In screening the majority of job applicants, most of this nation's railroads administer a low-back X-ray examination in an attempt to ascertain the likelihood that the applicant will sustain future work-related low-back pain or injury. Many applicants are rejected for employment on the basis of the X-ray findings. The railroads apparently perceive this screening program as a cost-effective means (1) of decreasing the incidence of compensation claims for work-related injuries, brought against the rail-roads under the Federal Employers' Liability Act (FELA), (2) of reducing the number of lost workdays resulting from low-back pain or injury, and (3) of protecting particularly susceptible workers from job-related hazards.

The authors of this Article submit that low-back X-ray examinations are poor predictors of future low-back pain or injury. They assert that the railroads' use of such examinations misclassifies a substantial number of job applicants as being at increased risk for such pain or injury, and, in consequence, unfairly denies them employment. Furthermore, the authors claim, the screening program has other negative consequences. For example, applicants rejected for railroad employment on the basis of X-ray findings may as a result have difficulty finding jobs in other industries. In addition, they state, there is a potential radiation hazard to examinees. Moreover, both the railroads and those applicants accepted for employment may inappropriately be reassured by normal findings.

On balance, the authors conclude, the screening program has a negative social value. The authors suggest that the program, in effect, erroneously labels many applicants as handicapped, and then denies them employment. Such persons might have legal recourse under federal and state statutes prohibiting employment discrimination against the handicapped.

A federal requirement that donor blood be labelled as either “paid” or “volunteer” took effect on May 15, 1978. A major rationale for requiring such labelling is that physicians, now that they can distinguish between categories of blood, will fear liability for post-transfusion hepatitis resulting from the use of paid blood. Thus, supporters of the labelling requirement hope that it will deter the use of high-risk commercial blood. Some paid blood, however, is not commercial blood and in fact may be safer than volunteer blood. The labelling strategy for hepatitis control, therefore, has negative as well as positive attributes. This Article considers the efficacy of blood labelling as a hepatitis control measure and proposes an alternative strategy—the periodic publicizing of hepatitis rates of facilities that perform transfusions—that, if practiced responsibly, could significantly decrease hepatitis transmission rates.

Recidivism among alcohol offenders—drunken drivers in particular—has led courts to experiment with programs that attempt to rehabilitate problem drinkers. One such program, in El Cajon, California, offers defendants the choice of going to jail or of submitting to a year of treatment with Antabuse, a potent drug that reacts with alcohol to produce intensely painful physical symptoms. In addition, Antabuse subjects the recipient to the risk of toxic side effects.

According to the authors, the El Cajon program fails to inform defendants of the full risks and effects of Antabuse. Further, the authors maintain that the program uses the threat of a jail sentence to coerce defendants into consenting to Antabuse therapy. The authors conclude that defendants’ consent is so tainted by these factors that the program amounts to involuntary treatment.

Consequently, the authors suggest that the El Cajon program violates defendants’ constitutional right to privacy. Finally, the severity of the Antabuse-alcohol reaction leads the authors to contend that the program constitutes cruel and unusual punishment.

In 1977, the Supreme Judicial Court of Massachusetts held in the Saikewicz case that the probate court is the proper tribunal for making decisions whether to give or to withhold “life-prolonging treatment” for terminally ill incompetent patients. This ruling provoked debate in the medical and legal communities. Dr. Arnold Relman, Editor of The New England Journal of Medicine, argues that Saikewicz encroaches on existing sound medical practice and requires decision-making machinery that is impractical and inhumane. Relman contends that treatment decisions for terminally ill incompetents in Saikewicz-type cases should be made by the physician in consultation with the patient's family. Law professor Charles Baron, in contrast, defends Saikewicz's judicialization approach, arguing that such decisions must be made in an adversary framework that approximates the ideal of the rule of law.

In the present Article, Professor Buchanan argues that Relman's criticism of Saikewicz rests on a defective, medical paternalist view of the physician-patient relationship, and that Baron's support of Saikewicz is based on an unjustifiable, legal imperialist view of decision making for incompetents. In Buchanan's view, Relman's approach fails to distinguish appropriately between the making of medical judgments and the making of moral judgments and wrongly assumes that the patient's family typically cannot understand the elements of the decision, while Baron's approach unjustifiably extends the sphere of the legal process by ignoring the special moral relationship that usually exists between the family and its incompetent member.

Buchanan proposes an alternative decision-making approach that he believes incorporates the merits, while remedying the defects, of both Baron's and Relman's approaches. The alternative is based on three propositions. (1) The proper presumption in Saikewicz-type cases is that the family of an incompetent is to make decisions concerning treatment. (2) This presumption of the family's dominant role in decision making is defeasible: protection of the patient's rights requires that decisions be made within a framework that allows vigorous discussion and accountability through impartial review and that provides for legal intervention when necessary. (3) The institutional framework for implementing the features listed in the preceding proposition will rely heavily upon an ethics committee that is neither an all-medical prognosis committee nor an administrative agency of the hospital.

Besides evaluating and responding to the Relman and Baron approaches, Buchanan examines the contribution to the Saikewicz debate made by law-and-medicine professor George Annas. In essence, Buchanan rejects Annas's argument that, taken together, the Saikewicz opinion and the Quinlan opinion of the Supreme Court of New Jersey delineate a proper division of medical and legal decision-making responsibility concerning terminally ill incompetents. Buchanan concludes that, contrary to Annas's view, those two cases are not reconcilable.

The American health care delivery system, and the attitude of the public toward that system, have undergone considerable change during the past two decades. According to the author, the belief during the 1960s that adequate funds were available to broaden access to health services, to enhance their quality and availability, and to support medical innovation, gave way during the 1970s to an awareness of limited resources, to a skepticism about the motives and competence of established institutions, and to a conviction that the system's problems were too complex to be solved easily, if at all. Moreover, the author states, the system has become fragmented and highly competitive; the respect formerly accorded both professionals and institutions has deteriorated; and the government's role in health care delivery is being challenged.

The result, the author says, may well be a paralysis of policymaking in health planning, as exemplified by the failure of both public and private institutions to achieve the cost-containment goals of the last decade, either through regulation or competition.

To gain perspective on these problems and to determine the direction of the health care delivery system for the 1980s, the author calls for a national health care debate. He suggests four concepts that should be included in such a debate, and recommends a new context of pragmatic idealism in which to conduct it.

Certificate-of-need statutes give designated state agencies veto power over investment in health care facilities. Some states have sought to temper the arbitrary character of this power by expanding the opportunities for community input into the certificate-of-need process. Massachusetts, for example, has enacted a statute that allows groups of ten taxpayers to petition for a public hearing on any certificate-of-need application.

Some observers question whether the benefits of taxpayer-group participation are substantial enough to compensate for the delays and abuses that the statute allegedly invites. To help resolve this question, this Comment examines historical data on Massachusetts taxpayer groups and on their activities and assesses the significance of their composition and tactics to the certificate-of-need process.

Although flaws exist in the Massachusetts ten-taxpayer mechanism, in this writer's view it has succeeded partially in making the certificate-of-need process responsive to community opinion. Many groups lack the skills and qualities needed to make constructive use of the ten-taxpayer mechanism. Nevertheless, it serves a valuable purpose by creating a public forum for and by encouraging public participation in the certificate-of-need process, especially by those who might otherwise try to circumvent that process through use of special legislation, of private pressure, or of other similar means.

The Center for Law and Health Sciences (the “Center”), a component of the Boston University School of Law (the “Law School”), organizes and conducts research and educational programs that examine selected relationships between the legal and health care systems. The Center provides the Law School with a vehicle not only for focusing research on interactions of law and health care, but also for incorporating legal analytical techniques into the projects of other health affairs units of Boston University. The Center's key goal is to create programs that contribute to an understanding (1) of the application of traditional legal analyses to issues that relate to the delivery of health services, as well as (2) of the implications arising from features of the health care system for the development of legal doctrines.