Health Law and Policy Commons^™

The Public Interest And Governing Boards Of Nonprofit Health Care Institutions, Robin Dimieri, Stephen Weiner

Vanderbilt Law Review

This Article specifically considers whether the existing legal system permits corporate governance mechanisms to function in a manner that promotes the public interest, particularly the public's interest in disclosure and participation in institutional policy development. The Article focuses on the viability of corporate governance structures in the health care industry, with special emphasis on the nonprofit hospital corporation. The Article begins with an overview of the issue of role reversal between management and directors of nonprofit corporations.The manifestations of role reversal are seen in the trend in non-profit corporations toward excessive delegation of board powers to executive committees, the elimination …

Medical Care And Procompetitive Reform, T. R. Marmor, Richard Boyer, Julie Greenberg

Vanderbilt Law Review

It is not the purpose of this Article to reject all features of procompetitive proposals. Competitive health plans, multiple health plan choice, provider and consumer cost consciousness, and antitrust activity all may have some place in a larger strategy to rationalize the medical care system. Each of the proposals has some advantages in terms of increasing consumer choice and altering the balance of power between existing actors. As an approach to universal medical care system reform, however, competition alone is inadequate. In fact, one could argue that the most technically feasible way to both rationalize the medical care system and …

Redefining Government's Role In Health Care: Is A Dose Of Competition What The Doctor Should Order?, James F. Blumstein, Frank A. Sloan

Vanderbilt Law Review

Throughout the 1970s, the two major political parties espoused some form of national health insurance. Faced with a fiscal squeeze, however, the Carter Administration gave national health insurance a relatively low priority.The political movement for comprehensive national health insurance rests on an ideological commitment that the federal government should underwrite the cost of providing universal access to medical services. The objective is essentially redistributive in nature: equitable concerns for the disadvantaged loom as the major focus. The selective expansion of coverage to encompass those identified as needy and worthy, but only those so identified, is anathema to those who traditionally …

Health Care, Markets, And Democratic Values, Rand E. Rosenblatt

Vanderbilt Law Review

Proposals to restructure the health care industry by increasing market competition currently have much political and academic momentum. Whether such proposals will work necessarily depends in part upon the criteria for success that are applied. Viewed from the market perspective, the question is whether procompetitive reforms will achieve their stated goals of containing costs, increasing efficiency, and enhancing consumer sovereignty over health care decisions. From a broader perspective, other questions are also of concern: whether increased competition in health care will actually improve people's health, and whether the operations and effects of health care competition are consistent with important values …

Competition In Health Services:Overview, Issues And Answers, Clark C. Havighurst

Vanderbilt Law Review

This Article is intended to put in context the many issues raised by this new interest in competition as a disciplinary force in the health services industry. After presenting a statement of the general theory supporting increased reliance on market forces, the Article turns to the key arguments advanced against that theory. The issues are many and complex, and the Article makes no attempt to treat them exhaustively. Rather, the aim is to highlight the weak as well as the strong points for and against competition in a manner that focuses the controversy and clarifies the issues. Until very recently, …

Encouraging Safety: The Limits Of Tort Law And Government Regulation, Richard J. Pierce, Jr.

Vanderbilt Law Review

Society wants more expenditures to reduce the risks of injury,illness, and premature death associated with many activities, but simultaneously it wants the fruits of those activities to continue to be available at a low cost. To some extent, these goals are inherently in conflict. On occasion society may give vitality to the slogan that human life has an infinite value, but it can do so only in narrow contexts and for brief periods. More often, artful self-deception is practiced to create the appearance of adhering to an impossible, but widely held, ideal, while in actuality lives are balanced against dollars. …

Relative Value Guides And The Sherman Antitrust Act, David R. Simonsen, Jr.

Vanderbilt Law Review

The skyrocketing costs of health care services for the American people constitute a crisis of national importance.' The seriousness of this crisis is reflected in the attention that antitrust enforcement agencies of the federal government are giving to the health care industry. The agencies are responding, at least in part, to the common perception that these skyrocketing costs result as much from the restrictive trade practices of the health care industry as from the growing use of sophisticated technology and inflation. Competition is viewed as an antidote to increasing prices and antitrust laws as the vehicle by which federal agencies …

Due Process For Hill-Burton Assisted Facilities, Margaret L. Huddleston

Vanderbilt Law Review

The need to make health care available to all Americans does not justify the impairment of governmental contracts with Hill-Burton grantees. When substantial rights are greatly impaired by retroactive legislation, the need for a strong governmental justification becomes more acute. The impairment caused by the post-1947 Hill-Burton regulations, particularly the 1979 regulations, is neither reasonable nor necessary in light of the nature and extent to which they impair substantial private rights. The recent Hill-Burton regulations attempt to make health care more available to Americans,but the Government seeks to do this without additional financial expenditure on its part. Although the goal …

The Toxic Substances Control Act: A Regulatory Morass, Kevin Gaynor

Vanderbilt Law Review

The Toxic Substances Control Act (TSCA or the Act),' which was signed into law in October of 1976, originated in a 1971 report by the Council of Environment Quality (CEQ). The CEQ report reviewed the problems presented by toxic chemicals and concluded...

that existing regulation was fragmented and inadequate. The report pointed out the need for authority requiring the testing of chemicals to determine their health and environmental effects, restricting the use and distribution of some chemicals when necessary to protect human health and the environment, and providing for development of adequate data on the environmental and health effects of …

Recent Cases, John P. Kelly, G. David Dodd

Vanderbilt Law Review

The principle that the government must not only refrain from providing special preference to a particular religion, but, that it also must stand apart from religion in general is abridged once the government seeks to provide sustenance to religious interests. Government neutrality is preserved, however, when the government merely provides fertile ground on which religious interests can thrive independently. Because state-imposed employment accommodation of religious precepts creates proselytizing opportunities" upon which religious interests flourish and because there is no overriding government interest in requiring such accommodation, Title VII's Randolph Amendment transgresses establishment clause prohibitions.

John P. Kelly

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The court …

Alternative Proposals For The Regulation Of An Emergency Strike In The Health Care Industry, Susan A. Jones

Vanderbilt Law Review

In order to give approximately 1,400,0001 health care employees the protection enjoyed by employees under the National Labor Relations Act (NLRA), Congress amended the Act in 1974 to make health care institutions "employers. Recognizing the public's dependence upon the unique services provided by health care facilities, Congress was hesitant, however, to extend coverage under the Act to health care employees without providing additional safe-guards. These safeguards are embodied in the following special provisions: (1) the extension of the sixty-day notice requirement for modification of an expiring contract to ninety days; (2) the creation of a thirty-day notice requirement of a …

Health Maintenance Organizations And Federal Law: Toward A Theory Of Limited Reformmongering, Philip C. Kissam, Ronald M. Johnson

Vanderbilt Law Review

The purpose of this Article is twofold. First, we develop a theory for HMO legislation based on an assessment of past experience with HMOs, current problems with the delivery of health services, and different legislative theories that have been advanced by others. Secondly, we use this theory to help evaluate some major issues faced by legislators and administrators in regulating HMOs and to suggest a number of improvements. A recurring theme throughout this analysis is that policymakers have not considered fully all of the economic and political ramifications of the HMO phenomenon. This has helped produce theoretical conflict about HMO …

Mass Immunization Cases: Drug Manufacturers'liability For Failure To Warn, Mary E. Mann

Vanderbilt Law Review

In recent years, the manufacturers of polio' vaccines, administered in mass immunization programs at public health clinics, have been beseiged with a flurry of cases in which they have been held liable for failing adequately to warn of the dangers inherent in the use of an otherwise pure, unadulterated drug. As a result of the relatively large judgments awarded in these cases and the almost insurmountable practical problems of preventing further liability, drug manufacturers have ceased, or are threatening to cease, production of these essential, life-saving vaccines. Consequently, these recoveries threaten the effectiveness of the nation's preventative health care programs …

Recent Developments, Mark J. Mathiesen

Vanderbilt Law Review

Under the existing statute Congress has attempted by legislation to encourage the development of HMOs as a viable alternative for the health-care consumer. As is often the casein the political world of Congress, the fanfare accompanying a legislative response has obscured the deficiencies of the answer. This act with its limited appropriations, restricted preemption language,and failure to support profit-making HMOs constitutes an experimental approach to the HMO concept, and therefore, only illusionary support for its development.

The Patient Rights Advocate: Redefining The Doctor-Patient Relationship In The Hospital Context, George J. Annas, Joseph M. Healey, Jr.

Vanderbilt Law Review

To change the traditional doctor-patient relationship in the health facility context, one must begin with a complete statement defining the rights, both those legally recognized and those granted as a matter of hospital policy, that should be afforded to all patients. This document should then be made available to all patients and hospital staff and to members of the community in general. Its first purpose is educational. To perform its second purpose-the assurance that rights are afforded--a patient rights advocate system should be adopted in the hospital. The advocate must have the power to exercise, on behalf and at the …

Recent Developments In The Law Relating To The Physician's Assistant, Alfred M. Sadler, Jr., Blair L. Sadler

Vanderbilt Law Review

The potential source of physician's assistants is enormous. In addition to the frequently cited Vietnam medic, many highly intelligent, motivated individuals could be attracted to these training programs. For example, in 1970, 24,987 people applied to medical schools although there was space for only 11,348. According to the Association of American Medical Colleges, as many as one-half of the remaining 13,639 were "fully qualified" to become physicians, and many probably would be eager and able to deliver excellent primary health care as a physician's assistant if given the opportunity. Many of the 650,000 registered nurses "in retirement" might be induced …

Mental And Nervous Injury In Workmen's Compensation, Arthur Larson

Vanderbilt Law Review

"[H]ow could it be real when. . .it was purely mental?" This poignant judicial cry out of the past, which I occasionally quote to put down my psychiatrist friends, contains the clue to almost all of the trouble that has attended the development of workmen's compensation law related to mental and nervous injuries. This equation of "mental" with "unreal," or imaginary, or phoney, is so ingrained that it has achieved a firm place in our idiomatic language. Who has not at some time, in dismissing a physical complaint of some suffering friend or relative, airily waved the complaint aside by …

Book Reviews, Samuel A. Bleicher, Nat. T. Winston, Jr., Dan B. German

Vanderbilt Law Review

Law-Making in the International Civil Aviation Organization By Thomas Buergenthal Syracuse University Press, 1969. Pp. viii,247. $10.50.

reviewer: Samuel A. Bleicher

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The Role of Psychiatry in Law By Manfred S. Guttmacher, M.D. Springfield: Charles C. Thomas, 1968. Pp. ix, 170. $7.50.

reviewer: Nat. T. Winston, Jr., M.D.

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The Development of Political Attitudes in Children By Robert D. Hess & Judith V. Torney Chicago: Aldine Publishing Co., 1967. Pp. xviii, 288. $9.75.

reviewer: Dan B. German

Abortion Legislation: The Need For Reform, Law Review Staff

Vanderbilt Law Review

Widespread national publicity and recent state legislative activity have focused a significant degree of national concern on a serious problem of public health and morals--the question of abortion.Surveys indicate that between 1,000,000 and 1,500,000 abortions take place annually--or, one abortion for every four to five pregnancies. The so-called "back-street abortionists," whether amateur or professional, each year cause the death of 5,000 to 10,000 women who are forced to seek their services. Because of the highly controversial nature of abortion, statutes attempting to deal with the problem stubbornly resist amendment despite widespread disregard of their provisions. Many hospitals permit abortions under …

Compensation For Victims Of Crimes, Law Review Staff

Vanderbilt Law Review

The steadily increasing number of crimes in the United States and other Western countries brings about not only the destruction of property and the expenditure of money and effort to apprehend and punish the criminals, but also physical injury to thousands of innocent victims.' Although our society has established elaborate safe-guards for the rights of the accused criminal, the injured victim is left to shoulder the responsibility of paying his own medical bills and providing for his own living expenses while he is unable to work. Because of the extremely high cost of medical and hospital care, even a well …

Aid For The Medically Indigent, Jacob Meerman, Millard Long

Vanderbilt Law Review

In the following paper we discuss the ability of low income groups to purchase needed care, consider the private alternatives to government action, find these deficient, and hence review various proposals made to the Congress. Finally, we examine a proposal which, while originally propounded in the early Fifties, has received little attention in the recent debates. To the authors, it would seem the best approach to care for the indigent.

Effects Of Radiation On Man, Clinton C. Powell

Vanderbilt Law Review

Shortly after the discovery of natural radioactivity and of x-rays(now more properly known as roentgen rays) during the final decade of the last century, it became apparent that these invisible radiations could produce serious effects on the human body in a relatively short period of time. Three or four decades ago additional effects became apparent in individuals who had received relatively large radiation exposures. The cumulative nature of radiation effects and the fact that detectable changes may be delayed for many years have become increasingly apparent with the passage of time. The rapid expansion in potential exposure accompanying the discovery …

The Law Of Reactor Safety, Harold P. Green

Vanderbilt Law Review

Nuclear reactors are devices for creating and controlling nuclear chain reactions. Reactors come in many sizes and shapes and have various uses. The most dramatic and probably the most important use of reactors from the economic standpoint is to provide power in the form of electricity or heat. Some such power reactors may be stationary; others may be mobile, e.g., those which exist to provide propulsive force and hence move from place to place with their vehicle. Other reactors may be used for various industrial purposes such as for the testing of materials. Still other reactors are used primarily for …

Tort Liability For Radiation Injuries, E. Blythe Stason

Vanderbilt Law Review

The discovery that atomic chain reaction will produce substantial quantities of heat together with highly radioactive by-products gives rise to anticipation of an entirely new technology and of many newlines of industrial, medical, and agricultural endeavor. In due course widespread use will be made of the potentialities of this new source of energy.At the same time the likelihood of personal and property injuries resulting from overexposure to radiation brings about a new hazard against which protection must be afforded so far as it is possible to do so. The health and safety codes that are now being formulated at national, …

Atomic Energy And The Law: A Bibliography, Eileen M. Murphy

Vanderbilt Law Review

To compile a bibliography, it is a prerequisite that one be a lover of books. It is hoped that this paper will be of assistance to those in need and secondarily, that it might possibly open the world of the bibliophile to many others and give Brooklyn a little competition. Atomic energy is a fascinating field for the bibliographer; the surface has yet to be scratched. The work presented is divided into seven sections:

I. Atomic Energy Legislation, 1946-1958.

II. Publications of the Joint Committee on Atomic Energy, 1945/46-1958.

III. Books. (Annotated.)

IV. Periodicals-U. S. and Foreign. (Annotated.)

V. Selected …

Legal Problems In The Organization And Operation Of Group Health Plans, Horace R. Hansen

Vanderbilt Law Review

This article is intended as a practical aid to the lawyer who is confronted with the legal problems involved in the organization and operation of a group health plan.' It covers the statutes and decisions of the states affecting the corporate structure, the problems involved in membership service contracts and their comparison with insurance policies, and the unique requirements of physicians' contracts.

Group health plans here discussed are those in which the member-patients sponsor and control the nonprofit corporation on a democratic or cooperative basis, or at least have an effective voice in its management. The corporation usually owns the …

Book Notes, Law Review Staff

Vanderbilt Law Review

Book Notes

Selected Essays on Family Law Compiled and Edited by a Committee of the Association of American Law Schools

Brooklyn: The Foundation Press, Inc., 1950. Pp. 1122. $9.50

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The Law of Cadavers and of Burial and Burial Places

By Percival E.Jackson

New York: Prentice-Hall, Inc., 1950. Pp. lxxxvii, 734. $12.50

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Manual of Preventive Law

By Louis M. Brown

New York: Prentice-Hall, Inc., 1950. Pp. 346. $5.00

Tort Actions For Injuries To Unborn Infants, William T. Gamble

Vanderbilt Law Review

Recently two American courts have recognized a right of infants to recover for prenatal injuries. In so meeting the challenge of the common law that "for every wrong there is a remedy" they have taken a step which no other court of final jurisdiction has taken on the strength of the common law alone...

That an infant "en ventre sa mere" is a distinct entity is a scientific, common sense, legally recognized fact. That this entity may suffer prenatal injuries and carry those injuries into postnatal life is well known. That in many cases adequate proof of causal relation could …

The Standard Of Care Owed By A Hospital To Its Patients, William J. Harbison

Vanderbilt Law Review

Despite the: great number of tort cases which have arisen between hospitals and their patients, comparatively little has been written upon the subject of the standard of care required of a hospital in its relationship with those who enter it for treatment. In this Note some of the types of problems arising out of this relationship will be examined.' Questions of substantive and procedural law will be treated together in order to present these problems more clearly.

Generally, public hospitals are excused from tort liability to their patients upon the ground of governmental immunity ; in most states charitable institutions …