Health Law and Policy Commons^™

The Community Service Obligation Of Hill-Burton Health Facilities, Ken Wing

Faculty Articles

This article focuses squarely on the community service provision and the regulations promulgated thereunder. The analysis traces the statutory and regulatory history of the community service obligation and examines the scope of the discretion that has been delegated to federal and state agencies to define and enforce this obligation. The discussion begins with a brief history of the original Hill-Burton program and the several amendments and modifications of the program over the last several decades. Next, the legislative history of the community service obligation is examined in an effort to determine the scope of authority created by Congress in establishing …

Mandatory Pku Screening: The Other Side Of The Looking Glass, George J. Annas

Faculty Scholarship

The challenge that PKU screening programs face is to be effective without sacrificing individual liberty. Most states have assumed that this is impossible, and have enacted mandatory PKU screening tests. It now appears that in fact voluntary screening for PKU can be effective. Accordingly, it seems appropriate to reexamine existing mandatory screening statutes to determine if we can replace government coercion with voluntary informed consent. Focus should be placed on the proper role of the government in screening, and on improving the consent process, and not on those few couples who withhold consent.

The Emerging Stowaway: Patients' Rights In The 1980s, George J. Annas

Faculty Scholarship

At one point in Edgar Allan Poe's Narrative of Arthur Gordon Pyr of Nantucket, Pym, who has stowed away in the hold of a whaling vessel, believes he has been abandoned and that the hold will be his tomb. He expressed sensations of "extreme horror and dismay," and "the most gloomy imaginings, in which the dreadful deaths of thirst, famine, suffocation, and premature interment, crowded in as the prominent disasters to be encountered."

Sterilization Of The Developmentally Disabled: Shedding Some Myth-Conceptions, Deborah Hardin Ross

Florida State University Law Review

No abstract provided.

Compensation Neurosis: A Workers' Compensation Phenomenon, Kathryn V. Natale

Antioch Law Journal

The developing battle of workers' compensation law related to mental and nervous injuries has recently expanded to include the phenomenon of compensation neurosis-one of the most controversial terms in the medico-legal lexicon.2 This comment will explore the legitimacy and viability of compensation neurosis as a compensable personal injury in the compensation context. The reader should take note that compensation neurosis is in its infancy and that any vagueness with respect to the law or case analysis reflects the state of the law today.

Hospice: The Legal Ramifications Of A Place To Die, Abigail Lawlis Kuzma

Indiana Law Journal

No abstract provided.

Competition Versus Regulation In Medical Care: An Overdrawn Dichotomy, Randall R. Bovbjerg

Vanderbilt Law Review

This Article discusses these issues in considering the "competitive" approach to reforming medical care financing and delivery.Although the approach is an extremely promising one, strongly held individual and social values underlie the current system, and powerful private interests have a stake in the status quo. Reforms,therefore, may never be fully implemented or realize their theoretical potential in practice. In any case they will take some time to work; no approach can be an immediate panacea. If government is to embark upon a "procompetitive" course, it needs to proceed carefully. Especially during the transition to a more competitive system, we need …

Antitrust Scrutiny Of The Health Professions: Developing A Framework For Assessing Private Restraints, Robert F. Leibenluft, Michael R. Pollard

Vanderbilt Law Review

This Article has suggested that courts adopt an intermediate level of scrutiny, between per se and Rule of Reason analysis. Under this analysis, a rebuttable presumption of illegality attaches to those practices which in other contexts are per se illegal. The weight of this presumption varies with the familiarity of the court with the restraint, its similarity to traditional per se conduct, and the strength of the procompetitive justification.This analytical approach is desirable for two reasons. First,courts are reluctant to apply commercial per se rules of illegality to professional restraints, and with good reason. Professional practices do differ from purely …

Health Professionals' Access To Hospitals: A Retrospective And Prospective Analysis, Jane L. Davis

Vanderbilt Law Review

The professional interdependence of the hospital institution and practicing physicians is a phenomenon of post-World War II society. This Note first examines the historical development of that interdependence and explores its erosion into a hospital-dominant mode. Next it examines the most important forces that influence and complicate the question of hospital privileges for the physician within the modern hospital: the interrelated pressures of intraprofessional restraints, pertinent government regulation, and medical technology. Then it sketches the internal procedures that have engendered and defined the relationship between physician and hospital, with special attention to the weaknesses within the procedures that have led …

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, …

The No Solicitation-No Distribution Rule And Presumptions Of Validity: Conflict In The Health Care Field, Susan P. Mcwilliams

Mercer Law Review

Employees in health care facilities seeking to exercise their self-organizational rights have met strong opposition from employers who contend that the quality of patient care will be disrupted by union organization activity. Most hospitals have restricted or forbidden such union activity through a no solicitation-no distribution rule, forbidding employees from soliciting other employees for union membership and from distributing union literature, either within the hospital as a whole or in certain areas only. The validity of the no solicitation-no distribution rule in the hospital has been repeatedly challenged since the National Labor Relations Act (NLRA) was further amended in 1974 …

Conscience And Convenience: The Asylum And Its Alternatives In Progressive America, Michigan Law Review

Michigan Law Review

A Review of Conscience and Convenience: The Asylum and Its Alternatives in Progressive America by David J. Rothman

Taking Care Of The Doctor-Patient Relationship (Reviewing Robert Burt, Taking Care Of Strangers), Lori B. Andrews

All Faculty Scholarship

No abstract provided.

Delimiting Religion And Ethics, Robert L. Schwartz

Faculty Scholarship

The author argues that people need to make a distinction between religious belief and logical ethics.

Size, Shape, And Color Of Prescription Drugs: What Scope Of Protection?, Kathleen M. Sheahan

Loyola University Chicago Law Journal

No abstract provided.

Osha's Rulemaking Authority Under The Occupational Safety And Health Act: Marshall V. American Petroleum Institute, Sophia Chrusciel

Loyola University Chicago Law Journal

No abstract provided.

Computers, The Disclosure Of Medical Information, And The Fair Credit Reporting Act, 3 Computer L.J. 619 (1981), John Morihara

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Teaching Physicians And Lawyers To Understand Each Other: The Development Of A Law And Medicine Clinic, Robert L. Schwartz

Faculty Scholarship

The discomfort doctors and lawyers feel with one another is not a consequence of the perceived medical malpractice crisis or any other single area of substantive disagreement. Rather, it is a reflection of the different epistemologies of the professions. The truth seeking activities of the two professions are very different, and these differences are reflected in the widely divergent professional educations provided to medical and law students. Much of the animosity which has developed between doctors and lawyers could be avoided, and members of each profession could have a much better understanding of the substance and analytic methods of the …

Physicians And Lawyers: Science, Art, And Conflict, Robert L. Schwartz, Joan M. Gibson

Faculty Scholarship

The relations between physicians and lawyers have deteriorated rapidly over the past several decades, most particularly since the early 70s when the perception that a medical malpractice crisis existed in America became widespread. Some believe that the factors dividing the two professions . are linked (1) to professional jealousy, (2) to sometimes conflicting economic interests, or (3) to difficulties in communication, since both professions use many of the same words, or terms of art, but with different intended meanings. While the authors agree that these factors may have aggravated the problem, they believe that the conflict's real roots are in …

In Defense Of Surrogate Parenting: A Critical Analysis Of The Recent Kentucky Experience, John W. Phillips, Susan D. Phillips

Kentucky Law Journal

No abstract provided.

Acid Precipitation In North America: The Case For Transboundary Cooperation, Douglas M. Johnston, Peter Finkle

Vanderbilt Journal of Transnational Law

Long-range air pollution has emerged as a serious environmental problem in Europe and North America since the early 1950s. The most critical aspect of this problem is the movement over very long distances of airborne pollutants which eventually are deposited in harmful acid compounds. These pollutants originate in a multiplicity of stationary and mobile emission sources. Because the original pollutants undergo chemical changes during the atmospheric transport, the pollutants which ultimately cause damage are chemically different from the original emissions. Moreover, the pollutants, which are usually deposited in the form of rain or snow, cause harm only in special physical …

Nursing Home Receiverships: Design And Implementation, Sandra H. Johnson

All Faculty Scholarship

The enforcement of legal standards governing nursing home care and safety involves complex determinations due to the precarious conditions of most residents and the vast shortage of nursing home beds. This is particularly true when residents must be transferred. This article advocates the interim measure of statutory nursing home receiverships to protect the health and safety of residents and the nursing home property while determinations regarding sanctions or compliance are being made.

Section II examines the statutory receivership provisions of four states and explains why such an approach is best suited for the effective enforcement of standards while also protecting …

Health Maintenance Organizations: An Overview Of The History, Federal And Texas Legislation, And Current Problems., John D. Jackson

St. Mary's Law Journal

Abstract Forthcoming.

Regulation Through The Looking Glass: Hospitals, Blue Cross, And Certificate-Of-Need, Sallyanne Payton, Rhoda M. Powsner

Michigan Law Review

A clear focus on the commitment of the public health and hospital establishments to the large teaching hospital and their belief in rationalizing the health care system through community-based planning allows us to understand the ideas and institutions that have produced our present system of hospital regulation. It can also help us to understand the structure and behavior of the hospital industry and can illuminate current controversies over health care policy.

What follows is a narrative account of the development of regional planning and certificate-of-need legislation. As part of that story, we trace the evolution of the Blue Cross, explain …

Report On The National Commission: Good As Gold, George J. Annas

Faculty Scholarship

The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research ended its work by substantially endorsing the status quo which places primary reliance on local Institutional Review Boards for subject protection. This was predictable because of the Commission's researcher-dominated composition which permitted it to assume that (1) research is good; (2) experimentation is almost never harmful to subjects; and (3) researcher-dominated IRBs can adequately protect the Interests of human subjects. The successor Presidential Commission can learn much by reexamining these premises.

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. …