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.

Physicians nationwide, already worried by an increasing number of professional liability lawsuits and an expanding scope of liability, now face a new and potentially more troublesome development that had its genesis in what many thought was an extraordinary court decision. In Tarasoff v. Regents of the University of California, a psychiatrist was held, in a suit brought by the victim's parents, to be liable for negligence in the death of a woman who was murdered by a patient of that physician. The court held that even though the physician had complied with the traditional duty of protecting the patient's confidentiality, he nonetheless had a duty to warn the victim of the potential threat against her life. Tarasoff was eventually followed by a number of decisions that imposed liability on physicians under similar circumstances.

This article reviews and analyzes the original Tarasoff decision and subsequent judicial rulings on this subject. In addition, the authors briefly explore the historical backdrop of this decision and suggest practical steps that physicians can take to deal with the conflicting duties of protecting confidentiality and protecting potential victims from the danger posed by patients.

Physicians nationwide, already worried by an increasing number of professional liability lawsuits and an expanding scope of liability, now face a new and potentially more troublesome development that had its genesis in what many thought was an extraordinary court decision. In Tarasoff v. Regents of the University of California, a psychiatrist was held, in a suit brought by the victim's parents, to be liable for negligence in the death of a woman who was murdered by a patient of that physician. The court held that even though the physician had complied with the traditional duty of protecting the patient's confidentiality, he nonetheless had a duty to warn the victim of the potential threat against her life. Tarasoff was eventually followed by a number of decisions that imposed liability on physicians under similar circumstances.

This article reviews and analyzes the original Tarasoff decision and subsequent judicial rulings on this subject. In addition, the authors briefly explore the historical backdrop of this decision and suggest practical steps that physicians can take to deal with the conflicting duties of protecting confidentiality and protecting potential victims from the danger posed by patients.

In the past several years, a new tort has emerged, one which has been used primarily against insurance companies and which has resulted in an enormous number of damage claims—the tort of bad faith breach of contract. At this time, the tort of bad faith breach of contract has rarely been extended beyond the insurance industry. It is very likely, however, that in the near future, this tort will be extended to other industries that serve the public interest, particularly to health maintenance organizations (HMOs). Currently. many bad faith breach of contract cases against HMOs are being litigated at the trial level. In addition, publicity relating to such suits has appeared in various newspapers and periodicals.

This article discusses the application of this relatively new cause of action to HMOs, and deals with the followng issues: the basis for the analogy between the insurers and HMOs; the grounds for bringing a suit for bad faith breach; and the implications, for HMOs and consumers, of the emergence of this cause of action.

Suits for negligence in the area of child protection have become frequent as reporting of child abuse and neglect has increased. This article begins with various theories and defenses raised in specific cases, and briefly examines the problem of inadequate legal representation for the child. An additional section notes various policy issues for lawyers and the courts.

Child protection has become a multidisciplinary field, and therefore social workers, doctors, police officers and mental health professionals have been held to be negligent in carrying out duties to children. The diagnostic professions of medicine and mental health are often involved early in child protection proceedings because of legal requirements for diagnosis and reporting. Social workers and police officers have been charged with failure to respond appropriately to reports of child abuse. Cases of inadequate selection of, or monitoring of placements into, foster homes are also associated with social workers. This section will consider these cases, and discuss various defenses raised.

Recent years have brought increasing pressure from the public and the courts for truly informed patient consents to medical treatment and surgical procedures. Many courts have recognized that a patient's signature on a consent form is no assurance that the patient has received sufficient information, much less that he or she truly understood the information. A Pennsylvania court articulated this principle this way:

The guidelines for the nursing staff of a health care facility in Boston include the following statement:

Physician incompetence and impairment have become one of the most controversial issues of recent years in the health care industry. Legislators, attorneys, and the general public have become actively involved in an area which had previously been within the exclusive (and oftentimes clandestine) province of hospital administrators and medical staffs. As a result of increasing public awareness, the informal and unstructured system of the past has been transformed into a more organized, results-oriented, and equitable approach to a problem which, many now realize, cannot be ignored.

Several state legislatures have enacted statutory provisions relating to the investigation and reporting of incompetent physicians. Some, like New York, have begun working closely with the state medical societies to ensure what these physicians are not only disciplined, but also treated and made to realize that their impairment can be resolved by cooperating with those who want to help. Other states, like Massachusetts, have devised regimented reporting requirements, but have overlooked the need for early investigations of, and assistance to, impaired physicians.

Direct reimbursement by insurers for the services of nurses and nurse practitioners is a primary goal of many state and national associations of nurses. Direct reimbursement means either that a nurse is paid directly by the insurer for nursing or nurse practitioner services rendered, or that the patient is reimbursed for costs incurred for those services. The issue is important to nurses for several reasons.

First, reimbursement allows rhe consumer of health care a wider choice of types of providers from whom to purchase care. As a practical matter, if an insurer does not reimburse for the care rendered by one type of professional, patients are likely to seek care from another whose services are paid by health insurance. The General Accounting office, for example, has lited restrictive third party reimbursement practices as one of the obstacles impeding the wider use of nurse-midwives. Second, some types of health care are less expensive when rendered by a nurse or a nurse practitioner; reimbursement thus can provide quality care at a lower cost. Third, reimbursement is a form of recognition that practice styles are changing. In 1983, West Virginia became the first state that explicitly reimburses for care provided by “nonsalaried duly licensed registered professional nurses engaged in private nursing practice or partnership.”

The idea for this article first occurred to me more than one year ago when the Brother Fox case was decided by the New York Court of Appeals, the highest court in New York. At the same time, debate was raging among, and between, lawyers and psychiatrists about the right of involuntary psychiatric patients to refuse antipsychotic medication. Thus. I was led to consider the philosophical and legal relationship between the so-called right to die and the right to refuse psychiatric treatment.

Adult protective service systems in many of our states have been subjected to a good deal of public criticism. Much of this denunciation, particularly that emanating from civil libertarians who advocate on behalf of the legal and ethical rights of older citizens, centers on the legal aspects of protective services, and especially on the legal authority of the state to intervene unilaterally in the private life of an unwilling, protesting older individual.

Except in the most compelling of circumstances, society should avoid the coercive elements of protective services. Often overlooked, however, by commentators, policy-makers, and caregivers alike, is that protective services may be, and in the vast majority of instances are, accepted voluntarily (and gratefully) by the older recipient. A mentally competent individual may voluntarily give informed consent in the medical sphere, as well as in others, to the receipt of services that he or she currently needs. Additionally, legal mechanisms frequently enable a competent independent adult to foresee and prepare for the possibility that he or she might become incompetent and dependent, by providing for a substitute decisionmaking process of the individual's own choosing.

Even though physicians, lawyers, dentists, school teachers, life insurance brokers, and peddlers were licensed in the United States as early as 1890, nursing occupational licensure did not begin until 1938, when New York became the first state to pass such a law. By 1962, eight states had mandatory licensing laws, and sixteen more had nursing boards which claimed that licensure was mandatory.

Today every state requires that nurses who practice within its jurisdiction possess licenses. Since the purpose of nursing licensure is protection of the public, the state may require qualifications which are reasonably related to the practice of nursing. A license, because it is granted upon condition, is not a permanent right, and the state may revoke it if the licensee does not continue to meet licensing standards. The state also has discretion to use remedies less extreme than revocation. It may limit or suspend the license, and/or fine or reprimand the nurse.

The refusal of a hospital to grant medical staff membership and clinical privileges is, generally, subject to judicial review. Because a hospital can be held liable for negligence in the selection and retention of medical staff members, and because a hospital is better situated than a court to make a decision concerning staffing needs, courts should, and generally do, afford great deference to the appointment decisions of hospital governing boards and medical staffs. An analysis of selected cases involving judicial review of hospitals selection and retention of medical staff members will be instructive in reviewing judicial deference to hospital governing boards.

When a physician who has been denied medical staff membership and clinical privileges by a hospital seeks judicial review, the court generally first determines whether the hospital is private or public. This distinction frequently determines the outcome. The activity of a public hospital, as a governmental entity, is deemed state action. Under the fifth and fourteenth amendments to the Constitution, neither a state nor the federal government can deprive a person of life, liberty, or property without due process of law.

Although only historians in the future will know, it appears that non-marital and unconventional sexual relations between individuals today are on the increase. One of the more notable landmarks of this trend is the case, Marvin v. Marvin, in which the court recognized the rights of unmarried cohabitants. Individuals now seek wider legal recognition of a variety of interpersonal relationships and, by so doing, are rejecting the limitations of society's traditional agreement, marriage.

This article examines a small subset of the legal interactions and consequences when individuals establish non-marital relationships. Two types of situations and cases will be examined—“reluctant paternity” and the transmission of herpes simplex disease. These may turn out to be unimportant legal curiosities, but they are useful for examining the conflict of rights of privacy and duties of disclosure (right to information) in intimate (here, sexual) interactions between two people. The cases to be examined in detail are in areas of great flux, where a court in one state cites to recently overturned decisions in another state's courts.