bluuebunny/crossref_metadata_2025 huggingface dataset:
Park v. Chessin: The Continuing Judicial Development of the Theory of ‘Wrongful Life’
Authors: Cohen Mark E.
Published: February 2021

Park v. Chessin, a recent New York case, marked the first step toward judicial acceptance of the theory of “wrongful life.” Wrongful life suits involve a cause of action brought by an infant, against a physician, alleging that the physician's failure to inform the child's parents of the possibility of their bearing a severely defective child was the proximate cause of the infant's birth, and thus resulted in harm to the infant. This Note explores recent legal developments that give precedential support to the development of the theory of wrongful life. Furthermore, it demonstrates that the awarding of monetary damages is an appropriate remedy for the wrongful life plaintiff, and it examines possible methods for measuring those damages. The Note concludes with an analysis of the capability of courts to adjudicate wrongful life suits, and of the possible ramifications of judicial acceptance of the theory of wrongful life.
The Freedom of Information Act and Medicare Cost Reports
Authors: Shulman Laurence J.
Published: February 2021

Health care providers must submit cost reports to the Department of Health and Human Services or its designated intermediary before they can be reimbursed for their services by the Medicare system. These reports closely detail the financial operations of the provider. Whenever third parties have requested copies of the cost reports pursuant to the Freedom of Information Act and the Department of Health, Education and Welfare (now HHS) has declared its intention to comply with the request, the providers have sued to enjoin disclosure.

This Note evaluates whether the cost reports are confidential and therefore exempt from mandatory disclosure under Exemption 4 of the Freedom of Information Act. It concludes that they should not be exempt, but that even if they are, disclosure is mandated by a validly promulgated HEW regulation. This regulation was enacted in compliance with the Administrative Procedure Act, and should not be considered an abuse of the HEW Secretary's discretion.
The State Action Doctrine and The Local Government Antitrust Act: The Restructured Public Hospital Model
Authors: McDowel Theodore N. , Marbury Rainer J.
Published: February 2021

This Article analyzes the development and complexities of the antitrust state action doctrine and the Local Government Antitrust Act as these doctrines apply to both “municipalities” and private entities. The restructuring of a public hospital is used as a model to facilitate the antitrust analysis. The restructuring model, which typically involves the leasing of a hospital facility by a public entity to a private nonprofit corporation, offers the unique opportunity to compare the different standards employed under the state action doctrine and the Local Government Antitrust Act. As a practical matter, the Article provides a framework for a public hospital to evaluate the impact of corporate restructuring on its antitrust liability exposure and to develop strategies to minimize antitrust risks.
Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System
Authors: Rodwin Marc A.
Published: February 2021

Owen Barfield, the British solicitor and literary scholar, reminds us that many legal concepts have their origin as metaphors and legal fictions. We often fail to see the nature of legal metaphors, Barfield argues, because over time they ossify and we read them literally rather than figuratively. Look closely at changes in law over time, Barfield advises us, to see how effectively metaphor works in law and language. Many legal categories and procedures we now use had their origin in using a metaphor that revealed a new way of looking at a problem or that helped solve a legal problem. Legal metaphors also help us to identify critical limits and strains in adapting to new facts and circumstances.

George Annas has pointed out that our choice of metaphors for medicine can reframe our debates about health policy reform. And Analee and Thomas Beisecker remind us that patient-physician relations have been viewed through many metaphors. These include parent-child relations (paternalism); seller-purchaser transactions (consumerism); teacher-student learning (education); relations among partners or friends (partnership or friendship); or rational parties entering into negotiations or contracts (negotiation or rational contract).
Enterprise Liability for Medical Malpractice and Health Care Quality Improvement
Authors: Sage William M. , Hastings Kathleen E. , Berenson Robert A.
Published: February 2021

[Assumptions about quality in health care and its defense] are rooted in the past, a past in which the doctor ruled. Strangely, those assumptions have survived the revolutions that now deny the doctor the sole authority to judge and guide care. The doctor no longer really controls health care, as in the days of solo practice, but, when it comes to quality, the doctor is still held accountable. When the researchers study quality, they focus on the behavior of the physician. When the Quality Assurance Committee meets, it reviews the performance of the physician. When the payers and the regulators turn on their searchlights, they want doctors in their glare. Control is shifting, structure is shifting, the pattern of care is shifting; but accountability is not.

This passage prefaces a landmark report on the application to health care of quality improvement methods used successfully in other industries.
Teaching Bioethics in the Law School Classroom: Recent History, Rapid Advances, the Challenges of the Future
Authors: Jones Catherine J.
Published: February 2021

I began teaching Health and the Law in January, 1985. Louise Brown, the world's first “test tube” baby, was six years old. Karen Ann Quinlan, whose ventilator had been disconnected years earlier, was still alive and being tube fed in a New Jersey nursing home. Acquired Immune Deficiency Syndrome (AIDS) was a still little understood disease. Although forward looking scholars had been writing important books about access to expensive health care, few legal challenges had been made to alleged treatment (whether ordinary or extraordinary) refusals. Oh, what a difference a decade makes! In keeping with the theme of this issue, this article focuses on law and bioethics in the year 2000, particularly the teaching of bioethics. In some ways the challenges of teaching bioethics in the year 2000, or anytime, are the challenges of teaching any course in the year 2000, or anytime. In other ways, the special topics covered in a bioethics (or any health law) course and the dramatic impact on the area of health law by science, medicine, and technology make the challenges far more difficult than in many other areas of the law.
The Jay Healey Technique: Teaching Law and Ethics to Medical and Dental Students
Authors: Blechner Barbara B. , Hager Christie L. , Williams Nancy R.
Published: February 2021

Health law and medical ethics are both integral parts of undergraduate medical curricula. The literature has addressed the importance of teaching law and ethics separately in medical school settings, yet there have been few descriptions of teaching law and ethics together in the same curriculum. A combined program in law and ethics required for first-year medical and dental students was developed and implemented by Professor Joseph (Jay) M. Healey, Jr., at the University of Connecticut Schools of Medicine and Dental Medicine from 1975 until his death in 1993. This Article describes the thirty-hour, interactive, case-based course he created. The course, Legal and Ethical Aspects of Medicine and Dental Medicine (LEA), has continued after Jay 's death, and is one of his many legacies to us. LEA consists of fifty-six actual and hypothetical cases written by Jay from which basic legal and ethical principles are extracted by participants and reinforced by instructors.
Heller v. Doe: Involuntary Civil Commitment and the “Objective” Language of Probability
Authors: Lee Susan
Published: February 2021

During the past three decades, the pages of major newspapers, magazines, and professional journals across the country have chronicled a tragic dilemma confronting persons with mental disabilities. On the one hand are the horror stories of thousands of individuals with mental disabilities locked away in institutions. They live years in isolation or neglect when many could have received treatment and enjoyed fuller lives in the community. Thousands more have endured a different hell in the “freedom” of the outside world, receiving no treatment or support services necessary for their survival, often causing harm to themselves or others as their condition deteriorated. This lack of treatment and support is largely the result of states' failure to shift mental health resources into the community when state institutions released their patients under the policy of deinstitutionalization.
Abortion Counseling: To Benefit Maternal Health
Authors: Steinberg Terry Nicole
Published: February 2021

This Note examines how both the law and the health care profession neglect women's needs for abortion counseling before, during and after an abortion. Part I analyzes the health care profession's view of counseling, the psychological effects of abortion and how counseling both positively and negatively influences those effects. Part II reviews Supreme Court cases and state law regarding abortion counseling, critizing both the Court's narrow view of counseling and the states’ failure to use the legislative process to create laws which benefit maternal health. Part III recommends an expanded role for abortion counseling, in which the counselor can provide emotional support from before the day of an abortion until a woman emotionally recovers from an abortion. This expanded role would be state-mandated, but would remain within constitutional boundaries by providing flexibility for counselors to give individual treatment while respecting a woman's privacy.
Pushing the Environmental Regulatory Focus a Step Back: Controlling the Introduction of New Chemicals Under the Toxic Substances Control Act
Authors: Hanan Andrew
Published: February 2021

Environmental destruction and its attendant effects on the animal world, including human beings, has moved to the forefront of United States and worldwide policy. The effect of this deterioration on human health is unclear. Much debate focuses on the cases of cancer, along with other diseases, that are environmentally induced. Congress has responded with various environmental laws. These laws focus primarily on controlling chemicals placed into the environment, largely by industry. This Note proposes that such a singular focus is inadequate and ultimately costly. A more sensible and efficient strategy to environmental protection places emphasis on controlling inputs to the productive process before the need arises to contain such substances. The Toxic Substances Control Act of 1976 (“TSCA“) takes this approach. This Note reviews the means by which TSCA attempted to accomplish its goals and concludes that TSCA's implementation has largely been ineffective. The Note then discusses three possible explanations for TSCA's failure. Finally, the Note proposes how TSCA might be made more effective in regulating new chemicals.
Equal Opportunities: Protecting The Rights of AIDS-Linked Children in The Classroom
Authors: MacFarlane Maureen Anne
Published: February 2021

Within the past few years a number of children have been excluded from attending public school because they are linked to AIDS. School boards have justified their decisions to exclude these children on the basis that protecting the public's health, safety and welfare outweighs the rights of these children. Most courts have rejected this justification and have held that either under the equal protection clause of the Constitution or section 504 of the Rehabilitaiton Act of 1973, children cannot be excluded from the classroom solely because they are linked to AIDS.

This Note discusses both section 504 and equal protection analyses used by the courts. When analyzing a school board's decision to exclude an AIDS-linked child from the classroom, most courts have used a higher level of scrutiny and individualized inquiry in order to ensure that the rights of both the AIDS-linked child and his or her uninfected classmates and teachers are protected.

After applying these analyses to a hypothetical case, this Note concludes that both section 504 and the equal protection clause ensure that AIDS-linked children will not be barred from the classroom unless the presence of additional factors increases the risk of these children transmitting the virus to others.
Legal Abortion: The Impending Obsolescence of The Trimester Framework
Authors: Pap Mangel Claudia
Published: February 2021

Women who wish to terminate a pregnancy, and physicians willing to perform abortions, are subject to increasing harassment from groups which challenge the constitutional abortion right upheld by the Supreme Court in Roe v. Wade. Their vulnerability, in fact, parallels the vulnerability of the aboriton right. This Article analyzes the inherent weakness and impending obsolescence of the trimester framework established in Roe. Present medical evidence of maternal health risks and fetal viability demonstrates that the trimester framework is inconsistent with current medical knowledge, and will likely be rendered obsolete by developments in medical technology. The Article suggests that adoption of an alternative constitutional basis for legal abortion is necessary to preserve the abortion right, and explores the utility of two arguments grounded in the equal protection doctrine. Finally, it discusses means of preserving legal abortion within the confines of the trimester framework established in Roe v. Wade.
Insurance Regulation of Providers That Bear Risk
Authors: Overbay Allison , Hall Mark
Published: February 2021

The emerging king of the new health care order is capitation. “Whoever controls the capitated revenue stream will be poised to dominate the emerging health care delivery system— and to reap an enormous windfall that could total hundreds of billions of dollars.” Accordingly, we are witnessing a tremendous struggle over the locus of capitation. Once firmly ensconced in the insurance and HMO industry, capitation is now spreading to organizations controlled by doctors and hospitals.

In a world littered with countless acronyms and organizational types—HMO, IDS, MCO, EPO, PHO, IPA, PSN, OWA—we are most reluctant to introduce yet another. But we must. None of the existing terms describes an important aspect common to all of them that is the subject of this article—providers bearing financial risk for medical expenses. We call these Risk-Bearing Provider Groups (RBPGs). The most prominent example of an RBPG is a physician-hospital organization (PHO), which consists of at least one hospital and one physician practice group that accepts partial or full capitation for at least some of its patients. Accepting capitation risk is not essential to being a PHO, but is a common characteristic. PHOs seek to maintain the financial center of gravity in a provider organization as insurers and employers increasingly come to dominate health care delivery. PHOs can do this by contracting directly with employers on a fully or partially capitated basis, thereby by-passing insurance companies. They can also subcontract with insurance companies or HMOs—so-called “downstream” capitation. Accepting treatment obligations under financial risk helps providers maintain their professional and institutional autonomy and offers the prospect of capturing some of the financial rewards created by the market restructuring that is presently sweeping the country.
Classify and Control: Genetic Information in the Schools
Authors: Nelkin Dorothy , Tancredi Laurence
Published: February 2021

Recent advances in molecular and behavioral genetics are providing theoretical models to explain complex behavior — learning disabilities and behavioral problems — in simple biological terms. There are intrinsic difficulties in interpreting genetic information. Yet genetic explanations are particularly appealing in school systems pressed by demands for efficiency and accountability. Thus, genetic explanations are affecting the way children are categorized in the schools. This Article reviews genetic advances bearing on educational issues and their implementation through biological tests. It suggests the social consequences and legal implications of the growing prevalence of genetic assumptions.
Some Thoughts on the Constitutionality of Good Samaritan Statutes
Authors: Sullivan Barry
Published: February 2021

Good Samaritan laws provide legal immunity to persons who assist in medical emergencies. Because good Samaritan laws eliminate the common law right of victims to secure redress for their injuries, these statutes raise certain constitutional questions. The Article begins by examining the vulnerability of good Samaritan statutes to federal constitutional attack on substantive due process and equal protection grounds. It then considers the susceptibility of such laws to state constitutional attack on the same grounds. The Article concludes that while such statutes are not likely to violate federal substantive due process and equal protection provisions, they may be held unconstitutional on similar state grounds.
Antitrust Implications of Chiropractic Peer Review Committees
Authors: Volper Vicki
Published: February 2021

Peer Review Committees (PRCs) that aid insurance companies in evaluating chiropractic treatments and fees have been the focus of recent court challenges. Some practitioners have argued that PRC activities constitute price fixing in violation of the Sherman Antitrust Act. PRCs have been successful thus far in claiming an exemption from antitrust scrutiny as a “business of insurance” within the meaning of the McCarran-Ferguson Act. This Note contends that PRCs are not exempt from antitrust regulation; since PRCs do not spread risks and are involved in inter-rather than intra-industry agreements, their activities do not fall within the narrowly defined “business of insurance” exemption.

The Note then analyzes the merits of the price fixing allegations under both the “per se” standard and the “rule of reason.” First, the Note concludes that the unique nature of the health care market and the legitimate functions served by peer review make the application of a per se standard inappropriate. Second, under the rule of reason, the Note indicates that peer review encourages efficient and innovative health care practices while it deters the escalation of health care costs. The Note concludes that the net effect of peer review is not anticompetitive, especially since PRCs lack the coercive power to compel compliance with the recommendations.
Antitrust and Health Care: Provider Controlled Health Plans and the Maricopa Decision
Authors: Weller Charles D.
Published: February 2021

The health care industry is one which traditionally has discouraged its members from engaging in competition. For years, many within the profession have espoused a guild mentality and have viewed professional societies as the proper centers of health care’s economic universe. This guild mentality has recently been challenged by proponents of a market mentality, theoreticians who argue that limited combinations of health care providers called “health plans,” which serve insurance as well as service functions, can make the health care industry more efficient. Proponents of the guild mentality have been dealt a severe blow by the Supreme Court and its decision in Arizona v. Maricopa County Medical Society. There the Court found the price-fixing by two Arizona medical societies to be illegal per se under applicable antitrust law. This Article outlines the background on competition and the guild mentality in the health care industry. After a brief discussion of the standards of antitrust analysis, the Article analyzes the Maricopa case, by first summarizing the Court’s use of strict antitrust criteria, and then by extending the analysis to an application of a more lenient standard. Next, the Article compares the provider controlled independent practice association (“IPA”)—one form of insurance plan proposed by market model advocates—with the Maricopa-type plan. Finally, the Article concludes that, not only is the special form of IPA that qualifies as a “health plan” an excellent way to promote efficiency in the health care industry, but also its procompetitive goals and effect allow it to survive even the strictest, Maricopa-type antitrust scrutiny.
Pegram’s Regress: A Missed Chance for Sensible Judicial Review of Managed Care Decisions
Authors: Cahill Michael T. , Jacobson Peter D.
Published: February 2021

Managed care was designed to bring stability and balance to healthcare delivery in the United States, but its experience in the legal system has involved only moderate stability and very little balance. There has been a trend toward broad deference to the industry, so that managed care organizations (MCOs) are largely immune from liability. At the same time, some courts have suggested that the entire managed care model rests on sketchy legal ground. Meanwhile, commentators have disagreed on such fundamental questions as whether legal disputes arising under managed care should be resolved according to contract law or tort law. Moreover, the extent to which the Employee Retirement Income Security Act of 1974 (ERISA) governs, or moots, patients’ claims against MCOs has never been entirely clear—and because ERISA controls a vast number of health insurance plans, this legal issue is extremely significant.
Rebalancing the Medical Triad: Justice Blackmun’s Contributions to Law and Medicine
Authors: Koh Harold Hongju
Published: February 2021

The American Society of Law and Medicine has chosen to honor Associate Justice Harry A. Blackmun of the United States Supreme Court with its first Presidents’ Award for Distinguished Contributions to the Fields of Law and Medicine. It is my task to explain why that honor is so richly deserved.

To me the answer is simple: as much as any other judge in our Nation's two hundred-year constitutional history, Harry Blackmun has shaped and defined our modern conception of the constitutional right to privacy, as well as our developing notions of the scope and limits of medical privacy. During his twenty-eight years on the federal bench and his seventeen years on the Supreme Court, Justice Blackmun has played a major role in rebalancing what I call “the medical triad” — the triangular relationship among the patient, the doctor and the state, with which this Society's members are so intimately familiar.
Medical Ethics and Personal Doctors: Conflicts Between What we Teach and What we Want
Authors: Levine Robert J.
Published: February 2021

As Hippocrates said to one of his students: “Let your best means of treating people be your love for them, your interest in their affairs, your knowledge of their condition, and your recognized attentiveness to them.“ A physician who is guided by this teaching must be a very caring person. He or she must care deeply about people. To care, in this sense, means to be troubled about the troubles of others. He or she must also care about being a good doctor, about being competent in all relevant respects. I believe that all thoughtful people want such women and men as their personal doctors. We want our doctors to be caring persons, to be attentive to our needs and responsive to our concerns. When our doctors talk with us, we hope that they will speak to the unique individuals we each correctly believe ourselves to be.
Conflict in the Parameters Denning Life and Death in Missouri Statutes
Authors: Schoen Wendy L.
Published: February 2021

Over the last twenty years, state legislatures have enacted statutes incorporating medically and legally established criteria to be utilized in the determination of death. Similarly consistent criteria for determining the onset of life have yet to be established. As a result, unacceptably conflicting statutory language defining life and the state's interest in that life exists. This conflict can be resolved by a functional approach that consistently applies criteria used to define the end of life to the beginning of life.
The Advent of DNA Databanks: Implications for Information Privacy
Authors: Gorgey Andrea De
Published: February 2021

Genetic identification tests — better known as DNA profiling — currently allow criminal investigators to connect suspects to physical samples retrieved from a victim or the scene of a crime. A controversial yet acclaimed expansion of DNA analysis is the creation of a massive databank of genetic codes. This Note explores the privacy concerns arising out of the collection and retention of extremely personal information in a central database. The potential for unauthorized access by those not investigating a particular crime compels the implementation of national standards and stringent security measures.
Kelly v. Gwinnell:Social Host Liability—How Great a Burden?
Authors: Caron Tim G.
Published: February 2021

In 1984, the New Jersey Supreme Court became the first high court to impose liability successfully upon social hosts for the torts of their intoxicated adult guests. The wisdom or folly of that decision, and its social ramifications, have become subjects of widespread discussion. This Case Comment argues that social host liability, in its present form, is an unwise extension of common law principles. Through an examination of the elements of the cause of action proposed, the standards of proof employed, and the public policies weighed by the court, this Comment concludes that social host liability is ill-adapted to furthering the court’s stated goal of reducing drunken driving.
Preferred Provider Organization Liability for Physician Malpractice
Authors: Butler Catherine
Published: February 2021

The preferred provider organization (PPO) is a recent innovation in the health care industry, designed to reduce costs through selective contracting and utilization controls. This Note examines malpractice liability theories potentially applicable to PPOs. The Note compares PPOs to other health care institutions, including hospitals and HMOs, and concludes that PPOs are at minimal risk of incurring liability for physician negligence.
The Regulation of Dental Licensing: The Dark Ages?
Authors: Friedland Bernard , Valachovic Richard W.
Published: February 2021

Current state laws regulating the licensure of dentists place severe restrictions upon the freedom of movement of practitioners. Most state laws were enacted during a period when a strong rationale for regulating public health and welfare existed. Today, these laws hamper the free movement of dentists and are anachronisms in an era of national standards and practices. The authors contend that the extant laws rest upon outdated assumptions and serve economic and protectionist goals rather than public health and safety.

This Article examines the history and application of the traditional justifications for state licensure and their present ramifications. The authors suggest that replacing the current regulatory system with a national clinical examination and a national licensure program will best serve the interests of the public and the dental profession.
Heckler v. Campbell and the Grid: Are Disability Claimants Entitled to Examples of Suitable Jobs?
Authors: Smith Mark S.
Published: February 2021

The Social Security Administration promulgated the medical-vocational guidelines (the grid) in 1978 in order to improve consistency and efficiency in disability claim adjudications. The grid takes administrative notice of the availability of jobs suited to claimants’ capabilities, eliminating the need to make such a determination on a case-by-case basis.

In Heckler v. Campbell, the Supreme Court held that the grid is valid and that the Secretary of Health and Human Services cannot be required to give specific examples of jobs available in the national economy. In so doing, the Court reversed the Second Circuit, which had required the Secretary to give claimants examples of jobs suited to their individual characteristics to assure them adequate notice of the issues involved in their hearings.

This Case Comment contends that the Supreme Court misperceived the Second Circuit's purpose in requiring the Secretary to provide specific examples of available jobs. Nonetheless, the Comment argues that the Supreme Court decision does not foreclose requiring such examples to assure adequate notice and to aid in resolving adjudicative factual issues. This Comment concludes that such a requirement would improve the efficiency, accuracy and consistency of Social Security disability determinations.
Statutory Classification of Cocaine as a Narcotic: An Illogical Anachronism
Authors: Schultz Carl B.
Published: February 2021

Although cocaine is pharmacologically not a narcotic, federal and state drug control laws have classified it as one from 1922 through the present. In many states and under federal law, the classification is part of a statutory scheme that imposes substantially more severe penalties for offenses involving cocaine than for offenses involving other nonnarcotic drugs.

This Note examines the circumstances surrounding the adoption and maintenance of the legal classification of cocaine as a narcotic. It then reviews two of the many cases that have rejected claims that the classification is unconstitutional. The Note concludes that, despite its constitutionality, the inaccurate classification is not only illogical and unnecessary to a legislative goal of strictly penalizing cocaine offenses, but is counterproductive as well.
A Trojan Horse Goes to Court: Bolger v. Youngs Drug Products Corp.
Authors: Mason Mark
Published: February 2021

In Bolger v. Youngs Drug Products Corp., the Supreme Court held that a statute prohibiting the mailing of unsolicited advertisements for contraceptives was unconstitutional as applied to Youngs's advertisements for condoms. The decision rested on a balancing of the first amendment's grant of free speech with the Government's interest in safeguarding an individual's privacy. The Court noted that the advertisements promoted the flow of information on contraception, and pertained to constitutionally protected private activity. This Case Comment argues that the Court's decision is sound and criticizes the view of the concurring opinion that shielding individuals from potentially offensive speech is a substantial governmental interest. The Comment concludes that the Court's decision expands upon precedent which established an individual's right of privacy regarding the use of contraceptives.
Communicable Disease and Mental Health: Restrictions of the Person
Authors: Grad Frank P.
Published: February 2021

Laws for the protection of public health control either the environment, as in the case of sanitation or air pollution regulations, or human conduct. This Article deals with limitations imposed upon individuals in order to prevent the spread of communicable disease and the harm resulting from mental illness. The restraints discussed include compulsory examination and immunization, and forms of compulsory detention or commitment.

This Article is a revised chapter of the author's Public Health Law Manual, first published by the American Public Health Association in 1965. The Manual is intended to help public health professionals to understand the law relevant to their practice, and to apply it more effectively.
Use and Misuse of Epidemiologic Data in the Courtroom: Denning the Limits of Inferential and Particularistic Evidence in Mass Tort Litigation
Authors: Ginzburg Harold M.
Published: February 2021

Medical epidemiology is the cornerstone for understanding the safety and efficacy of drugs and medical devices. Epidemiologic principles provide a statistical basis for determining correlations, and ultimately mathematical causation, between two series of events. Medical epidemiologic evidence and statistical inferences are useful and are now routinely accepted in the courtroom.

The complex distribution systems that provide fungible goods throughout the country often preclude the identification of the specific source of an allegedly defective product. An expansion of the principles established in Summers v. Tice and Ybarra v. Spangard provide a logical and rational means for the courts to address products liability issues in cases involving multiple and unnamed defendants.

This Article discusses the impact of epidemiology on the judicial process, both in the nature of judicial decision-making and in the nature of the law itself. Part III B discusses the “weak” and “strong” versions of the traditional preponderance of the evidence rule, as recast by recent products liability litigation. The remainder of the Article defines the useful and appropriate scope of epidemiologic evidence, concluding that “intentless” epidemiologic evidence alone cannot support an award of punitive damages.
Testing for AIDS: Uses and Abuses
Authors: Field Martha A.
Published: February 2021

In response to the public outcry for mandatory testing for AIDS, this Article explores the major issues concerning the identification of persons with AIDS in society. The Article first studies testing procedures and the purposes behind them to determine if a call for mandatory testing of the general populace would better achieve society's objectives for identifying individuals with AIDS. Concluding that testing should not be required of the population as a whole, the Article then explores whether testing should be required of certain subpopulations which society perceives as likely to have or to spread the disease. In this context, too, the Article concludes that mandatory testing would be unwarranted, and that funds proposed for mandatory testing would be put to better use in education and universal precautions to prevent the further spread of AIDS.
Financing Health Care for Persons with HIV Infection: Guidelines for State Action
Authors: Fox Daniel M.
Published: February 2021

Financing health care for perons with HIV infection is an increasing burden on states and their taxpayers. The major problems of state policy in the 1990s are how to organize and finance both early detection of infection and preventive drug treatment for persons without symptoms and how to provide a full range of health and social services for infected persons whose life expectancy is unknown. This article first describes the shift in the perceptions of HIV infection from a plague to a chronic disease and the implications of this shift for state government. Then it places the history of financing for health care in the context of general health care financing policy during the past decade. Next it describes the history of state action to finance care for HIV infection, especially the use of of Medicaid Waivers, problems of state financing for expensive prescription drugs, and state initiatives, especially in California, Michigan, New Jersey and New York. Finally, the article presents seven policy questions that states should consider in deciding what, if any, legislation or regulations to enact in order to organize treatment and pay some or all of the costs of care for persons with HIV infection.
Doctors On Trial: A Comparison of American and Jewish Legal Approaches to Medical Malpractice
Authors: Fruchter Joshua
Published: February 2021

The recent and continual call for tort reform has many scholars proposing alternatives to current U.S. medical malpractice law. Most commentators limit their discussions to variations of the two Anglo Saxon theories of liability — negligence and strict liability. Little has been written examining the legal treatment of medical malpractice in other cultures. This article compares and contrasts Jewish and American medical malpractice law, examining both the contemporary and ancient sources of the law.
Sex, Lies, and Health Insurance: Employer-Provided Health Insurance Coverage of Abortion and Infertility Services and the ADA
Authors: Millsap D'Andra
Published: February 2021

Employer-provided health insurance is the backbone of the American healthcare system. Approximately four of five workers in the United States rely on health insurance provided in the workplace. Many commentators view access to health insurance as the doorway to the entire health care system. Thus, the benefits covered in employer-provided health insurance plans significantly impact millions of Americans.

While private health insurance usually covers abortion, it traditionally has not covered infertility services. Eventually, courts began interpreting insurance contracts to include infertility treatments, leading insurers to specifically exclude infertility treatments from coverage. In response, a few states have passed mandated benefit laws requiring coverage of some or all infertility services. Nonetheless, current insurance coverage of infertility services is “erratic” at best. These exclusions are significant because abortion and infertility services can be quite expensive for the millions of infertile couples seeking some sort of infertility treatment and the millions of women who have abortions each year.
Do the Dead Have Interests? Policy Issues for Research After Life
Authors: Nelkin Dorothy , Andrews Lori
Published: February 2021

The importance of establishing rights in a dead body has been, and will continue to be, magnified by scientific advancements. The recent explosion of research and information concerning biotechnology has created a market place in which human tissues are routinely sold to and by scientists, physicians and others. The human body is a valuable resource.

The body of the nineteenth century philosopher Jeremy Bentham is on display in a glass cage at University College, London. Bentham applied his utilitarian perspectives to the body by suggesting that corpses, including his own, would be of greater use to society stuffed and displayed as an “auto-icon” rather than simply buried away. Preserved, exhibited and studied, the corpse, he said, could serve “moral, political, honorific, dehonorific, money-saving, money getting, commemorative, genealogical, architectural, theatrical, and phrenological” ends.
The Unending Saga of Legal Controls Over Scientific Misconduct: A Clash of Cultures Needing Resolution
Authors: Goldner Jesse A.
Published: February 2021

There are a remarkable number of similarities between science and the law. Each discipline sets as a gold standard a search for precision. For example, scientists utilize the scientific method—a specific set of principles and procedures designed to aid them in a systematic pursuit of knowledge. Following the scientific method involves the recognition and formulation of a problem, the collection of data through observation and possibly experimentation, the formulation of a hypothesis and the testing and confirmation of the hypothesis formulated. The law, in turn, seeks its form of precision through the careful use of words, as in finely crafted statutes or regulations and contractual language that seek to eliminate the possibility of vagueness or confusion. Each discipline utilizes an approach or methodology that strives to minimize or eliminate the possibility of error and to arrive at a form of “truth” that it recognizes as being maximal within the confines of the rules it has established, be they rules of scientific method or legal rules of evidence.
Rejecting Organs: The Organ Allocation Process and the Americans with Disabilities Act
Authors: Whitehead Angela T.
Published: February 2021

On January 23, 1996, thirty-five-year-old Sandra Jensen became a pioneer in medical history as the first person with Down's Syndrome to undergo heart and lungs transplants. Based on her mental retardation, Stanford University and the University of California at San Diego initially rejected Jensen's candidacy for the procedure. The surgeons believed that a person with Down's Syndrome lacked the mental capacity to navigate through possible complications that could occur after the transplantation, even though Jensen, a disabilities activist, had lived on her own since the age of twenty. Eventually, overwhelming pressure from community members, advocacy groups, family and friends forced the hospitals to reconsider and, after closer inquiry, Stanford surgeons admitted to misjudging Jensen's ability to comprehend her condition and to handle her own care. A month after surgery, Jensen took her first trip outside Stanford Medical Center to begin her journey toward recovery.

Jensen expressed the hope that her story would “open doors for others with disabilities who are in need of transplants.” In fact, her experience prompted local politicians to consider legislation barring discrimination against mentally disabled individuals in need of transplants.
Constitutional Aspects of Physician-Assisted Suicide After Lee v. Oregon
Authors: Canick Simon M.
Published: February 2021

Dying is personal. And it is profound. For many, the thought of an ignoble end, steeped in decay, is abhorrent. A quiet, proud death, bodily integrity intact, is a matter of extreme consequence.

—Justice William Brennan

Two recent circuit court decisions have reinvigorated the debate over the constitutional, practical and ethical ramifications of physician-assisted suicide. In Compassion in Dying v. Washington, the Ninth Circuit Court of Appeals held that a liberty interest exists in choosing the time and manner of one’s death. The court found this right to outweigh all asserted state interests, and concluded that, with respect to competent, terminally ill adults, Washington’s prohibition of assisted suicide violates the Due Process Clause of the U.S. Constitution. The ruling effectively strikes down laws against assisted suicide in all of the states in the Ninth Circuit.

In April 1996, in Quill v. Vacco, the Second Circuit Court of Appeals held that New York’s prohibition of assisted suicide violates the U.S. Constitution’s Equal Protection Clause.
First Nursing Homes, Next Managed Care?: Limiting Liability in Quality of Care Cases under the False Claims Act
Authors: Peterson Kathleen A.
Published: February 2021

Suppose that a managed care enrollee visited his plan doctor for treatment of an injury. Next, suppose that either: (1) the doctor, through her own negligence, failed to render the appropriate standard of care, or (2) although the doctor desired to treat the injury consistent with what she believed to be professionally recognized standards of health care, the managed care organization (MCO) administrators denied coverage. Consequently, the doctor failed to render adequate treatment. In both cases, under traditional jurisprudence, the enrollee might have a medical malpractice action against his doctor. He also might try to hold the health plan liable under a variety of agency and direct liability theories. However, under the same facts, if a federal program such as Medicare paid for the enrollee's care, he might act as a whistleblower (or “relator“) against the doctor and the organization, conceivably recruiting the federal government to foot the litigation and investigation bills and increasing his recovery.
Direct Contracts, Data Sharing and Employee Risk Selection: New Stakes for Patient Privacy in Tomorrow's Health Insurance Markets
Authors: Studdert David M.
Published: February 2021

The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology.

—Justice William Brennan

In the decades since the United States Supreme Court’s consideration of informational privacy inWhalen v. Roe, a couple of worthy candidates to fulfill Justice Brennan's premonition of “future developments” have emerged. One is the nature of information technology itself. Today, sensitive health care data are generated, stored, transferred, and deployed toward countless uses with astonishing facility. An inexorable shift toward computerized medical records and fully automated storage and transfer of patient information is well underway.
Consumer Choice and the Managed Care Backlash
Authors: Enthoven Alain C. , Schauffler Helen H. , McMenamin Sara
Published: February 2021

The backlash against managed care, in general, and Health Maintenance Organizations (“HMOs”), in particular, is a major health policy issue. It has led to the formation of major commissions at the national and state levels, and to a great outpouring of legislative activity. The U.S. Congress has been deadlocked over various versions of a Patients’ Bill of Rights for the past two years. As a nation, we are far from resolving the many problems consumers report experiencing with their HMOs. However, to prescribe an effective solution to the problem, it is important to understand the root causes of the consumer backlash. It is, after all, possible that a Patients’ Bill of Rights will do little if it is not targeted to correct what is really bothering people about HMOs.
FDA Regulation: An Answer to the Questions of Human Cloning and Germline Gene Therapy
Authors: Willgoos Christine
Published: February 2021

The possibility of cloning human beings, although widely contemplated for several decades, became scientifically feasible in 1997 when the first mammal created through cloning procedures was born. Although the scientists who created the sheep named Dolly did not intend to apply cloning techniques to human beings, news media worldwide began predicting such an application.

In the United States, public and political outcry against the possibility of cloning human beings was loud and swift. Almost immediately, President Clinton announced a ban on federal funding of cloning research and requested the National Bioethics Advisory Commission to prepare a report evaluating the technology and making recommendations concerning its use. Several bills were introduced in Congress which prohibited federal funding and/or banned cloning in both the public and private sectors. As of yet, none of these bills have been passed.
Symbols, Rationality, and Justice: Rationing Health Care
Authors: Callahan Daniel
Published: February 2021

Proposals to ration health care in the United States meet a number of objections, symbolic and literal. Nonetheless, an acceptance of the idea of rationing is a necessary first step toward universal health insurance. It must be understood that universal health care requires an acceptance of rationing, and that such an acceptance must precede enactment of a program, if it is to be economically sound and politically feasible. Commentators have argued that reform of the health care system should come before any effort to ration. On the contrary, rationing and reform cannot be separated. The former is the key to the latter, just as rationing is the key to universal health insurance.
Toward a Workable Model of “No-Fault” Compensation for Medical Injury in the United States
Authors: Studdert David M. , Brennan Troyen A.
Published: February 2021

Tort “crises” and serious interest among policy-makers in tort reform are inter-related, cyclical phenomena in the United States. In the mid-1970s, and again in the mid-1980s, medical malpractice markets across the country experienced rapid increases in the frequency of claims, rising premiums, and in some places, shrinking options for professional indemnity coverage. A wave of tort reform measures followed, the majority of which were designed to chill the interest of plaintiffs' attorneys in bringing suit.