Medicaid has failed in its mission to care for the poor because doctors refuse to participate in the program. New ways are needed to entice physicians to treat Medicaid patients. TennCare, Tennessee’s Medicaid managed care demonstration project, shows that managed care plans can induce physicians to treat the poor by creating substantial collective purchasing power and by conditioning access to middle class patients on treatment of the poor, thus appealing to physicians’ financial self-interest. TennCare shows a new and promising approach, no matter how vociferously physicians complain about it.

TennCare, Tennessee’s Medicaid experiment, seeks to double Medicaid coverage in Tennessee—from approximately 750,000 people to 1.5 million. TennCare removes limits on Medicaid services, expands the medical services offered, and emphasizes low cost, cost-effective primary care. Perhaps most importantly, TennCare promises to mainstream health care for the poor by providing preventive and primary care in private physicians’ offices, moving the site of care away from expensive emergency rooms and hospitals. TennCare sounds like an ideal solution.

The term medical futility has become a shorthand way to describe a situation in which a patient demands and a physician objects to the provision of certain medical treatment, on the ground that the treatment will provide no medical benefit to the patient. The dilemma of medically futile care has gained prominence as a subject for debate in medical and legal literature, has been discussed implicitly and explicitly in court opinions, and has weighed heavily in the debate surrounding health care reform and accompanying discussion of allocation of health care resources.

Recently, the issues surrounding the provision of nonbeneficial care became the subject of a federal court opinion. On February 10, 1994, the United States Court of Appeals for the Fourth Circuit handed down its decision in In re Baby K, a case that has since served as the central focus for debate over the provision of medical treatment deemed inappropriate or futile by a patient’s physician.

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).

A study of conflicts of interest in Canadian health care law supposes that Canadian law contains features that distinguish it from law in any other jurisdiction. There was a time when law applied in the Canadian Common Law jurisdictions lacked these features. The law and legal process of the Common Law jurisdictions derived directly from England, whereas the Civil Law of Quebec was fashioned on the French Code Napoléon. Indeed, as recently as 1959, a distinguished Canadian academic commentator observed that “a perusal of Canadian law reports … conveys the impression that most of the opinions reported there are those of English judges applying English law in Canada, rather than those of Canadian judges developing Canadian law to meet Canadian needs with guidance of English precedent.” However, modern developments in Canadian society in general, and in its health care system in particular, now justify the claim that Canadian law is sufficiently distinctive to warrant its inclusion in comparative studies of legal regulation of health care professionals’ conflicts of interest.

Pleas for reform of the legal system are common. One area of the legal system which has drawn considerable scholarly attention is the jury system. Courts often employ juries as fact-finders in civil cases according to the Seventh Amendment of the Constitution: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved … .” The general theory behind the use of juries is that they are the most capable fact-finders and the bestsuited tribunal for arriving at the most accurate and just outcomes. This idea, however, has been under attack, particularly by those who claim that cases involving certain difficult issues or types of evidence are an inappropriate province for lay jurors who typically have no special background or experience from which to make informed, fair decisions.

The legal system uses expert witnesses to assist triers of fact in understanding issues which are beyond their common knowledge or difficult to comprehend.

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.