapter 2: American Medical Researchers' Reactions to News of the Nuremburg Medical Trial

It is important to have some understanding of the extent to which American medical scientists paid attention to the events of the Nuremberg Medical Trial and made connnections with the messages that emanated from the courtroom in Germany. The Nuremberg Medical Trial received coverage in the American popular press, but it would almost certainly be an exaggeration to refer to this attention as exhaustive. Historian David Rothman has provided the following summary of the trial's coverage in the New York Times:

Over 1945 and 1946 fewer than a dozen articles appeared in the New York Times on the Nazi [medical] research; the indictment of forty-two doctors in the fall of 1946 was a page-five story and the opening of the trial, a page-nine story. (The announcement of the guilty verdict in August 1947 was a front-page story, but the execution of seven of the defendants a year later was again relegated to the back pages.)[58]

The Advisory Committee's Ethics Oral History Project suggests that American medical researchers, perhaps like the American public generally, were not carefully following the daily developments in Nuremberg. For example, Dr. John Arnold, a researcher who, during the Medical Trial, was involved in malaria experiments on prisoners at Stateville Prison in Illinois, offered a particularly vivid (if somewhat anachronistic) recollection of the scant attention paid to the Nuremberg Medical Trial among American medical scientists: "We were dimly aware of it. And as you ask me now, I'm astonished that we [were not] hanging on the TV at the time, watching for each twist and turn of the argument to develop. But we weren't."[59] It might have been expected that the researchers at Stateville would have been particularly concerned with the events at Nuremberg because some of the medical defendants claimed during the trial that the wartime malaria experiments at the Illinois prison were analogous to the experiments carried out in the Nazi concentration camps.

The strongest statement of awareness came from Dr. Herbert Abrams, a radiologist who was in his residency at Montefiore Hospital in the Bronx throughout most of the trial:

[The Nuremberg Medical Trial] was part of the history of the day. And there was extensive reportage . . . so that the manner of human experimentation as it had been done by the Nazis was very much in the news. We were all aware of it. I think that people experienced this kind of revulsion about it that you might anticipate. . . . It was surely something, at least in the environment I was in, we were aware of and that affected the thinking of everyone who was involved in clinical investigation.[60]

It seems likely, however, that the "environment" this young physician was in would have caused a heightened awareness of a trial dealing with Nazi medical professionals. Montefiore is a traditionally Jewish hospital that was home to many Jewish refugee physicians who had fled the terror and oppression of the Nazi regime.[61] A trial of German physicians almost certainly would have been of particular interest in this setting.

Even among American medical researchers who might have been aware of events at Nuremberg, it seems that many did not perceive specific personal implications in the Medical Trial. Rothman has enunciated this historical view most fully. He asserts that "the prevailing view was that [the Nuremberg medical defendants] were Nazis first and last; by definition nothing they did, and no code drawn up in response to them, was relevant to the United States."[62] Jay Katz has offered a similar summation of the immediate response of the medical community to the Nuremberg Code: "It was a good code for barbarians but an unnecessary code for ordinary physicians."[63]

Several participants in the Ethics Oral History Project affirmed the interpretations of Rothman and Katz, using similar language. Said one physician: "There was a disconnect [between the Nuremberg Code and its application to American researchers]. . . . The interpretation of these codes [by American physicians] was that they were necessary for barbarians, but [not for] fine upstanding people."[64] This same physician later acknowledged that, in a sense, some American researchers did not pay attention to the lessons of the Nuremberg Medical Trial because it was not convenient to do so:

The connection between those horrendous acts [carried out by German medical scientists in the concentration camps] and our everyday investigations was not made [by American medical researchers] for reasons of self-interest, to be perfectly frank. As I see it now, I'm saddened that we didn't see the connection, but that's what was done. . . . It's hard to tell you now . . . how we rationalized, but the fact is we did.[65]

The popular press mirrored the view that human experimentation as practiced in the United States was not a morally troubling enterprise--it was as American as apple pie. Between 1948 and 1960 magazines such as the Saturday Evening Post, Reader's Digest, and the American Mercury ran "human interest" stories on "human guinea pigs." These stories generally focused on specific groups of healthy subjects--prisoners, conscientious objectors, medical students, soldiers--and described them as "volunteers." The articles explained the ordeals to which the volunteers had submitted themselves. "Among these men and women," the New York Times informed its Sunday readership in 1958, "you will find those who will take shots of the new vaccines, who will swallow radioactive drugs, who will fly higher than anyone else, who will watch malaria infected mosquitos feed on their bare arms."[66] The articles assured the public that the volunteers had plausible, often noble, reasons for volunteering for such seemingly gruesome treatment. The explanations included social redemption (especially in the case of prisoners), religious or other beliefs (particularly for conscientious objectors), the advancement of science, service to society, and thrill-seeking.[67]. In sum, most articles in the popular press were uncritical toward experimentation on humans and assumed that those involved had freely volunteered to participate.

However, a smaller number of press reports in the late 1940s and 1950s did suggest some tension between the words at Nuremberg and the practices in America. As early as 1948, for example, Science News reported the Soviet claim that Americans were using "Nazi methods" in the conduct of prisoner experiments.[68] Concern also began to be voiced about the dangers to volunteer "guinea pigs." In October 1954, for another example, the magazine Christian Century called on the Army to halt, at the first sign of danger, experiments at the Fitzsimmons Hospital in Denver, where soldiers were called upon to eat foods exposed to cobalt radiation.[69]

It is also possible that press accounts of experiments with patients rather than healthy subjects were more inclined to be critical, even in the late 1940s. A Saturday Evening Post article from the January 15, 1949, issue describes how a VA physician kept quiet about streptomycin trials involving the medical departments of the Army, Navy, and VA

because of the risk of congressional chastisement from publicity-conscious members of the House and Senate who might have screamed: 'You can't experiment on our heroes,' if it had been known that Army and Navy veterans of former wars were being used in the medical investigation. This was a real worry of the doctors who formulated the clinical program.[70]

Evidence suggests that some American researchers were genuinely and deeply concerned with the issues surrounding human experimentation during the years immediately following World War II. One source of insight into the thinking of American physicians engaged in clinical research during the 1950s is found in the ground-breaking work of medical sociologist Renee C. Fox. For two five-month periods between September 1951 and January 1953, Fox spent long days "in continuous, direct, and intimate contact with the physicians and patients" in a metabolic research ward that she pseudonymously called "Ward F-Second." In 1959 Fox reported with remarkable sensitivity and eloquence on the ethical dilemmas faced by the physicians conducting research on this ward. She did not suggest that the scientists under her observation were unaware of the Nuremberg Code; instead she offered a point-by-point paraphrasing of the Code, which she identified as "the basic principles governing research on human subjects which the physicians of the Metabolic Group [her collective term for the researchers whom she studied] were required to observe." Rather than being unconscious or contemptuous of a set of principles intended for barbarians, Fox reported that the researchers on "Ward F-Second" were sometimes troubled by their inability to apply the high, but essentially unquestioned, standards enunciated at the Nuremberg Medical Trial:

The physicians of the Metabolic Group were deeply committed to these principles and conscientiously tried to live up to them in the research they carried out on patients. However like most norms, the "basic principles of human experimentation" are formulated on such an abstract level that they only provide general guides to actual behavior. Partly as a consequence, the physicians of the Metabolic Group often found it difficult to judge whether or not a particular experiment in which they were engaged "kept within the bounds" delineated by these principles.[71]

Sometimes private discussions among researchers about the ethical aspects of human experimentation led to public events. A good example from the early 1950s is the symposium held on October 10, 1951, at the University of California School of Medicine in San Francisco at which Otto Guttentag made the presentation discussed earlier. One of Guttentag's colleagues, Dr. Michael B. Shimkin, organized the symposium in response to some confidential criticism that he had received for research carried out under his direction with patients at the University of California's Laboratory of Experimental Oncology. The exact nature of this criticism is unclear from the records that remain of the episode, but Shimkin reported in a memoir that "remedial steps" were taken, including "written protocols for all new departures in clinical research, which we asked the cancer board of the medical school to review."[72] In his memoirs Shimkin also recalls that patients were screened carefully before they were admitted to the Laboratory of Experimental Oncology:

They had to understand the experimental nature of our work, and every procedure was again explained to them; the initial release form even included agreement to an autopsy. The understanding did not absolve us of negligence, nor deprive patients of recourse to legal actions, but did set the tone and nature of our relationships. In all our 5 years of operations, not a single threat or implied threat of action against us was voiced. Two patients did instruct us to terminate our attempts at therapy.[73]

The criticism Shimkin experienced also demonstrated to him that a more open discussion of clinical research might be of benefit to his colleagues. According to his recollection, "There was an almost visible thawing of attitude by the airing of the problem" at the symposium.[74]

Less than a year after Shimkin's 1951 San Francisco symposium, the organizers of the "First International Congress of the Histopathology of the Nervous System," which was held in Rome, were sufficiently concerned with ethical issues that they invited Pope Pius XII to address "The Moral Limits of Medical Methods of Research and Treatment." In a speech before 427 medical researchers from around the world (including 62 Americans), the pope firmly endorsed the principle of obtaining consent from research subjects--whether sick or healthy. He also pointed his audience to the relatively recent lessons of the Nuremberg Medical Trial, which he summed up as teaching that "man should not exist for the use of society; on the contrary, the community exists for the good of man."[75] In an interview in 1961, Dr. Thomas Rivers, a prominent American virus researcher, recalled that the pope's words had been influential among medical scientists working during the 1950s:

[I]n September 1952, Pope Pius XII had given a speech at the First International Congress on the Histopathology of the Nervous System in which he outlined the Roman Catholic Church's position on the moral limits of human experimentation for purposes of medical research. That speech had a very broad impact on medical scientists both here and abroad.[76]

The growing influence of the Nuremberg Medical Trial can be seen by looking at two editions of the best-known textbook of American medical jurisprudence in the midtwentieth century. In the 1949 edition of Doctor and Patient and the Law, Louis J. Regan, a physician and lawyer, offered very little under the heading "Experimentation," and what he did offer made no reference to Nuremberg:

The physician must keep abreast of medical progress, but he is responsible if he goes beyond usual and standard procedures to the point of experimentation. If such treatment is considered indicated, it should not be undertaken until consultation has been had and until the patient has signed a paper acknowledging and assuming the risk.[77]

However, in Regan's next edition of the same text, published in 1956, his few lines on human experimentation had been expanded to three pages. He presented a lengthy paraphrasing of the Nuremberg Code, and he repeated verbatim (without quotation marks) the judges' preamble to the Code, stating that "all agree" about these principles. Regan characterized the standards enunciated by the judges at Nuremberg as "the most carefully developed set of precepts specifically drawn to meet the problem of human experimentation." Immediately following his discussion of Nuremberg, Regan laid out the 1946 standards of the American Medical Association, which, as he put it, researchers needed to meet "in order to conform with the ethics of the American Medical Association."[78]

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