Many families throughout the United States have recently detected dangerously high concentrations of radon gas inside their homes. Radon, a carcinogenic gas produced from uranium, has been discovered in structures overlying uranium-bearing rock. This discovery may result in litigation to determine contractor liability for building upon radon-releasing rock sites. This Note examines the strengths and weaknesses of the various theories of contractor liability and considers potential statutory claims under the Clean Air Act. The Note suggests, as an alternative approach to recovery, a proposed regulatory scheme and implementation plan.

The growing problem of physician sexual misconduct has captured the attention not only of the medical and legal communities, but of the public as well. State medical boards, administrative agencies with generous rules of evidence and varying levels of expertise, face the difficult task of responding to patients’ allegations of physician sexual abuse. This Article, based in large part on the author's survey of current state medical board practice, reveals an increasing reliance on expert psychiatric testimony to explain the behavior of complainants and accused physicians. Drawing analogies from the use of psychiatric evidence in child sexual abuse cases, the author examines the factors that boards must consider in determining the admissibility of expert testimony in physician sexual misconduct cases, and calls upon states to establish clear evidentiary rules to govern the use of such testimony in administrative hearings.

Regenerative medicine (“RM”) is a 21st century technology whose regulation has badly needed a 21st century cure. It is not clear that the 21st Century Cures Act (“Cures Act”) is that cure, but it has not been a poison. For some months prior to the passage of the Cures Act it seemed that it might be a catalyst for really endangering the field by allowing a flood of untested therapies to continue to enter the market. That, fortunately, did not happen. Thus far, the Cures Act has been a useful tonic; its effect on RM has been largely symbolic. But it has allowed the Food and Drug Administration (“FDA”) to redirect resources, and it demanded the quick adoption of guidance. That has allowed the Agency to finalize a regulatory framework that has been sorely needed. The evidentiary flexibility within the Cures Act is extremely important for the development of technologies that do not fit easily into the traditional approval rubric.

The effects of environmental exposure, broadly defined as any exposure from outside the body, on human health are unquestionably the most important determinants of public health. While important genetic determinants of disease exert their effects irrespective of exposure from outside the body, these do not contribute as much to the overall public health burden of disease as factors such as tobacco smoke, poor quality water, inadequate or contaminated food, occupational exposures to dusts and chemicals, motor vehicle accidents, interpersonal violence, air pollution, and other factors external to the body. In many cases, genetic predisposition and environmental exposures combined cause disease in an individual, so it may be impossible to separate out individual biological contributions from various external factors. Nevertheless, it is widely understood that public health concerns populations and communities, and that environmental determinants of health have been paramount throughout human history.

On the October 18, 2001 episode of The Late, Late Show with Craig Kilborn, the show's host announced that a woman in Georgia had sued her employer, WalMart, for not covering her contraceptives under its health insurance plan. He then cracked, “Hey, isn't working at WalMart all the birth control you need?” Kilborn's crude joke met with howls of laughter from the audience, but it likely struck a raw nerve with the millions of American women who do not have access to health insurance plans that cover birth control, and the many men and women who are battling to ensure that all women ultimately obtain such coverage.

WalMart is one of hundreds of employers in the United States that do not cover any of the five most common forms of birth control that were created exclusively for women. In fact, half of the large health insurance plans in America do not cover any form of contraception. Some of these plans do, however, cover Viagra, a drug used to treat male impotence.

The industrial workplace contains many potential health hazards that not only can cause great harm to workers, but also can destroy the employers’ economic stability. Often these hazards are documented and dealt with, but frequently they are unknown. When health-conscious employers monitor the physical well-being of their employees in an effort to avoid the terrible personal and economic costs these hazards can produce, they may be supplying their employees with the documentation necessary to recover financially for their industrial illnesses.

This Article analyzes this dilemma confronting employers. It describes the many factors employers must consider when deciding whether to institute a monitoring process that takes full advantage of technological developments in medical care. The Article suggests an approach employers may take until some of the disincentives surrounding the implementation of monitoring are removed.

American employers have traditionally relied on age as the criterion for mandatory retirement. Yet advances in medicine indicate the inadequacy of age as a measure of job competence and suggest the potential for a more reliable measure. With current social and economic conditions pressing many employees to seek to work beyond mandatory retirement ages set by their employers, transition to more reliable measures has become a vital matter.

This Note explores the potential for implementing medically-based alternatives to the age proxy. It initially addresses problems of medical feasibility and economic practicality, and considers how the divergent interests of employees and employers can be accomodated. The balance of the Note examines the present roles of Congress, agencies, and courts in facilitating age-blind mandatory retirement policy. It suggests the need for reform of the federal Age Discrimination in Employment Act and recommends a more effective distribution of roles among governmental institutions.

A patient of mine, Mrs. Lopez, suffered a lower back injury while lifting heavy equipment. She sustained the injury while working in the housekeeping department at a local college. I telephoned her supervisor and asked him about Mrs. Lopez’s injury. He assured me that he had forwarded an accident report to the benefits department. He said he was unaware of any employer policies or training programs governing heavy lifting. The college did not have an employee health service, but instead relied on a local law firm to handle the administration of its workers’ compensation. When I informed the supervisor that I thought Mrs. Lopez might be able to return to a restricted duty job soon, he said that he did not want Mrs. Lopez to return until “she was 100%.” I told him that this employee would benefit medically from returning to a restricted duty job as soon as it was reasonable rather than waiting until she could perform heavy lifting again. However, the supervisor replied “Don't you worry about returning her to work so soon. Workers’ compensation will pay for it.”

The medical malpractice crisis of the early and mid-1970s prompted many states to enact legislation creating medical malpractice screening tribunals. This legislation often failed to define clearly the role and jurisdiction of the tribunals. The lack of statutory definition is particularly apparent where a claim before a tribunal raises primarily nonmedical issues. The changing doctrines of hospital liability, involving both medical and nonmedical determinations, illuminate this jurisdictional difficulty.

This Note examines the Massachusetts courts' attempts to define the tribunal's role when the tribunal is confronted with issues of hospital liability and other unsettled areas of the substantive law of medical malpractice. The Note suggests that tribunals should be limited to deciding issues concerning medical treatment and the professional conduct of physicians and hospitals.

Arguably the most controversial change to the U.S. healthcare system written into the Patient Protection and Affordable Care Act (“PPACA” or the “Act”) is what has been colorfully termed the Act’s “individual mandate,” the provision that establishes tax penalties for those who do not maintain health insurance in 2014 and beyond. Though the health insurance mandate does not go into effect until 2014, it has already faced numerous constitutional challenges in district and circuit courts, with entirely inconsistent results. Conflicting decisions regarding the Act’s constitutionality at the circuit court level cry out for Supreme Court review. But while the individual mandate’s validity under either the Commerce Clause or Congress’s taxing power has been the focal point of litigation thus far, another aspect of the individual mandate may undermine the goal of establishing universal, affordable healthcare coverage for all Americans. As currently written, the religious conscience exemption from the PPACA’s individual mandate threatens the efficacy of the Act and potentially exposes it to legal challenges under the Constitution’s Religion Clauses.

Despite education campaigns about the health hazards associated with smoking and the use of smokeless tobacco, teenage use of tobacco products has reached epidemic proportions. Recent studies indicate that adolescent smoking is on the rise, and that children are beginning to smoke at progressively earlier ages. “Nearly 3,000 young people start smoking each day,” accounting for more than one million new smokers each year. In addition, ninety percent of all new smokers are under the age of eighteen.

Although young people are generally aware of the serious, long-term health risks associated with tobacco use, studies suggest that those who smoke do not usually view those risks as applying to them personally. Furthermore, evidence shows that young people who begin to smoke know about the addictive properties of nicotine, but do not believe that they will become addicted. For these reasons, in August 1995, the Food and Drug Administration (FDA) proposed strict regulations aimed at reducing the number of children and adolescents who smoke. Several of these provisions target cigarette advertisements aimed at minors.

In recent years the federal government has attempted to intervene in certain family-medical decisions to withhold treatment from seriously handicapped newborns with life-threatening conditions. Invoking section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against “otherwise qualified handicapped” individuals, the Reagan Administration promulgated regulations allowing federal government investigations of such decisions. Recently, the U.S. Supreme Court upheld lower court decisions invalidating these “Baby Doe” regulations. The federal government's fall-back position is reflected in the Child Abuse Prevention and Treatment Amendments of 1984, requiring states accepting funds under the Child Abuse Prevention and Treatment Act to establish and maintain procedures to assure that cases of medical neglect of handicapped infants are investigated by the states. Although the primary oversight of parental decision-making has been returned to the states where it has traditionally belonged, the federal government's definition of medical neglect of handicapped infants with life-threatening conditions is an ethically inadequate response to the complex needs of the handicapped child, the family, the medical profession, and society as a whole. After examining the relevance of Kantian, utilitarian, and Rawlsian ethical positions, the author contends that an effective governmental policy, capable of enforcement and acceptance by the public, must utilize the strengths of each philosophy and reflect the pragmatism of American society.

Critics of the Food & Drug Administration's ban on off-label promotion often claim that it violates the First Amendment because it suppresses pharmaceutical manufacturers' truthful speech about their legal—and beneficial—products. Characterizing the ban on off-label promotion in this way has more than rhetorical significance. Bans on truthful, non-misleading speech elicit special skepticism because of the belief that they “usually rest solely on the offensive assumption that the public will respond ‘irrationally’ to the truth.” The legislative history of the provisions of the Food Drug and Cosmetic Act that underlie the ban on off-label promotion, however, reveals that Congress was concerned that physicians were responding rationally to false and misleading promotional claims. In this Article, I explore the doctrinal questions raised by conceiving of the ban on off-label promotion not as a ban on “truthful speech to physicians” but instead as a prophylaxis against false and misleading pharmaceutical promotion. I review the evidence that false and misleading claims were commonplace before the ban's adoption and persist today, along with the enforcement challenges the FDA confronted at that time and would confront were the ban lifted, and conclude the government likely could develop the factual record necessary to establish that Congress' rejection of an after-the-fact case-by-case approach to combating false and misleading prescription drug promotion is constitutional.

Israel presents an intriguing conundrum: on the one hand, it provides quality healthcare in a near-universal healthcare system; on the other, it has maintained healthcare costs level at approximately 7.7% of GDP. This comes at a time when all western nations struggle with one or both sides of the equation: how to offer affordable, good quality health care to the population while curbing the sharp rise in health related costs. This paper explains both how Israel has achieved this “flat line” effect and the social and political costs of this achievement.

SmileDirectClub markets, manufactures, and delivers clear plastic dental aligners directly to the consumer: no dental office necessary. This well-known business strategy—cut costs by cutting out the middleman—has in several instances caught the attention of state dental regulators. While the dental boards consider some of SmileDirectClub’s practices to be violative of state dental practice law, the corporation has fought back in federal court, charging dental regulators with antitrust violations and with denying SmileDirectClub its constitutional rights.

The Supreme Court, as noted by SmileDirectClub, has insisted that a self-regulating state professional board is not itself the state, so a board’s actions might be subject to federal antitrust law. In the SmileDirectClub cases, however, state regulators have acted as required by state legislatures and as expressed in state dental practice acts. The boards’ activities here are therefore cloaked in the states’ immunity to antitrust litigation and should be treated deferentially by federal courts. Furthermore, judicial review of the substance of every regulation to which SmileDirectClub objects is inappropriate under principles of constitutional law. In the interest of public safety, courts should permit state dental regulators to fulfill their mandates and ensure that all dental providers comply with state health regulations.

Advances in medical technology over the past several decades have made it possible to increase life long past the point where many patients would otherwise suffer a natural death. In the past, the most common causes of death were abrupt killers such as tuberculosis, pneumonia, and injuries. Now the average American can expect to spend the final two years of life too disabled to perform even the routine activities of life unassisted. Thousands of people also languish in irreversible comas or persistent vegetative states due to illness or injury. Meanwhile, the ranks of the elderly can be expected to burgeon as Baby Boomers approach retirement age and the number of people treated with life support technology (alternatively described as “life-preserving” and “death-prolonging”) will rise accordingly. The conventional wisdom is that most people would like to avoid such treatment, preferring to die with dignity. Advance directives ostensibly enable people to avoid this fate, by expressing their treatment decisions in advance (a “living will”), or by designating someone they trust to make treatment decisions for them (a “durable power of attorney for health care”).

An increasing number of medical researchers are being subpoenaed to testify or to supply records in cases in which they have not agreed to become involved as expert witnesses. The researchers’ published works are alleged to have formed the basis of the opinions of physicians testifying as expert witnesses in these cases. Although the courts usually protect confidential medical data, the considerable burden of quashing these subpoenas is still imposed upon researchers and their universities. This Article argues that courts should protect these research records from subpoenas.

Medical error and health care fraud are hot topics these days. Since the Fall 1999 publication of the Institute of Medicine (“IOM”) Report, To Err is Human, medical errors have received a great deal of attention in the popular and academic press. Error reporting bills have been introduced at both the state and federal levels, and industry and government representatives have undertaken a variety of cooperative error-reduction efforts.