Two recent district court opinions consider whether affiliations among hospitals, doctors and health insurers — through contract or ownership — violate the antitrust laws. This Article applies a raising rivals’ costs framework to the facts of those cases in order to assess whether the practices at issue were unreasonable.

But it does not matter to a man whether he acts at his own peril or not, unless harm comes of it, and there must always be some one within reach of the consequences of the act before any harm can be done.

—Oliver Wendell Holmes

[Scientists must be certain of their interpretation of the facts, that their priorities are correct, and that they are not bringing unnecessary and unjustified anxiety to many by over-statement or by expression of cancer risks in terms incomprehensible to the lay public.

—John Higginson, Director, International Agency for Research on Cancer

Despite the fact that physicians have dispensed prescription drugs for profit for several years, the practice is currently under intense challenge and controversy. This recent flare-up can be explained by several factors including the involvement of the Federal Trade Commission (FTQ, increased competition among physicians, alternative delivery systems and drug repackagers.

Federal laws including the Food Drug and Cosmetic Act and Controlled Substances Act regulate dispensing practices, but have been interpreted to regulate dispensing by pharmacists, not physicians. All states have laws applicable to the dispensing of prescription drugs by physicians, but the wording of these laws raises unclear legal issues. Both uncertainty about these legal issues and pharmacists' concern over the increase in physician dispensing has promoted state legislative efforts to restrict or regulate the practice. These legislative efforts and the corresponding regulatory actions by state boards have triggered FTC involvement.

From a social policy perspective physician dispensing raises significant concerns of ethics, conflicts of interest, patient welfare and economics. Based upon social policy, physician dispensing for profit is not a practice which should be condoned or allowed to flourish.

This Article analyzes the development and complexities of the antitrust state action doctrine and the Local Government Antitrust Act as these doctrines apply to both “municipalities” and private entities. The restructuring of a public hospital is used as a model to facilitate the antitrust analysis. The restructuring model, which typically involves the leasing of a hospital facility by a public entity to a private nonprofit corporation, offers the unique opportunity to compare the different standards employed under the state action doctrine and the Local Government Antitrust Act. As a practical matter, the Article provides a framework for a public hospital to evaluate the impact of corporate restructuring on its antitrust liability exposure and to develop strategies to minimize antitrust risks.

The authors present a case study to illustrate how a mentally impaired but socially intact nursing home resident, who had no one to act as an advocate for her, was denied appropriate treatment for an acute illness which ultimately resulted in her death. The case raises important questions about advocacy for the mentally-impaired, acutely-ill institutionalized patient. This Article explores the role of the advocate, how advocates are selected, what qualities and talents they should possess, and what responsibilities should be assigned to them. The authors suggest that nursing home residents should be encouraged to engage in self-advocacy to the greatest extent possible. The competent elderly should be urged to name their preferred advocates. Individuals who serve in advocacy roles should be advised to seek information regarding the patient's wishes from those who know the patient well. Furthermore, there is a need for quality education and training of those who serve in advocacy roles on behalf of nursing home residents, and state laws need to specify the responsibilities of persons who serve as advocates.

Women who wish to terminate a pregnancy, and physicians willing to perform abortions, are subject to increasing harassment from groups which challenge the constitutional abortion right upheld by the Supreme Court in Roe v. Wade. Their vulnerability, in fact, parallels the vulnerability of the aboriton right. This Article analyzes the inherent weakness and impending obsolescence of the trimester framework established in Roe. Present medical evidence of maternal health risks and fetal viability demonstrates that the trimester framework is inconsistent with current medical knowledge, and will likely be rendered obsolete by developments in medical technology. The Article suggests that adoption of an alternative constitutional basis for legal abortion is necessary to preserve the abortion right, and explores the utility of two arguments grounded in the equal protection doctrine. Finally, it discusses means of preserving legal abortion within the confines of the trimester framework established in Roe v. Wade.

In light of the significant role that heredity plays in many disease processes, statutes requiring strict secrecy with regard to medical records in cases of adoption, artificial insemination and in vitro fertilization should be reassessed. In adoption cases, attitudes concerning the adoptee’s ancestry have progressed over the century, but adoptees still are unable to access their records. The problem of inaccessibility is also apparent in medical genetics clinics where valuable genetic information, necessary for an accurate diagnosis, is unavailable to the clinic, the adoptive parents, and the birth parents.

A uniform law which responds to these interests and problems should be promulgated. This Note discusses the need for better access to and availability of medical records. The Note proposes a Uniform Act and suggests that, at a minimum, it include a scheme for regulating the donation of genetic material, strong record-keeping requirements with respect to family histories and pedigrees, and finally, an open access provision for certain information for both children and parents.

One rapidly evolving area of the law is the application of antitrust law to health care professionals. After the United States Supreme Court decided in 1975 that the “learned professions” were subject to the constraints imposed by the Sherman Antitrust Act, a significant number of antitrust actions have been filed against health care professionals and their professional organizations under Section 1 of the Sherman Act. These suits have found anticompetitive behavior in a variety of forms, ranging from tying arrangements and price-fixing agreements to certain forms of exclusive contracts and group boycotts.

Within the past few years a number of children have been excluded from attending public school because they are linked to AIDS. School boards have justified their decisions to exclude these children on the basis that protecting the public's health, safety and welfare outweighs the rights of these children. Most courts have rejected this justification and have held that either under the equal protection clause of the Constitution or section 504 of the Rehabilitaiton Act of 1973, children cannot be excluded from the classroom solely because they are linked to AIDS.

This Note discusses both section 504 and equal protection analyses used by the courts. When analyzing a school board's decision to exclude an AIDS-linked child from the classroom, most courts have used a higher level of scrutiny and individualized inquiry in order to ensure that the rights of both the AIDS-linked child and his or her uninfected classmates and teachers are protected.

After applying these analyses to a hypothetical case, this Note concludes that both section 504 and the equal protection clause ensure that AIDS-linked children will not be barred from the classroom unless the presence of additional factors increases the risk of these children transmitting the virus to others.

In 1986, the Seventh Circuit Court of Appeals in Ball Memorial Hospital v. Mutual Hospital Insurance denied an injunction sought under the antitrust laws by the plaintiffs, eighty acute care hospitals, which would have precluded Blue Cross and Blue Shield of Indiana from implementing a Preferred Provider Organization. The Ball court used a conservative economic analysis to deny the injunction and failed to consider many industry-specific factors. This Note examines these factors and challenges the Ball court’s position by arguing that antitrust scrutiny of alternative health care delivery markets must go beyond the court’s narrow approach.

Criminal confessions made in response to custodial questioning are excluded from evidence unless a defendant voluntarily, knowingly and intelligently waived his Miranda rights. In Connelly, the Supreme Court erred by holding that, absent explicit police coercion, a mentally ill individual's waiver is valid. The Court failed to consider the defendant's subjective impairments that might invalidate his waiver. By contrast, the Patterson Court suggested that a defendant's right to counsel may attach at an early stage in a criminal proceeding if the defendant has a significant need for counsel.

This Note addresses the special needs of a mentally retarded person in the criminal justice system. The Note argues that mentally retarded suspects require careful explanation of Miranda rights in order to understand them. The intellectual and adaptive deficiencies which characterize mental retardation also necessitate an inquiry into a valid waiver that accounts for these disabilities. Furthermore, the special needs of the mentally retarded mandate that the right to counsel attach as early as the precustodial stage of an investigation. Early access to counsel most effectively assures that a mentally retarded person's waiver of constitutional rights is voluntary, knowing and intelligent.