Over the past ten years or so, an increasing number of health care institutions have established institutional ethics committees (IECs) for the purposes of education, policy making, and review of cases. Proponents of IECs view them as important interdisciplinary mechanisms that improve decision making in the complex cases that sometimes arise in clinical medicine. Critics of IECs tend to interpret them as threats to the autonomy of physicians and an unnecessary bureaucratization of decision making. In spite of these criticisms, IECs seem to have filled an important role in many institutions and have a reasonably secure future.

In his foreword to a forthcoming issue of the American Journal of Law & Medicine dedicated to Harry A. Blackmun, Supreme Court Justice William J. Brennan calls it “superbly right that the American Society of Law & Medicine honors Mr. Justice Harry A. Blackmun with this edition of its Journal.” Last October the Society presented its first Presidents' Award for Outstanding Contributions to Law and Medicine to Justice Blackmun. Justice Blackman attended our Annual General Meeting and a banquet at Boston University School of Law, where he was presented with the award. We found Justice Blackmun to be a gentle, modest man despite the unique illumination and perception that he has contributed to health law in America. “That makes it only the more fitting,” as Justice Brennan says, “that the American Society of Law & Medicine should award this richly deserved honor, in Learned Hand's words, to ‘Acclaim one who—all unaware of his deserts—has so richly earned our gratitude.’”

It is intended that this exploration of different interfaces of law and medicine will present a general overview. These reflections on some comparisons of and, particularly, contrasts between the health professions and the legal profession do not aspire to the profundity, moderation, or elegance of, for instance, Prof. William Curran's recent learned discourse. They are self-consciously more polemical than a truly scholarly study should be, and include some crude or simplistic characterizations. Their purpose is to provoke reaction, however, and thereby to contribute to health professionals' and lawyers' consideration of their experience of each other.

It is trite to observe that the two inevitabilities of modern existence are death and taxes. It is more interesting to observe the consequence, however: that the professional mediators of death and taxes—namely, health professionals and lawyers—are equally inescapable. Members of these professions are not necessarily propelled into each other's arms, but in their professional and personal lives they cannot extricate themselves from each other's disciplines.

This article surveys proposals for public health statutes and regulations to control the spread of the human immunodeficiency virus (HIV). The data were collected by the Harvard School of Public Health in pursuance of a contract for the U.S. assistant secretary for health and by the Intergovernmental Health Policy Project at George Washington University. The intention is to provide a representative overview of legal and policy alternatives, not to offer a comprehensive account of statutes and proposals in all jurisdictions.

The AIDS epidemic has refocused attention on public health law, raising anew questions about the application, effectiveness, and constitutionality of various disease control measures. State and local legislatures have considered a broad range of measures designed to control the spread of AIDS. Virtually every state legislature has debated AIDS-related bills; between January 1 and April 15, 1987, more than 360 AIDS-related bills were introduced in the United States. Thus far, approximately twenty-eight states have enacted AIDS-related legislation.

Until recently, if one asked the proverbial person on the street to list maternal-fetal conflicts, he or she would have mentioned abortion and, when pressed to continue, looked at the questioner blankly. Now, however, the populace is becoming aware of a host of maternal-fetal conflicts. Indeed, mother-and-child, long a somewhat romanticized unity, are increasingly being treated by physicians, courts, and the media as potential adversaries, locked in battle on the rather inconvenient battleground of the woman's belly.

Some of these newly publicized conflicts—pregnant women abusing drugs or alcohol, or continuing to work in occupations hazardous to fetal health—are not all that new: the hazards of various substances have been known for years. Other of the conflicts are new, inasmuch as doctors could not recommend Cesareans or other procedures for the fetus benefit until they could detect fetal problems during or before labor. But probably what is most unprecedented is that now, suddenly, physicians are seeking court intervention to protect these imperiled fetuses—intervention that, inevitably, constitutes a significant intrusion into the woman's conduct during pregnancy or birth.

In 1974 the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research considered many aspects of fetal research. The Commission received some detailed ethical, legal, and scientific analyses, invited public testimony, and recommended guidelines for biomedical research involving the human fetus. One of the authors of the present article (KJR) chaired the Commission. Many of its recommendations became federal regulations on fetal research issued in 1975.

These regulations explicitly govern only research “conducted by the Department of Health and Human Services (DHHS) or funded in whole or in part by a Department grant, contract, cooperative agreement or fellowship.” However, as Baron pointed out in his legal review, they effectively cover all federally funded institutions, regardless of the source of the funds the institution may be using for fetal research.

Expectations of a vaccine to prevent acquired immunodeficiency syndrome (AIDS) are rising. Not only are the prospects for an effective immunogen improving, but immunization appears to hold the greatest promise for halting the spread of infection and disease. Identification of the causal agent—the retrovirus called HTLV-IIII, LAV, or generically, HIV (human immunodeficiency virus)—has provided the direction and limited the options for containing the disease.

Prevention is, of course, critical where the disease must be presumed to be fatal in all cases. Although there is no clear evidence that any single exposure-to HIV will result in infection or disease, prudence dictates that all exposures be considered potentially infectious and, ultimately, disease-producing until more is known. Public education or, more specifically, behavior modification, intended to reduce or eliminate unsafe sexual contact and the sharing of syringes and needles by users of illicit intravenous (IV) drugs, is perhaps the only effective means of prevention that currently exists.

for Robert W. Switzer

Well after Brown v. the Board of Education, Jackson, Mississippi, maintained racially segregated public swimming pools, claiming that only through segregation could violence and social chaos be avoided there. The federal courts saw through this stratagem, noting that it was a variant of the heckler's veto thinly masking racial animus. But did Jackson integrate its pools? No. The city council voted instead to close them all. This time out, the courts were not so wise.

In 1971, the Supreme Court upheld the constitutionality of the pool closings. The Court was snookered by the surface similarity of the policy's treatment of blacks and whites—neither could, after all, use the swimming pools. The practice appeared to treat similar cases similarly. And indeed the pool-closing statute did not refer in any way to blacks.

Debates about how much it costs to treat persons with AIDS and how the burden of these costs is and ought to be distributed raise fundamental questions about social policy in the United States. The most important questions concern entitlement: Who has what obligations to provide what services to whom, under what conditions and at whose expense?

As a result of our political history, we were unprepared for the challenge of AIDS to social policy in the 1980s. We had, over a half-century, linked entitlement to medical care to age, disability, employment, and, for people with end-stage renal disease, to diagnosis. Our policies proved inadequate to pay for medical care for persons who died at considerably younger ages than normal, who were disabled for a brief period that was still long enough to end their employability, and whose condition progressed with unusual rapidity from diagnosis to death. By early 1988, it was clear that we would, as a society, assume the substantial costs of caring for persons with AIDS. Who would pay, and how equitably we would provide care, remained in debate.

A single article, unless of extraordinary length, cannot provide all the information bylaws draftsmen should have. And of course, practically all hospitals desire to secure or to maintain accreditation by the Joint Commission on Accreditation of Healthcare Organizations (Joint Commission). To do so they must conform, in large measure at least, to its prescriptions for review of decisions regarding medical staff appointments and clinical privileges. The net effect of bylaws that specify procedural rights for applicants and staff members is that except for a few jurisdictions, the court will require hospital action on medical staff matters to be in substantial accord with by law requirements, even if as a matter of law the court would not require that such procedural rights be provided by a private hospital.

Public health is fundamentally about the values of community, the shared interests in life, health, and security. How the community perceives disease is not solely an issue of medical knowledge, but a function of the interrelated economic, social, and moral beliefs of the society. Our response to particular diseases will be colored to some extent by our image of the individuals or groups most directly affected by that disease.

Acquired immunodeficiency syndrome (AIDS) clearly poses a considerable threat to public health. The disease is thus far medically uncontrollable, and always fatal. The grim prognosis for persons with AIDS has intensified the urgency of developing a program to control and prevent the spread of the syndrome.

At the end of 1987, the insurance industry could breathe a sigh of relief. By a combination of good luck, astute planning, and nerve, life and health insurers had managed to impose HIV-testing requirements on insurance applicants while making few concessions to the gay community or insurance regulators. To a greater degree than almost anyone had thought possible, the insurers had deflected most of the expected health costs from the AIDS epidemic onto the nation’s taxpayers, and had taken steps to deny life or health insurance to anyone they considered to be at risk of AIDS.

The use of blood tests to determine if an individual is infected with the human immunodeficiency virus (HIV) that causes AIDS has been a matter of considerable controversy. Yet to date only a handful of states have restricted the use of HIV testing by companies offering life or health insurance.

Given the pain, incapacity, and death that afflict persons with AIDS, it is not surprising that those exposed to HIV or those who have developed AIDS may sometimes feel themselves wronged and entitled to legal damages. There are two main areas of potential AIDS-related litigation: liability related to medical malpractice and liability related to transmission, whether via contaminated blood or blood products, needle-sharing, childbirth, or sexual intercourse.

This article will examine the precedents, arguments, and possible defenses in these areas and in relationship to a variety of potential defendants.

A cause of action for medical malpractice in AIDS-related diagnosis may arise in several ways: failure to diagnose, failure to inform a patient of a diagnosis, failure to provide proper counseling and treatment when patients test positive for HIV antibodies, and failure to report AIDS diagnoses to health authorities or at-risk sexual partners.

The increased concern with cost-containment and the cost-efficient delivery of medical services has led to fundamental changes in the management of health care institutions over the past few decades. Health care is becoming concentrated in large facilities, since they are perceived to have the resources to plan cost-efficient allocation and utilization of medical services. In the past, physicians provided most of the executive and administrative leadership in American health care facilities and used them primarily for the private practice of medicine. Today, professional administrators and bureaucrats run these institutions as large corporate entities. Moreover, more and more physicians are taking salaried positions, due in large part to the oversupply of doctors that developed during the 1970s and 1980s. In fact, some observers believe that in the near future, the majority of physicians will be “employees” of some kind.

Most of us, I think, supposed that the debate over euthanasia (doing something to end a life that could otherwise continue) had been pretty well settled. For a long time a minority favored it and a majority opposed it—at least in principle, although not always in practice. Recent court decisions, however, have thrown the whole question open again, while public opinion polls reflect a marked increase in tolerance, if not positive approval. What follows is a lay discussion of the issue—not legally or medically professional but still, it is hoped, acceptable intellectually.

My own role in the ethical defense of euthanasia goes back a long way. I began to expound it in the early 1930s. The British organized a euthanasia society in 1935. The Euthanasia Society of America came three years later. It started out with a petition by 1,776 physicians addressed to the New York State Assembly, which promptly rejected it.

AIDS is spread by acts, not by casual exposure. As AIDS spreads further, some are urging that those acts, including sexual acts, be treated as crimes. Indeed, two AIDS carriers have already been charged with crimes for risking sexual transmission of AIDS to others. In one case, the United States Army has court-martialed an infected soldier, Pfc. Adrian Morris, Jr., charging that when he had sex with two other soldiers, he committed the crime of “aggravated assault.” Aggravated assault requires use of a “dangerous weapon or other means of force likely to produce death or grievous bodily harm.” What was the “weapon” in his case? The sexually transmittable AIDS virus itself. In the other case, the Los Angeles district attorney has charged an AIDS carrier, Joseph Markowski, with attempted murder for selling his blood and for having sex with another man while infected.