The medical community and policy-makers have widely accepted peer review of physicians as essential to encouraging high quality medical practice. Peer review is a process by which members of a hospital's medical staff review the qualifications, medical outcomes and professional conduct of other physician members and medical staff applicants to determine whether the reviewed physicians may practice in the hospital and, if so, to determine the parameters of their practice.

The world of assisted reproductive technologies (ART) has forced our society to confront scenarios that were unimaginable a mere quarter century ago. The birth of Louise Brown in 1978, the first child conceived through in vitro fertilization (IVF), introduced to the world the notion of asexual reproduction. The bitter battle over the parental status of Baby M., a baby born by a surrogate mother in the early 1980s, engendered a public debate over the interaction between contract law, family law and reproductive liberties that still rages today. In 1992, the highly publicized divorce of Junior and Mary Sue Davis focused national attention on the issue of proper disposition of frozen embryos. This case highlighted the fact that conception and pregnancy could be separated by a significant amount of time as a result of cryopreservation. While each of these events marked a step forward in the march toward total technological mastery of human reproduction, they also suggest that future struggles involving ART will grow increasingly fierce and complicated as our fund of knowledge increased. This Article suggests that current disputes over the disposition of frozen embryos are emblematic of that struggle.

When Louis Brandeis and Samuel Warren introduced the phrase “the right to privacy” as the title of an article in the Harvard Law Review in December 1890, they were primarily concerned about a right of privacy from the news media. “The press,” they wrote, “is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.”

By signing the Balanced Budget Act of 1997 (BBA) on August 5, 1997, President Clinton made the most significant changes to Medicare, since its inception in 1965, by adopting market-driven reforms in an effort to balance the federal budget. One of the most significant Medicare reforms in the BBA was the creation of the Medicare+Choice program that provides Medicare beneficiaries access to a wide array of private health plan choices as well as traditional fee-for-service (FFS) Medicare. In addition, Medicare+Choice enables Medicare to further utilize delivery innovations, including preferred provider organizations (PPOs), openended health maintenance organizations (HMOs), point-of-service plans, provider sponsored organizations (PSOs), integrated delivery systems (IDSs) and primary care case management, that have helped the private sector contain costs and expand health care delivery options.

The global Human Genome Project (HGP) promises dramatic advances in biomedical science and in identifying and treating diseases and illnesses that exact an enormous toll on people throughout the world. The HGP portends a conceptual revolution in health care: many foresee a new “predictive medicine” based on the development of genetic screening, testing and gene therapy.

Although advances in genetic science create the potential for dramatic progress against disease in rich and poor states, they also pose profound national and global policy concerns, including the potential impact of the scientific developments on human rights and public health. The development of more precise genetic information raises the specter of genetic discrimination by public and private sectors in all nations with access to the new technologies. In addition, nations will grapple increasingly with the appropriate balance between screening for and treatment of genetic diseases in order to promote public health and protect individual rights to privacy and confidentiality. Genetic screening and services also raise human rights questions relating to equitable resource allocation and the protection of public health.

Prompted by criticisms of long delays in its drug approval processes, the Food and Drug Administration (FDA or the Administration) took a number of measures in recent years to expedite access and increase availability of new drugs for terminally ill patients. These reforms began in the late 1980s, as acquired immune deficiency syndrome (AIDS) advocacy organizations openly criticized the FDA, noting that its policies were insufficient to address the prevalence of AIDS and the lag time for FDA approval of new AIDS treatments. The FDA's primary responsibility is to promote efficacy and ensure safety of new drugs. Consequently, the FDA must balance patients' desires to obtain new medications to treat serious and lifethreatening illnesses against government's desires to protect patients from abuses of the new drug approval process. The structure of the FDA's regulatory procedures is, therefore, essential to providing safe, effective medical treatments to patients. FDA regulations and guidelines set forth standards and practices that pharmaceutical companies must follow to gain approval of newly developed drugs.

There is little quarrel that access by medical and health policy researchers to medical records and claims data has spurred advances in quality and access to medical treatment. Nevertheless, dissatisfaction lingers with the regime used to regulate access to that information. The American regulatory regime on medical record access has politely been characterized as “fragmented” and less politely as a “black hole.” U.S. Senator Edward M. Kennedy asserts, “[t]oday, video rental records have greater protection than sensitive medical information.” At the center of this dissatisfaction is the question of how much say an individual should have in letting others—even those with legitimate need—look at and use an individual's records.

To allow the state to first choose the criminal sanction, which requires a finding of a specific state of mind, and when that sanction is completed, to choose another sanction which requires a finding of the opposite state of mind, is a mockery of justice which places both the criminal and civil systems for dealing with sexual predators in disrepute.

By committing individuals based solely on perceived dangerousness, the Statute in effect sets up an Orwellian “dangerousness court,” a technique of social control fundamentally incompatible with our system of ordered liberty guaranteed by the constitution….

The Food and Drug Administration (FDA) regulates the promotion of pharmaceutical products. The FDA's regulations issued under the Food, Drug and Cosmetic Act (FDCA) require that prescription drug broadcast advertisements include the following: (1) a major statement of the product's risks in at least the audio part of the advertisement; and (2) that an adequate provision for the dissemination of the approved package labeling be made “in connection with the broadcast presentation,” if the brief summary is not also part of the advertisement. Under the FDCA, the brief summary provides information concerning the major risks of the drug.

In the decades since the United States Supreme Court’s consideration of informational privacy in Whalen v. Roe, a couple of worthy candidates to fulfill Justice Brennan's premonition of “future developments” have emerged. One is the nature of information technology itself. Today, sensitive health care data are generated, stored, transferred, and deployed toward countless uses with astonishing facility. An inexorable shift toward computerized medical records and fully automated storage and transfer of patient information is well underway.

Patients continue to find new ways of reaching their physicians. In the past, patients and their health care providers developed relationships through the course of everyday affairs and across a wide variety of social exchanges. Although other methods of communicating were introduced into the medical context, telephones, pagers and voicemail all retained some connection to individual voices. Moreover, medical practitioners and patients alike never anticipated that these technologies would substitute for genuine personal interactions. Nor did they anticipate that another new technology, electronic mail (e-mail), would shift communications back in time to the days when letter writing formed the basis for diagnosing and relating. E-mail in medical practice has already begun to reconfigure the patient-physician relationship in the electronic age.

Telemedicine became a significant part of the health care equation long before we realized what it was or how important it will be in the future. Telephone discussions and consultations between health care providers have been a part of medical practice since Alexander Graham Bell gifted society with telephones. Furthermore, who among us has not been transfixed watching and learning about open heart surgery on cable television? Propelled by the information superhighway and the breadth of emerging computer and communication technologies, telemedicine will change the face of medicine and methods of interaction between providers and patients. Access, quality and cost of health care may all improve, but not without the sacrifice of some time-honored norms in medical practice.

This Article examines the content-related liability exposure of health care providers operating in cyberspace (cybermedicine). The Article maps real space theories of liability such as professional negligence, misrepresentation and products liability to cybermedicine fact patterns.

This Article examines cybermedicine in contrast to the more widely discussed but narrower issue of telemedicine. The latter typically refers to technologies, primarily preconvergence telephony, satellite and video, used to patch geographical holes in health coverage. Thus, telemedicine is to medicine what distance learning is to education. Just as telemedicine technologies and goals have been more limited, so too have the legal issues been analyzed in a narrower regulatory or licensure issues.