The past fifteen years have witnessed parallel advances in law and medicine which enable physicians and future parents to prevent the birth of many handicapped children. The right of reproductive freedom has been included as one facet of the constitutionally based right to privacy. Medical science has developed and refined techniques for detecting parental carriers of many handicapping conditions, as well as means to determine whether a particular fetus is afflicted. As these advances have progressed, a sort of mutual dependency has evolved: The parents' right to decide whether and when to have children cannot be fully exercised unless parents have the benefit of available medical knowledge. Nor can advances in detecting birth defects be fully implemented without legally sanctioned means of preventing or terminating pregnancy.

Along with these advances has come increased litigation over the issue of the standard of care a physician owes his or her pregnant patients. Several parents who have given birth to severely handicapped children have attempted to impose an additional duty on physicians: that is, to warn parents of the risks of having a handicapped child, and/or to diagnose the handicap in time for the parents to terminate the pregnancy.

At the outset of his “Report on the National Commission,” Professor Annas quotes a satire on federal commissions. He then hastens to add that the quoted passage is an unfair and untrue characterization of the National Commission for the Protection of Human Subjects. This could be said of Annas' entire article. His central theme — that the Commission was biased in favor of research — is supported by poor evidence, and contrary evidence is neglected. For an accurate description of the Commission and its work, readers must turn elsewhere. We would suggest starting with the Commission's own reports, which include detailed explanations of the bases for its recommendations as well as the data that were considered by the Commission in arriving at the recommendations.

At one point in Edgar Allan Poe's Narrative of Arthur Gordon Pym of Nantucket, Pym, who has stowed away in the hold of a whaling vessel, believes he has been abandoned and that the hold will be his tomb. He expresses sensations of “extreme horror and dismay,” and “the most gloomy imaginings, in which the dreadful deaths of thirst, famine, suffocation, and premature interment, crowded in as the prominent disasters to be encountered.”

It is probably uncommon for hospitalized patients to feel as gloomy as Pym. Nevertheless, installed in a strange institution, separated from friends and family, forced to wear a degrading costume, confined to bed, and attended to by a variety of strangers who may or may not keep the patient informed of what they are doing, the average patient is intimidated and disoriented. Such an atmosphere encourages dependence and discourages the assertion of individual rights.

This column, the first in a series, addresses the legal background and program issues involved in comprehensive health planning, a concept that has become a permanent factor in the management of health care delivery. An examination of the 1974 Health Planning Act, its 1979 Amendments, and its evolution from voluntary planning to government control provides insights concerning the path of future regulation.

Planning for health care services originated in hospital and community initiatives that sought to guide the distribution of charitable and governmental funds to the neediest hospitals. Purely voluntary in nature, the success of these efforts depended almost entirely on the cooperation and acquiescence of the affected institutions, motivated primarily by their own desire to reduce competition among themselves in fund raising efforts. However, because the desirability of more services was usually assumed, little effort was made to measure the need for the services being proposed.

After eight years of review, analysis, several rejections, at least one near passage, and little or no floor debate in 1979, the Massachusetts Legislature enacted a patients' rights statute. Its passage was generally greeted with rising apathy except for one section which requires physicians treating female patients to make available “in the case of a patient suffering from any form of breast cancer, complete information on all alternative treatments which are medically viable.” The enactment of the patients' rights statute has imposed no major burdens on hospitals since the majority of the provisions of the act were already general practice among most institutions.

Dissatisfied with state workers' compensation laws, business interests, labor unions, state compensation bureaus, self insurers, and private insurance carriers, despite their disparate interests, increasingly agree that such laws are in need of significant revision. But the call for reform has been heard before. In 1972, the National Commission on State Workmen's Compensation Laws (hereinafter referred to as the National Commission) reported to the President and Congress that “… the protection furnished by workmen's compensation to American workers presently is, in general, inadequate and inequitable.”

Between 1972 and 1977 hundreds of state laws were enacted in response to the recommendations of the National Commission and the threat of federalization. Yet, in its 1977 report to the President and Congress, the Policy Group of the Interdepartmental Workers' Compensation Task Force concluded:

Medical examinations and evaluations by physicians specifically undertaken to provide information for the processing of insurance and legal claims are essential to the proper functioning of our insurance and legal systems. Since such evaluations often emphasize aspects of the medical examination and employ reasoning not customarily addressed by physicians who are primarily concerned with diagnosis and treatment, the distinguishing features of these medicolegal examinations should be appreciated by physicians asked to perform this type of examination. Similarly, these features should also be understood by persons who interpret medical data and physicians' opinions in resolving claims involving such medical issues as cause-and-effect relationships and disability ratings.

Regulation of access to contraception or abortion by minors has been a major issue in many jurisdictions over the past decade. This article will investigate the current law in Canada and will enable comparisons to be drawn with the situation in other jurisdictions, particularly those in the United States in light of the United States Supreme Court's recent decision upholding the Hyde Amendment which restricts the use of federal funds for abortions.

Some of the legal issues present are common to both contraception and abortion. However, because abortion is expressly regulated by the Criminal Code of Canada, there are also significant differences. The two major issues are the legality of the procedures themselves and consent. These questions are both separate and related: they are separate because the legality of a medical intervention must be looked at apart from consent, and related because consent is one of the factors upon which legality depends.

The recent general disenchantment with government control has focussed attention on the concept of occupational licensing. The logical place to begin a reappraisal of occupational licensing is in the field of medicine, where such licensing originated and where it has been most fully accepted.

Our position is that no rational or moral foundation for medical licensure exists and, therefore, we recommend the total abandonment of governmental licensing and the substitution of free market protections, including private certification. Medical licensing, and occupational licensing in general, is morally wrong and ineffectual in practice.

The Davis decision, which allowed a federally-assisted college to exclude a severely hearing impaired woman from its registered nurse training program, provoked great concern among handicapped people and their advocates. Institutions of higher education also have reason for dissatisfaction with the decision since it fails to provide sufficient guidance for those federal recipients to measure their compliance with section 504. In a letter to college presidents dated October 5, 1979, Secretary of Health, Education and Welfare Patricia Roberts Harris sent forth the department's official statement concerning the decision.

The letter indicates a middle-of-the-road approach to Davis and HEW's future enforcement of section 504: it views the Supreme Court's decision as consistent with regulations adopted by the Department to implement section 504. While recognizing that colleges can establish legitimate academic requirements, it states that they must demonstrate the necessity and legitimacy of policies which result in the exclusion of handicapped people.

Today's practicing physicians and attorneys can be assured of increasing contact with the legal and insurance issues stemming from the adverse consequences of a patient's injuries or illnesses. Mounting litigation involving alleged medical negligence as a cause of personal injury, and expanding social legislation and insurance programs which provide benefits to injured or disabled persons, their dependents, or their beneficiaries has required an increase in the medical problem issues encountered in processing and resolving contested claims. Evaluations of such claimants by physicians are essential to the proper handling of their legal and insurance claims.

Medical evaluations performed specifically to provide information to the legal system and the expression of medical opinions formed after such evaluations constitute an area of medicine best termed Forensic Medicine. The traditional concept of “forensic medicine” was limited almost entirely to the medical investigation of the causes of death and the results of trauma, injury, and violent crimes. Forensic medicine practitioners were generally restricted to pathologists who performed medicolegal autopsies.

Traditionally, hospitals have been liable for the acts of their employees or agents under the doctrine of respondeat superior, but have not been considered liable for the actions of those whom they did not employ or over whom they had no control. Accordingly, hospitals and their insurers were able to avoid legal responsibility for the acts of medical malpractice committed by physicians on their medical staffs. Although elements of a new and distinct theory of hospital corporate responsibility unrelated to respondeat superior had emerged before, the widely discussed opinion of the Illinois Supreme Court in Darling v. Charleston Community Hospital is generally considered the hallmark of a change in judicial thinking in respect to a hospital's duty to monitor the quality of care rendered within its walls. However, Darling was not a forerunner of a spate of similar holdings, and, in fact, has never been specifically relied upon even in Illinois. Only in the last several years have significant additional strides been taken in developing this theory. Two recent intermediate appellate decisions in Wisconsin and North Carolina seem to reflect the trend of the law and the affirmative duty of a hospital to monitor the quality of care rendered by its medical staff.

In response to the alleged medical malpractice crisis of the mid-1970s, many states enacted remedial legislation requiring that medical malpractice cases be filed and heard by some type of screening mechanism prior to being filed in the trial court. Several challenges to the constitutionality of those statutes were raised, but generally speaking, they were unsuccessful.

The most common challenge was that the statutes impermissibly discriminated against malpractice plaintiffs by requiring them to endure the expense and the time involved in such proceedings, as well as depriving them of their right to jury trial. The appellate courts considering these challenges generally upheld the legislation as an attempt by the legislatures to remedy a perceived crisis. Absent a showing of infringement upon a “fundamental right” or “suspect classification,” the legislation was held to be constitutional as it was reasonably related to the task sought to be accomplished. Such a response was predictable since, in most jurisdictions, there had been a marked increase in the number of malpractice actions filed as well as a marked increase in physicians’ malpractice insurance premiums.