The growth of Health Maintenance Organizations (HMOs) as alternatives to the conventional Health care system is the result of HMOs' financial competitiveness and their ability to provide efficient Health care without wasteful and costly medical procedures. An HMO's goal is to minimize the cost of providing responsible medical care. As a result, HMOs attempt to limit the length of stay of a patient in a hospital by providing alternatives to hospital care. They achieve a competitive advantage by utilizing less expensive methods of treatment. The emergence of diagnostically related group (DRG) regulatory systems threaten the viability of HMOs by eliminating their competitive advantage. State-adopted DRG systems require hospitals to charge a fixed rate to all patients with similar diagnoses. This eliminates the advantage an HMO might gain by reducing a patient's length of stay. The Author argues that since HMOs are federally supported, they should be exempt from any DRG system implemented by a state. Further, the Author argues that while federal law ostensibly eliminates the conflict between HMOs and the DRG systems, HMOs are still restrained from free negotiations with hospitals. Accordingly, the Author contends that courts should apply federal statutes that encourage HMOs, preempt state laws, and thus allow HMOs to negotiate freely with hospitals regarding the rates of payment for patients.

The peer review privilege prevents patient-plaintiffs from obtaining the hospital records prepared in connection with quality review proceedings. The privilege, created by statute in most states, is rationalized by the need for confidentiality in promoting complete and candid peer review. In this Article, the Author argues that the privilege cannot effectively promote confidentiality since a common exception allows physicians to obtain the records when seeking judicial review of proceedings leading to their exclusion or dismissal from hospital medical staffs. More significantly, the Author notes that while the privilege began as a device to protect physicians from testifying against their will in malpractice suits—a condonation of the “conspiracy of silence”—it has evolved into a vehicle which enables hospitals to conceal the evidence of their own neglect.

Advances in medical technology offer infertile couples who wish to raise children alternatives to adoption. The increasing number of surrogate mother contracts creates a myriad of legal issues surrounding the rights of the natural mother, the natural father and die child that is produced. In this Article, the Author discusses the legal issues and rights of the parties under the Constitution, the surrogate contract and family law principles. The Author proposes that courts should consider a surrogate contract as a revocable prebirdi agreement which allows the natural mother to keep the child if she chooses. In addition, die Audior advocates an interpretation of the statutes forbidding baby selling that would prohibit surrogate contracts in which the mother is paid a fee for the child.

As organ transplantation procedures become accepted as standard medical practice, it is anticipated that the frequency of liability claims against transplant care providers will increase. This article examines current statutory and common law analyses of malpractice issues in transplantation, with particular attention given to issues of informed consent as they arise both for the organ donor and donee.

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.

In the last 35 years, organ transplant technology has advanced greatly. The major problem associated with organ transplantation is organ availability, and not surgery-related mortality. This article examines current organ procurement procedures and technologies, legislative repsonses to the scarcity of transplantable organs, as well as the psychological barriers to organ donation. Issues of fairness in the allocation of scarce economic and social resources, the role of religion and ethics in organ donation and transplantation decision, and the impact of the media are also considered.

Electronic fetal monitoring (EFM) has been criticized as ineffective, unsafe and costly. Despite existing controversy regarding the risks involved in using EFM, this monitoring procedure continues to be widely employed. In many jurisdictions, in fact, the use of EFM during labor may be considered the customary practice. This Article analyzes the medical and legal issues arising from a physician's use of or failure to use EFM. The Author argues that EFM subjects the mother and the fetus to risks which may be avoided if auscultation, a less intrusive monitoring technique, is employed. The ‘customary practice’ standard of care, the ordinary negligence standard of care, and the ‘best judgment’ and ‘duty to keep abreast’ standards of care are compared and applied to the physician's decision to use EFM. The Author contends that physicians who employ auscultation may not be liable for failing to use EFM; however, physicians who use EFM despite the evidence of its risks may be liable for failing to ‘keep abreast’ or to use their ‘best judgment’ or for negligence. Finally, the Author contends that both physicians and their patients are best protected when the physician elicits the mother's informed consent to employ a particular monitoring technique during labor.

In the 1970's, Michigan and other states were confronted with a medical malpractice crisis of astronomical proportions. The escalating number of medical malpractice lawsuits and concomitant increase in malpractice premiums for health care providers fostered a divisive climate among doctors, lawyers and patients. In response to this crisis, the Michigan legislature enacted the Medical Malpractice Arbitration Act. The Act establishes a process whereby patients may agree to arbitrate any claims rather than pursue them through the courts.

Part II of this Article discusses the historical evolution of arbitration as a precursor to its establishment as a resolution modality for health care disputes. Part III describes the statutory framework of the Michigan Medical Malpractice Arbitration Act. Part IV discusses the contractual and constitutional challenges to the arbitration statute and their resolution in Morris v. Metriyakool.

As the law respecting arbitration becomes less vulnerable to judicial perforation, this Author suggests that other jurisdictions treat the Michigan Medical Arbitration Program as an archetype, susceptible to replication.

In Beshada v. Johns-Manville Products Corp., the Supreme Court of New Jersey held that a state of the art defense is unavailable in cases brought under a theory of strict liability for failure to warn. The court indicated that asbestos producers may be held liable for their products' harms even if the health hazards of asbestos were unknown and not discoverable when the products were marketed. In a subsequent case, the New Jersey court held that state of the art evidence is relevant to whether a product is defective. This Case Comment examines these different uses of knowledge evidence in the disposition of products liability cases. It contends that manufacturers should not be held liable for unknowable risks. The Comment concludes that the state of the art defense establishes a logical limit on strict liability and promotes efficient resolution of products liability claims.

The dramatic growth of medical malpractice litigation in recent decades has contributed significantly to an overall increase in health care costs in this country. Although lawmakers, physicians, and other responsible citizens have proposed numerous solutions in an effort to curb die crisis, diese proposals have generally been ineffective.

In this Article the Audior endorses countersuits as die most appropriate response to frivolous medical malpractice actions. The Author also suggests that contingent fee systems, coupled with the economic motivation of private insurers to settle claims quickly, provide incentive for plaintiffs to initiate frivolous claims.

This Article analyzes the general legal approaches available for countersuits, emphasizing recent successful actions based on malicious prosecution and abuse of process, and proposes more widespread use of diese approaches.

In a two-part article entitled “Private Credentialing of Health Care Personnel: An Antitrust Perspective,” Clark C. Havighurst and Nancy ‘M. P. King purport to set forth “a new and previously unexplored agenda for antitrust enforcement, one that the Authors believe will increase the quantity and quality of information available to consumers … .” Having concluded in Part One of the Article that antitrust courts and regulators should exercise only limited supervision over private credentialing in the health care field, in large part because of their “important procompetitive purpose of supplying useful information and advice to consumers,” the Authors reverse field and seek to use the antitrust laws to call into question the activities and structure of leading medical specialty boards, the Liasion Council on Medical Education, various accrediting, certifying and credentialing bodies in medicine and the allied health professions, and the Joint Commission on Accreditation of Hospitals (JCAH).

Recent advances in medical research have dramatically improved the survival rate for individuals with a history of cancer. Large numbers of these “cancer patient-returnees” encounter job discrimination since many employers believe that to hire or maintain them would pose substantial future business risks. This Note argues that cancer patientreturnees may seek relief under the Rehabilitation Act of 1973. The Note concludes that an employer's costs arising out of future risks are too insignificant to justify denial of job opportunities to cancer patientreturnees under the Act.

In Bolger v. Youngs Drug Products Corp., the Supreme Court held that a statute prohibiting the mailing of unsolicited advertisements for contraceptives was unconstitutional as applied to Youngs's advertisements for condoms. The decision rested on a balancing of the first amendment's grant of free speech with the Government's interest in safeguarding an individual's privacy. The Court noted that the advertisements promoted the flow of information on contraception, and pertained to constitutionally protected private activity. This Case Comment argues that the Court's decision is sound and criticizes the view of the concurring opinion that shielding individuals from potentially offensive speech is a substantial governmental interest. The Comment concludes that the Court's decision expands upon precedent which established an individual's right of privacy regarding the use of contraceptives.

The emergence of genetic screening techniques will permit employers to exclude hypersusceptible individuals from potentially hazardous workplace environments. The denial of employment opportunities to these individuals, however, may constitute discrimination. This Note analyzes genetic screening cases with respect to currently available remedies contained in Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The Note concludes that Title VII claims may succeed but only in limited circumstances and that Rehabilitation Act claims will encounter numerous obstacles to relief. Additionally, the Note discusses some of the implications of the use of genetic screening in the workplace.

Under the doctrine of hospital corporate liability, the hospital governing board bears the responsibility for detecting the incompetence of its staff physicians. Since hospital governing boards are generally composed of lay community members, they lack the expertise to evalutate the clinical competence of their staff. Therefore, they must delegate their screening responsibilities to medical staff review committees. After analyzing the development of hospital corporate liabilty doctrine, this Note examines the respective policing capabilities of review committees and the governing board. The Note contends that the board should not be held liable for aspects of the policing process which it is incapable of controlling. The Note concludes that, given their superior ability to evaluate clinical competency, staff review committees should shoulder the responsibility for the clinical aspects of staff evaluation, leaving remaining aspects to the hospital governing board. The Note proposes that courts should recognize a cause of action for negligence against medical staff review committee members in order to upgrade the effective policing of the medical profession.