In one of his few decisions addressing the interface of law and medicine, Oliver Wendell Holmes observed that, The patient has no more right to all the truth than he has to all the medicine in the physician’s saddlebag. He should only get so much as is good for him.

During the last 60 or so years, the question of how much medical information is indeed good for the patient has been the subject of innumerable lawsuits. From this plethora of litigation, a clear common law trend which favors maximum disclosure of information has become evident. Relying upon the fiduciary nature of the physician-patient relationship, the courts have imposed upon the physician a duty to inform a patient fully regarding the condition of his or her body. It is appropriate, therefore, to examine various exemplary case decisions in an effort to portray effectively the nature and scope of the physician’s rights and responsibilities in this context.

Discussions of medical malpractice seem to end up at either of two extremes: the trial lawyer's view that injured patients deserve compensation, with the treating physician the best source; and the doctor's view that such suits unfairly penalize judgmental errors while raising the costs of practicing medicine. The parties to this debate make different assumptions about the nature, purpose, and likely impact of malpractice suits; as a result, the issues are muddied rather than clarified. This article suggests that, viewed in light of recent studies of iatrogenic illness in hospital settings, malpractice litigation may help rather than hinder the quality of medical care delivered.

latrogenesis, defined as the undesirable side-effects of medical interventions, is not a new phenomenon. The major study undertaken by the Department of Health, Education and Welfare in 1973 noted that a substantial percentage of adverse medical outcomes occur as the result of treatment. Others have concluded that many surgical deaths are avoidable.

The recent flurry of antitrust litigation in the health care industry is forcing the courts to reevaluate the legality of existing health care institutions under the Sherman Antitrust Act. One type of institution that poses significant antitrust questions is the independent practice association (IPA), an arrangement which consists of a contractual relationship between subscribers, physicians and an IPA corporate entity. The physicians agree to provide medical services to the IPA's subscribers, who pay a flat rate. In exchange, physicians are reimbursed at rates usually established by a fee schedule.

The Health Maintenance Organization Act of 1973 requires that an IPA, like an HMO, must “assume full financial risk on a prospective basis for the provision of basic health services…” This ensures that the IPA bears the risk that the cost of the services it renders will not exceed the value of the premiums it collects, giving it an incentive to contain costs.

Providers and health planning agencies familiar with the federaily mandated Section 1122 and certificate of need (CON) programs had mixed reactions to the passage of the 1979 amendments to the National Health Planning and Resources Development Act (the 1979 Planning Act Amendments), especially the addition of Section 1527 which prescribes specific federal requirements for state CON programs. One of the most controversial provisions of Section 1527 is the so-called conditions amendment, often referred to as the “Satterfield amendment.” The conditions amendment has crystalized by statute a power that many planning agencies had previously assumed and that most hospitals had feared: state health planning and development agencies (SHPDAs) have the legal authority to issue CONs subject to conditions that require applicants to undertake actions unrelated to those for which they sought approval. At the same time, however, the conditions amendment vindicates a notion long held by providers and rejected by some planning agencies: the SHPDA's conditioning power is not unlimited; while some conditions are permissible, others are not.

Recently a front-page article in the New York Times reported on a new method of blood-testing for paternity determination which is “revolutionizing the way courts determine the identity of a child's father in paternity cases.” The HLA (Human Leucocyte Antigen) test represents a significant advance over the standard red blood cell antigen tests for paternity. The large number of genetically determined factors in the HLA system makes it possible, by typing the blood of mother, child, and accused father, to either 1) rule out the possibility that the man could be the child's biological father in a large number of cases where the man is falsely accused; or 2) show that the accused man has a high probability of being the child's biological father, where the possibility of paternity has not been ruled out. Red blood cell typing, because of the much smaller number of factors examined, could only exclude a falsely accused male in a relatively small number of cases.

The 1974 health care amendments to the National Labor Relations Act (NLRA or the Act) have given rise to several significant developments in the case law. This article focuses on the subjects of appropriate bargaining units, the inclusion — or exclusion — of house staff under the NLRA, and, briefly, the special strike notice requirements under section 8(g) of the Act. These areas have been the subject of substantial controversy and conflict among the federal courts.

In 1947, the Taft-Hartley Act excluded from the term “employer” as defined in the NLRA, “any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual.” In 1974, Congress removed the exclusion for voluntary, nonprofit hospitals and added the new term “health care institution.” In so doing, it found “no acceptable reason why 1,427,012 employees of … non-profit, nonpublic hospitals … should continue to be excluded from the coverage and protections of the Act.

The American Nurses’ Association (ANA) and its affiliate state nurses’ associations (SNAs) claim to represent the interests of all registered nurses in this country.’ In reality, an uneasy schism of professional ideology has developed within these organizations. The ANA believes that the state and district nurses’ associations are qualified to act and should act as the exclusive agents of their respective memberships in the important fields of economic security and collective bargaining. In fact, in 1977, 100,000 registered nurses, then somewhat less than 10 percent of all working RNs, were under union contract through an SNA. Yet the leadership in the ANA and SNAs is dominated by nurses who are either supervisors or educators in their daily professional roles. The ANA has identified the director of nursing in any given hospital as the legitimate leader of that nursing staff: “Nursing administration has the responsibility and authority for the quality of nursing practice within the health care organization.” Yet the collective bargaining process itself often pits nursing staff against nursing leadership within a given facility.

During the 1960s, master's level programs evolved to educate psychiatric nurses to become teachers, administrators and clinicians. Prior to this time, psychiatric nurses had functioned primarily in inpatient settings, but gradually these nurses began working as primary therapists in outpatient clinics, community mental health centers and independent practices. In 1976, the American Nurses’ Association (ANA) published its Statement on Psychianic and Mental Health Nursing Practice which identified the master's prepared psychiatric nurse as a “psychiatric and mental health nursing specialist.” Nurses at this level were expected to be experts in psychotherapeutic methodologies and could practice psychotherapy independently.

Nursing practice acts have changed to allow for the expanding nurse role. Prohibitions against diagnosis and treatment that were recommended by the ANA in 1955 were eliminated in the ANA's 1976 Model Practice Act. In 1980, the ANA suggested legislation that would include diagnosis, counseling, intervention and the management of illness within the definition of nursing

The term “nursing ethics” is controversial. Some insist that nursing ethics is a unique field posing issues that cannot be understood fully by adapting the professional ethics of physicians. They insist that the term “nursing ethics” connotes the uniqueness of the moral problems that nurses face in the health care setting.

On the other hand, others argue against the term. Some suggest that it is demeaning and has somewhat the connotation of watered-down ethics —the flavor of such textbook titles as anatomy for nurses or pharmacology for nurses Others critical of the term “nursing ethics” argue that there is really very little that is morally unique to nursing. The same ethical principles and the same moral issues emerge in the health care setting whether one is a physician, nurse or patient. This article puts forth the view that nursing ethics is a legitimate, if very limited, term referring to a field that is a sub-category of medical ethics.

Aparamount issue facing registered nurses in the eighties is the choice of trade union or professional association representation for purposes of collective bargaining. This act of choice recasts the profession's historical dilemma. The question no longer is whether professionalism is compatible with collective bargaining but rather, “Which labor organization shall represent me?”

History will record and interpret these events. As president of the American Nurses’ Association, my task is not to be reflective but to speak out. Will the profession's collective bargaining contracts be articulated by truck drivers, teachers, electricians, jewelry makers, and meatcutters rather than nurses? Who best can represent the professional and economic interests of nurses?

Let there be no mistake about it; the nursing profession is under siege by trade unions. This is not simply a battle for contracts, but for control of our right to speak in our own behalf on all issues confronting the profession.

From time to time physicians have attempted to retaliate against malpractice suits which they perceive as groundless by filing countersuits against the suing patient, his attorney, or both. In recent years the number of such countersuits filed has risen dramatically, amounting to what one author has called a “legal fad.” A Dallas attorney has reportedly formed an organization, Lawyers for Protecting People From Malicious and Unjustified Lawsuits, Inc., to assist those who countersue attorneys. Until recently, however, such countersuits were nearly always unsuccessful because of the formidable burden of proof placed on the plaintiffs by the applicable legal doctrine. This article will discuss a handful of recent appellate court decisions which suggest that the countersuit may yet prove to be a potent weapon in the physician's arsenal against groundless claims.

In Bull v. McCuskey, a 1980 case, the Supreme Court of Nevada upheld an $85,000 countersuit award. This appears to be the first such decision upheld by a state supreme court and the largest countersuit award to date.

A large part of the everyday practice of medicine consists of prescribing drugs for the purpose of curing or alleviating patient ills. In most cases, a drug must be approved for specific uses by the federal government before it becomes available to be prescribed by a physician. However, once a drug has received regulatory approval for a specific medical use, the physician may prescribe it for any purpose, approved or not. The prescribing of drugs for nonapproved uses is a common medical practice. This article discusses the informed consent implications raised by this practice, and argues that the physician should disclose to the patient the legal status of a drug prior to prescribing it for a purpose which has not been governmentally approved.

Relying upon the Constitution's Commerce Clause, Congress has vested jurisdiction over all “drugs” involved in “interstate commerce” in the federal Food and Drug Administration (FDA), a division of the Public Health Service (PHS) of the Department of Health and Human Services (DHHS).

Recently, the California Supreme Court found an established medical standard of care to be inadequate and replaced it with a judicially constructed medical standard of practice premised on the rule of reasonable prudence. California thus joined the State of Washington and became the second state to sanction the invocation of reasonable prudence in the fashioning of judicially formulated medical standards of care.

As this article will illustrate, the Supreme Courts of California and Washington are, in a narrow class of cases, imposing a greater duty of care on physicians than previously mandated by the medical profession. These courts are impliedly stating that although the physicians complied with the particular standard of care within their profession, they could have better protected their patients had they pursued a more prudent course of conduct. Moreover, in choosing between the innocent and damaged plaintiff and the equally innocent and compliant physician, the courts have reasoned that the plaintiff should not have to bear the risk of loss and, consequently, have imposed liability on the physician.

In early common law, the courts refused all remedy for emotional disturbance or mental suffering unless it could be pigeonholed within the scope of one of the existing torts, such as assault, battery, false imprisonment, seduction, defamation and the like. The difficulty in reducing such injuries to compensable terms made courts reluctant to recognize and remedy those disabilities. As Lord Wensleydale said in 1861: “Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.” But appealing as this generalization might be, it flies in the face of reality. As a practical matter, courts have long since allowed damages in tort for such injuries as the loss of limbs or organs and, more recently, have permitted juries to assess money damages by way of subjective Compensation for mental anguish, humiliation, or other emotional loss resulting from defendant’s alleged misconduct. Such compensable events arise within many facets of the law and are especially noteworthy in the area of workers’ compensation.

Drugs are frequently used for purposes not included in the manufacturers’ package inserts which are approved by the Federal Food and Drug Administration (FDA). A current example involves the industrial solvent dimethyl sulfoxide (DMSO), which is approved for human use only for the treatment of chronic interstitial cystitis, but is reportedly widely sold for the nonapproved purpose of arthritis treatment. The placing of this product in the pharmacy for sale to consumers could constitute the basis for an action by FDA against the pharmacy. This article will discuss the potential legal ramifications when a pharmacist dispenses an approved drug for a nonapproved use.

The question of a pharmacist’s liability for dispensing approved drugs for nonapproved uses has not yet been litigated. Courts have, however, held physicians liable for improperly prescribing drugs for nonapproved uses, as discussed by Professor Kapp in the preceding article. The premise of this article is that the pharmacist is potentially liable, and that the basis of this liability may be analogized to that of the physician’s liability.