The spread of acquired immune deficiency syndrome (AIDS) demands a comprehensive and effective public health response. Because no treatment or vaccine is currently available, traditional infection control measures are being considered. Proposals include compulsory testing and screening of selected high risk populations. The fairness and accuracy of compulsory screening programs depend upon the reliability of medical technology and the balancing of public health and individual confidentiality interests. This Article proposes criteria for evaluating compulsory testing and screening programs. It concludes that voluntary identification, education, and counselling of infected persons is the most effective means of encouraging the behavioral changes that are necessary to halt the spread of AIDS.

In recent years the federal government has attempted to intervene in certain family-medical decisions to withhold treatment from seriously handicapped newborns with life-threatening conditions. Invoking section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against “otherwise qualified handicapped” individuals, the Reagan Administration promulgated regulations allowing federal government investigations of such decisions. Recently, the U.S. Supreme Court upheld lower court decisions invalidating these “Baby Doe” regulations. The federal government's fall-back position is reflected in the Child Abuse Prevention and Treatment Amendments of 1984, requiring states accepting funds under the Child Abuse Prevention and Treatment Act to establish and maintain procedures to assure that cases of medical neglect of handicapped infants are investigated by the states. Although the primary oversight of parental decision-making has been returned to the states where it has traditionally belonged, the federal government's definition of medical neglect of handicapped infants with life-threatening conditions is an ethically inadequate response to the complex needs of the handicapped child, the family, the medical profession, and society as a whole. After examining the relevance of Kantian, utilitarian, and Rawlsian ethical positions, the author contends that an effective governmental policy, capable of enforcement and acceptance by the public, must utilize the strengths of each philosophy and reflect the pragmatism of American society.

Many individuals develop a temporary state of cognitive and emotional impairment after being diagnosed with catastrophic illness. Thus, when crucial decisions about medical treatment are required, they are unable to assimilate information; or worse, the legal need to be informed can rival a psychological desire to not be informed. The Canadian informed consent doctrine is unresponsive to crisis and clinically impracticable, and so paradoxically compromises the integrity and autonomy it was designed to protect. Many aspects of the physician-patient relationship and clinical setting also undermine the philosophical values enshrined in this doctrine. This further jeopardizes the individual's integrity. The Article explores proposals for change such as delaying the informing and consenting, improving the concept of consent, and improving the role of the physician.

Proposals to reduce national expenditures for health care under Medicare and other programs raise questions about the limits on legislative power to distribute health care benefits. The constitutional guarantee of equal protection has been a weak source of protection for the sick, largely because they fail to qualify for special scrutiny under traditional equal protection analysis. Recent decisions of the United States Supreme Court suggest that the Justices seek a newer, more flexible approach to reviewing claims of unequal protection. This Article examines the application of the equal protection guarantee to health-related claims. It argues that traditional equal protection analysis is too rigid and newer rationality review too imprecise to provide just eligibility determinations. The Article concludes that courts should subject claims of unequal protection in the health care context to heightened scrutiny, as health care plays a special role in assuring equality of opportunity.

This Article links the legal evolution of mandatory medical prescription since 1900 to the police-power's prohibition of alcohol and the opiates as well as to the self-interested monopolization of new drugs by physicians. The Article advances a theory of professionalization consistent with the evidence that mandatory prescription is not in the public interest. The Article suggests that the supremacy of self-medication is consistent with competition policy, the medical profession's fiduciary duty to clients, reduced medical costs and improved health. The author analyzes the consequences of regulating drug production, testing, marketing and consumtion by granting decision-making authority to the lowest-cost risk avoider, suggesting this as a plausible basis for legal reform.

Many families throughout the United States have recently detected dangerously high concentrations of radon gas inside their homes. Radon, a carcinogenic gas produced from uranium, has been discovered in structures overlying uranium-bearing rock. This discovery may result in litigation to determine contractor liability for building upon radon-releasing rock sites. This Note examines the strengths and weaknesses of the various theories of contractor liability and considers potential statutory claims under the Clean Air Act. The Note suggests, as an alternative approach to recovery, a proposed regulatory scheme and implementation plan.

Health laws in every state recognize alcoholism as a treatable disease. State drunk driving laws, however, inadequately provide for alcoholic drunk drivers. Studies show that problem drinkers make up as much as two-thirds of the DWI offender class. Alcoholic drunk drivers cannot fully conform their drinking behavior to the dictates of the law as long as their alcoholism remains untreated. This Note argues that the law should consistently treat alcoholism as a disease. This Note suggests that the most appropriate way for the legal system to deal with alcoholic DWI offenders is to suspend the offender's license until he can show that he has successfully completed an initial alcohol detoxification/rehabilitation program. In addition, because alcoholism requires lifelong treatment, alcoholic drivers should be required to present periodic documentation that their condition is under supervised treatment. Epileptic drivers are handled in a similar manner in most states.

Laws for the protection of public health control either the environment, as in the case of sanitation or air pollution regulations, or human conduct. This Article deals with limitations imposed upon individuals in order to prevent the spread of communicable disease and the harm resulting from mental illness. The restraints discussed include compulsory examination and immunization, and forms of compulsory detention or commitment.

This Article is a revised chapter of the author's Public Health Law Manual, first published by the American Public Health Association in 1965. The Manual is intended to help public health professionals to understand the law relevant to their practice, and to apply it more effectively.

Intense local opposition has frequently frustrated efforts to site hazardous waste facilities. This Note examines states' attempts to balance the increasing need for such facilities with growing community opposition. The Note focuses on the Massachusetts response to this problem, and argues that the Massachusetts program has failed to adequately preempt a locality's power to block facility siting. The Note proposes an alternative model, based on the National Environmental Policy Act, which addresses local concerns while achieving its purpose of siting safe containment facilities for toxic substances.

Under most workers' compensation statutes, an injury must “arise out of” and “in the course of” employment in order to qualify as a compensable disability. In U.S. Industries v. Director, the Supreme Court held that the Longshoremen's and Harbor Workers' Compensation Act must be strictly construed to avoid transforming the compensation system into a form of social insurance. In U.S. Industries, the Court denied a disability claim based on an arthritic condition which was manifested while the worker was at home in bed. This Note contends that the Supreme Court neglected to consider pertinent medical realities when analyzing the causation question. Thus, the decision undermines the overall rationale behind workers' compensation legislation. Nonetheless, the Note argues that the case does not relax the requirement of adequately scrutinizing the causative elements underlying any reasonable claim for disability benefits. An analysis adequately accommodating both medical and legal facts, instead of relying upon the vagaries of statutory interpretation, is necessary to improve the efficiency and fairness of workers' compensation disability determinations.

An increasing number of medical researchers are being subpoenaed to testify or to supply records in cases in which they have not agreed to become involved as expert witnesses. The researchers’ published works are alleged to have formed the basis of the opinions of physicians testifying as expert witnesses in these cases. Although the courts usually protect confidential medical data, the considerable burden of quashing these subpoenas is still imposed upon researchers and their universities. This Article argues that courts should protect these research records from subpoenas.

Medical epidemiology is the cornerstone for understanding the safety and efficacy of drugs and medical devices. Epidemiologic principles provide a statistical basis for determining correlations, and ultimately mathematical causation, between two series of events. Medical epidemiologic evidence and statistical inferences are useful and are now routinely accepted in the courtroom.

The complex distribution systems that provide fungible goods throughout the country often preclude the identification of the specific source of an allegedly defective product. An expansion of the principles established in Summers v. Tice and Ybarra v. Spangard provide a logical and rational means for the courts to address products liability issues in cases involving multiple and unnamed defendants.

This Article discusses the impact of epidemiology on the judicial process, both in the nature of judicial decision-making and in the nature of the law itself. Part III B discusses the “weak” and “strong” versions of the traditional preponderance of the evidence rule, as recast by recent products liability litigation. The remainder of the Article defines the useful and appropriate scope of epidemiologic evidence, concluding that “intentless” epidemiologic evidence alone cannot support an award of punitive damages.

The purpose of this paper is to provide a comprehensive review of the work of the World Health Organization (WHO), begun a decade ago in Europe, in the field of health legislation. This program is the result of the interaction between two important factors: the trends in national health policy and legislation at the country level, and the implementation of the Health for All policy, which has been collectively adopted by the European Member States in various WHO fora.

Health legislation has proved to be a valuable tool in supporting National Health Policies in European countries and a key element in international health activities. The paper will be presented in three main parts. The first examines the legislative implications of the Health for All policy and strategy. The second gives an overview of developments in health legislation in Europe, focusing on national achievements in three areas in which change is necessary to achieve Health for All: health care systems, the environment, and lifestyles. The third part gives an account of activities carried out by the Regional Office for Europe of WHO in the health legislation field, recalls the organization of the first WHO medium-term program in this field, and summarizes its four current subprograms on health policy, health situation, exchange of information, and training. The conclusion briefly outlines the prospects for further developments in Europe.

Developments in medicine and constitutional law dictate modification of public health legislation in the United States. Traditionally overlooked by legislators, present public health laws provide inadequate decisionmaking criteria and inappropriate procedures for dealing with issues. Revised legislation should provide health care officials and agencies with the tools to balance individual rights against public health necessities. This Article makes four recommendations for legislative reform: (1) remove artificial legislative distinction between venereal and other communicable diseases; (2) provide criteria denning “public health necessity” to limit discretionary exercise of police power by health officials; (3) provide strong confidentiality protections in the collection and storage of public health information; (4) empower public health officials to select from a graded series of less restrictive alternatives in dealing with public health problems.