In the two decades since the Karen Quinlan case first brought the issues that now go under the heading of the “right to die” to the attention of the courts and the public, a well-accepted legal consensus has developed about the law governing the forgoing of life-sustaining medical treatment. Law and clinical medical practice do not always run in tandem, however, and what law prescribes does not always occur in practice. One aspect of the legal consensus—that artificial nutrition and hydration is a medical treatment and thus may be withheld or withdrawn according to the same procedures and standards as other life-sustaining medical treatments—is probably less well accepted than the remainder. For reasons that I will explain, this is understandable. But what is puzzling is that this element of the consensus seems to be even less well accepted in nursing homes than in acute-care hospitals.

Enormous and fundamental changes are currently taking place in health care delivery. These changes include the consolidation of health care providers—from hospitals, physicians, and insurance companies, to medical supply businesses, managed care networks, and other health care providers—and numerous health care and insurance reform efforts by government at all levels. These changes pose significant implications for the delivery of health care in the United States, and will impact the manner, cost, and accessibility of health care delivery. These changes will almost certainly affect the quality of health care services as well. The quality of health care in the United States has for many years been a central concern of government, industry, health care providers, payors, and consumers. Quality in health care is essential to overall national health, the guarantor of a productive and healthy populace, and an important indicator of United States social and technological preeminence.

Currently the number of AIDS-related deaths in the United States has reached 311,000 and at least one million more Americans are infected with HIV. Of those one million or more infected, many spread the virus unknowingly as approximately forty percent of those infected have never been tested. More than eighty-five percent of the U.S. population has never been tested for HIV. No cure or vaccine for HIV currently exists.

The federal and state governments have set up a patchwork of free and confidential HIV testing at local clinics. States have enacted a variety of legislation concerning HIV testing and test results. Most states have enacted statutes that require informed consent for an HIV test to be conducted. All states require the reporting of AIDS cases, and many also require the reporting of HIV-positive status to state public health departments. Furthermore, many states mandate certain requirements for HIV counseling.

Despite overwhelming epidemiological evidence that cigarette smoking causes cancer, and that addictive nicotine in tobacco keeps smokers smoking, our legal system has yet to allow a recovery against the tobacco industry for the massive harms it knowingly causes. Plaintiff smokers have sought recovery, only to be thwarted by affirmative defenses of assumption of the risk and contributory negligence, preemption of their claims by federal cigarette labeling laws, the difficulty of proving that cigarette smoking causes cancer, and the enormous resources of the $45 billion per year tobacco industry.

After forty years of unsuccessful lawsuits against the tobacco industry, a new plaintiff has come forward. In 1994, Florida and Massachusetts passed legislation enabling the states to bring suit against the tobacco industry to recover Medicaid costs of treating smoking-related illnesses.