The use of placebos by physicians for therapeutic purposes is a common part of clinical medical practice. This Article examines the legal and ethical ramifications of placebo prescription. In particular, ethical concerns are related to substantive legal theories that may be advanced to attack or defend the practice of placebo therapy in particular cases. The author concludes that, under certain strictly denned circumstances, the use of placebos in patient care is ethically and legally justifiable. However, from any perspective, the rights and duties inherent in the physician-patient relationship must be respected by the physician when considering the clinical use of placebos.

This Article discusses potential legal liability for adverse effects resulting from reuse of disposable hemodialysis equipment. After explaining the dialysis process and the health risks involved with the reuse of dialyzers, the Article outlines possible theories of recovery for injured dialysis patients. The Article describes the possibility of recovery under a negligence theory against either the treating physician or the institutional provider, and includes a discussion of applicable statutory law. The remainder of the Article discusses possible recovery under the theory of strict liability.

In Roe v. Wade, the Supreme Court held that the constitutionally protected right to privacy includes a woman's right to terminate pregnancy. Following the decision, anti-abortion groups turned to Congress to limit or negate that right. As a result of their efforts, several "human life" statutes and constitutional amendments have been proposed. This Article focuses on the implications of proposed amendments that seek to ban or limit the availability of abortions indirectly by broadening the definition of "person" to include unborn individuals. The Article discusses the potentally serious effects such an amendment would have in areas unrelated to abortion. It finds that the resulting chaos and uncertainty would have great social costs, and concludes that if abortions are to be banned or restricted, a human life amendment that directly deals with abortion is preferable to one that defines "person" to include the unborn.

The health care industry is one which traditionally has discouraged its members from engaging in competition. For years, many within the profession have espoused a guild mentality and have viewed professional societies as the proper centers of health care’s economic universe. This guild mentality has recently been challenged by proponents of a market mentality, theoreticians who argue that limited combinations of health care providers called “health plans,” which serve insurance as well as service functions, can make the health care industry more efficient. Proponents of the guild mentality have been dealt a severe blow by the Supreme Court and its decision in Arizona v. Maricopa County Medical Society. There the Court found the price-fixing by two Arizona medical societies to be illegal per se under applicable antitrust law. This Article outlines the background on competition and the guild mentality in the health care industry. After a brief discussion of the standards of antitrust analysis, the Article analyzes the Maricopa case, by first summarizing the Court’s use of strict antitrust criteria, and then by extending the analysis to an application of a more lenient standard. Next, the Article compares the provider controlled independent practice association (“IPA”)—one form of insurance plan proposed by market model advocates—with the Maricopa-type plan. Finally, the Article concludes that, not only is the special form of IPA that qualifies as a “health plan” an excellent way to promote efficiency in the health care industry, but also its procompetitive goals and effect allow it to survive even the strictest, Maricopa-type antitrust scrutiny.

This Article surveys major antitrust issues affecting the health care field with particular emphasis on third party insurers. It deals with the most recent decisions of the United States Supreme Court, including Maricopa, Pireno and McCready, involving limitations on the scope of the antitrust exemptions, and the bearing of these decisions on third party insurers, provider agreements, peer review mechanisms, physician control or sponsorship of prepayment plans, joint insurer activities, relative value fee schedules, maximum fee schedules, and area-wide planning. The Article challenges the desirability of strict application of antitrust principles to these and other activities within the health care field, stressing that practices with procompetitive and cost containment aspects should be encouraged and analyzed under the rule of reason rather than a per se approach.

Psychiatric and psychological predictions of dangerousness are used in a number of American jurisdictions to convince a judge or jury that a convicted murderer should be sentenced to death. Empirical research has demonstrated, however, that psychiatric and psychological predictions of dangerousness generally are inaccurate. This Article describes the current use of such predictions in capital sentencing hearings and examines their status under existing professional codes of ethics. It argues that the rendering of these predictions by psychiatrists and psychologists is contrary to the scientific and healing traditions of their professions and urges psychiatrists and psychologists to adopt an ethical ban on predictions of dangerousness in the capital sentencing context.

Good Samaritan laws provide legal immunity to persons who assist in medical emergencies. Because good Samaritan laws eliminate the common law right of victims to secure redress for their injuries, these statutes raise certain constitutional questions. The Article begins by examining the vulnerability of good Samaritan statutes to federal constitutional attack on substantive due process and equal protection grounds. It then considers the susceptibility of such laws to state constitutional attack on the same grounds. The Article concludes that while such statutes are not likely to violate federal substantive due process and equal protection provisions, they may be held unconstitutional on similar state grounds.

Within the physicians' services industry, doctors of osteopathy are the only "full line" competitors of medical doctors. Given the current interest in merger of the two schools of practice, this Article examines the benefits of having an independent osteopathic school. These benefits include: (1) reduction of the monopoly power of medical doctors in malpractice litigation, fee negotiations with third party payors and the formulation of health policy; (2) greater satisfaction of consumer desires; and (3) diversity and innovation in physicians' training and methods of practice. The Article concludes that society has an interest in discouraging merger of the two groups; osteopathy should be maintained as an independent school of practice. To this end, society should carefully consider the impact of legislation and regulatory policies that may have the unintended effect of eliminating osteopathy as an independent competitor.

In addition to provoking public and scholarly debate, the recent acquittal of John W. Hinckley, Jr. has prompted the Ninety-Seventh Congress to consider various bills that would abolish or reform the federal insanity defense. The following is an unedited version of Professor Arenella’s testimony concerning these bills given before the House of Representatives’ Subcommittee on Criminal Justice on August 12, 1982.

Peer Review Committees (PRCs) that aid insurance companies in evaluating chiropractic treatments and fees have been the focus of recent court challenges. Some practitioners have argued that PRC activities constitute price fixing in violation of the Sherman Antitrust Act. PRCs have been successful thus far in claiming an exemption from antitrust scrutiny as a “business of insurance” within the meaning of the McCarran-Ferguson Act. This Note contends that PRCs are not exempt from antitrust regulation; since PRCs do not spread risks and are involved in inter-rather than intra-industry agreements, their activities do not fall within the narrowly defined “business of insurance” exemption.

The Note then analyzes the merits of the price fixing allegations under both the “per se” standard and the “rule of reason.” First, the Note concludes that the unique nature of the health care market and the legitimate functions served by peer review make the application of a per se standard inappropriate. Second, under the rule of reason, the Note indicates that peer review encourages efficient and innovative health care practices while it deters the escalation of health care costs. The Note concludes that the net effect of peer review is not anticompetitive, especially since PRCs lack the coercive power to compel compliance with the recommendations.

Approximately 1.3 million of our nation's elderly live in nursing homes. Despite the increasingly important role of Medicare and Medicaid, many must bear the costs of their care. This Note examines one means of financing nursing home care—the life care contract. These require residents to pay an entrance fee and transfer to the nursing home all or part of their property in return for the home's promise to provide care for the remainder of the resident's life. The Note discusses the potential problems a life care resident may face, such as substandard living conditions or a home's financial instability. It concludes by delineating steps that potential residents can take in constructing life care contracts to ensure protection of their rights and needs.

The federal Truth in Lending Act requires creditors to comply with complex disclosure requirements whenever they engage in consumer credit transactions. In light of procedures adopted by hospitals and health care professionals which permit payment for services over time, there is some question as to whether these groups may be considered creditors within the meaning of the Act and therefore subject to the Act’s disclosure requirements. In Bright v. Ball Memorial Hospital, the Court of Appeals for the Seventh Circuit concluded that a hospital can be a creditor with respect to certain hospital-patient transactions. However, the court found that the defendant had not consummated consumer credit transactions with the plaintiffs and consequently had not violated the Act by failing to make disclosures.

This Case Comment contends that although the court correctly determined that a hospital, in certain circumstances, may be subject to the Act, it incorrectly held that Ball Memorial failed to consummate consumer credit transactions with the plaintiffs. This Case Comment also discusses the circumstances under which a hospital should be considered a creditor for purposes of the Truth in Lending Act and recommends that hospitals offering installment payment plans routinely comply with disclosure requirements of the Act.

In Vitek v. Jones, the United States Supreme Court interpreted the due process clause as requiring that certain procedures be followed before transferring prisoners to mental institutions. This Note analyzes the Court's reasons for concluding that the existing transfer procedures embodied in the state's commitment statutes infringed on the prisoner's liberty interests and, therefore, were constitutionally inadequate. It finds that not only was one of the grounds used by the Court to find a constitutionally protected liberty inappropriate, but the calculus that the Court employed in mandating additional procedures was incorrect. This Note suggests alternative methods of holding the statutes unconstitutional, methods that would not lead to markedly different procedures for committing prisoners and civilians. Finally, die Note examines the procedures that the Court actually prescribed and discusses their implementation.

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.