bluuebunny/crossref_metadata_2025 huggingface dataset:
Discriminatory Aspects of Pre-employment Screening: Low-Back X-ray Examinations in the Railroad Industry
Authors: Rockey Paul H. , Fantel Jane , Omenn Gilbert S.
Published: February 2021

In screening the majority of job applicants, most of this nation's railroads administer a low-back X-ray examination in an attempt to ascertain the likelihood that the applicant will sustain future work-related low-back pain or injury. Many applicants are rejected for employment on the basis of the X-ray findings. The railroads apparently perceive this screening program as a cost-effective means (1) of decreasing the incidence of compensation claims for work-related injuries, brought against the rail-roads under the Federal Employers' Liability Act (FELA), (2) of reducing the number of lost workdays resulting from low-back pain or injury, and (3) of protecting particularly susceptible workers from job-related hazards.

The authors of this Article submit that low-back X-ray examinations are poor predictors of future low-back pain or injury. They assert that the railroads' use of such examinations misclassifies a substantial number of job applicants as being at increased risk for such pain or injury, and, in consequence, unfairly denies them employment. Furthermore, the authors claim, the screening program has other negative consequences. For example, applicants rejected for railroad employment on the basis of X-ray findings may as a result have difficulty finding jobs in other industries. In addition, they state, there is a potential radiation hazard to examinees. Moreover, both the railroads and those applicants accepted for employment may inappropriately be reassured by normal findings.

On balance, the authors conclude, the screening program has a negative social value. The authors suggest that the program, in effect, erroneously labels many applicants as handicapped, and then denies them employment. Such persons might have legal recourse under federal and state statutes prohibiting employment discrimination against the handicapped.
Community Participation in the Certificate-of-Need Process: A Look at Ten-Taxpayer Groups in Massachusetts
Authors: Lewis Thomas J.
Published: February 2021

Certificate-of-need statutes give designated state agencies veto power over investment in health care facilities. Some states have sought to temper the arbitrary character of this power by expanding the opportunities for community input into the certificate-of-need process. Massachusetts, for example, has enacted a statute that allows groups of ten taxpayers to petition for a public hearing on any certificate-of-need application.

Some observers question whether the benefits of taxpayer-group participation are substantial enough to compensate for the delays and abuses that the statute allegedly invites. To help resolve this question, this Comment examines historical data on Massachusetts taxpayer groups and on their activities and assesses the significance of their composition and tactics to the certificate-of-need process.

Although flaws exist in the Massachusetts ten-taxpayer mechanism, in this writer's view it has succeeded partially in making the certificate-of-need process responsive to community opinion. Many groups lack the skills and qualities needed to make constructive use of the ten-taxpayer mechanism. Nevertheless, it serves a valuable purpose by creating a public forum for and by encouraging public participation in the certificate-of-need process, especially by those who might otherwise try to circumvent that process through use of special legislation, of private pressure, or of other similar means.
Of Love and Laetrile: Medical Decision Making in a Child's Best Interests
Authors: Horwitz Eve T.
Published: February 2021

Two recent cases have raised important questions concerning the appropriateness of state intervention in parental choices of unorthodox medical treatment for children with life-threatening conditions. This Note first discusses whether, and if so, when, state intervention in a child's treatment selection by its parents is appropriate, and then analyzes the tests a court should apply in deciding upon an appropriate treatment. The Note recommends a decision-making approach that requires the appropriate state agency to prove, by clear and convincing evidence, that the parents' choice of medical treatment either is directly or is indirectly harming their child. Under this approach, if the state meets its burden of proof the court then must apply the ‘best interests’ test, rather than the ‘substituted judgment’ test, to choose an appropriate medical treatment for the child.
Bad Law, Bad Medicine
Authors: Altschule Mark D.
Published: February 2021

In this Comment, Dr. Altschule contends that in a variety of ways the American legal system currently is endangering the existence of positive physician-patient relationships, which are essential io the effective practice of medicine. First, he contends, physicians are exposed to an excessively high risk of liability for malpractice, and as a result must substitute the use of “defensive,” often unnecessary laboratory tests for reliance on their own sound medical judgment. Second, the confidentiality of communications between physicians and patients is receiving inadequate legal protection; therefore, patients often are hesitant to reveal aspects of their medical history that may be critical to their case. Third, the federal government, by its medically inappropriate attempts to ban drugs that do not meet certain federal “safe and effective” standards, and to ban food additives that fail to pass certain federally controlled tests aimed at determining whether the additive causes cancer, is making it increasingly difficult for physicians to prescribe substances that may be of great value to their patients. The author warns that our society's failure to substantially alleviate such problems is likely to lead to an inferior brand of medical practice.
Medicolegal Causation: A Source of Professional Misunderstanding
Authors: Danner Douglas , Sagall Elliot L.
Published: February 2021

The authors of this Comment—a lawyer and a physician—suggest that most physicians who are called upon to testify concerning medical issues in personal injury litigation do not understand that judges and attorneys view “causation” quite differently than do members of the medical community. For example, medical practitioners tend to be concerned with all possible causes of the patient's current medical condition, whereas legal practitioners in personal injury cases generally focus on a particular event as possibly precipitating, hastening, or aggravating a particular aspect of the patient's condition to the extent that the event in question is, in legal language, the “proximate cause” of an injurious result. The authors summarize and analyze the differences—and the occasional similarities—between the medical and the legal approaches to causation, in the hope that they will thereby (1) contribute to greater understanding by the two professions of each other's theory and practice, and (2) help the expert medical witness to be more comfortable and more effective in his courtroom role.
Transplantable Human Organs: Should Their Sale Be Authorized by State Statutes?
Authors: Brams Marvin
Published: February 2021

Currently, there is a serious shortage of human organs, such as kidneys and corneas, available for transplant to patients who need them. State laws—through the adoption of the Uniform Anatomical Gift Act— support an “altruistic” system of organ donation, in which the supply of transplantable organs depends upon the willingness of individuals to relinquish organs without financial compensation. The author of this Comment, an economist, proposes that state laws should instead support a combined altruistic-market system of organ procurement and distribution. In such a system, not only could individualsgivetheir organs, but those who so desired couldselltheir organs—to be removed and transplanted upon their death, or possibly even during their life in appropriate cases—with the proceeds going to the donor or his estate. The author contends that statutory authorization of a combined altruistic-market system of organ transfer—for which the current mixed voluntary-commercial blood system provides a precedent—would foster the growth of a new incentive (the receipt of money) to relinquish one’s organs for transplantation. The sale of organs could (1) alleviate the organ shortage, (2) decrease the incidence of organ rejection by the host, and (3) lessen the need to remove organs from living donors. The author confronts various practical and ethical objections to the introduction of a commercial market in human organs, and concludes that the objections are unjustified, or can be addressed effectively through appropriate statutory provisions, or are outweighed by the benefits of a vastly increased supply. He calls for support for his proposal from organized medicine, and suggests that the new system be introduced on an experimental basis in a single state prior to nationwide implementation.
Health Specialists’ Guide to the Federal Legislative Process and to the Process of Federal Program and Regulation Development
Authors:   American Hospital Association
Published: February 2021

In January of every odd-numbered year, a new Congress convenes, made up of new or re-elected Members of the House of Representatives and of the Senate, along with Senators who are entering the second or third Congress of their six-year term. In both its first year (“first session“) and its second year (“second session“) the new Congress stays at work until adjournment in late autumn or early winter.

Any Member of Congress may introduce a legislative proposal when Congress is in session. Ideas for bills and resolutions may emanate directly from a Member (or a group of Members) either in the House of Representatives or in the Senate. Often the proposals are a response to the appeals of constituents, such as trade or professional associations or consumer groups, who may participate in their preparation.
Health Maintenance Organizations and the McCarran-Ferguson Act
Authors: Schmidt Susan
Published: February 2021

In the past, Health Maintenance Organizations (HMOs) were victims of anticompetitive practices, but the growth of HMOs casts them as potential antitrust violators. Such contentions should be halted since they frustrate growth encouraged by both the federal and state governments.

This Note discusses a solution to the potential antitrust problems. HMOs can be exempt partially from antitrust regulation by the McCarran-Ferguson Act. To secure immunity under McCarran-Ferguson, the entity must function in the business of insurance, be regulated by the state, but not be engaged in acts of boycott, coercion, or intimidation.

This Note sets forth potential antitrust violations by HMOs, examining the possible application of the McCarran-Ferguson exemption to them. Each of the elements required to satisfy McCarran is discussed in general and applied to HMOs. This Note concludes that the exemption can be applied to HMOs so long as their conduct fulfills the requirements of the McCarran Act.
Does the Hyde Amendment Violate Religious Freedom? Harris v. McRae and the First Amendment
Authors: Gold Jay Alexander
Published: February 2021

In Harris v. McRae, the recent case in which the U.S. Supreme Court upheld the constitutionality of the Hyde Amendment, the Court for the first time was asked to consider whether antiabortion legislation respects the establishment of religion or violates the free exercise thereof. The Court held that the Amendment did not effect an establishment of religion, and found that the plaintiffs lacked standing to raise the free exercise argument.

The writer explores the questions raised, agreeing with the Court's disposal of the establishment argument. He does find considerable.validity in the free exercise challenge, but concludes that the Court as presently constituted is unlikely to accept it. In addition, he believes that the Court, in its treatment of both arguments, either ignored or improperly dis tinguished earlier cases that supported the plaintiffs.
Health Care Institution Labor Law: Case Law Developments, 1974-78
Authors: Shepard Ira M.
Published: February 2021

This Article examines the key National Labor Relations Board and federal court interpretations of the much-heralded 1974 Health Care Institution Amendments to the National Labor Relations Act. It analyzes NLRB decisions that have resulted in a proliferation of separate employee bargaining units at health care facilities, and that have applied the strike notice provisions of the NLRA to labor disputes involving building trade employees engaged in construction at operating health care facilities. In addition, the Article examines the Board’s decision to decline jurisdiction over employee unions representing interns and residents, and summarizes both the special NLRB rules designed to apply to union solicitation of employees at health care facilities and the conflicting circuit court decisions that have modified the Board’s specialized solicitation rules.
Federal Preclusion of State Certificate-of-Need Exemptions for Research and Education Expenditures
Authors: Friedman Lois D.
Published: February 2021

The National Health Planning and Resources Development Act of 1974 requires each state to enact a certificate-of-need program in compliance with federal standards in order to remain eligible for continued receipt of federal funds for health resource development after 1980. This Note contends that the Act and related HEW regulations preclude states from exempting health care facilities’ research expenditures and education expenditures from the scope of the states’ certificate-of-need programs. The Note recommends that, as an alternative to such state exemptions, each state develop a streamlined certificate-of-need procedure that fulfills federal requirements while efficiently meeting the special needs of research and education projects.
Parental Leave: The Need for a National Policy to Foster Sexual Equality
Authors: Caplan-Cotenoff Scott A.
Published: February 2021

Working women are without substantial protection from the ramifications of pregnancy discrimination, and the opportunities for working men to take leave from work to participate in child care are limited. Recently, private businesses have begun implementing maternity or parental leave policies to address these problems. These policies are inconsistent, however, and a national parental leave program is needed to help women attain equal access to jobs and to provide men with the opportunity to participate in child care.

This Note examines the historical background of pregnancy discrimination litigation and legislation, and highlights the gaps in the protection currently afforded women. It suggests that a federal parental leave policy may expand the scope of this protection, and attempts to gain insight and draw conclusions from analogous parental leave programs in foreign countries which may be used as models for a national program in the U.S. Such a program would benefit parents, children, and society by removing some of the obstacles to sexual equality.
Ball Memorial Hospital: Section 2 Sherman Act Analysis in The Alternative Health Care Delivery Market
Authors: Kirsch Todd
Published: February 2021

In 1986, the Seventh Circuit Court of Appeals in Ball Memorial Hospital v. Mutual Hospital Insurance denied an injunction sought under the antitrust laws by the plaintiffs, eighty acute care hospitals, which would have precluded Blue Cross and Blue Shield of Indiana from implementing a Preferred Provider Organization. The Ball court used a conservative economic analysis to deny the injunction and failed to consider many industry-specific factors. This Note examines these factors and challenges the Ball court’s position by arguing that antitrust scrutiny of alternative health care delivery markets must go beyond the court’s narrow approach.
Conflicts of Interest in Canadian Health Care
Authors: Dickens Bernard M.
Published: February 2021

A study of conflicts of interest in Canadian health care law supposes that Canadian law contains features that distinguish it from law in any other jurisdiction. There was a time when law applied in the Canadian Common Law jurisdictions lacked these features. The law and legal process of the Common Law jurisdictions derived directly from England, whereas the Civil Law of Quebec was fashioned on the French Code Napoléon. Indeed, as recently as 1959, a distinguished Canadian academic commentator observed that “a perusal of Canadian law reports … conveys the impression that most of the opinions reported there are those of English judges applying English law in Canada, rather than those of Canadian judges developing Canadian law to meet Canadian needs with guidance of English precedent.” However, modern developments in Canadian society in general, and in its health care system in particular, now justify the claim that Canadian law is sufficiently distinctive to warrant its inclusion in comparative studies of legal regulation of health care professionals’ conflicts of interest.
Negligent Infliction of Emotional Distress: A Focus on Relationships
Authors: Appleberry J. Mark
Published: February 2021

Dan Boyles, Jr. secretly videotaped Susan Kerr while they engaged in sexual intercourse. Boyles’s friend, Karl Broesche, suggested the videotaping. Boyles agreed. Broesche and two other friends hid a video camera in the bedroom and videotaped themselves crudely joking and commenting on the situation. They left the camera running and snuck out of the house. The camera recorded the ensuing encounter between Dan and Susan.

Boyles took possession of the tape and showed it to friends on three occasions. Approximately ten people actually saw the tape. Susan Kerr learned of the tape’s existence several months later, confronted Boyles, and eventually took possession of the tape. In the meantime, Kerr’s reputation at her school, Southwest Texas State University, took a turn for the worse. She was called “porno queen” by many of her acquaintances, and was constantly confronted with questions about why she did it and whether she would do it again.
Value Purchasing in Medicare Law: Precursor to Health Reform
Authors: Gosfield Alice G.
Published: February 2021

Since the advent of Medicare in 1966, a major focus of federal policy and legislation has revolved around the purchase of health care. Although initial programmatic content demonstrated some concern for both cost containment and basic quality assurance, by the late 1970's congressional cost control anxiety had reached a fever pitch, culminating in a completely revamped Medicare hospital reimbursement methodology enacted in 1982, combined with a retooled utilization control mechanism in the form of the Peer Review Organization (“PRO”) program.

At the same time, in the private sector, as the cost of health care increased, major corporate purchasers of health care services became increasingly concerned about the “value” of the health care benefits they were making available to their employees. In response to perceived consumer demand, these same corporations eventually, for reasons unrelated to health care, began to incorporate quality improvement into their core manufacturing and service missions.
Redefining the Terms of Health Insurance to Accommodate Varying Consumer Risk Preferences
Authors: Ellman Ira Mark , Hall Mark A.
Published: February 2021

Proposals for managed competition present the following question: what are health insurers to compete over? If the competition managers allow insurers to offer truly minimal benefit packages, then competition might focus on enhancements to that minimal package. However, most current proposals require a relatively generous minimal benefit package that includes nearly everything that any consumer is willing to pay for, eliminating this arena of competition. Uniform benefit packages would presumably encourage price competition, not only because it is then the insurers’ only remaining arena of competition, but also because uniform benefits facilitate consumers making price comparisons. However, if government sets global spending caps, adopts mandatory fee schedules, and requires community rating for health insurance premiums, as President Clinton proposes to do, there will be little room left for price competition either. With uniform benefit packages and regulated prices, the managed competition plan ends up with an abundance of management and precious little competition.
Canadian Medicare: Can it Work in the United States? Will it Survive in Canada?
Authors: Deber Raisa B.
Published: February 2021

Any discussion of health care reform in the United States inevitably draws comparisons from the Canadian model. This Article frames the debate over the merits of the Canadian system by introducing its basic features, exploring its advantages, and discussing its limitations. In evaluating the prospects for a Canadian-type system in the United States, the author focuses on the need to rethink — as Canada has — the viability of market-based approaches to health care.
Selling Cost Containment
Authors: Jost Timothy Stoltzfus , Tanenbaum Sandra J.
Published: February 2021

Health care expenditures in the United States have continued to grow despite efforts to control them. This Article discusses the need for health care reform, outlines the model that reform should follow, and considers why the United States has not progressed toward a workable solution. It introduces a single-payer approach to cost containment and explains how such an approach could be “sold” in the United States. Finally, the Article examines various ways to mobilize support for such health care reform.
Regulation and Federalism: Legal Impediments to State Health Care Reform
Authors: Parmet Wendy E.
Published: February 2021

In recent years, many states have attempted to address the cost and access problems that face their health care systems. Such efforts, however, are significantly impeded by a variety of federalism doctrines that limit the ability of states to regulate the health care market. This Article surveys some of those federalism barriers, including the constitutional restraints imposed by the Commerce Clause, the Privileges and Immunities Clause, and the Fourteenth Amendment, and the statutory hurdles created by ERISA, the Social Security Act, and the Americans with Disabilities Act of 1990. This Article concludes that the restraints that these doctrines and statutes place on states reflect not only federalism concerns, but also deeper ambivalence about governmental regulation of the health care market. Only when that ambivalence is resolved can a proper division of labor between the states and federal government be determined.
Legislative and Educational Alternatives to a Judicial Remedy for the Transfer Trauma Dilemma
Authors: Cohen Elias S.
Published: February 2021

Transfer trauma is alleged to be an increase in morbidity and mortality in institutionally relocated chronically ill elderly. Efforts by the legal profession to persuade courts that transfer trauma should be a legally recognized phenomenon invoking judicial protections against transfer (the “transfer trauma argument”) have been unproductive. In O'Bannon v. Town Court Nursing Center, Inc., the United States Supreme Court denied standing to elderly persons claiming a property interest in remaining in alleged substandard facilities. The Court rejected the argument that the possibility of transfer trauma constituted a deprivation of life or liberty that would have required due process protections of notice and hearing. Despite the Court's preclusion of transfer trauma litigation in a constitutional context and the general unwillingness of lower courts to recognize the phenomenon, attorneys continue to burden the judicial system with frivolous transfer trauma arguments. The unfruitful pursuit of a judicial remedy for the ethical and social problems that arise with relocation of the elderly continues, in part, because of a misguided belief that this distressing social phenomenon is best remedied by the courts. Judicial unwillingness to recognize the transfer trauma argument, however, does not preclude legislative consideration of the humanitarian issues concerning the institutional relocation of elderly persons. This Article examines gerontological research in order to understand the judicial rejection of the transfer trauma argument and argues in support of legislative and educational solutions for the ethical and social problems attending transfer.
Comment on Kartell v. Blue Shield of Massachusetts, Inc.: An Antitrust Analysis of Blue Shield's Reimbursement Schemes
Authors: Wayne Abby Brown
Published: February 2021

In Kartell v. Blue Shield of Massachusetts, Inc., the First Circuit held that Blue Shield's reimbursement practice known as the “ban on balance billing” did not constitute an unlawful restraint of trade in violation of the antitrust laws. Underlying the First Circuit's decision was deference to what it viewed as efforts by Blue Shield and by the Commonwealth to promote cost containment.

This Comment argues that, to the contrary, under an appropriate analysis of antitrust law, the practices employed by Blue Shield did constitute unreasonable restraints of trade on the physicians' service industry in Massachusetts, given Blue Shield's market dominance in the Commonwealth. The Comment also argues that such inhibition of the competitive functioning of this industry is unwise, and that costs should instead be contained by effectuating the antitrust laws and encouraging the development of competitive forces within this industry.
The Permanently Unconscious Patient, Non-Feeding and Euthanasia
Authors: Cantor Norman L.
Published: February 2021

Some sources condemn judicial decisions which authorize the withdrawal of artificial nutrition from permanently unconscious patients. These critics assert that withdrawal of nutrition from a preservable unconscious patient amounts to intentional killing of a helpless human being. Grave implications are seen for helpless patients.

This article confronts these critics and their assertions. The author contends that the judicial approach which allows withdrawal of artificial nutrition is fully consistent with traditional medico-legal doctrines. The article articulates a standard — respect for human dignity — which justifies withdrawal of artificial nutrition from a permanently unconscious patient. The implications of this formula for other imcompetent patients facing a protracted dying process is discussed. Finally, the article explains why active euthanasia can and ought to be distinguished from withdrawal of life-preserving medical intervention.
Institut Pasteur v. United States: The, AIDS Patent Dispute, the Contract Disputes Act and the International Exchange of Scientific Data
Authors: Singer Howard L.
Published: February 2021

In the case of Institut Pasteur v. United States, the Institut Pasteur (Pasteur) claimed that the National Cancer Institute (NCI) had breached express and implied contracts to share research on AIDS virus samples provided to NCI by Pasteur. NCI scientists allegedly used the samples to acquire information which allowed NCI to file patent applications for an AIDS blood test kit.

The United States Claims Court dismissed the complaint by holding that the Institut Pasteur had not complied with certain administrative procedures required by the Contract Disputes Act before bringing its suit. The United States Court of Appeals for the Federal Circuit reversed the decision of the Claims Court by holding that the disputed contracts did not fit within the scope of the Contract Disputes Act.

Soon after the Court of Appeals decision, President Reagan and Prime, Minister Chirac announced a settlement agreement whereby the lawsuit was to be dropped, American and French scientists were to share credit for having discovered the AIDS virus, and both parties to the suit were to share the patent rights for the AIDS blood test kit. This settlement suggests that international legal disputes involving urgent scientific and medical matters may require dispute resolution techniques that serve as alternatives to national courts.
Patenting Human Beings: Do Sub-Human Creatures Deserve Constitutional Protection?
Authors: Fishman Rachel E.
Published: February 2021

The availability of patents for genetically altered animals raises questions about the patentability of human beings. Genetic research will produce beings who fall halfway between what we currently think of as “animal” and “human.” It is unclear on which side of the legal line these creatures will fall. In April 1988, Congress revised the Patent Act with a statement that human beings are not to be considered patentable subject matter. Congress, however, failed to supply a definition of the term “human being.” A definition will clarify the legal status of sub-human creatures. The author addresses this problem and proposes a definition of “human being” as an amendment to the Patent Act.
Medical Monitoring Damages: Issues Concerning the Administration of Medical Monitoring Programs
Authors: Lee Jesse R.
Published: February 2021

Toxic disasters violate all the rules of plot. Some of them have clearly defined beginnings, such as die explosion that signaled the emergency at Chernobyl… but [they] never end. Invisible contaminants remain a part of the surroundings—absorbed into the grain of the landscape, the tissues of the body, and, worst of all, into the genetic material of the survivors. An ‘all clear’ is never sounded. The book of accounts is never closed.
Cost Containment and Reproductive Autonomy: Prenatal Genetic Screening and the American Health Security Act of 1993
Authors: Morris David T.
Published: February 2021

Prenatal genetic diagnosis represents one of the most important recent advances in the field of clinical genetics. Each year in the United States, a significant number of children are born with some type of hereditary genetic defect that can be diagnosed in utero. Of the over 4000 genetic traits which have been distinguished to date, more than 300 are identifiable via prenatal genetic testing. With increasing frequency, various diagnostic procedures are being used to evaluate the probability that a fetus will be born with a serious physical or mental handicap caused by a genetic abnormality. These procedures identify disabling or potentially fatal genetic disorders, including cystic fibrosis, trisomy 21 (Down syndrome), P-Thalassemia, and neural tube defects (NTDs).

Prenatal diagnosis may be achieved by utilizing one or more techniques from three basic methods of testing. The most commonly performed means, amniocentesis, is a procedure in which a small sample of the fluid surrounding the developing fetus is extracted from the amniotic sac.
Making the World Health Organization Work: A Legal Framework for Universal Access to the Conditions for Health
Authors: Taylor Allyn Lise
Published: February 2021

Improving global health conditions has been one of the most important and difficult challenges for the world community. Despite concerted efforts by international organizations, like the World Health Organization, great disparities in health conditions remain between developed and developing countries, as well as within those countries. The World Health Organization has achieved some successes through its Health for All strategy; however, it can and should encourage member nations to enact national and international laws to protect and promote the health status of their populations. A comparison to the lawmaking efforts in other areas by international organizations indicates that WHO may have the authority and the means to institutionalize efforts to improve global health conditions.
Crisis and Informed Consent: Analysis of a Law-Medicine Malocclusion
Authors: Carnerie Fran
Published: February 2021

Many individuals develop a temporary state of cognitive and emotional impairment after being diagnosed with catastrophic illness. Thus, when crucial decisions about medical treatment are required, they are unable to assimilate information; or worse, the legal need to be informed can rival a psychological desire to not be informed. The Canadian informed consent doctrine is unresponsive to crisis and clinically impracticable, and so paradoxically compromises the integrity and autonomy it was designed to protect. Many aspects of the physician-patient relationship and clinical setting also undermine the philosophical values enshrined in this doctrine. This further jeopardizes the individual's integrity. The Article explores proposals for change such as delaying the informing and consenting, improving the concept of consent, and improving the role of the physician.
Coding for Change: The Power of the Human Genome to Transform the American Health Insurance System
Authors: Geetter Jennifer S.
Published: February 2021

While science does advance steadily over time, occasionally a scientific breakthrough occurs that does not merely augment current scientific explanations and understandings, but instead radically redirects the focus of the scientific inquiry, fundamentally reconfigures our conception of our world and community, and threatens our existing social and moral conventions. We are currently experiencing such a scientific revolution, precipitated by advances in decoding our genetic makeup. While the revolution began at least by 1952 with the discovery by James Watson and Francis Crick of the structure of the DNA molecule–the molecule that contains our genetic information–the pace of the revolution has accelerated most rapidly in the last ten years. The engine for this change is the Human Genome Project.
The Evolution of Physician Credentialing into Managed Care Selective Contracting
Authors: Blum John D.
Published: February 2021

In a field littered with analogies, health care in the mid-nineties is best characterized as an enterprise caught in the violent cross winds of a tropical storm known as managed care. Like a series of hurricanes, managed care has reshaped the landscape of health care delivery in drastic and unpredictable ways. While the forces of managed care have increasingly altered more health care markets, others are only beginning to feel the winds of change. As managed care overtakes fee-for-service (FFS) medicine, profound alterations in health delivery are occurring which affect every aspect of American health care.

Particularly noteworthy is the use of capitation as a primary method of reimbursement. The ramifications of capitated health care are broad and warrant exploration from several vantage points. One basic concern in capitated health plans and managed care is the effect of new payment incentives on physician evaluation for purposes of credentialing. This Article focuses on managed care credentialing—the process of appointing, reappointing, and delineating clinical privileges—from a legal perspective. While the Article centers on the link between capitation and credentialing, it has broader applicability in that the same physician evaluation mechanisms in capitated settings are found in discounted FFS arrangements as well. The piece provides a brief overview of capitation and credentialing, and a discussion of trends that have altered hospital medical staff credentialing processes.
Antitrust and Third Party Insurers
Authors: Heitler George
Published: February 2021

This Article surveys major antitrust issues affecting the health care field with particular emphasis on third party insurers. It deals with the most recent decisions of the United States Supreme Court, including Maricopa, Pireno and McCready, involving limitations on the scope of the antitrust exemptions, and the bearing of these decisions on third party insurers, provider agreements, peer review mechanisms, physician control or sponsorship of prepayment plans, joint insurer activities, relative value fee schedules, maximum fee schedules, and area-wide planning. The Article challenges the desirability of strict application of antitrust principles to these and other activities within the health care field, stressing that practices with procompetitive and cost containment aspects should be encouraged and analyzed under the rule of reason rather than a per se approach.
Antitrust Implications of Health Planning: National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City
Authors: Chase Judy B.
Published: February 2021

In National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City, the United States Supreme Court held that there is no blanket exemption from antitrust laws for health planning activities.‘The Court also held that no specific immunity can be granted where the challenged health planning activity is not undertaken pursuant to a federal regulatory scheme. This Comment reviews the Court’s decision and concludes that the Court correctly determined that the challenged activities did not qualify for an exemption. The Comment also examines the implications of the Court's statement that, where Congress has manifested a belief that competition is ineffective in the health care industry, application of the antitrust laws should be modified. The Comment recommends that an intermediate review standard such as the “presumptive, incentive modifying approach” should be used by future courts in deciding whether the ineffectiveness of competition in a given area of health planning activity warrants immunity from antitrust scrutiny.
An Economic Model to Analyze the Impact of False Claims Act Cases on Access to Healthcare for the Elderly, Disabled, Rural and Inner-City Poor
Authors: Matthew Dayna Bowen
Published: February 2021

In 1964 President Lyndon B. Johnson declared a “War on Poverty.” By 1965 Congress had enacted several key weapons in that war, including two massive revisions to the Social Security Act designed to provide broad access to healthcare for if. the elderly, the disabled and poor, uninsured pregnant women and infants. The current Medicare and Medicaid health insurance programs, along with the State Children's Health Insurance Program, provide health insurance and thus, access to healthcare, for 60% of people living in poverty. Medicaid alone pays for half of all nursing home care in this country. Medicare pays for hospital care for over 32.4 million elderly Americans, and for 3.7 million disabled Americans. Medicare and Medicaid have been called the “lynch pin” in the nation's strategy to assure access to healthcare for low income Americans. In short, the War on Poverty is not effective without the access to healthcare Medicare and Medicaid afford to the poor, elderly and disabled.
The WTO Dispute Settlement Understanding: An Unlikely Weapon in the Fight Against AIDS
Authors: Curti Andrea M.
Published: February 2021

One of the most controversial aspects of the World Trade Organization (WTO) is its trade policy governing pharmaceutical products that treat AIDS and other diseases. Critics contend that the WTO unreasonably restricts the trade of pharmaceuticals in order to protect the profit margin of western drug producers at the expense of infected populations in developing countries. Supporters of the WTO's trade policy argue that protecting the intellectual property (IP) rights of pharmaceutical products is essential to providing an incentive for further drug research and development.
Gestational Burdens and Fetal Status: Justifying Roe v. Wade
Authors: Robertson John A.
Published: February 2021

Roe v. Wade is a landmark case for women and for reproductive rights. By permitting abortion, Roe v. Wade gives women some control over the timing of pregnancy and childrearing, and has reinforced the movement of women into the labor force. Nevertheless, it is a hotly contested decision. The most fervent critics decry its substantive position on fetal status, likening it to Dred Scott and Nazi atrocities. Others classify it as an arbitrary infliction of judicial will unfit to be called law.

Roe v. Wade, however, is not as radical a departure from the main currents of constitutional precedent as charged. Its premises about procreative choice stem from the Court's decisions in Griswold v. Connecticut and Eisenstadt v. Baird? Its evaluation of fetal status is not markedly different from common law positions. Nor has Roe v. Wade's recognition of procreative liberty greatly expanded the list of nonprocreative rights, as many persons had hoped or feared.
Justice Blackmun: A Survey of his Decisions in Psychiatry and Law
Authors: Stone Alan A.
Published: February 2021

I propose to survey briefly 16 of the Supreme Court's “Law and Psychiatry” decisions in the decade and a half from 1972 through 1986. I shall emphasize Justice Harry Blackmun's role in these decisions, his votes and his opinions.

Justice Blackmun's changing “social vision” on the court has been much discussed. It has even been examined quantitatively in a Harvard Law Review student note. This note measured his shift over time from voting with Burger and Rehnquist to voting with Brennan and Marshall. The lines of this graph cross in 1981, and 16 cases I have selected confirm this change. The 16 law and psychiatry cases are listed in Chart 1 below in chronological order. There were 8 cases before 1981 in which Justice Blackmun consistently voted with Burger and Rehnquist. There were 8 cases after 1981 in which Justice Blackmun consistently voted with Brennan and Marshall.
The Empirical Jurisprudence of the United States Supreme Court
Authors: Appelbaum Paul S.
Published: February 2021

The age of empirical jurisprudence appears to be upon us. At both trial and appellate levels, empirical data are playing ever more prominent roles in civil and criminal adjudication. Expert witnesses were once confined to a narrow class of forensic scientists. Today psychologists, sociologists, statisticians, and other empirical researchers regularly testify in court. Lawyers aware of the value of using empirical argument hire expert witnesses to discuss and dispute vast bodies of data often generated precisely for the purpose of influencing legal decision-makers.

Courts are continually being asked to settle broad issues of social policy, many of which turn on empirical analyses of the effects of actual and proposed statutes, regulations, and judicially-generated rules. As a result, the use of data-oriented arguments continues to grow. Scholars are looking for change in the traditional structures for regulating the introduction of data into evidence, and have proposed innovative procedures that recognize the potential contributions of empirical results.
Baby Doe, Congress and the States: Challenging the Federal Treatment Standard for Impaired Infants
Authors: Newman Stephen A.
Published: February 2021

In its amendments to the Child Abuse Prevention and Treatment Act, Congress set forth a strict standard for treatment of impaired infants. The statute, shaped by right-to-life groups and certain medical organizations, calls for aggressive treatment in virtually all cases, regardless of the degree of suffering imposed and the burdens and risks involved. The federal rule evidences deep distrust of parental decisionmaking, relegating most parents to a nonparticipatory bystander role.

Congress did not make its rule binding on the states. Rather, it conditioned the receipt of federal funds upon incorporation of the rule into each state's law. Most states have accepted the condition, largely through rulemaking by state child abuse agencies.

This article challenges the authority of state administrators to promulgate these rules, and argues that state constitutions, little mentioned in the Baby Doe debate thus far, may prohibit many states from adopting the federal standard. Ordering medical interventions that perpetuate extreme conditions of physical and mental devastation, subjecting infants to grave suffering for uncertain benefits, and depriving parents of virtually all decisionmaking power violates the norm of governments constitutionally committed to individual liberty, human dignity and family autonomy. A constitutionally sound approach to this issue would permit careful, ethical deliberation, attention to the individual circumstances of each infant Doe and a reasonable degree of parental control.
Nurse Practitioner Challenges to the Orthodox Structure of Health Care Delivery: Regulation and Restraints on Trade
Authors: Kelly Karla
Published: February 2021

Until recently, physicians have been the primary health care providers in the United States. In response to the rising health care costs and public demand of the past decade, allied health care providers have challenged this orthodox structure of health care delivery. Among these allied health care providers are nurse practitioners, who have attempted to expand traditional roles of the registered nurse.

This article focuses on the legal issues raised by several major obstacles to the expansion of nurse practitioner services: licensing restrictions, third party reimbursement policies, and denial of access to medical facilities and physician back-up services. The successful judicial challenges to discriminatory practices against other allied health care providers will be explored as a solution to the nurse practitioners’ dilemma.
Jefferson v. Griffin Spalding County Hospital Authority:Court-Ordered Surgery to Protect the Life of an Unborn Child
Authors: Finamore Eric P.
Published: February 2021

InJefferson v. Griffin Spalding County Hospital Authority, the Supreme Court of Georgia affirmed a lower court order requiring a pregnant woman to submit to a cesarian section and other medical procedures necessary to save her unborn child’s life. The court found that the state’s interest in protecting the viable fetus outweighed the pregnant mother’s right to religious practice, right to refuse medical treatment, and parental autonomy.Jeffersonappears to stand for the proposition that fetuses have rights that attach at viability and that mothers have a corresponding duty to ensure live births. The decision foreshadows substantial conflict between fetal and maternal rights.
Rethinking The Admissibility of Medical Treatises as Evidence
Authors: Lipton Jack P. , O'Connor Maureen , Sales Bruce D.
Published: February 2021

This Article examines the issues and questions which underlie the debate over the admission of “medical treatises” into evidence. The admissibility of this type of evidence is at issue most often in litigation involving complex medico-legal issues. This Article outlines the evidentiary basis for admission of medical treatises and discusses the quality of medical treatises in an effort to determine what value to the fact-finder these treatises actually hold. The authors contend that there is an inherent untrustworthiness associated with medical treatises, but do not go so far as to suggest that medical treatises should never be admitted. The Article concludes that there is a need for greater caution in determining admissibility and recommends safeguards to better guarantee trustworthiness and reliability.
Freestanding Emergency Centers: Regulation and Reimbursement
Authors: Katzman Mitchell
Published: February 2021

The freestanding emergency center, which combines the functions of a doctor's office and a hospital emergency room, has emerged as a new provider of health care. These centers have generated considerable controversy over their role in the health care market. Proponents argue that freestanding emergency centers reduce costs by providing care in a more efficient manner and cause other health care providers such as hospital emergency rooms to reduce costs and improve service. Opponents argue that the centers create an additional layer of health care which duplicates existing services and increases total health care costs. This Note examines the controversial issues of licensure, regulation and reimbursement. The Note concludes that freestanding emergency centers can help to reduce health care costs and discusses the steps that should be taken to aid centers in achieving this goal.