By now nearly everyone knows about the liability crisis. Municipalities, doctors, businesses, and others are paying soaring premiums for their liability insurance. The unlucky ones cannot find coverage at any price. The result is that services are becoming increasingly scarce and expensive. Curiously, the causes sound even more familiar. A new booklet being circulated by the Insurance Information Institute puts them succintly: “While our judicial system is basically a good one, it has been handicapped by unnecessary lawsuits, … exorbitant awards, and unpredictable results.”

Thus, the liability crisis is seen as a lawsuit crisis. The press and industry lobbyists overflow with stories of frivolous lawsuits, out-of-control damage awards, and a nation turned litigious. Accordingly, state legislatures around the country are preparing to solve the problem by modifying the laws that permit injured plaintiffs to seek compensation for their injuries through the courts.

If the lawsuit crisis exists, serious evidence of it should not be too difficult to find. in fact, the more awful the problem, the more plentiful and glaring should be the evidence. I have begun such an inquiry, but so far the hard evidence has been, to put it mildly, elusive.

It is nearly six years since the first evidence of the AIDS epidemic was seen, with the report of five cases of Pneumocystis carinii pneumonia diagnosed in young, otherwise healthy homosexual men in Los Angeles. The report was surprising, for although P. carinii is a common human commensal, the pneumonia essentially occurs only in the presence of severe immune suppression. Similar reports quickly followed from New York City and San Francisco, with the additional observation that Kaposi's sarcoma—a malignancy usually seen only in elderly men in this country—was also occurring epidemically among young homosexual men.

Since then, the epidemic has evolved at a relentless pace to a reported 32,000 cases in the United States by March 1987. The epidemic has sparked a massive multidisciplinary scientific effort, resulting in the successful identification of the causal agent—the human immunodeficiency virus (HIV)—within two years from the first report and producing a commercially available antibody test within four years.

By now nearly everyone knows about the liability crisis. Municipalities, doctors, businesses, and others are paying soaring premiums for their liability insurance. The unlucky ones cannot find coverage at any price. The result is that services are becoming increasingly scarce and expensive. Curiously, the causes sound even more familiar. A new booklet being circulated by the Insurance Information Institute puts them succintly: “While our judicial system is basically a good one, it has been handicapped by unnecessary lawsuits, … exorbitant awards, and unpredictable results.”

Thus, the liability crisis is seen as a lawsuit crisis. The press and industry lobbyists overflow with stories of frivolous lawsuits, out-of-control damage awards, and a nation turned litigious. Accordingly, state legislatures around the country are preparing to solve the problem by modifying the laws that permit injured plaintiffs to seek compensation for their injuries through the courts.

If the lawsuit crisis exists, serious evidence of it should not be too difficult to find. in fact, the more awful the problem, the more plentiful and glaring should be the evidence. I have begun such an inquiry, but so far the hard evidence has been, to put it mildly, elusive.

Modern developments in biomedical science and technology have raised legal problems regarding the initial phase of human life. The possibility of genetic manipulation and of influencing the human genome is in sight, embryos are already being treated in utero, and in vitro fertilization and embryo transfer have been successfully performed. Embryos have been fertilized in vivo, flushed from the womb. and implanted in surrogate mothers.

These developments have raised questions not only for family law but also for health law. These questions include the permissibility and regulation of genetic manipulation, the equitable distribution of the new techniques, the consequences for future generations of present-day decisions, the right to procreation, the role of the state, and the freedom of parents, especially the pregnant woman, in relation to the embryo. Other problems involve confidentiality and privacy, the relationships among the several people who are producing the child, and the status of the embryo in vivo and in vitro.

Most legislative proposals to solve the so-called malpractice crisis have been viewed by lawyers as attacks on lawyers and the legal system. Consequently, little thought has been given to whether we can find support for these proposals within the tort system. What I would like to suggest is that some of these proposals, including the increasingly popular cap on recovery for pain and suffering, are supported by the way the tort system has begun to look at injuries with several causes.

Initially, the legal system refused to recognize that the damages resulting from an injury could be apportioned among the various causes. Although we always recognized that every event has several causes, the law placed responsibility on “the proximate cause,” often the cause closest to the injury.

One of the first steps toward division of damages among causes was the replacement of contributory negligence with comparative negligence. Contributory negligence provided that if defendant and plaintiff were both negligent causes of the injury, plaintiff collected nothing.

Research on the embryo offers the prospect of important medical advances. The first and most immediate prospect is in improving the success rate of in vitro fertilization. Without the prospect of such improvement, it may be doubted if the muchapplauded IVF program is worth the resources now being allocated to it. Embryo research is also needed to ensure that embryos created from frozen human ova will develop normally, and to test techniques for micro-injection of sperm directly into the ovum, which could overcome the problem of male infertility due to low sperm count or abnormal sperm. The next area of research will be into the prevention of genetic defects. If defects can be identified in early embryos, couples who carry defective genes and would otherwise seek testing during pregnancy, followed by abortion if the test is positive, will be able to use IVF followed by the transfer only of those embryos that are free from the defect. Further research may lead to the development of gene therapy, which could be effective in those cases where an individual has already been born with a single-gene defect like thalassemia, sickle-cell anemia, ADA and PNP deficiencies, and Lesch-Nyhan syndrome.

In 1984, scientists isolated a new pathogen, now called human immunodeficiency virus (HIV), that is almost certainly the etiological agent for the acquired immunodeficiency syndrome (AIDS). It has been estimated that there are between 500,000 and 1,750,000 asymptomatic, chronically HIV-infected individuals in the United States. In a remarkably short time, investigators developed a number of blood tests that indicate whether an individual is likely to be infected with this virus. These assays are now being used to test patients with symptoms suggesting AIDS or related syndromes, to screen donated blood, to evaluate individuals concerned about their infection status, and to screen new military recruits, active-duty soldiers, and ROTC students. Almost weekly, new proposals are advanced for screening different subsets of the population.

This paper presents the available epidemiological data on human immunodeficiency virus (HIV) infection and AIDS among intravenous (IV) drug abusers, reviews HIV disease among intravenous drug abusers, and focuses on initial research findings that indicate intravenous drug abusers not only are educable but may indeed be altering their lifestyles as a direct consequence of their fear of HIV infection.

Although the initial clinical cases of AIDS were described in 1981, among gay men living in Los Angels, only a short time elapsed before IV drug abusers who shared their drug paraphernalia were identified as another risk group. A reasonable hypothesis, based on reports from the New York metropolitan area, is that there has been a relative increase in the percent of AIDS cases among IV drug abusers as compared to homosexuals. This may be explained by the transition group of sexually active homosexual men who also used intravenous drugs and thereby spread HIV from the gay community to IV drug abusers. In support of this hypothesis, the Centers for Disease Control (CDC) estimates that 8 percent of all reported AIDS cases from New York City have both risk factors.

Mark Twain once said of Wagner's music, “It's not as bad as it sounds.” Likewise, it may be said of Peter Singer and Helga Kuhse's stroll through the issues involving embryo research: “It's not as easy as it sounds.”

Today it seems clear that Aldous Huxley's version of a Brave New World is much closer to the mark than George Orwell's 1984. We will not have to be dragged into a technologically dominated future by a totalitarian government; we will go willingly, cheering almost any change as “better” and accepting science as always “improving” on nature. This childlike faith in science is at the heart of Prof. Singer and Dr. Kuhse's hymn to embryo research. They seem to believe that embryo research will not only lead to the prevention and cure of genetic disorders but also to a cure for cancer, and cultured tissues for transplantation. Even if one accepts this rosy view, the acquisition of important scientific knowledge is only a necessary, not a sufficient justification for experimentation.

What has happened to death? Why is this subject—virtually taboo in social and even in medical conversations a few decades ago—now so much a matter of debate in public policy settings, especially the courts? Four factors are primarily responsible, in my view. The first two—changes in the locale of death and development of ever more sophisticated forms of life-support—are by now familiar. Of growing significance are two further factors: increased fear of liability and the polarization of decisions about life-support as those decisions get swept up (at least in the United States) in the ferocious battles between freedom-of-choice and right-to-life supporters.

This paper attempts to analyze these four factors and, I hope, to uncover some of the confusion they have produced. I will then argue that despite consistent judicial endorsement of the right of competent adults to decide what medical care they wish to receive—even if they decide to forgo life-sustaining treatment, that is, to die—legal (like medical) attitudes are in fact ambivalent.

Research on AIDS involving human subjects poses in stark form a familiar dilemma: Can the demands of a rigorous scientific research design be met without violating the rights or harming the interests of research subjects? The dilemma is especially troubling in the early phases of drug research, when promising medications showing some signs of success in combatting this fatal disease must be tested for safety and efficacy. The research design using randomized controlled trials, in which an experimental drug is tested against a placebo, highlights the dilemma. Although the use of this research design does not pose the only ethical problem for AIDS research, it is perhaps the most dramatic. Related ethical issues include the question of when an experimental drug that holds out the only present hope may be released for general use; who should be selected to receive experimental drugs that are in short supply; how much information should be released about safety and efficacy while a clinical trial is still in progress; and what factors determine the appropriateness of early termination of a study.

I want to begin by making the fundamental point that the question is not whether decisions to end human lives ought to be made but, rather, who makes these decisions, and on the basis of what principles or values. For the fact is that such decisions are already being made, and inevitably must be made, in modern hospitals.

For almost any life-threatening condition, modern medical technology can now delay the moment of death. Death will often not occur until and unless the decision has been made to withhold or withdraw life-sustaining treatment. In other words, when and how a patient dies is increasingly the outcome of a deliberate human decision. Such decisions—not to resuscitate a terminally ill patient, not to continue to sustain the life of a permanently comatose patient. or to withhold antibiotics from the deaf and blind octogenarian—are all instances of the intentional termination of life and, if done for the patient's sake, are cases of passive euthanasia.