This Article explores who, in the first instance, should decide whether to withhold or withdraw treatment from a defective newborn. The Article begins by defining the term “severely defective newborn” and discussing potential sources of liability for persons who decide to withhold or withdraw treatment. It next analyzes the ability of parents, physicians, and courts to make these treatment decisions. The Article concludes that, although parents and physicians may eventually make the specific determination, the legislature should at least set guidelines so that the decisions will be, in some measure, consistent, predictable, adequately informed, and in accord with community values.

In this full-length Foreword, John Norris and David Szabo discuss the trend towards the development of substantially integrated and automated multi-institutional health care delivery systems. The authors then address the legal, economic, and policy implications of regulating medical computer systems. They conclude by noting that the rational allocation of costs and risks is a necessary step in developing new systems for health care delivery.

During the past ten years, the use of computer programs in medicine has become increasingly prevalent. As these programs proliferate, however, their potential to injure patients also increases. Although the question of liability for personal injuries caused by defective medical computer programs has not been addressed by the courts, it is inevitable that this question will arise in a judicial forum.

In this Article, the authors examine the questions a court will face when addressing this novel cause of action. They attempt to resolve some of these questions by exploring the relevant characteristics of medical computer programs and examining their relationship to the tort law doctrines of negligence and strict products liability. The authors conclude that medical computer programs will be treated as products by the courts, subjecting their manufacturers to strict liability in tort for any defects in the program that cause injury. As a result, the authors contend, hospitals are likely to face a new source of liability for patient injuries if, under the particular circumstances, they are deemed to be the manufacturer or the distributor of a medical computer program that causes an injury.

This Article explores the constitutional, statutory and common law privacy rights of physicians given the inescapable role of delivery data under supply side competition. The Article begins with a general review of the federal constitutional right of privacy. It then discusses the statutory protection given to physician-specific data under current federal law, and considers the insights gained from the controversy over physician data and the federal Freedom of Information Act. The remainder of the Article analyzes the usefulness of several common law causes of action to remedy the misuse of physician data, and concludes with recommendations which may obviate the need for litigation to protect against misuse of physician-specific data.

The Supreme Court of the United States and other courts currently are considering the question of the extent to which the health care field should be subject to antitrust rules. This Article explores the special characteristics of the health care field, and the problems they create for antitrust analysis. Two current cases—Arizona v. Maricopa County Medical Society (awaiting decision by the Supreme Court) and Kartell v. Blue Shield of Massachusetts, Inc. (pending in the District of Massachusetts)—illustrate the issues raised by efforts to contain health care costs through the setting of maximum fees. This Article suggests that traditional antitrust principles should and will prevail over arguments that such restraints are in the public interest.

This Article analyzes the possible antitrust liability of medical credentialing programs by dividing their potentially anticompetitive acts into three categories: (1) communicative behavior—for example, credentialing agencies’ promulgation of standards—designed primarily to influence government decision making; (2) communicative behavior designed to influence private decision makers, such as consumers, hospitals, and training programs; and (3) noncommunicative behavior—for example, an agreement by the credentialing agency and others to boycott a group of professionals—that might be used to exclude competitors from various fields of medical care. The author argues that the first amendment of the U.S. Constitution, together with the related Noerr-Pennington doctrine, should exempt from antitrust law any credentialing standard that has been adopted for a good-faith purpose and is at least arguably reasonable. On the other hand, the author also argues that antitrust law should condemn any “sham” standard that in fact is designed to eliminate or to punish competitors, and any other noncommunicative behavior by credentialing agencies for the same purpose.

In the past, Health Maintenance Organizations (HMOs) were victims of anticompetitive practices, but the growth of HMOs casts them as potential antitrust violators. Such contentions should be halted since they frustrate growth encouraged by both the federal and state governments.

This Note discusses a solution to the potential antitrust problems. HMOs can be exempt partially from antitrust regulation by the McCarran-Ferguson Act. To secure immunity under McCarran-Ferguson, the entity must function in the business of insurance, be regulated by the state, but not be engaged in acts of boycott, coercion, or intimidation.

This Note sets forth potential antitrust violations by HMOs, examining the possible application of the McCarran-Ferguson exemption to them. Each of the elements required to satisfy McCarran is discussed in general and applied to HMOs. This Note concludes that the exemption can be applied to HMOs so long as their conduct fulfills the requirements of the McCarran Act.

This Article argues that many seemingly disparate questions in health law are related to the issue of how experts are to be held accountable to nonexperts—show the principle that decisions should be made by those most affected is to be reconciled with the principle that decisions should be made by those with experience and training in the area. The basic subject matter of health law comprises a number of relationships between medical professionals, on the one hand, and laymen, on the other. In dealing with the proper allocation of decision-making authority within these relationships, the Article considers the social role of medical profession, the theoretical issues in the accountability of expertise, and the nature of medical expertise. On the basis of this discussion, the Article develops principles that can be applied throughout health law.

This Article offers a practical guide to hospital initiated quality assurance. After outlining the hospital's duty of care, the Article discusses both offensive and defensive strategies for dealing with the problem of an impaired or incompetent medical staff member. While the Article advocates informal resolution of the problem, it encourages the hospital and the medical staff to build a defense to liability based on strict adherence to hospital bylaws, rules and regulations governing medical staff organization, privileges and evaluation. The Article's ultimate concern is to avoid an escalated situation involving multiple lawsuits, patient harm, humiliation to the practitioner, and economic loss.

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.

Increasing numbers of couples have benefitted from, or may be considering use of, the surrogate mother procedure. In this procedure, a couple, usually a husband and wife, enters into a contract with a surrogate mother. Under the terms of the contract, the surrogate mother is artificially inseminated, bears a child, and relinquishes all rights regarding that child to the semen donor and his wife. In exchange for bearing a child, the surrogate mother often receives a fee. In light of such increased use of the procedure, the issue of whether or not the arrangement is legal has particular importance. Questions of legality involve possible violations of criminal baby-selling statutes. Issues of whether adoption is necessary and whether the child is legitimate also are inherent in the surrogate mother arrangement. This Note argues that these questions should be resolved in favor of finding no impediment to the use of the surrogate mother procedure, at least within certain guidelines. However, even in the absence of legal impediment, detailed contracts and thorough medical screening for genetic, physical and psychological problems would further eliminate ambiguities regarding liability. In addition, the Note concludes that legislation should be enacted to deal with the legal ambiguities of the surrogate mother arrangement. This legislation should regulate the parties that enter into such an arrangement and the rights and responsibilities of these parties.

Ever increasing hospital costs burden both the patient and the state. Those patients fortunate enough to afford health insurance pay higher premiums for it, while the uninsured must absorb a substantial amount of the increase in hospital costs. The state also encounters greater expenditures in the Medicare and Medicaid budgets. To address the problem of increasing hospital costs, Massachusetts enacted a rate setting program in 1975 in which a rate setting commission reviews annual hospital budgets and determines prospectively what hospitals may charge the public for certain services.

In 1979, Massachusetts implemented a refinement of this procedure, known as groupings-based charge setting. By scrutinizing the reasonableness of underlying costs on which proposed charges were based, the groupings procedure sought to decrease the rate of increase of costs and charges while indirectly decreasing the rate of increase for Medicaid and Blue Cross reimbursement. Although the procedure should prove efficacious in future years, its initial development and use in Massachusetts encountered implementation problems.

This Note examines the initial groupings procedure in order to reveal the errors future programs should avoid in designing and implementing groupings. It explores why and how Massachusetts groupings were ineffective and traces the weaknesses in the administrative process. Additionally, the Note examines the need to improve the development and implementation of groupings rather than relying on post-implementation legal challenges to groupings regulations. Finally, this Note proposes a model for effective groupings that coordinates state-wide incentives for cost control, more accurately defines reasonable cost for purposes in addition to charge control, and seeks to avoid the mistakes of the initial Massachusetts groupings.

Past and present residents of the Love Canal area near Niagara Falls, New York, fear that they and their homes have been contaminated by toxic wastes seeping out from nearby chemical disposal sites. Hundreds of landfills nationwide are as potentially dangerous as Love Canal. In the absence of a statutory remedy, victims of contamination must rely upon common law theories of liability in order to recover damages for injuries suffered as a result of toxic waste contamination. This Note examines the merits and deficiencies of four common law theories: negligence, strict liability, nuisance and trespass. The Note concludes that none of these remedies is adequate to assure recovery to a person injured by toxic waste disposal, and recommends that legislation be adopted to ensure that victims of toxic waste contamination can be compensated for their injuries.