On June 28, 1993, the United States Supreme Court ruled on the admissibility of expert scientific opinion and evidence in federal court cases. The importance of the case can be measured by the interest it stimulated. The scientific community turned out in particular force to register its views. At the heart of the controversy was a debate over the nature of scientific knowledge and its relation to law. More than any other Supreme Court case in recent memory, the amici seemed to view the Daubert case both as posing a potential challenge to basic scientific premises and as an opportunity to reclaim a lost prerogative to determine how science is applied in courts.

“Wrongful birth” is a controversial malpractice action, which has arisen in the past two decades, secondary to an expanding knowledge of human genetics and the constitutionally protected access to abortion. Under the wrongful birth claim, parents of a child with a congenital illness or abnormality may bring suit against a physician who allegedly failed to provide appropriate prenatal counseling or information. Typically, the parents claim that they were inadequately warned of a potential problem in their child, and that this paucity of timely information prevented them from avoiding the pregnancy or from obtaining an abortion. While these cases have arisen in a variety of clinical circumstances, a characteristic example is the obstetrician who fails to offer amniocentesis to a woman of advanced maternal age who subsequently gives birth to a child with Down syndrome. Since the parents were prevented from learning of the abnormality and therefore exercising the option to terminate the pregnancy, they may claim damages for themselves for the wrongful birth of the infant.

Recent legislation, such as the Patient Self-Determination Act, establishes advance directives as an acceptable procedural means of incorporating patients’ preferences for life-sustaining treatments into their medical care. Advance directives can enhance medical decision making since they provide patients with an opportunity to communicate their preferences before suffering from an acute illness that may preclude their ability to do so.

Although patients expect discussions about life-sustaining therapies to be initiated by their physicians, very little is known about what prompts physicians to discuss advance directives with their patients. As in other areas of clinical decision making, there is evidence that patients’ sociodemographic factors influence whether discussions about advance directives occur between patients and their physicians. In one study of persons with the acquired immunodeficiency syndrome (AIDS), those who had not had discussions about advance directives with their physicians tended to be non-white, have no prior hospitalization, and were more likely to have been cared for in a health maintenance organization than in a teaching hospital.

The chair of the ethics committee of a major medical center agonized over how he, as a physician, and his organization should deal with Initiative 119, which, if passed, would legalize physician involvement in active, voluntary euthanasia in Washington State. In the end, he said, he could not vote for aid-in-dying because, “However much I want to reduce suffering, I myself just couldn’t do it to one of my patients.” He spoke of a personal distaste for the potential act, of a profound desire not to have to do it. It was not an ethical argument, but an honest and compelling expression of feelings.

Why can’t this sincere man do it, even for patients who request such aid? In a 1991 poll, taken in Washington State prior to the vote on Initiative 119, 49 percent of the physicians surveyed supported the initiative, but 75 percent did not want to participate in aid-in-dying.

Since its recognition in the early 1980s, the global HIV/AIDS pandemic has continued to grow relentlessly. Early efforts in HIV prevention sought to influence behavior by providing information about the dangers of AIDS along with recommendations for safe behavior. This approach helped to alert people about AIDS, but was insufficient to promote or sustain behavioral change.

The second approach attempted to promote individual behavioral change by designing AIDS programs that would deliver a mix of information, materials, and services. This program-based approach emerged within communities, was gradually adopted by some countries, and was subsequently articulated by the World Health Organization as the first Global AIDS Strategy. The emphasis during this period was to ensure that each community and country developed its own comprehensive program by adapting a global model to local and national circumstances.

This is a tale of two social structures, health care and education. Both systems are undeniably critical to our social fabric, and even to our national prosperity. Both systems also provide services that are uniquely personal and vital to individual well-being. And both systems are now widely perceived as being in “crisis,” as needing “fundamental reform.”

At the same time, there are fundamental differences in the ways the two sectors are organized and understood. Health care is essentially a system of private relationships; education a system of public responsibilities. Although each system is extraordinarily complex and contains elements that defy neat categorization, by highlighting the contrasting visions and structures of the two, one gleans useful insights both into the distinctive failings of each and into potential directions for reform.

The last year, June 1992 through September 1993, has seen a great deal of ferment with respect to access to and financing of health care in the United States. The elections of 1992 portend dramatic changes in the American health care system, and vigorous debate regarding both expansion of access to health care and transformation of the health care financing system is taking place at the federal and the state levels. In fact, however, the time period covered here produced remarkably few changes in the law, particularly at the federal level. The one piece of Medicare and Medicaid legislation passed by Congress in the fall of 1992, H.R. 11, was vetoed by President Bush immediately after the election. The Omnibus Budget Reconciliation Act (ORBA) of 1993 contained a host of minor adjustments to the Medicare and the Medicaid programs, but only the Medicaid asset transfer provisions and extensions to the self-referral provisions of the fraud and abuse laws, discussed below, are of import to us.

A recent New York Times/CBS poll shows that nearly 80 percent of respondents think the American “health care system is headed toward a crisis because of rising costs.” Indeed, the public has become well acquainted with ominous-looking graphs that detail the nation’s health care spending. The increasingly steep slope of the graph showing the percentage of gross domestic product spent on health care invites tongue-in-cheek projections for when health care spending will finally consume it all.

High aggregate health care expenditures result from the low prices individuals pay for coverage. On average, patients pay only five cents out-of-pocket for every dollar of hospital charges they generate. The remainder is paid by private or public health insurance. Patients pay slightly more for physicians’ services—nineteen cents on each dollar. For health care of all types, patients pay approximately twenty-four cents on each dollar. With individuals paying what amount to fire sale prices for health care, it should come as no surprise that they purchase a great deal of coverage.

In American Dental Association v. Martin, the United States Court of Appeals for the Seventh Circuit reviewed a challenge to a rule of the Occupational Safety and Health Administration (OSHA). In December, 1991, OSHA passed a standard to protect health care workers from viruses transmitted by blood—bloodborne pathogens—including the hepatitis B virus (HBV) and the human immunodeficiency virus, the virus known to cause AIDS. Three health care organizations, whose members are dentists, medical personnel firms, and home health employers, petitioned the court to review OSHA's rule.

The Occupational Safety and Health Act was passed to assure employees that they would have as safe and healthy a working environment as feasible. Congress sought to ensure this by vesting the Secretary of Labor for Occupational Safety and Health with the authority to promulgate mandatory safety and health standards. In promulgating standards concerning toxic materials or harmful physical agents, the secretary sets rules that most adequately assure that an employee will not suffer a material impairment of health or functional capacity while performing work-related duties.