No matter what one's position, Baby M is a difficult case. Once a child of contract parenthood has come into being, sorting out the competing claims that changed intentions produce is inevitably a troubling process. Even when taken in the abstract, surrogacy arrangements raise disturbing questions: Can we expand the available options for forming families without risking sex, race, and class exploitation? Can we address the pain experienced by those unable to conceive and bear children without commodifying human life? Whatever our views of surrogacy, we cannot hope to resolve the dilemmas it poses without acknowledging and seeking to address the pain of infertility.

Given what we know about infertility, is commercial surrogacy—however troublesome—an appropriate response? Even with only partial information before us, the answer would seem to be a fairly clear no. Surrogacy is at best an after-the-fact accommodation to the problem of infertility, available only to those with substantial financial resources.

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:

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.

The development of the medicolegal field in the United States has followed an uneven course, marked by successions of rich and fallow periods. By the beginning of the nineteenth century a number of universities had qualified professors of medical jurisprudence on their faculties, and the field appeared to be in full flower. Yet, in 1876. a well-known American medical professor and dean, Stanford Emerson Chaille, wrote with some bitterness of the deplorable state of medical jurisprudence in this country. Today, there is considerable interest in the field, but the comparative dearth of medicolegal instruction at medical schools remains an issue.

This article briefly traces the development in the United States of the medicolegal field, which for our purposes encompasses the legal questions concerning medicine and allied sciences Selected advances in education and publishing are highlighted; lastly, the article reviews those problems which appear to have prevented the full development of this field.

What happens when a nurse is ordered to do something illegal or unethical? What should a nurse do when ordered to falsify a patient's record? Is her behavior justified because she is following orders from a superior?

These important and troubling questions were raised but left unanswered by a recent Connecticut malpractice case. The case has received much attention because the verdict awarded the plaintiff— $3.6 million — is the largest in the history of the state. The case should interest nurses, not because of the record-making verdict, but because of ethical problems raised by the behavior of the attending staff.

By now nearly everyone knows about the liability crisis. Municipalities, doctors, businesses, and others are paying soaring premiums for their liability insurance. The unlucky ones cannot find coverage at any price. The result is that services are becoming increasingly scarce and expensive. Curiously, the causes sound even more familiar. A new booklet being circulated by the Insurance Information Institute puts them succintly: “While our judicial system is basically a good one, it has been handicapped by unnecessary lawsuits, … exorbitant awards, and unpredictable results.”

Thus, the liability crisis is seen as a lawsuit crisis. The press and industry lobbyists overflow with stories of frivolous lawsuits, out-of-control damage awards, and a nation turned litigious. Accordingly, state legislatures around the country are preparing to solve the problem by modifying the laws that permit injured plaintiffs to seek compensation for their injuries through the courts.

If the lawsuit crisis exists, serious evidence of it should not be too difficult to find. in fact, the more awful the problem, the more plentiful and glaring should be the evidence. I have begun such an inquiry, but so far the hard evidence has been, to put it mildly, elusive.

by Gordon Needleman, Esq.

On May 28 1976 President Ford signed the Medical Device Amendments of 1976 (Amendments) to the Federal Food Drug and Cosmetic Act (FDCA) which substantially increase regulatory control of medical devices The Amendments are the first major Federal legislation concerning the regulation of medical devices since the FDCA of 1938 This article presents a summary of the background leading to the Amendments and 115 important provisions.

Background

The legislative history of the 1938 Act indicates it was intended to provide limited Food and Drug Administration (FDA) control over medical devices In 1938 most medical devices were of simple Construction and operation allowing health practitioners to easily determine if the devices were functioning properly Under the 1938 Act, the FDA functions were mainly surveillance and policing Tho policing was accomplished through the Federal Court system an expensive and time-consuming Process.

Skyrocketing health care costs are endemic during inflationary periods, affecting not only health care consumers, but also health care providers. Virtually all governmental policymakers recognize spiraling health care costs, but hospital costs continue to escalate faster than the general rate of inflation. In response, alternatives to the traditional physician-patient and hospital-patient relationships have experienced a dramatic resurgence in the last decade, competing for the health care dollar. Two health care alternatives, the health maintenance organizstion (HMO) and the ambulatory surgical center (surgicenter) at which minor surgical procedures can be performed on an out-patient basis. have emerged to provide health care services in a more cost-efficient manner, thereby increasing price competition in the health care sector. The most recent alternative health care system on the health care horizon is the free standing emergency center or “emergicenter.” The growth of these emergicenters within the last few years has heen dramatic—500 in existence as of March 1982.

After I was named Chief Judge of New York State, a position previously occupied by one of the noblest of jurists, Benjamin Cardozo, I went up to look at my new chambers and there was my new desk—the desk that had been used by Benjamin Cardozo. And I said to a friend of mine, “Just think of it, I will be seated and be using and will have Benjamin Cardozo's desk.” And he said, “Yes, but remember, 50 years from today, it will still be Benjamin Cardozo's desk.” We have through the likes of Benjamin Cardozo inherited a jurisprudential history in New York State.

The question that we now grapple with is a question which many states have had to face and the decisions from the state courts are diverse and often controversial. We were all waiting for the United States Supreme Court, that fountain of wisdom, to set the guidelines, so that we would have a standard to which we would look and adhere.

After recent tragedies involving mass murders on a college campus in Virginia, an Army base in Texas, a congressional constituent event at a shopping center in Arizona, and a movie theater in Colorado, one might have assumed the public had become numb to horrendous and senseless acts of killing. If so, one would have been wrong. The public was not prepared for the brutal and cold-blooded murder of 20 first-grade school children and six teachers and staff at Sandy Hook Elementary School in Newtown, Connecticut, on December 14, 2012.

Following the all-too-familiar emotional stages of shock, grief, and anger, many members of the public and elected officials turned to the issue of how to prevent such tragedies in the future. Two main questions quickly became the focus of policy makers.

This paper examines two policy initiatives that research shows can increase opportunities for physical activity and, in turn, improve health outcomes. These initiatives — shared use and Safe Routes to School (SRTS) — can and should be embraced by schools to improve student and community health. Fear of liability, however, has made many schools reluctant to support these efforts despite their proven benefits. This paper addresses school administrators’ real and perceived liability concerns and identifies four strategies for managing the fear of liability and mitigating any potential liability exposure.

Community-level legal and policy innovations or “experiments” can be important levers to improve health. States and localities are empowered through the 10th Amendment of the United States Constitution to use their police powers to protect the health and welfare of the public. Many legal and policy tools are available, including: the power to tax and spend; regulation; mandated education or disclosure of information, modifying the environment — whether built or natural (e.g., zoning, clean water laws); and indirect regulation (e.g., court rulings, or deregulation). These legal and policy interventions can be targeted to specific needs at the community level and are often relatively low-cost, but high impact interventions. As every community is different, effective laws and policies will vary. This freedom allows states and localities to, as Justice Louis Brandeis argued, truly serve as “laboratories of democracy.”

In recent years, public health law has seen some important court decisions. Those are presented below.

In Pelman v. McDonaldS Corporation, the court dismissed a complaint filed by three children who claimed that McDonald’s practices in making and selling its products were deceptive. This deception, the children alleged, caused them to consume McDonald’s products with great frequency and become obese, thereby injuring their health. The plaintiffs pled five causes of action against McDonald’s, alleging that McDonald’s: 1) failed to adequately disclose the ingredients and health effects of its products and described their food as nutritious without disclosing detrimental health effects; 2) engaged in marketing techniques geared toward inducing children to consume their products; 3) acted negligently in selling foods high in fat, cholesterol, salt, and sugar when studies show that foods containing these ingredients cause obesity and detrimental health effects; 4) failed to warn consumers of the quantity and qualities of levels of fat, cholesterol, salt, and sugar in its products or of the detrimental health effects of such foods; and 5) acted negligently in marketing foods that were physically and psychologically addictive.

The role of stigma in limiting reproductive rights has long hovered in the air. Paula Abrams has sorted through the concept and shown how it operates in two major areas of procreative liberty — having a child through surrogacy and avoiding childbirth by abortion. Her paper is especially useful for showing how legal change initially dilutes stigma but may reinstall it with post-legalization regulation.

Abrams argues that both abortion and surrogacy are stigmatized because they deviate from traditional gender roles and social expectations about pregnancy and maternity. Past restrictions have rested on a common legal and cultural paradigm of the good mother: a woman who conceives, carries her child to term, and then rears the child. Indeed, as she later argues, evidence of stigma surrounding a practice is “relevant to determining whether laws regulating abortion or surrogacy are based on impermissible stereotyping.”

Legal, medical, and public health professionals have been complicit in creating and maintaining systems that drive health inequities. To ameliorate this, current and future leaders in law, medicine, and public health must learn about racism and its impact along the life course trajectory and how to engage in antiracist practice and health equity work.

In 2004, the journal Health Matrix published a very interesting symposium volume titled “The Field of Health Law: Its Past and Future. As the title implies, the various commentators took both a retrospective and a prospective look at past trends and future prospects in health law. Some, including Clark Havighurst, Skip Rosoff and Walter Wadlington, wrote thoughtful essays on the development of health law over time and the implications of those trends. Others, including Rob Schwartz, Jim Blumstein, Rand Rosenblatt, and Mark Hall and Carl Schneider, wrote equally thoughtful essays that reflected on the past but focused more on future directions and prospects. And one, Kep Wing, wrote a semi-dyspeptic essay debunking the entire field of health law.

Taken together, these essays present a comprehensive view of how health law has developed so far and where its future might lie. Four themes emerge from the collected writings. First, there is considerable agreement on how and why health law has developed, but little agreement on where it is headed.

Debates over health care reform often focus on the appropriate role for the government in health care. Much less attention is paid to defining the respective roles of the states and the federal government. Yet, in the American political system, the basic issue of federalism has profound implications.

The question for the nation is which aspects of health policy should reflect national, uniform standards, and which should vary according to local conditions, values, and preferences. Economic mobility and the desire for efficiency militate for national uniformity and federal standards. By contrast, state policies can be more closely tailored to local economic conditions and can reflect local values regarding matters such as the appropriate role of government.