On June 25,1990, seven years after Nancy Cruzan lapsed into permanent unconsciousness following a car accident, the United States Supreme Court handed down its landmark decision in Cruzan v. Director, Missouri Department of Health. The decision provided the Court's first ruling on the right to forgo life-sustaining treatment, addressing both the right of individuals to decide for themselves and the right of family members to decide on their behalf.

Inextricably linked to the Court's holding on individual rights were questions about the authority and responsibility of each state to fashion policy for treatment decisions on behalf of incompetent patients. The Cruzun case presented an opportunity for the Court to comment upon and reshape the patchwork of laws that define the right to decide about life-sustaining treatment in states across the country.

Acquired immunodeficiency syndrome continues to expand exponentially, although the rate of growth in some sectors of the population has been slowing. Unfortunately, these clinically manifest cases constitute only a tiny fraction of the population infected with the human immunodeficiency virus. Epidemiologic data provide only crude estimates of the prevalence of asymptomatic viral infection, although more specific information is available for certain groups, most often defined by demographic, behavioral and medical information. Those data suggest that the prevalence of virus varies some 5000-fold from as low as 0.01 percent up to 50 percent.

The extraordinary and relatively unmodifiable consequences of HIV infection provoke increasing concern among health care workers about the possibility of nosocomial infection. For nosocomial transmission to occur: 1) the patient must be infected; 2) parenteral exposure to blood or certain other body fluids must occur; and 3) the virus must be transferred (with the latter likelihood being proportional to the quantity of exposure).

The first AIDS-related legislation was enacted in 1983. By this time, policy-makers as well as legislators in several countries had set in motion the process of formulating legislative measures to deal with a new and critical problem about which very little was known. This process gathered momentum over the years, partly as a response to the recognition that the problem of discrimination against AIDS patients and persons with HIV infection, which first began with homosexuals and persons of Haitian and African origin, will assume more critical dimensions with devastating social, economic, political and cultural implications and reactions. It is these implications and reactions which have come to be described as the “Third AIDS Pandemic:”

For the better part of the last decade, the major goal of health care policy has been to reduce health care costs. This has raised fears that the quality of care may suffer, as providers cut corners in response to cost containment pressures from the government and other third-party payers.

These concerns over quality in turn have increased interest in the complex systems that monitor and regulate health care quality. Three main questions have been raised about the ability of the quality assurance systems to assure the quality of care. First, they may not be sufficiently effective, especially given the threat to quality posed by efforts to contain costs. For example, quality assurance has been criticized for focusing on a small number of aberrant physicians and hospitals—a so-called “bad apples” approach—rather than on improving the overall quality of care and for failing to identify more than a handful of the poor quality providers believed to exist.

Health, Health Care, and the Elderly

Health means different things to different people, but all people want access to essential health care services of high quality—not too much (the likelihood of benefit should outweigh the likelihood of harm), not too little (necessary and appropriate services must be available, and equitably so), and of a satisfactory technical and interpersonal character. The object of organized quality assurance programs in the private and the public sectors is to ensure that practitioners and institutions deliver care of high caliber.

Many developments in health care are drawing attention to its quality. Health care costs conrinue to rise, both for the elderly out-of-pocket and for the Medicare program. In 1987, health care expenditures stood at $500.3 billion, or 11.1 percent of the nation's gross national product, and will be an estimated $647 billion in 1990.

As the sense of crisis in medical malpractice reemerged in the United States in the early 1980s, other countries previously thought immune to liability problems were experiencing similar difficulties. In fact, the frequency and severity of malpractice claims and the cost of malpractice insurance have risen as dramatically in Canada and the U.K. as in the United States, despite legal systems in the U.K. and Canada that are generally less favorable to potential plaintiffs. The absolute level of claims and insurance costs are still lower in the U.K. and Canada than in the U.S., but the gap is narrowing. This paper reviews the evidence on recent trends in claims, awards and insurance premiums in these three countries and comments on the lessons that can be learned from this cross-national comparison.

Entering a nursing home involves a significant loss of personal autonomy. Whether the resident or someone else, such as a court or conservator, makes the decision, personal freedom becomes subject to rules, policies and practices that often seem to favor the convenience of the facility over the autonomy of the resident. The previously independent resident may now find that a “financial guarantor” must co-sign the admission agreement and a staff nutritionist decide what the resident will eat.

As the impact of nursing home care on individual autonomy becomes more apparent, greater attention has focused on the rights of nursing home residents. Many of those rights derive from the admissions agreement signed when the resident enters the facility. While theoretically subject to negotiation, the boilerplate contracts used by most nursing homes subject the consumer to undeniable coercion in making an important consumer choice.

This article returns to a war waged for the better part of this century-between the theories of punishment and rehabilitation in impeding the drug epidemic. Today, the terms of the war are recast as supply-side policies based upon law enforcement, destroying crops in source countries, interdiction and increased sentencing, and demand reduction based upon prevention, education and treatment.

The war on drugs has reached a feverish pitch. New policies and statutes have tightened the grip of supply-side policies, with images of battle and hate-mongering which go beyond the vilified drug lords and governments which harbor them, to the middle men, the dealers, and even the users. The in-vogue policies of user accountability and zero tolerance make it acceptable to direct the state's formidable powers at drug dependent persons themselves. Drug dependent persons have profound physical and psychological problems, and are primarily concentrated in poor, minority urban areas.

The routine use of chemical and physical restraints in nursing homes is bad care. Medical and nursing literature on the care of nursing home patients consistently criticizes the use of restraints when that use is unrelated to diagnosis and treatment considerations. Federal and state laws have included restrictions on the use of restraints for some time. The criticisms of inappropriate and indiscriminate use of chemical and physical restraints are not new. What, then, supports their continued misuse despite the ordinarily powerful combination of professional and governmental approbation?

The use of restraints responds to generally quite acceptable and desirable patient-oriented goals. Restraints are used in an attempt to protect the patient with physical or mental disabilities from avoidable injury caused by falling or wandering away from the facility. In the social context of nursing homes, restraints are also used to protect residents from injury by threatening, violent patients. When the rationale is measured against the known effects of restraints, however, the self-evident nature of the justification begins to break down.

The routine use of chemical and physical restraints in nursing homes is bad care. Medical and nursing literature on the care of nursing home patients consistently criticizes the use of restraints when that use is unrelated to diagnosis and treatment considerations. Federal and state laws have included restrictions on the use of restraints for some time. The criticisms of inappropriate and indiscriminate use of chemical and physical restraints are not new. What, then, supports their continued misuse despite the ordinarily powerful combination of professional and governmental approbation?

The use of restraints responds to generally quite acceptable and desirable patient-oriented goals. Restraints are used in an attempt to protect the patient with physical or mental disabilities from avoidable injury caused by falling or wandering away from the facility. In the social context of nursing homes, restraints are also used to protect residents from injury by threatening, violent patients. When the rationale is measured against the known effects of restraints, however, the self-evident nature of the justification begins to break down.

The purpose of this paper is to review the nature and extent of pertussis vaccine litigation in Great Britain, Canada and the United States. It is not intended to deal in detail with the medical or scientific controversy that surrounds this vaccine except to the extent necessary to explain the litigation.

In order to understand what has been called by some a growth industry for lawyers, one must have a basic understanding of the nature of the disease and the nature of the vaccine and know something about the neurological development of the young child.

The disease whooping-cough (pertussis) is well known as an acute and distressing infection of the respiratory tract. Although less frequent in recent years, it has been a disease relatively common in infant children.

The disease is caused by a bacterium known as Bordetella pertussis, which produces catarrhal coughing that results in repetitive, explosive or paroxysmal coughing.

The 1980s have witnessed mounting concern among older adults and policy makers about the ability of people to maintain control over health care decisions in later life. Laws authorizing living wills, durable powers of attorney, and family consent for incompetent patients have proliferated throughout the states. Even the United States Supreme Court finally entered the arena as it pondered the fate of Nancy Cruzan in the face of Missouri's refusal to authorize the withdrawal of the nasogastric tubes which keep her alive. The challenge of translating personal autonomy in health care into legal rights has captured the attention of legislators and courts alike. What began as an isolated decision in the Quinlan case in 1976 has become a torrent of lawmaking action by 1990.

Staying in control of health care arrangements in later life, however, embraces much more than refusing or terminating life-sustaining treatment. Mechanisms for financing health care services often determine the quality of the older person's life and the extent to which the individual retains autonomy over the myriad details of daily life.

The last several years have witnessed a growing intensity in the debate over abortion in the United States. Although the issue has never been far from the public eye, with the Supreme Court's decision in Webster v. Reproductive Health Services in 1989, it assumed a new urgency as it appeared more possible that the Court might reverse Roe v. Wade, the 1973 case guaranteeing a woman a right to an abortion. Moreover, this urgency was not confined to the United States. The same several years also saw an increase in abortion-related legal developments in other industrialized countries of the world: Belgium, Canada, Romania, and Bulgaria significantly liberalized abortion laws; England made changes that take notice of recent medical knowledge on fetal survival and fetal handicap; France became the first country in the world to approve the potentially revolutionary abortion drug RU 486; and Ireland reaffirmed its opposition to abortion.

Until the fourth decade of this century, British and American patients who could afford physician services paid for them out of their own pockets; those who could not relied on charity care or simply went without. Doctors functioned as independent contractor private practitioners in both Great Britain and the United States, allocating medical services in response to paying-patient demand — and their own consciences.

Beginning in the 1930s, health care financing on both sides of the Atlantic was restructured in dramatically different directions, and physicians’ allocational roles in their respective countries began diverging. Under the National Health Service (NHS), British general practitioners became essentially gatekeepers to health services, funneling patients to appropriate hospital and specialist care. As time went by they came more to resemble lockkeepers, regulating the queue for secondary and tertiary treatment resulting from governmental limits on health care spending — and from the limitations and inefficiencies of a system of rationing by waiting. In the U.S., on the other hand, efficiency was not at first a concern.

Health care for the elderly, already a major social concern in the United States, is fated to become even more dominant on our social, political, and legal agendas. The effect on the nursing home industry and nursing home law will border on the revolutionary.

In a review of the “prospects for an ageing population,” Jacob Brody observed that:

A report of the Congressional Office of Technology Assessment (OTA) notes the same trend and gives a sense of the numbers involved:

The effort to control inflation of the cost of health care in the United States in recent years has focused on a strategy of introducing competition by encouraging prospective payment systems such as DRGs and HMOs. Changes associated with these new payment systems have engendered a debate that has been conducted partly in terms of medical ethics. Because they tend in various ways to provide physicians with incentives to reduce medical costs, prospective payment systems have been alleged to create ethical conflicts for physicians. The obligation to practice cost-effective medicine is said to conflict with the obligation of physicians under the traditional professional view of medical ethics to provide the best care to patients without regard to cost or other matters. At bottom is the concern that the net effect of these changes will be to force physicians to ration medical services. Not only will patients suffer thereby, but professional authority will be weakened as efficiency protocols and various bonuses or inducements alter the norms of clinical decision-making.

Public policy with regard to decisions to forgo life-sustaining medical care has dramatically changed over 15 years. Courts, legislatures, and professional bodies recognize a patient's right to refuse treatment despite civic or medical values that favor prolonging life. The United States Supreme Court has taken up this issue on an appeal of Missouri's Supreme Court decision ordering tube feeding for comatose Nancy Cruzan over her family's objections. The right to refuse life-sustaining treatment exemplifies a changing accommodation between controversial personal choices and the values our society holds collectively. As with other civil rights issues to come before the Court, the courts embody the very cultural canon they critique and redefine.

While the relevance of the American tenet of individualism to the “right to die” (properiy, the “righi to refuse life-sustaining treatment”) is well recognized, the role of our culture's view of gender in these decisions is not appreciated.