Organ transplantation has been a favorite topic of health lawyers since its inception. Organ procurement was addressed with the adoption of the Uniform Anatomical Gift Act in all fifty states, and “brain death” has been recognized both judicially and legislatively across the country. Nonetheless, it is now apparent that the major problems in organ transplantation are not legal and thus neither are their solutions. Heart and liver transplants are extreme and expensive interventions that few individuals can afford and few hospitals can offer. In an era of economic scarcity, how (if at all) should organ transplant procedures and other extreme and expensive treatment he introduced into the health delivery system?

Although it seems reasonable to expect federal leadership to establish a limited number of high-quality transplant centers, federal efforts to date have focused almost exclusively on trying to help the scattered organ procurement agencies become more efficient.

The recent Report of the Massachusetts Task Force on Organ Transplantation represents a watershed in public policy formulation in the health care field. The Report reflects the views of a diverse group drawn from fields which include public health, religion, surgery, law, private industry and consumer affairs. As such, it is, happily, unlike nearly every other advisory study of health care technology that has been commissioned by federal or state bodies during the past twenty-five years.

All too often, assessments of medical technology commissioned by government or publicly funded scientific agencies, such as the National Institutes of Health, the Office of Technology Assessment, or the Public Health Service, have been confined to the views of “experts” in the area of technology being assessed.

The medical and social fascination with organ transplantation, beginning with Dr. Barnard's pioneering work with heart transplantation in the 1960s, has most recently resulted in the highly publicized and experimental baboon heart transplantation and artificial heart replacements. Transplants of proven efficacy, such as of corneas, kidneys. bone marrow, heart-lungs, hearts and livers, are a reality of modern medicine and embrace the most fundamental ideals of medicine by alleviating suffering and saving lives. Nevertheless, many question the increasing allocation of such a large proportion of our scarce medical and financial resources for such a relatively small population of recipients. The debate over how much of our limited health care resources we are willing to commit to transplantation has encouraged development of the federal Task Force on Organ Procurement and Transplantation and of statewide committees, such as the Massachusetts Task Force on Organ Transplantation.

The task of determining who should or should not have access to a life-prolonging procedure would not be easy even if cost were no consideration. In an era in which rhe health industry has largely converted to the cost cutting religion, or at least the religion of budget limitation, a conversion for which health economics is partly responsible-the task becomes doubly difficult.

At one level, the Massachusetts Task Force on Organ Transplantation has dealt with this task simply by recommending that the final decision be postponed, and that a limited program of organ transplantation he introduced in an “Initial Social Assessment” phase.

The Report of the Massachusetts Task Force on Organ Transplantation can be described as an incunabulum. This strange word, properly referring to a book produced in the first decades of printing with movable type, literally means “in the cradle.” The Task Force document appears in the infancy of a discussion that is certain to grow: the public policy debate over the allocation of scarce resources. The debate was born several years ago, but until now has either been argued in general terms or by way of administrative devices. The Task Force addresses a quite particular issue: how to or whether to make available to the citizens of the Commonwealth and their neighbors the medical technology of organ transplantation. It approaches the problem with a vivid awareness of the expense of this technology as well as the constraints on health care resources and financing.

The Task Force on Organ Transplantation was announced on September 26, 1983 by the Secretary of Human Services and the Commissioner of Public Health, and charged with “the development of standards and processes for evaluating the use of organ transplantation” in Massachusetts. It was asked to

• make recommendations concerning how organ transplantation should he introduced and financed, including mechanisms to assure equality of access;

• determine what priority should be placed by the state on extreme and expensive medical interventions;

• determine what criteria should be used in patient selection; and

• determine how and by whom decisions concerning transplantation availability and patient selection criteria should be made.

Ethicists, lawyers, economists, and clinicians have been invited to comment on the Report of the Massachusetts ‘Task Force on Organ Transplantation In this issue of Law, Medicine & Health Care. One can assume that the issues of access, equity, social justice, efficiency, and choice will be addressed. Accordingly, I shall return to the perspective of my earlier career as a federal bureaucrat to offer an overall appraisal and to comment on the political dimensions of resource allocation in dramatic, life-threatening diseases.

Nearly two decades ago, I served as the Director of Program Planning and Evaluation for the Surgeon General, at the time that cost-benefit analysis was introduced into the Great Society. The treatment of chronic kidney disease circa 1966 was then a problem akin to those of heart, heart-lung, and liver transplantation in 1984 or, perhaps, the next decade's problem of the artificial heart.

When asked which patients receive kidney transplants in England, a social worker attached to a prestigious British teaching hospital recently told me, “Probably the undeserving.” By that she meant that trouble-making patients who lacked the self-discipline to cooperate with dialysis regimes, or who complained the loudest, were often “gotten rid of” by eliminating the need for dialyzing altogether.

Such candor was unexpected, but it points up the fact that even under Great Britain's National Health Service, where egalitarian concerns have always been paramount, criteria other than pure medical need can determine access to organ transplants. Ironically. “negative” social factors provided the key to transplant availability in the cases that the social worker described, although unconventional social factors are probably more often used in the United States to deny the benefits of transplantation to patients who do not fit the middleclass ideal.

Over the past two decades, discussion has increased among health care professionals about joint or collaborative practice. In 1971, the American Nurses” Association (ANA) and the American Medical Association (AMA) established the National Joint Practice Commission to examine and make recommendations regarding the roles of physicians and nurses in the provision of quality health care. The Commission, comprised of three nurses and three physicians appointed respectively by the ANA and the AMA, defined joint practice as “nurses and physicians collaborating together as colleagues to provide patient care”. The purpose of this broad definition was to include all collaborating registered nurses, not only nurse practitioners.

The major challenge facing the American health care system today is to devise a strategy for achieving three primary objectives simultaneously: (1) high quality, or excellence in standards of care, (2) balance, or equitable access to that quality care, and (3) some reasonable semblance of cost control in providing that quality care to everyone. Following World War II, the weight of government was thrown solidly behind the access and quality portions of the equation, first with the enactment of the Hill-Burton capital financing program and its accompanying community service obligations, and accelerating in the midsixties through creation of Medicare, Medicaid, and other financing and delivery programs entitling categories of individuals to health care benefits.

When a medical malpractice injury occurs in a hospital, the hospital is often sued under the theory that it is vicariously liable for the actions of its employees, through the doctrine of respondeat superior. Depending on the facts of the case and the laws of the state, however, the hospital may also be directly liable to the patient. Establishing the direct liability of the hospital where the facts will not support a vicarious claim may ensure for the plaintiff an adequate “deep pocket” in cases where the physician is inadequately insured. In addition, direct liability carries a longer statute of limitations.

Imposing liability on hospitals, whether vicarious or direct, encourages hospitals to oversee physicians’ competence.

A recent spate of allegations of sexual assaults by patients and staff upon mental patients has led to several lawsuits against hospitals. Research in this area has uncovered what appears to be a common but largely unacknowledged problem in mental hospital administration: hospitals sometimes fail to protect their mental patients from sexual attack. A study funded by the National Institute of Mental Health and conducted by the Institute for the Study of Sexual Assault, will provide some descriptive parameters of the problem, but the lawsuits themselves are already indicating directions for patient safety and hospital liability which can inform mental hospital staff and administration in preventing and dealing with complaints about sexual assaults within their facilities.