In 1977, the Supreme Judicial Court of Massachusetts held in the Saikewicz case that the probate court is the proper tribunal for making decisions whether to give or to withhold “life-prolonging treatment” for terminally ill incompetent patients. This ruling provoked debate in the medical and legal communities. Dr. Arnold Relman, Editor of The New England Journal of Medicine, argues that Saikewicz encroaches on existing sound medical practice and requires decision-making machinery that is impractical and inhumane. Relman contends that treatment decisions for terminally ill incompetents in Saikewicz-type cases should be made by the physician in consultation with the patient's family. Law professor Charles Baron, in contrast, defends Saikewicz's judicialization approach, arguing that such decisions must be made in an adversary framework that approximates the ideal of the rule of law.

In the present Article, Professor Buchanan argues that Relman's criticism of Saikewicz rests on a defective, medical paternalist view of the physician-patient relationship, and that Baron's support of Saikewicz is based on an unjustifiable, legal imperialist view of decision making for incompetents. In Buchanan's view, Relman's approach fails to distinguish appropriately between the making of medical judgments and the making of moral judgments and wrongly assumes that the patient's family typically cannot understand the elements of the decision, while Baron's approach unjustifiably extends the sphere of the legal process by ignoring the special moral relationship that usually exists between the family and its incompetent member.

Buchanan proposes an alternative decision-making approach that he believes incorporates the merits, while remedying the defects, of both Baron's and Relman's approaches. The alternative is based on three propositions. (1) The proper presumption in Saikewicz-type cases is that the family of an incompetent is to make decisions concerning treatment. (2) This presumption of the family's dominant role in decision making is defeasible: protection of the patient's rights requires that decisions be made within a framework that allows vigorous discussion and accountability through impartial review and that provides for legal intervention when necessary. (3) The institutional framework for implementing the features listed in the preceding proposition will rely heavily upon an ethics committee that is neither an all-medical prognosis committee nor an administrative agency of the hospital.

Besides evaluating and responding to the Relman and Baron approaches, Buchanan examines the contribution to the Saikewicz debate made by law-and-medicine professor George Annas. In essence, Buchanan rejects Annas's argument that, taken together, the Saikewicz opinion and the Quinlan opinion of the Supreme Court of New Jersey delineate a proper division of medical and legal decision-making responsibility concerning terminally ill incompetents. Buchanan concludes that, contrary to Annas's view, those two cases are not reconcilable.

The Center for Law and Health Sciences (the “Center”), a component of the Boston University School of Law (the “Law School”), organizes and conducts research and educational programs that examine selected relationships between the legal and health care systems. The Center provides the Law School with a vehicle not only for focusing research on interactions of law and health care, but also for incorporating legal analytical techniques into the projects of other health affairs units of Boston University. The Center's key goal is to create programs that contribute to an understanding (1) of the application of traditional legal analyses to issues that relate to the delivery of health services, as well as (2) of the implications arising from features of the health care system for the development of legal doctrines.

Fifteen states have created Patient Compensation Funds in response to the increased cost and reduced availability of medical malpractice insurance associated with the so-called “medical malpractice crisis.” Patient Compensation Fund statutes limit health care providers’ liability to a specified amount, and establish state-administered funds to compensate victorious malpractice plaintiffs for damage awards in excess of that amount.

This Note examines the Patient Compensation Fund mechanism, evaluates its effectiveness as a compensation system for malpractice victims, and recommends particular provisions that might enhance its effectiveness. The Note concludes that the Patient Compensation Fund mechanism is an effective means of increasing the availability and of reducing the cost of medical malpractice insurance, and should be adopted by other states experiencing a “medical malpractice crisis.”