It has become a truism to cite Enron as the new millennium’s watershed impetus for government assertion of power to improve corporate governance. While indictment of corrupt corporations and their executive leadership seems an obvious corrective to corporate norms that have gone astray, the unsuccessful prosecution and demise of Arthur Andersen proved a stunning backfire of such a blunt weapon. The public accounting industry shrunk even further, to the detriment of clients, and thousands lost their jobs. Arthur Andersen taught that an indictment itself may be sufficiently damaging to close the doors of a public corporation.

Within the past few years a number of children have been excluded from attending public school because they are linked to AIDS. School boards have justified their decisions to exclude these children on the basis that protecting the public's health, safety and welfare outweighs the rights of these children. Most courts have rejected this justification and have held that either under the equal protection clause of the Constitution or section 504 of the Rehabilitaiton Act of 1973, children cannot be excluded from the classroom solely because they are linked to AIDS.

This Note discusses both section 504 and equal protection analyses used by the courts. When analyzing a school board's decision to exclude an AIDS-linked child from the classroom, most courts have used a higher level of scrutiny and individualized inquiry in order to ensure that the rights of both the AIDS-linked child and his or her uninfected classmates and teachers are protected.

After applying these analyses to a hypothetical case, this Note concludes that both section 504 and the equal protection clause ensure that AIDS-linked children will not be barred from the classroom unless the presence of additional factors increases the risk of these children transmitting the virus to others.

With the onset of the energy crisis in the 1970’s, thousands of homeowners insulated their homes with Urea Formaldehyde Foam Insulation (UFFI). The discovery that UFFI releases formaldehyde, a carcinogen and irritant, prompted various state and federal responses to this problem. This Note reviews those responses and concludes that a ban on the sale of UFFI, coupled with a removal and repurchase program, is the most effective solution from the standpoint of consumer health.

Transsexualism is a condition in which an individual's psychological gender is the opposite of his or her anatomical sex. A “sex-change” operation can bring anatomical sex into line with gender, but it cannot create a new biological sex capable of procreation. The operation is expensive, dangerous and lengthy, yet in 1983 there were an estimated 6,000 post-operative transsexuals in the United States. Certain European countries have legislation recognizing the post-operative transsexual's new sex. Case law in the United Kingdom and the United States, however, prevent post-operative transsexuals from gaining legal recognition. The author does see some hope, however, for a change in the trend against recognition of transsexuals’ post-operative sex. This Article discusses the reasons behind this trend and concludes that the greater danger would be a consensus of medical opinion holding that sex-change surgery is unnecessary, questioning the very existence of post-operative transsexuals. Finally, the author calls for legislative action to remove judicially-imposed obstacles and to give legal recognition to the postoperative transsexual's new sex and identity.

When Lind Weaver starting receiving collections demands for a foot amputation she never had, she assumed it was a clerical error. Unfortunately, the operation had been performed on someone pretending to be Weaver, causing Weaver's medical history to become entangled in the thief’s. Media reports about identity theft show Weaver's experience is far from unique. For example, a Chicago man was arrested after using his friend's identity to obtain $350,000 worth of cardiovascular surgery at a local hospital. Hackers broke into the medical records of thousands of University of California students. A staff member left a laptop containing records of patients of a local AIDS clinic on Boston public transportation.

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.

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”).

Traditional methods to prevent and respond to domestic violence include criminal laws, national hotlines, and community programming to promote healthy relationships. Despite these methods, domestic violence continues to be a prevalent public health issue. In recent years, some states began to focus prevention and intervention efforts on the beauty industry. States including Arkansas, Illinois, Tennessee and Washington enacted laws that mandate domestic violence training for salon workers and other beauty professionals. The laws largely require salon workers to attend an informational training on domestic violence before obtaining or renewing their license. However, they do not require any affirmative action on the part of the salon worker if the client discloses that he or she is experiencing domestic violence. This paper investigates how the legislation uses the historically close relationship between hairdressers and their clients in order to achieve a unique way of reaching domestic violence victims, as well as the drawbacks to the legislative structure and atypical public health approach.

In an effort to contain the spread of COVID-19, many states and countries have adopted public health restrictions on activities previously considered commonplace: crossing state borders, eating indoors, gathering together, and even leaving one’s home. These policies often focus on specific activities or groups, rather than imposing the same limits across the board. In this Article, I consider the law and ethics of these policies, which I call tailored policies.

In Part II, I identify two types of tailored policies: activity-based and group-based. Activity-based restrictions respond to differences in the risks and benefits of specific activities, such as walking outdoors and dining indoors. Group-based restrictions consider differences between groups with respect to risk and benefit. Examples are policies that treat children or senior citizens differently, policies that require travelers to quarantine when traveling to a new destination, and policies that treat individuals differently based on whether they have COVID-19 symptoms, have tested positive for COVID-19, have previous COVID-19 infection, or have been vaccinated against COVID-19.

In Part III, I consider the public health law grounding of tailored policies in the principles of “least restrictive means” and “well-targeting.” I also examine how courts have analyzed tailored policies that have been challenged on fundamental rights or equal protection grounds. I argue that fundamental rights analyses typically favor tailored policies and that equal protection does not preclude the use of tailored policies even when imperfectly crafted.

In Part IV, I consider three critiques of tailored policies, centering on the claims that they produce inequity, cause harm, or unacceptably limit liberty. I argue that we must evaluate restrictions comparatively: the question is not whether tailored policies are perfectly equitable, wholly prevent harm, or completely protect liberty, but whether they are better than untailored ones at realizing these goals in a pandemic. I also argue that evaluation must consider indirect harms and benefits as well as direct and apparent ones.

The FDA already subjects most medical devices to much less stringent approval requirements than drugs and biologics, and attempts to speed up rollout during the COVID crisis have been problematic. Agency decisions, including to allow antibody test marketing without emergency use authorization or review, and the back-and-forth guidance on laboratory-developed tests, have met harsh criticism and unreliable results. Though the long-term results of these decisions are unclear, the FDA’s credibility, reliability, and commitment to safety are threatened by even further lessening medical device regulatory oversight during the coronavirus pandemic. The relaxed and fix-it-later approach to many of the FDA’s public health emergency decisions regarding medical devices reflect the ongoing criticisms of medical device regulation in general, specifically the 510(k) process and laboratory developed test regulation, offering a point of reflection towards reform. Adaptive legislation and a risk-based and evidentiary approach to premarket and postmarket review can begin to address these issues both generally and in an emergency context.

The hospital industry is currently undergoing a substantial transformation as a result of changes in third party reimbursement mechanisms and a tendency toward a more competitive economic environment. Hospital administrators will have to demonstrate substantial flexibility in considering and implementing innovative institutional arrangements to ensure survival in this time of austerity. The Preferred Provider Organization (PPO) is a recent development in the health care industry involving the selective contracting for health care services. This Article examines the role of section 1 of the Sherman Antitrust Act in scrutinizing the PPO for anticompetitive effects, considering the divergent requisites for competition in the health care sector. The Article also proposes a modified Rule of Reason for application to the PPO and other innovative cost containment arrangements in the industry and considers the implications of such flexible application of conventional antitrust principles for the future of the hospital industry.

The hazards posed by deteriorating friable asbestos in the nation’s schools are causing serious concerns for public health officials, school boards, parents and school employees. Reports by both the Environmental Protection Agency and the U.S. Attorney General’s Office agree that both school children and school employees stand a substantially increased risk of contracting some form of asbestos-related disease as a result of exposure to deteriorating asbestos materials in school buildings.

School systems plagued by die asbestos hazards are now filing suits against asbestos manufacturers alleging causes of action in breach of warranty, negligence and strict products liability in tort. Some plaintiffs in school asbestos litigation seek to recover die costs of EPA-mandated asbestos inspection and abatement programs which have already been completed. Still others request injunctions to compel the manufacturers themselves to conduct inspections and finance abatement.

This Note examines the school asbestos situation from a legal perspective and focuses primarily on whether die schools’ claims should be considered as economic losses or as property damage. It examines die impact of statutes of limitations on these cases under both contract and tort theories. The Note argues diat school asbestos claims should be decided under a strict products liability standard.

A decertification action by the Department of Health and Human Services (formerly the Department of Health, Education and Welfare) substantially impacts on the lives of Medicaid patients who reside in the affected nursing home. Decertification means that the federal government, the state government, or both will no longer pay for the care of Medicaid patients in the decertified home. Thus, a decision to decertify necessitates the transfer of elderly and infirm Medicaid patients out of the decertified home. Since this transfer may threaten the lives and health of these patients, they should be granted the right to participate in pre-decertification proceedings.

However, in O'Bannon v. Town Court Nursing Center, the Supreme Court decided that patients do not have the right to participate in predecertification proceedings. The Court rejected the patients’ due process arguments, finding: 1) that decertification does not deprive the patients of any constitutionally protected interest in life, liberty, or property; and 2) that any adverse consequences of decertification are only an “indirect and incidental” result of government action.

This Comment analyzes the Supreme Court opinion and concludes that the patients have protectable property and life interests that entitle them to participate in some form of hearing prior to the decertification of the nursing home where they reside. In addition, this Comment suggests alternative methods for asserting nursing home patients’ legal rights.

This Article examines the legal status of hospital committee proceedings and reports, focusing on how they may be used in a medicolegal context. Specific topics dealt with include the hospital medical staff in legal perspective, the concept of institutional responsibility, liability considerations arising from committee work, and the discovery and admissibility of committee records in litigation cases. The author concludes that the danger of committee members facing liability for their activities is slight and that the fear that these reports and proceedings may be subject to discovery or be admissible into evidence in subsequent litigation is remote because candid and conscientious evaluations of clinical practices within every institution are essential and, therefore, public policy must encourage such evaluations by maintaining the confidentiality of committee activities.

As this Article is being written, the Patient Protection and Affordable Care Act (ACA) is being besieged with two different types of challenges. The first is a Commerce Clause challenge to the individual mandate on the ground that, although the Commerce Clause allows the government to “regulate” the transactions into which people choose to enter, it does not allow the state to force people to enter into disadvantageous transactions against their own will. The second of these challenges deals with the imposition of the Medicaid expansion provisions requiring a state to forego all of its additional Medicaid support unless it is prepared to extend Medicaid coverage, partially at its own expense, to individuals whose income levels put them at 100% to 133% of the federal poverty level.

It would be naïve to argue that money isn't the driving force motivating health care delivery in 2010. At nearly 17% of GDP, health care delivery is a large and growing industrial enterprise that is the largest employer in many communities. Save for free clinics, generating revenue is fundamental to every aspect of the delivery system. From insurance reimbursement rates to the cost of purchasing the latest technology, the surest explanation for understanding changes in the health care system and concomitant development of legal doctrine is, indeed, to “follow the money.”

Determining who controls the money flows usually explains who the dominant players are, and how they are able to organize and change the delivery system. Unquestionably, the most straightforward way to understand how the system functions, where its vulnerabilities lie, and why it is so difficult to institute significant reforms is to identify who controls the money.