Internal policy decisions of private nonprofit hospitals can have a powerful impact. For example, the denial of medical staff privileges to a physician can limit his income and perhaps damage his reputation. The rejection of a prospective father’s request to assist his wife in the hospital’s delivery room during childbirth deprives the couple of the opportunity to share one of life’s most profound experiences.

Plaintiffs aggrieved by, and seeking to challenge, a policy decision of a private nonprofit hospital often turn instinctively to the fourteenth amendment to the U.S. Constitution for a remedy, hoping to prove (1) “state action” by the hospital and (2) violation of the constitutional rights of the plaintiff. Currently, suggests the author, such an approach is likely to be of limited usefulness. As an alternative, the plaintiff may be able to marshall a common law challenge based on the argument that the hospital, although privately owned, is “affected with a public interest”—that is, it is sufficiently “public” in nature and function that it has a common law duty to serve the public fairly and reasonably, a duty enforceable in a state court. Courts that characterize private nonprofit hospitals as enterprises affected with a public interest (as many courts currently do) will review the challenged hospital policy decision and will decide whether or not, on balance, it was “procedurally fair” and “substantively rational.” This common law approach to judicial review, whose roots are deep in medieval English law, will have a bright future if state courts are willing to heed their common law heritage.

Currently, 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 individuals give their organs, but those who so desired could sell their 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.

In this Oration, the retired Chief Justice of the Massachusetts Superior Court offers some personal observations on the American medical malpractice crisis and examines the Massachusetts malpractice tribunal system, which is aimed at reducing the incidence of malpractice litigation that is either frivolous or involves simply an “unfortunate medical result” for which the health care provider should not be held accountable. First, the author relates some of his impressions of the evolution of the malpractice crisis and identifies its salient characteristics. Next, he provides a description and an evaluation of the Massachusetts tribunal system. Under that system, the plaintiff in any malpractice action must argue before a special tribunal—composed of a Superior Court judge, an attorney, and a surgeon—that his case raises a “legitimate question of liability.” If the tribunal finds that such a question exists, the plaintiff may pursue his case in the normal manner. But if the tribunal finds that the case involves “merely an unfortunate medical result,” and if the plaintiff still wishes to press his claim, he must, before proceeding, post a $2,000 bond, which is used to help pay the defendant’s litigation costs if the defendant prevails at the trial. The author offers data to support his contention that this tribunal system already is screening out a significant number of inappropriate malpractice claims. Nevertheless, he suggests that the system has substantial problems. He identifies those problems, and proposes methods for solving them.

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.