bluuebunny/crossref_metadata_2025 huggingface dataset:
Will the Tort of Bad Faith Breach of Contract Be Extended to Health Maintenance Organizations?
Authors: Stern Joanne B.
Published: June 2007

In the past several years, a new tort has emerged, one which has been used primarily against insurance companies and which has resulted in an enormous number of damage claims—the tort of bad faith breach of contract. At this time, the tort of bad faith breach of contract has rarely been extended beyond the insurance industry. It is very likely, however, that in the near future, this tort will be extended to other industries that serve the public interest, particularly to health maintenance organizations (HMOs). Currently. many bad faith breach of contract cases against HMOs are being litigated at the trial level. In addition, publicity relating to such suits has appeared in various newspapers and periodicals.

This article discusses the application of this relatively new cause of action to HMOs, and deals with the followng issues: the basis for the analogy between the insurers and HMOs; the grounds for bringing a suit for bad faith breach; and the implications, for HMOs and consumers, of the emergence of this cause of action.
Physicians’ Disruptive Behavior: Grounds for Discipline
Authors: Hollowell Edward E.
Published: June 2007

Medical staff clinical privileges are usually granted, denied, reduced, suspended, or revoked because of clinical competence and performance. Generally accepted standards for evaluation of clinical competence and performance are published by the Joint Commission on Accreditation of Hospitals. In addition, some states have established standards by statute and by administrative regulations. Hospital medical staffs and governing boards, therefore, have standards to use in evaluating clinical competence and performance. Courts generally uphold hospitals’ employment of these standards as the basis of their decisions about a physician's clinical privileges. However, denial, reduction, suspension, or revocation of clinical privileges based on a physician's disruptive behavior presents a more difficult problem for hospitals because there are no generally accepted standards against which physicians’ behavior can be measured.
Professional and Agency Liability for Negligence in Child Protection
Authors: Bross Donald C.
Published: June 2007

Suits for negligence in the area of child protection have become frequent as reporting of child abuse and neglect has increased. This article begins with various theories and defenses raised in specific cases, and briefly examines the problem of inadequate legal representation for the child. An additional section notes various policy issues for lawyers and the courts.

Child protection has become a multidisciplinary field, and therefore social workers, doctors, police officers and mental health professionals have been held to be negligent in carrying out duties to children. The diagnostic professions of medicine and mental health are often involved early in child protection proceedings because of legal requirements for diagnosis and reporting. Social workers and police officers have been charged with failure to respond appropriately to reports of child abuse. Cases of inadequate selection of, or monitoring of placements into, foster homes are also associated with social workers. This section will consider these cases, and discuss various defenses raised.
Will Psychotherapy Be Transformed in the 1980s?
Authors: Furrow Barry R.
Published: June 2007

The attractions of psychiatric mishaps are similar for the journalist and the lawyer - the perverse magnetism of sex and violence. A therapist engages in sex with his female patient; he fails to prevent a patient's suicide; or he releases a patient who then kills a third person. These are the themes of popular journalism, and of current highly publicized litigation involving psychotherapists. In this issue of Law, Medicine& Health Care, two articles look at the liability of the therapist. Michael D. Roth and Laurie J. Levin in Dilemma of Tarasoff: Must Physiciains Protect the Public or Their Patients? offer a careful look at the potential liability of the therapist, concerning the duty to warn others of a patient's threats, in light of the leading cases. The authors outline the parameters of the law, fuzzy as its current boundaries may be, in a useful attempt to offer the psychotherapist guidance through the minefield of tort liability. Sheila Taub, in a broader look at the subject, searches for threads which might link and rationalize the case-law in these hot areas, particularly with regard to abuse of the therapeutic relationship.
Psychiatric Malpractice in the 1980s: A Look at Some Areas of Concern
Authors: Taub Sheila
Published: June 2007

Lawsuits alleging malpractice in psychiatric diagnosis or treatment, once rather rare, appear to be growing in number. The low incidence of such claims in the past has been attributed to the difficulty of proving the applicable standard of care and a causal relationship between the breach of the standard of care and the alleged injury, the patient's reluctance to publicize his psychiatric history, the patient's inability either to formulate cleat expectations for the results of treatment or to assess the results, and the belief that the success of psychotherapy depends to a great extent on the cooperation of the patient.

Nonetheless, the number of claims against psychiatrists is rising, in part because of a more open attitude about psychiatric treatment coupled with increased expectations of its efficacy. Other factors which may be contributing to this trend are the emphasis on mental patients rights in recent court decisions and the popular literature, the emergence of legal doctrines finding new legal duties arising out of the therapist-patient relationship, and the publication of several sizable verdicts in suits based on psychiatric malpractice.
Entrepreneurial Practice for Nurses: An Assessment of the Issues
Authors: Hershey Nathan
Published: June 2007

For a number of years, some non-physician health service providers have moved to secure status as independent, autonomous providers of health services. In addition, non-physician providers have sought, often through the state legislatures, eligibility to receive payment directly, on a fee-for-service basis, from private and governmental third party payers; alternatively, they have sought for their charges to be reimbursed to their patients by insurers on such a basis. The struggle for autonomy is related to, and is preliminary to, the struggle for access to, or eligibility for, payment through third party payment mechanisms.

The purpose of this article is to explore the implications of access to such payment in the current economic climate concerning the delivery of health services. The primary focus is on the nursing profession, in light of its continuing struggle to secure greater autonomy and to improve the economic rewards for nurses. The nursing profession is waging this struggle because it recognizes that gaining direct access to third party payment would increase the potential for economic success in developing private, independent nursing practices.
Court Upholds Expanded Practice Roles for Nurses
Authors: Wolff Michael A.
Published: June 2007

In the first reported judicial interpretation of modern nursing practice acts, Sermchief v. Gonzales, the Missouri Supreme Court has decided that “new functions for nurses delivering health services” may evolve without statutory constraints.’ The notion that nurses in expanded roles are practicing medicine without a license was cast aside, as the court specifically held that nurses may render diagnosis and treatment in accordance with standing orders and protocols. While directly affecting only nurses in Missouri, the court's recognition of nursing as a profession with its own prerogatives and responsibilities has important implications for the future of nursing.

At issue was Missouri's nursing practice act which had been drafted with the assistance of members of the Missouri Nurses Association and passed by the legislature in 1975.
The Contract in Surrogate Motherhood: A Review of the Issues
Authors: Gersz Steven R.
Published: June 2007

When Abraham's wife, Sarah, was unable to conceive a child for their marriage, she arranged for her handmaiden, Hagar, to bear a child for them. Abraham consummated this arrangement by making a visit to Hagar's tent.

Surrogate motherhood, as it is practiced today, differs only in insemination technique from this biblical effort. A married couple, unable to conceive because of female infertility, or, perhaps, a single male who desires a child would, as did Sarah, seek out a woman willing to act as a surrogate mother It is likely that the couple would make the initial contact through a classified advertisement and negotiate a contract with a fertile woman through their attorneys. The contract, in its most basic terms, would provide that the surrogate be artificially inseminated with the husband's semen, carry the child to term, and relinquish her parental rights upon birth of the child. Although there have been cases where a woman becomes a surrogate mother without payment, the surrogate mother typically receives a fee for her services as a carrier.
Surrogate Motherhood: Babies for Fun and Profit
Authors: Holder Angela R.
Published: June 2007

Surrogate motherhood has captured the attention of both the media and the legal profession in the past several years. Courts faced with litigation on surrogate motherhood have uniformly taken the position that these arrangements are contrary to public policy, and have refused to compel the specific performance of these contracts? It is my position that these rulings have been correct, and that if surrogate motherhood is to be considered legally acceptable in this country (which I think it should not be ) then state legislatures must act to legalize the contracts drawn up for these arrangements.

The procedure for surrogate motherhood is usually initiated by either a married couple, of whom the wife is infertile, or by a single man. In either case, a contract is made with a fertile woman; the woman is to be artificially inseminated with the man's sperm. Generally, this is done in exchange for a large sum of money. At the time that the baby is born, the surrogate mother surrenders the child for adoption by the wife (in the case of a married couple) and presumably by the father to regularize his relationship with the child.
Legal and Ethical Implications of Health Care Reimbursement by Diagnosis Related Groups
Authors: Kapp Marshall B.
Published: June 2007

The major challenge facing the American health care system today is to devise a strategy for achieving three primary objectives simultaneously: (1) high quality, or excellence in standards of care, (2) balance, or equitable access to that quality care, and (3) some reasonable semblance of cost control in providing that quality care to everyone. Following World War II, the weight of government was thrown solidly behind the access and quality portions of the equation, first with the enactment of the Hill-Burton capital financing program and its accompanying community service obligations, and accelerating in the midsixties through creation of Medicare, Medicaid, and other financing and delivery programs entitling categories of individuals to health care benefits.
The Substituted Judgment Approach: Its Difficulties and Paradoxes in Mental Health Settings
Authors: Gutheil Thomas G. , Appelbaum Paul S.
Published: June 2007

Circe directed Ulysses to fill the ears of his seamen with wax, so that they should not hear the strain [of the Sirens]; and to cause himself to be bound to the mast, and his people to he strictly enjoined, whatever be might say or do, by no means to release him till they should have passed the Sirens’ island. His men obeyed… . At the sound of the Sirens Ulysses struggled to get loose, and by cries and signs to his people begged to be released; but they, obedient to his previous orders, sprang forward and bound him still faster. They held on their course, and the music grew fainter till it ceased to be heard, when with joy, Ulysses gave his companions the signal to unseal their ears, and they relieved him from his bonds.
The Bioethically Informed Attorney and the Humanization of Medicine
Authors: Kapp Marshall B.
Published: June 2007

Criticisms of the impersonal ways in which some physicians relate to their patients, as well as calls for the infusion of more compassion, empathy, and humanity into the delivery of medical care, have abounded in recent months, as physician-watching gains popularity as a major American sport. Various culprits have been ‘indicted” for current shortcomings in the humanistic quality of many physician/patient relationships: the traditional paternalistic orientation of the medical profession, the explosion in the scientific knowledge that physicians are expected to master, the growing importance and effectiveness of medical technology in diagnosing and curing disease, economic pressures, and the ever-present, anxiety-stimulating shadow of medical malpractice. Whatever its specific etiology, the too-prevalent concern for “curing” at the expense of “caring” among modern medical practitioners has been widely lamented in both professional and lay forums.
Definition and Regulation of Nursing Practice: An Historical Survey
Authors: Greenlaw Jane
Published: June 2007

The definition and regulation of nursing practice are issues of growing national interest. A variety of factors, including rising health care costs and consumer awareness, have combined to catalyze changes in health care delivery, with an increasing emphasis on disease prevention and cost-effectiveness. These goals have necessarily focused attention on the respective roles of non-physicians—most prominently, nurses—as providers of lower cost, quality health care. In a climate of professional and economic competition, state legislatures, state nursing boards, courts, and professional nursing organizations are engaged in a process of changing, adapting, or interpreting existing nursing practice laws to meet the needs of the changing health care system.

This article reviews the history and evolution of nursing practice legislation, examines the present stage in its development, and highlights some important issues affecting contemporary nursing practice acts.
State Regulation of Long-Term Care: A Decade of Experience with Intermediate Sanctions
Authors: Johnson Sandra H.
Published: June 2007

Recent reforms in state nursing home regulations have created an-array of enforcement tools that relate the severity of the penalty to the severity of the violation. These intermediate sanctions, intended to be flexible and effective in enforcing state standards, include civil fines, receiverships, public disclosure, monitors. and suspension of admissions. As supplements to the more traditional remedy of license revocation, intermediate sanctions can enforce standards without closing facilities unnecessarily, thus avoiding trauma to the residents, aggravation of the shortage of nursing home beds, and lengthy administrative proceedings and litigation.

The study of nursing home regulation by the Institute of Medicine of the National Academy of Sciences offers a unique opportunity to evaluate the implementation of intermediate sanctions by the states over the past decade. Because of the high degree of similarity among the state statutes authorizing these sanctions, comparisons can be drawn.
Conflicts-of-Interest Disqualification in Medical Malpractice Litigation
Authors: Annas George J.
Published: June 2007

Less than two decades ago it was thought sufficient to say, “When a practitioner is in doubt on an ethical question, the best answer is usually No.” A more recent commentator has suggested, however, that “[s]uch platitudes have become increasingly inadequate to guide the attorney facing conflicts of interests in the private practice of law.“ Because of the general vagueness of the American Bar Association's Model Code of Professional Responsibility, and of state codes based on it, courts have begun to fashion a vast “common law” of conflicts of interest. A particularly controversial entry to this body of common law is the opinion of Justice Paul Liacos, sitting as single justice in the Massachusetts case ofWhite v. Kaplan.This article examines the opinion and its theoretical suppon.
Empirical Assessment of Innovation in the Law of Civil Commitment: A Critique
Authors: Appelbaum Paul S.
Published: June 2007

The history of commitment law in the United States has been marked by a series of pendular swings corresponding to popular concerns of the day. From the inception of civil commitment law in the 1830s and 1840s. with a system in which discretion was lodged primarily in family members and physicians, there have been moves to restrict the ease of commitment when concerns about inappropriate admissions or institutional abuses were at their height (e.g., in the 1870s, 1930s, and 1970s) and countervailing efforts to increase the ease of commitment when concerns about the ready availability of treatment predominated (e.g., around the turn of the century and in the 1950s).

Students of the history of civil commitment will quickly recognize that these shifts in policy were based almost entirely on theoretical arguments about the relative desirability of one or the other approach, fueled by horror stories illustrating the pitfalls of the competing orientation.
A View from the Clapham Omnibus
Authors: Cowen Zelman
Published: June 2007

The man on the Clapham omnibus, as common lawyers know, was a late nineteenth and early twentieth century image of the ordinary reasonable man who played an important part in fixing common law standards. As a lawyer with a continuing but general interest in medicine, biotechnology, ethics, and the law, I offer the following comments on the conference's topic of “Health Resource Allocation” from what may approximate the standpoint of an ordinary reasonable man.

How much “health” can a society afford? I do not think that it is possible to maintain that there is a right to health, expressed as an unqualified right to treatment—though I understand that the argument has been raised in the United States that there is a constitutional basis for a claim of entitlement to treatment for civilly committed mental health patients. So far as English law is concerned, the answer to this question is clear. In 1980 the English Court of Appeal dealt with a case in which four people in Staffordshire argued that the health services were insufficient in their area.
2. New Law for Laboratory Life
Authors: Waller Louis
Published: June 2007

Over the past three years there has been a flurry of legislation in Australia to provide answers for some of the legal questions and issues emanating from the new birth technologies. The chief of these is in vitro fertilization: the formation, in the laboratory, of a human zygote. The final result is, sometimes, a live birth. The test-tube baby process, as it is usually described in the media, has developed to include not only fertilization of a wife's ova with her husband's sperm but also the employment of donated gametes; cryopreservation of ova, sperm, and embryos; and, in terms of the possible, the employment of women to bear, deliver, and surrender a baby developed from a couple's laboratory embryo.

The publicity given to the new birth technologies, and the concern (and sometimes consternation) they have aroused, has been accompanied by renewed examinations of those older responses to infertility: AID (artificial insemination by donor) and surrogate mother arrangements effected either by the euphemistically and misleadingly labeled NID (natural insemination by donor) or by artificial insemination.
3. Debate: Severely Handicapped Newborns: For Sometimes Letting—and Helping—Die
Authors: Kuhse Helga , Singer Peter
Published: June 2007

It is often said that all human life, irrespective of its quality or kind, is equally valuable and that our life-and-death decisions for seriously ill or handicapped infants must not be based on the quality or kind of life in question. As the Protestant theologian Paul Ramsey has put it:

[T]here is no reason for saying that [six months in the life of a baby born with the invariably fatal Tay Sachs disease] are a life span of lesser worth to God than living seventy years before the onset of irreversible degeneration.… All our days and years are of equal worth whatever the consequence; death is no more a tragedy at one time than at another time.

The view that all human life—irrespective of its quality or kind—has equal worth may well be the simplest answer to the difficult issues raised about the treatment of infants born seriously ill or with major handicaps; but there are two questions that need to be asked about this simple answer.
1. “Should the Grandparents Die?”: Allocation of Medical Resources with an Aging Population
Authors: Somerville Margaret A.
Published: June 2007

The question in my title—a deliberate inversion of Kuhse and Singer's now-famous question, “Should the baby live?”—is one that is being asked more and more frequently. As Gerald Gruman has observed:

It is questionable if today the young comatose patient is the prototype for the discussion of issues of death and dying. A more probable crucial issue is that of the elderly: a reservoir of relatively defenseless persons, perceived, through bigoted “ageism,” as unproductive and pejoratively dependent. In them, modernization has created a population stratum that, in a state of nature or conditions of scarcity economics, “ought” to be dead.

The medical care needs of aged persons, and how we, as individuals and societies, will fulfill these needs in an era of a perceived scarcity of medical resources, are a frequent topic of discussion today. The “scarcity” of medical resources is frequently a given in discussions of allocation priorities.
2. Made in the U.S.A.: Legal and Ethical Issues in Artificial Heart Experimentation
Authors: Annas George J.
Published: June 2007

The death of William Schroeder in Louisville, Kentucky, on August 6, 1986, brought to a close a remarkable chapter in public human experimentation. Artificial heart implants represent the most public experiments in the history of the world. The manner in which they are conducted is a matter of utmost public and professional concern, since it graphically portrays the seriousness with which we take our laws and ethical rules regarding the protection of the rights and welfare of human subjects. Unfortunately, the brief history of artificial heart implants is neither a happy nor a proud one. Begun with high hopes and therapeutic intentions with the Barney Clark implant, the permanent procedures rapidly became little more than publicity stunts used to advertise Humana, Inc., a for-profit hospital chain. Indeed, on the night Mr. Schroeder died, Humana Hospital Audubon sent its public relations director to justify the experiment to a national television audience on Nightline, apparently because no physician at the hospital was willing or able to publicly defend the experiment.
4. The Medical Malpraxis Position in the United Kingdom
Authors: Havard J.D.J.
Published: June 2007

Most medical practice in the United Kingdom is carried out within the National Health Service (NHS), which offers a comprehensive service essentially free of charge to all citizens. Courts of law cannot take the availability of free care into account in determining the level of damages to be awarded to the patient—in other words, in assessing the cost of putting right the damage sustained by the patient, it is assumed that the restorative treatment will be obtained privately. Nevertheless, the fact that the patient did not have to pay directly for the treatment in the first place is in itself a disincentive to bringing actions in negligence against a doctor or health authority. As Professor Miller has put it, “Since disposable income is not diminished by paying for medical services patients are less likely to express their unhappiness about unsatisfactory results in a manner that seeks monetary results.”
The Epidemiology of the Human Immunodeficiency Virus Infection
Authors: Mueller Nancy
Published: June 2007

It is nearly six years since the first evidence of the AIDS epidemic was seen, with the report of five cases of Pneumocystis carinii pneumonia diagnosed in young, otherwise healthy homosexual men in Los Angeles. The report was surprising, for although P. carinii is a common human commensal, the pneumonia essentially occurs only in the presence of severe immune suppression. Similar reports quickly followed from New York City and San Francisco, with the additional observation that Kaposi's sarcoma—a malignancy usually seen only in elderly men in this country—was also occurring epidemically among young homosexual men.

Since then, the epidemic has evolved at a relentless pace to a reported 32,000 cases in the United States by March 1987. The epidemic has sparked a massive multidisciplinary scientific effort, resulting in the successful identification of the causal agent—the human immunodeficiency virus (HIV)—within two years from the first report and producing a commercially available antibody test within four years.
Prevention of Patient Falls through Perceived Control and other Techniques
Authors: Halpert Aviva , Connors James P.
Published: June 2007

Every year thousands of patients suffer injury while attempting to make use of bathroom facilities. In addition to the suffering and protracted inpatient care that these incidents cause, hospitals have been faced with staggering costs in the form of increased insurance premiums arising directly out of an increased number of lawsuits. This problem has reached a proportion such that it clearly deserves careful and indepth industry study.

This article, while far from a comprehensive study, will attempt to draw certain conclusions and perhaps dispel certain myths based upon a study of 181 patient falls at a 200+-bed community hospital in the Northeastern United States.

In the not too distant past, hospitals could not generally be held legally responsible for failure to raise bedrails absent specific medical direction. Such was the case because few, if any, hospitals had guidelines or procedures for the placement of bedrails in the absence of a physician's order.
The Psychiatrist–Patient Privilege and Third-Party Payers: Commonwealth v. Kobrin
Authors: Taranto Richard G.
Published: June 2007

Virtually every state gives psychiatrists’ patients a broad statutory privilege to prevent the disclosure in legal proceedings of information about their diagnosis and treatment. Although the precise scope of the privilege varies from state to state, and a variety of exceptions are widely recognized, the contents of therapy sessions—and hence of psychiatrists’ written records of therapy sessions—are ordinarily protected by the privilege. Patients thus are gmerally entitled to prevent the courts and other government authorities from using their coercive evidencr-gathering powers to obtain psychiatric records or testimony about therapy. In conjunction with psychiatrists’ ethical and legal duties of confidentiality toward their patients outside legal proceedings, the privilege renders the privacy of the psychiatric relationship to a large degree sacrosanct.

The cloak of secrecy around the psychiatrist-patient relationship, however, must inevitably be lifted to some extent when third parties pay for psychiatric diagnosis and treatment. Any third-party payer, be it a private insurer or a government agency (such as Medicaid or Medicare), must be able to obtain enough information about psychiatric services to determine the propriety of claims for payment for those services.
Fourth-Party Audit Organizations: Practical and Legal Considerations
Authors: Hershey Nathan
Published: June 2007

Fourth-party audit organizations (FPAOs) conduct utilization review and control programs, usually on behalf of employers that provide health benefits programs to employees. The existence of FPAOs and their increasing range of activity reflect the business community's great concern about the rising cost of health care. Over the past decade the business community has taken an increasingly active role in seeking to influence federal and state policies regarding health services, and in stimulating the development of new mechanisms of health delivery, with the goal of making its expenditures for health benefits more costeffective. Businesses rely on FPAOs to assist them in controlling the costs of health benefits programs for employees.

As desirable as cost containment in the health field is, however, the various means used to help reach that goal must be evaluated in terms of their practical effects and the relevant legal considerations. This article will (1) describe the functions performed by FPAOs; (2) provide an illustration of the impact of an FPAO in a patient care situation; (3) examine some of the practical problems created by the use of FPAOs; (4) indicate some of the legal questions presented by the activities of FPAOs; and (5) assess the role and likely impact of FPAOs in the future.
Liability Related to Diagnosis and Transmission of AIDS
Authors: Hermann Donald H.J.
Published: June 2007

Given the pain, incapacity, and death that afflict persons with AIDS, it is not surprising that those exposed to HIV or those who have developed AIDS may sometimes feel themselves wronged and entitled to legal damages. There are two main areas of potential AIDS-related litigation: liability related to medical malpractice and liability related to transmission, whether via contaminated blood or blood products, needle-sharing, childbirth, or sexual intercourse.

This article will examine the precedents, arguments, and possible defenses in these areas and in relationship to a variety of potential defendants.

A cause of action for medical malpractice in AIDS-related diagnosis may arise in several ways: failure to diagnose, failure to inform a patient of a diagnosis, failure to provide proper counseling and treatment when patients test positive for HIV antibodies, and failure to report AIDS diagnoses to health authorities or at-risk sexual partners.
AIDS and the Criminal Law
Authors: Field Martha A. , Sullivan Kathleen M.
Published: June 2007

AIDS is spread by acts, not by casual exposure. As AIDS spreads further, some are urging that those acts, including sexual acts, be treated as crimes. Indeed, two AIDS carriers have already been charged with crimes for risking sexual transmission of AIDS to others. In one case, the United States Army has court-martialed an infected soldier, Pfc. Adrian Morris, Jr., charging that when he had sex with two other soldiers, he committed the crime of “aggravated assault.” Aggravated assault requires use of a “dangerous weapon or other means of force likely to produce death or grievous bodily harm.” What was the “weapon” in his case? The sexually transmittable AIDS virus itself. In the other case, the Los Angeles district attorney has charged an AIDS carrier, Joseph Markowski, with attempted murder for selling his blood and for having sex with another man while infected.
The Role of CDC in the Development of AIDS Recommendations and Guidelines
Authors: Neslund Verla S. , Matthews Gene W. , Curran James W.
Published: June 2007

The role of the Centers for Disease Control (CDC) in the development of recommendations and guidelines on acquired immunodeficiency syndrome (AIDS) evolves from a tradition that originates in the earliest editions of theMorbidity and Mortality Weekly Report(MMWR). In 1961 responsibility for the Public Health Service's MMWR was transferred to CDC from the National Office of Vital Statistics. During the first decade that CDC published it, the MMWR continued the tradition of providing detailed statistics on reportable communicable diseases and unusual occurrences of disease or outbreaks of illness. Only rarely did editorial comments on the data appear. However, as early as 1962 the MMWR became the vehicle the Public Health Service used to publish the recommendations of the surgeon general's Oral Poliomyelitis Vaccine Advisory Committee, the predecessor of the current Immunization Practices Advisory Committee. This practice of publishing immunization and other public health recommendations in the MMWR has continued.
Cesareans and Samaritans
Authors: Rhoden Nancy K.
Published: June 2007

Until recently, if one asked the proverbial person on the street to list maternal-fetal conflicts, he or she would have mentioned abortion and, when pressed to continue, looked at the questioner blankly. Now, however, the populace is becoming aware of a host of maternal-fetal conflicts. Indeed, mother-and-child, long a somewhat romanticized unity, are increasingly being treated by physicians, courts, and the media as potential adversaries, locked in battle on the rather inconvenient battleground of the woman's belly.

Some of these newly publicized conflicts—pregnant women abusing drugs or alcohol, or continuing to work in occupations hazardous to fetal health—are not all that new: the hazards of various substances have been known for years. Other of the conflicts are new, inasmuch as doctors could not recommend Cesareans or other procedures for the fetus benefit until they could detect fetal problems during or before labor. But probably what is most unprecedented is that now, suddenly, physicians are seeking court intervention to protect these imperiled fetuses—intervention that, inevitably, constitutes a significant intrusion into the woman's conduct during pregnancy or birth.
Revising Medical Staff Bylaws: An Organizational Challenge
Authors: Hershey Nathan
Published: June 2007

A single article, unless of extraordinary length, cannot provide all the information bylaws draftsmen should have. And of course, practically all hospitals desire to secure or to maintain accreditation by the Joint Commission on Accreditation of Healthcare Organizations (Joint Commission). To do so they must conform, in large measure at least, to its prescriptions for review of decisions regarding medical staff appointments and clinical privileges. The net effect of bylaws that specify procedural rights for applicants and staff members is that except for a few jurisdictions, the court will require hospital action on medical staff matters to be in substantial accord with by law requirements, even if as a matter of law the court would not require that such procedural rights be provided by a private hospital.
AIDS Cost Analysis and Social Policy
Authors: Fox Daniel M. , Thomas Emily H.
Published: June 2007

Debates about how much it costs to treat persons with AIDS and how the burden of these costs is and ought to be distributed raise fundamental questions about social policy in the United States. The most important questions concern entitlement: Who has what obligations to provide what services to whom, under what conditions and at whose expense?

As a result of our political history, we were unprepared for the challenge of AIDS to social policy in the 1980s. We had, over a half-century, linked entitlement to medical care to age, disability, employment, and, for people with end-stage renal disease, to diagnosis. Our policies proved inadequate to pay for medical care for persons who died at considerably younger ages than normal, who were disabled for a brief period that was still long enough to end their employability, and whose condition progressed with unusual rapidity from diagnosis to death. By early 1988, it was clear that we would, as a society, assume the substantial costs of caring for persons with AIDS. Who would pay, and how equitably we would provide care, remained in debate.
The Courts and Euthanasia
Authors: Fletcher Joseph
Published: June 2007

Most of us, I think, supposed that the debate over euthanasia (doing something to end a life that could otherwise continue) had been pretty well settled. For a long time a minority favored it and a majority opposed it—at least in principle, although not always in practice. Recent court decisions, however, have thrown the whole question open again, while public opinion polls reflect a marked increase in tolerance, if not positive approval. What follows is a lay discussion of the issue—not legally or medically professional but still, it is hoped, acceptable intellectually.

My own role in the ethical defense of euthanasia goes back a long way. I began to expound it in the early 1930s. The British organized a euthanasia society in 1935. The Euthanasia Society of America came three years later. It started out with a petition by 1,776 physicians addressed to the New York State Assembly, which promptly rejected it.
A Civil Liberties Analysis of Surrogacy Arrangements
Authors: Gostin Larry
Published: June 2007

Proponents of surrogacy arrangements assert that a married couple's right to procreative autonomy includes the right to contract with consenting collaborators for the purposes of bearing a child. The right to genetic continuity and to rear offspring are all part of the right of reproductive choice for the contracting father and his partner.

Critics of surrogacy arrangements similarly cite reproductive autonomy as the basis for their claim that women cannot be compelled by contract to use their bodies in particular wayeither to forgo the right to abortion or to be fetal containers. The right to autonomy over her own body and to rear the offspring she has borne are all part of the mother's reproductive freedom.

Both proponents and critics of surrogacy arrangements, therefore, claim that their positions maximize freedom and liberty. Each position, of course, focuses on the autonomy of the party the commentator favors; the analysis is invariably outcome-determinative, without enunciating a neutral civil liberties framework. Neither proponents nor critics define clearly what the right to procreate entails, or what resolution is warranted when there is a conflict.
Procreative Liberty and the State's Burden of Proof in Regulating Noncoital Reproduction
Authors: Robertson John A.
Published: June 2007

The growing popularity of noncoital solutions to infertility has raised questions about the need for public policies to regulate these techniques. While surrogacy has dominated public attention, controversy has also surrounded in vitro fertilization (IVF), embryo freezing, and gamete donation.

The policy concerns arise from the potential impact that the means of noncoital reproduction—embryo manipulation or use of gamete donors and surrogates—could have on offspring, collaborators, the family, and gender-based reproductive roles. For example, IVF techniques involving the creation and manipulation of human embryos may harm embryos and the offspring to which they lead. Noncoital techniques involving gamete donors and surrogates raise issues of offspring welfare, the interests of collaborators, exploitation of women, and effects on the family and society generally.

A basic question for public policy is the scope of private discretion over noncoital means of forming families. Should the state prohibit or regulate use of these techniques, or should their use be left to the free choice of infertile couples, collaborators, and physicians? Since state limits on reproductive choice are necessarily problematic, the issue is whether noncoital reproduction poses risks so significantly different from coital reproduction that regulation is justified.
Choosing Family Law over Contract Law as a Paradigm for Surrogate Motherhood
Authors: Capron A.M. , Radin M.J.
Published: June 2007

Among the many new forms of human reproduction, none raises more problems of public policy and of law than the practice of what is known, rather inaccurately, as surrogate motherhood or surrogacy. The central policy issue is settling on the paradigm that should govern surrogate motherhood, a model of family relations (adoption) or of contractual relations (sale of a product or service). And the central legal issue is whether any restrictions on personal choice that follow from the policy selected—and especially from a rejection of the contractual model with its implication of free choice—are constitutionally permissible.

We conclude that surrogate mother arrangements should be handled from the perspective of adoption. As recent judicial decisions have demonstrated, existing law on parents and children is largely adequate, and the emergence of surrogacy as a social practice does not require major law reform efforts. Furthermore, neither these rulings nor legislation proposed in many jurisdictions to ban commercialized surrogacy intrude impermissibly on the range of choices about reproduction protected by the Constitution of the United States.
Surrogate Motherhood and the Best Interests of Children
Authors: Holder Angela R.
Published: June 2007

Commercial surrogacy presents complex legal issues; the problems that it does not present are those of high tech reproductive medicine. All the new techniques for overcoming infertility, such as in vitro fertilization and the like, are medically complex but—as long as they involve a married couple and no third-party donors—legally simple. Surrogacy is so medically uncomplicated that it can be done without any physician involvement, but it is the most legally complicated means of providing a baby for an infertile couple.

From a time in England when fathers could sell their children into slavery to a day in which the legal system supposedly protects the best interests of the child, the common law increasingly respects the rights of children as individuals with constitutional rights and not as chattels of their parents. If the courts accept commercial surrogacy as a legitimate enterprise, it seems that we have again reverted to the concept of child as chattel.
Is There Anything Wrong with Surrogate Motherhood? An Ethical Analysis
Authors: Macklin Ruth
Published: June 2007

Is there anything ethically wrong with surrogate motherhood? Many people confess their inability to articulate their opposition in rational terms, yet they feel uneasy. The practice arouses negative emotions ranging from mild distaste to revulsion. Others say there is nothing wrong, in principle, with surrogate motherhood. It is a way of helping infertile women fulfill a fundamental human longing and, therefore, should be permitted and even facilitated. Many who are not fundamentally opposed to surrogacy nonetheless maintain that the practice ought to be regulated, in order to prevent abuses and to provide a mechanism for resolving conflicts that may develop in particular cases.

Surrogacy arrangements have been condemned by Roman Catholic spokesmen, in a legal brief by a conference of bishops in New Jersey, and by the Vatican in a statement issued by the Pope in March 1987. Feminists have denounced the practice, using rhetoric rather than argument, with the slogan woman as vessel. A group of wormen who agreed to bear children under surrogacy contracts has convened to speak out against such arrangements.
Solomon Would Weep: A Comment onIn the Matter of Baby Mand the Limits of Judicial Authority
Authors: Bezanson Randall P.
Published: June 2007

In commenting on the New Jersey Supreme Court's decision in the Baby M case, I will focus on the result of the court's decision and what it implies about the limits of judicial power, not on the court's opinion. The reason is that, excepting the court's basic premises, I can find little in the opinion to criticize. My difficulty, instead, is with the premises from which the court approached the case, and what they imply about the capacity of courts to construct legal doctrine on the basis of largely, if not wholly, unexplored social and cultural values. The result reached in the Baby M caw-that Mr. Stem is Baby M's legal father and Ms. Whitehead her legal mother—is, in my judgment, surely the worst result possible. That it was indisputably the logical, reasoned, and straight forward result of existing legal concepts of parenthood, adoption, baby-selling, and the like, as the New Jersey court so well opined, is hardly reassuring.
The Role of Law in Reducing Injury
Authors: Christoffel Tom
Published: June 2007

Fatal injuries are the leading cause of death in the United States up to age 44 and “kill more Americans aged 1-34 than all diseases combined.” Injuries also constitute the nation's second most costly health problem—after heart disease—and because they disproportionately involve young people, they are the leading cause of productive years of life lost.

Until quite recently, most injuries were viewed as random, uncontrollable events. But this view is changing in the face of mounting evidence that many of the 140,000 injury-related deaths, as well as a large percentage of the estimated 70 million non-fatal injuries annually, were not inevitable.

As in the case of disease, prevention is becoming a major tool in reducing the injury toll. In the development of effective prevention strategies, the law can play a pivotal part. But to make proper use of this preventive approach, there must be considerably more planning, coordination and determination in its application.
Appropriate Collaboration between Industry and Government in the Development of an AIDS Vaccine
Authors: Christakis Nicholas A. , Panner Morris J.
Published: June 2007

On August 22, 1986, as part of its response to the AIDS epidemic, the Public Health Service (PHS) invited U.S. industrial firms to collaborate with the government in the development of an AIDS vaccine. The framework for the collaboration was outlined in a PHS document entitled, “AIDS Vaccine Development: Private Sector/Government Collaborative Efforts.” This document identified the resources the government is prepared to make available to industry, including patents, facilities, data, and assistance with clinical trials. The overall aim of the PHS proposal was to establish a formal framework for coordinating existing government and private efforts and to foster industry participation in the search for an AIDS vaccine.

An example of private sector/government collaboration is provided in the human trial of an AIDS vaccine approved by the FDA in August 1987. The vaccine, named “VaxSyn HIV-1,“ is the product of a joint effort between a company called MicroGeneSys and investigators at the National Institute of Allergy and Infectious Disease (NIAID).
The Syngamy Debate: When Precisely Does a Human Life Begin?
Authors: Buckle Stephen , Dawson Karen , Singer Peter
Published: June 2007

The Infertility (Medical Procedures) Act passed by the Parliament of Victoria, Australia in 1984 was the first legislation anywhere in the world to deal specifically with the regulation of in vitro fertilization and embryo experimentation. As with any pioneering legislation, it has had its problems. Prominent among them was the question of precisely when an embryo comes into existence. This question, which may seem mere semantics, gave rise to a heated controversy with real practical consequences for researchers and infertile couples. The issue was only resolved by the Victorian parliament passing an amendment which specified, more precisely than any legislature had done before, the moment at which egg and sperm become an embryo. This enactment could be seen as a legal declaration of when a life begins—although it remains an open question what legal or ethical significance such a starting point possesses.
Caring for Incompetent Patients: Is There a Physician on the Case?
Authors: Lo Bernard
Published: June 2007

What medical care will I receive if I am too sick to make decisions about my care? Many people worry about this question, particularly about how they can retain control over such decisions. The portrayal in this case of physicians who fail to prescribe adequate pain relief and who feel threatened by active family participation in decision-making only reinforces such concerns. It seems that the hospice movement has had no effect on these physicians. Traditional advice, from wise grandmothers, might be to have a child who is a doctor or who marries a doctor. A more modern suggestion might be to give advance directives about future care. At first reading, this case illustrates the usefulness of both suggestions. But on closer reading the case reveals serious problems with both approaches.