Health Law and Policy Commons^™

More On Regulation: A Reply To Stephen Weiner, Clark C. Havighurst

Faculty Scholarship

In Volume 3, Number 3 of this journal, Professor Havighurst* wrote a brief Comment in which he observed that the function of health care cost-containment regulation is the rationing of health care resources, and argued that the fostering of health care consumers' and providers' free choice in the competitive marketplace is preferable to conventional cost-containment regulation as a mechanism for such rationing. He briefly outlined various reforms, including changes in federal tax treatment of health insurance premiums, aimed at implementing his ap- proach. Subsequently, in a Comment in Volume 4, Number 1, Stephen M.Weiner, then Chairman of the Massachusetts Rate …

The Rights Of The Employee As Patient, Frances H. Miller

Faculty Scholarship

No abstract provided.

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 …

Hospital Medical Staff: When Are Privilege Denials Judicially Reviewable?, David Hejna

University of Michigan Journal of Law Reform

The relationship between a hospital and its medical staff is unique. Most physicians serving as hospital staff are not salaried employees . Rather, they use hospital facilities to care for their patients pursuant to "staff privileges" granted by the hospital's board of governors. Staff privileges at one area hospital are practically indispensable for the modern physician, and privileges at a conveniently located hospital are considered important. By extending staff privileges the hospital benefits from having a staff large enough to ensure maximum use of its facilities. The public benefits when an adequate number of qualified physicians have access to hospital …

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

=========================

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 …

Scientific Research With Children: Legal Incapacity And Proxy Consent, Leonard H. Glantz, George J. Annas, Barbara Katz

Faculty Scholarship

Before an investigator can use any person as a subject in biomedical or behavioral research, he must obtain that person's informed consent. This consent must be voluntary, competent, and understanding.¹ There are two questions that arise in regard to experimentation on children. First, is a child legally capable of giving an informed and understanding consent? Second, do parents have the legal capacity to consent to the performance of research on their children? This article will attempt to answer both of these questions.

Emerging Concepts Of Federalism: Limitations On The Spending Power And National Health Planning

Washington and Lee Law Review

No abstract provided.

Denying Maternity Benefits Is Not Sex Discrimination Under Title Vii, Dewey Ray Mckenzie Jr.

Mercer Law Review

The U.S. Supreme Court, in General Electric v. Gilbert, held that the exclusion of pregnancy benefits from General Electric's general coverage disability plan for employees did not violate Title VII of the Civil Rights Act of 1964. General Electric's disability plan provided sickness and accident benefits for all employees, including those who became disabled as a result of a non-occupational sickness or accident. The plaintiffs in the initial suit were hourly paid production workers in General Electric's Salem, Virginia, plant, each of whom had become pregnant and had filed a claim for disability benefits. Each had been denied payment …

Parental Consent Abortion Statutes: The Limits Of State Power, Barbara Freedman Wand

Indiana Law Journal

No abstract provided.

In Re Moore: The Sound And The Fury And The Scalpel, Nora Birzon Henry

North Carolina Central Law Review

No abstract provided.

Informed Consent And The Investigational Use Of Medical Devices: A Comparison Of Common Law Duties With Those Imposed On Researchers Under Section 520(G) Of The Medical Device Amendments Of 1976, Thomas G. Field Jr., Dominic Piacenza

Law Faculty Scholarship

This paper will deal with with exemption granted [under the Medical Device Amendments Act of 1976] for the investigational use of devices subject to premarket testing, and more particularly, with the obligation of an investigator seeking such exemption to secure an informed consent agreement from human subjects (or their representatives) under § 520(g)(3)(D) of the Act. It will also consider the relationship between the statutory obligation and that which might be imposed by the common law of negligence.

The Health Professions Educational Assistance Act Of 1976: A New Prescription?, John J. Greene

Fordham Urban Law Journal

The 1976 Health Professions Educational Assistance Act is a new congressional effort to promote the rational development, distribution, and utilization of the health professions through financial incentives. The Act represents a compromise solution to the issues affecting the quality, quantity and distribution of health manpower. It targets the four major problems of the current system: (1) the shortage of health professionals; (2) the geographic maldistribution of health manpower; (3) the specialty maldistribution of physicians and dentists; and (4) the influx of foreign medical graduates into the United States. This comment examines the effectiveness of past legislative responses to these issues …

Federal Toxic Substances Act

William & Mary Environmental Law and Policy Review

No abstract provided.

Abortion And Constitution: United States And West Germany, Donald P. Kommers

Journal Articles

The US Supreme Court’s 1973 and the German Federal Constitutional Court’s 1975 decisions on abortion provide us with an uncommon opportunity to compare the constitutional law of different nations on the issue. The two courts took opposing stances in their decisions. The US Supreme Court substantially curtailed the power of American states to limit abortion while the German court ruled that an existing statute that permitted abortion within the first three months of pregnancy violated the rights of unborn children. These opinions can be explained by the different political contexts of the two nations and different perceptions on judicial intervention …

Health Care Cost-Containment Regulation: Prospects And An Alternative, Clark C. Havighurst

Faculty Scholarship

Regulation of the health care system to achieve appropriate containment of overall costs is characterized by Professor Havighurst as requiring public officials to engage, directly or indirectly, in the rationing of medical services. This rationing function is seen by the author as peculiarly difficult for political institutions to perform, given the public's expectations and the symbolic importance of health care. An effort on the part of regulators to shift the rationing burden to providers is detected, as is a trend toward increasingly arbitrary regulation, designed to minimize regulators' confrontations with sensitive issues. Irrationality and ignorance are found to plague regulatory …

Psro Data And Information: Disclosure To State Health Regulatory Agencies, Frances H. Miller

Faculty Scholarship

No abstract provided.

Allocation Of Artificial Hearts In The Year 2002: Minerva V. National Health Agency, George J. Annas

Faculty Scholarship

The rapid growth of medical technology gives rise to difficult dilemmas concerning the appropriateness of, and access to, new equipment and devices capable of maintaining life or improving its quality. Such a dilemma already exists, for example, with regard to kidney dialysis machines. In 1972, Congress amended the Social Security Act to make such machines available under Medicare to all who needed them. But almost immediately the overwhelming cost of such equipment-in the billions of dollars-made the original appropriations totally inadequate, and prompted serious questions of whether access to kidney dialysis should be made available at public expense-and, if so, …

Consent To Elective Surgery Valid Even If Doctor Didn't Warn Of Known Risks, Richard L. Hodge

Mercer Law Review

In Young v. Yarn, the Georgia Court of Appeals interpreted the Georgia Medical Consent Law as not requiring a physician to warn a patient of the known risks of elective surgery for the patient's consent to be valid. The court thus decided that the doctrine of informed consent does not exist in Georgia as between patient and physician.

The plaintiff, Mrs. Maxine Young, engaged the defendant, Dr. Charles P. Yarn, a specialist in plastic and reconstructive surgery, to perform a meloplasty (facelift). While the defendant did render a general explanation of the procedures involved, he did not advise her …

Regulation Of Electroconvulsive Therapy, Michigan Law Review

Michigan Law Review

Regulation of ECT has generally focused on whether the patient or his representative effectively consented to the treatment. The highly intrusive nature of ECT and the unique circumstances of those patients who are likely to receive it create particularly difficult legal issues concerning the validity of the patient's consent. This Note will examine the various methods that are available to protect the rights of patients for whom ECT is proposed. After briefly explaining the nature of the therapy, the Note will discuss the efficacy of judicial remedies with respect to both competent and incompetent patients. It will argue that, because …

Judicial Review Of Private Hospital Activities, Michigan Law Review

Michigan Law Review

This Note will examine the judicial review of hospitals under state law and the fourteenth amendment and will suggest that unless certain clear requirements for "publicness" are met, judicial restraint based on the failure of legislative institutions to mandate judicial interference is the better course.

The Toxic Substances Information Act

William & Mary Environmental Law and Policy Review

No abstract provided.

Psychiatry, The Inmate And The Law, A. W. Cragg

Dalhousie Law Journal

In August of 1971, the Solicitor General of Canada appointed a committee of psychiatrists to advise him on the treatment of mentally ill inmates. The committee completed its work and reported in May 1972. The report, entitled The General Program for the Development of Psychiatric Services in Federal Correctional Services in Canada1 developed in the space of sixty pages, including appendices, a general program for expanding psychiatric services and facilities in the field of corrections in Canada. In his forward to the Report, the Solicitor General, Warren Allmand, announces that he is "profoundly impressed by the recommendations made by this …

Psychiatry, The Inmate And The Law, A. W. Cragg

Dalhousie Law Journal

In August of 1971, the Solicitor General of Canada appointed a committee of psychiatrists to advise him on the treatment of mentally ill inmates. The committee completed its work and reported in May 1972. The report, entitled The General Program for the Development of Psychiatric Services in Federal Correctional Services in Canada1 developed in the space of sixty pages, including appendices, a general program for expanding psychiatric services and facilities in the field of corrections in Canada. In his forward to the Report, the Solicitor General, Warren Allmand, announces that he is "profoundly impressed by the recommendations made by this …

Psychiatry, The Inmate And The Law, A. W. Cragg

Dalhousie Law Journal

In August of 1971, the Solicitor General of Canada appointed a committee of psychiatrists to advise him on the treatment of mentally ill inmates. The committee completed its work and reported in May 1972. The report, entitled The General Program for the Development of Psychiatric Services in Federal Correctional Services in Canada1 developed in the space of sixty pages, including appendices, a general program for expanding psychiatric services and facilities in the field of corrections in Canada. In his forward to the Report, the Solicitor General, Warren Allmand, announces that he is "profoundly impressed by the recommendations made by this …

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 …

Informed Consent: A New Standard For Texas., Gail Dalrymple

St. Mary's Law Journal

Abstract Forthcoming.

Regulation Of Nursing Homes - Adequate Protection For The Nation's Elderly., Roberta Gail Weatherby

St. Mary's Law Journal

Abstract Forthcoming.

Report Of Seminar On Law And Medicine, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, Charles M. Leibson, John A. Krichbaum, Paul A. Van Pernis, William C. Ball, Galen J. White, Harry N. Peterson, B. J. Anderson, Harvey L. Ruben, William D. Weitzel, Oliver Grant Bruton Jr., Oliver H. Barber Jr., Joe C. Savage, Robert J. Turnley, William G. Winter, L. T. Grant, William D. Grubbs, Charles Landrum Jr., Leslie G. Whitmer, Robert Rich, Edward A. Rothschild

Continuing Legal Education Materials

Reports from the UK/CLE Seminar on Law and Medicine held May 26-28, 1976.

The Civilly-Committed Public Mental Patient And The Right To Aftercare, Richard B. Saphire

Florida State University Law Review

No abstract provided.