The “medical malpractice crisis” in the 1970s involved not only a greater number of suits, but also the emergence of new sorts of claims against medical practitioners. One such claim was the wrongful birth suit, where parents sued their physician on their own behalf for negligence that resulted in the birth of an unwanted child. A related claim, wrongful life, involved a suit brought on behalf of a defective infant against a physician or laboratory that failed to give correct information about a potential defect to the parents. These claims have been the subject of much controversy for judges and commentators.

The debate over wrongful life suits involving “impaired” children continues. Courts in Michigan have recently rejected the wrongful life cause of action, while, in Washing ton, the action has been allowed. Some academic critics have also continued to oppose the wrongful life action. In a recent commentary in the pages of this journal, one critic wrote: “Wrongful life actions, by whatever name they may be called, accord with neither logic nor experience, and should not be allowed.”

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.

Does a hospital bear a responsibility independent of that of the attending physician to ascertain that a patient has given an informed consent? Until recently, state appellate courts have provided a decidedly negative answer to this question. However, in Magana v. Elie, an Illinois appellate court recently adopted a different position, opening the door to a new area of hospital responsibility and, therefore, increased potential liability for hospitals. This column provides a brief review of the informed consent doctrine, discusses the traditional and the Magana approaches to the issue of hospitals‘ responsibility to obtain informed consent, and analyzes the implications, particularly for nurses, should the Magana approach be more widely followed.

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.

Can new medical technologies decrease the incidence of occupational disease? Do they work to the detriment of other worker interests? Do they shift the burden of maintaining a healthy workplace from employers to employees, by keeping sensitive individuals from jobs that they are otherwise qualified to perform? These are among the central issues presented by the emerging occupational use of biological monitoring and genetic screening, as highlighted at the conference on Biological Monitoring and Genetic Screening in the Industrial Workplace, held in Washington, D.C., on May 12-13, 1983. The meeting was sponsored by the American Society of Law & Medicine and the Boston University Schools of Law, Medicine, and Public Health.

Research in progress on these issues, at the Center for Law and Health Sciences at Boston University School of Law, was one of the motivating forces for the conference. With funding from the National Science Foundation and the National Endowment for the Humanities, the study, led by Professor Michael Baram, LL.B., of Boston University School of Law, is providing a comprehensive overview and analysis of the major philosophical, ethical, and legal issues involved.

Lawsuits alleging malpractice in psychiatric diagnosis or treatment, once rather rare, appear to be growing in number. The low incidence of such claims in the past has been attributed to the difficulty of proving the applicable standard of care and a causal relationship between the breach of the standard of care and the alleged injury, the patient's reluctance to publicize his psychiatric history, the patient's inability either to formulate cleat expectations for the results of treatment or to assess the results, and the belief that the success of psychotherapy depends to a great extent on the cooperation of the patient.

Nonetheless, the number of claims against psychiatrists is rising, in part because of a more open attitude about psychiatric treatment coupled with increased expectations of its efficacy. Other factors which may be contributing to this trend are the emphasis on mental patients rights in recent court decisions and the popular literature, the emergence of legal doctrines finding new legal duties arising out of the therapist-patient relationship, and the publication of several sizable verdicts in suits based on psychiatric malpractice.

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.

The attractions of psychiatric mishaps are similar for the journalist and the lawyer - the perverse magnetism of sex and violence. A therapist engages in sex with his female patient; he fails to prevent a patient's suicide; or he releases a patient who then kills a third person. These are the themes of popular journalism, and of current highly publicized litigation involving psychotherapists. In this issue of Law, Medicine& Health Care, two articles look at the liability of the therapist. Michael D. Roth and Laurie J. Levin in Dilemma of Tarasoff: Must Physiciains Protect the Public or Their Patients? offer a careful look at the potential liability of the therapist, concerning the duty to warn others of a patient's threats, in light of the leading cases. The authors outline the parameters of the law, fuzzy as its current boundaries may be, in a useful attempt to offer the psychotherapist guidance through the minefield of tort liability. Sheila Taub, in a broader look at the subject, searches for threads which might link and rationalize the case-law in these hot areas, particularly with regard to abuse of the therapeutic relationship.

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.

A living will is a directive from a competent, seriously ill individual to medical personnel and family members regarding the treatment he wishes to receive when he becomes incompetent to make decisions for himself. It is important to remember that a living will is not necessary when an adult is competent and chooses to refuse treatment since it is clear that generally, an adult, whether critically ill or not, may refuse any treatment for any reason. A living will is applicable only when a previously competent patient is seriously ill and incompetent.

Recent concern about new medical technologies which can prolong the dying process without improving the quality of life has sparked interest in rhe living will. More than five million copies of sample living wills have been distributed throughout the country, often by churches and senior citizens groups. State governments have also responded to this interest; the first Natural Death Act was signed into law in California in 1976. Since then, thirteen states and the District of Columbia have passed similar legislation, sometimes referred to as right-to-die statutes (see table accompanying this column).