New causes of action in tort law do not simply emerge, fully grown, like Athena from the head of Zeus. They develop as a result of a struggle between older case law on the one hand and the need to respond to an emerging problem on the other. This metamorphosis can be seen in many areas of jurisprudence, but most notably in the fields of products liability and medical malpractice litigation.

The explosion in products liability litigation, for example, is linked in part to the vastly increased proliferation of a variety of consumer goods and to new forms of marketing mechanisms for selling these goods, so that consumers are exposed to a wider range of risks. Medical malpractice litigation in the “wrongful life” area similarly reflects not only a change in social values toward abortion, but also changes in the perceived ability of medicine to detect and predict defects in the unborn fetus or the likelihood of such defects based upon the genetic history of the potential parents.

The birth of Siamese twins to a Danville, Illinois physician and his wife on May 5,1981, renewed the recurrent debate on the morality, ethics, and legality of euthanasia for severely defective newborns. The twins, Jeff and Scott Mueller, were joined below the waist and shared the lower part of their digestive tract and three legs. Later studies revealed internal anomalies as well. At birth they were in critical condition, suffering from respiratory distress, and were not expected to survive more than a few days.

A note written by a nurse, and countersigned by Dr. Petra Warren, reading “do not feed in accordance with parents’ wishes” was entered on their hospital chart. Several nurses disobeyed the order and fed the infants. As the twins continued to live, against expectations, word of their birth spread. An anonymous caller informed the Illinois Department of Children and Family Services that they were being starved to death.

In early common law, the courts refused all remedy for emotional disturbance or mental suffering unless it could be pigeonholed within the scope of one of the existing torts, such as assault, battery, false imprisonment, seduction, defamation and the like. The difficulty in reducing such injuries to compensable terms made courts reluctant to recognize and remedy those disabilities. As Lord Wensleydale said in 1861: “Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.” But appealing as this generalization might be, it flies in the face of reality. As a practical matter, courts have long since allowed damages in tort for such injuries as the loss of limbs or organs and, more recently, have permitted juries to assess money damages by way of subjective Compensation for mental anguish, humiliation, or other emotional loss resulting from defendant’s alleged misconduct. Such compensable events arise within many facets of the law and are especially noteworthy in the area of workers’ compensation.

Attorneys practicing in the area of drug-products liability occasionally encounter a case in which there is no question that the drug taken was defective or that misrepresentations were made concerning the drug, but it is impossible to identify the particular drug company that manufactured the product taken by the patient. This problem undoubtedly will be encountered more frequently in the years to come in light of the almost uniform repeal of antisubstitution laws, resulting in generic products being dispensed far more frequently now than in the past. A pharmacist will be unlikely to remember, years or even months later, which company’s product was used to fill a particular prescription. To resolve this problem, pharmacists in the future may have a duty to create and retain detailed records concerning which manufacturer’s products were used to fill specific prescriptions. Such records, if properly maintained, would eliminate problems encountered in many cases in which defective generic drugs were dispensed.

Recently, the California Supreme Court found an established medical standard of care to be inadequate and replaced it with a judicially constructed medical standard of practice premised on the rule of reasonable prudence. California thus joined the State of Washington and became the second state to sanction the invocation of reasonable prudence in the fashioning of judicially formulated medical standards of care.

As this article will illustrate, the Supreme Courts of California and Washington are, in a narrow class of cases, imposing a greater duty of care on physicians than previously mandated by the medical profession. These courts are impliedly stating that although the physicians complied with the particular standard of care within their profession, they could have better protected their patients had they pursued a more prudent course of conduct. Moreover, in choosing between the innocent and damaged plaintiff and the equally innocent and compliant physician, the courts have reasoned that the plaintiff should not have to bear the risk of loss and, consequently, have imposed liability on the physician.

Does a hospital have the right to prevent a qualified male nurse from working in its labor and delivery section? In Backus v. Baptist Medical Center, this question was answered in the affirmative by a United States District Court in Arkansas. The case, now on appeal, serves as an obstacle to professional nursing and an affront to the rights of female patients.

The plaintiff, Gregory Backus, is a registered nurse who, while employed by the defendant hospital, twice requested and was refused full time placement in its labor and delivery section. The refusals were based upon an unwritten policy that the hospital “did not employ male R.N.s in OBGI” positions because of the concern of our female patients for privacy and personal dignity which make it impossible for a male employee to perform the duties of this position effectively.”

From time to time physicians have attempted to retaliate against malpractice suits which they perceive as groundless by filing countersuits against the suing patient, his attorney, or both. In recent years the number of such countersuits filed has risen dramatically, amounting to what one author has called a “legal fad.” A Dallas attorney has reportedly formed an organization, Lawyers for Protecting People From Malicious and Unjustified Lawsuits, Inc., to assist those who countersue attorneys. Until recently, however, such countersuits were nearly always unsuccessful because of the formidable burden of proof placed on the plaintiffs by the applicable legal doctrine. This article will discuss a handful of recent appellate court decisions which suggest that the countersuit may yet prove to be a potent weapon in the physician's arsenal against groundless claims.

In Bull v. McCuskey, a 1980 case, the Supreme Court of Nevada upheld an $85,000 countersuit award. This appears to be the first such decision upheld by a state supreme court and the largest countersuit award to date.

During the 1960s, master's level programs evolved to educate psychiatric nurses to become teachers, administrators and clinicians. Prior to this time, psychiatric nurses had functioned primarily in inpatient settings, but gradually these nurses began working as primary therapists in outpatient clinics, community mental health centers and independent practices. In 1976, the American Nurses’ Association (ANA) published its Statement on Psychianic and Mental Health Nursing Practice which identified the master's prepared psychiatric nurse as a “psychiatric and mental health nursing specialist.” Nurses at this level were expected to be experts in psychotherapeutic methodologies and could practice psychotherapy independently.

Nursing practice acts have changed to allow for the expanding nurse role. Prohibitions against diagnosis and treatment that were recommended by the ANA in 1955 were eliminated in the ANA's 1976 Model Practice Act. In 1980, the ANA suggested legislation that would include diagnosis, counseling, intervention and the management of illness within the definition of nursing

Providers and health planning agencies familiar with the federaily mandated Section 1122 and certificate of need (CON) programs had mixed reactions to the passage of the 1979 amendments to the National Health Planning and Resources Development Act (the 1979 Planning Act Amendments), especially the addition of Section 1527 which prescribes specific federal requirements for state CON programs. One of the most controversial provisions of Section 1527 is the so-called conditions amendment, often referred to as the “Satterfield amendment.” The conditions amendment has crystalized by statute a power that many planning agencies had previously assumed and that most hospitals had feared: state health planning and development agencies (SHPDAs) have the legal authority to issue CONs subject to conditions that require applicants to undertake actions unrelated to those for which they sought approval. At the same time, however, the conditions amendment vindicates a notion long held by providers and rejected by some planning agencies: the SHPDA's conditioning power is not unlimited; while some conditions are permissible, others are not.