The peer review privilege prevents patient-plaintiffs from obtaining the hospital records prepared in connection with quality review proceedings. The privilege, created by statute in most states, is rationalized by the need for confidentiality in promoting complete and candid peer review. In this Article, the Author argues that the privilege cannot effectively promote confidentiality since a common exception allows physicians to obtain the records when seeking judicial review of proceedings leading to their exclusion or dismissal from hospital medical staffs. More significantly, the Author notes that while the privilege began as a device to protect physicians from testifying against their will in malpractice suits—a condonation of the “conspiracy of silence”—it has evolved into a vehicle which enables hospitals to conceal the evidence of their own neglect.

The hospital industry is currently undergoing a substantial transformation as a result of changes in third party reimbursement mechanisms and a tendency toward a more competitive economic environment. Hospital administrators will have to demonstrate substantial flexibility in considering and implementing innovative institutional arrangements to ensure survival in this time of austerity. The Preferred Provider Organization (PPO) is a recent development in the health care industry involving the selective contracting for health care services. This Article examines the role of section 1 of the Sherman Antitrust Act in scrutinizing the PPO for anticompetitive effects, considering the divergent requisites for competition in the health care sector. The Article also proposes a modified Rule of Reason for application to the PPO and other innovative cost containment arrangements in the industry and considers the implications of such flexible application of conventional antitrust principles for the future of the hospital industry.

In a two-part article entitled “Private Credentialing of Health Care Personnel: An Antitrust Perspective,” Clark C. Havighurst and Nancy ‘M. P. King purport to set forth “a new and previously unexplored agenda for antitrust enforcement, one that the Authors believe will increase the quantity and quality of information available to consumers … .” Having concluded in Part One of the Article that antitrust courts and regulators should exercise only limited supervision over private credentialing in the health care field, in large part because of their “important procompetitive purpose of supplying useful information and advice to consumers,” the Authors reverse field and seek to use the antitrust laws to call into question the activities and structure of leading medical specialty boards, the Liasion Council on Medical Education, various accrediting, certifying and credentialing bodies in medicine and the allied health professions, and the Joint Commission on Accreditation of Hospitals (JCAH).

In Bolger v. Youngs Drug Products Corp., the Supreme Court held that a statute prohibiting the mailing of unsolicited advertisements for contraceptives was unconstitutional as applied to Youngs's advertisements for condoms. The decision rested on a balancing of the first amendment's grant of free speech with the Government's interest in safeguarding an individual's privacy. The Court noted that the advertisements promoted the flow of information on contraception, and pertained to constitutionally protected private activity. This Case Comment argues that the Court's decision is sound and criticizes the view of the concurring opinion that shielding individuals from potentially offensive speech is a substantial governmental interest. The Comment concludes that the Court's decision expands upon precedent which established an individual's right of privacy regarding the use of contraceptives.