bluuebunny/crossref_metadata_2025_split huggingface dataset:
Bad Law, Bad Medicine
Authors: Altschule Mark D. 
Published: February 2021

AbstractIn 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

AbstractThe 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

AbstractCurrently, 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

AbstractIn 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

AbstractIn 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

AbstractThis 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

AbstractThe 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

AbstractWorking 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.
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.
Legislative and Educational Alternatives to a Judicial Remedy for the Transfer Trauma Dilemma
Authors: Cohen Elias S. 
Published: February 2021

AbstractTransfer 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

AbstractIn 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.
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.
Crisis and Informed Consent: Analysis of a Law-Medicine Malocclusion
Authors: Carnerie Fran 
Published: February 2021

AbstractMany 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.
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

AbstractThis 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.