The standard of medical care provided in prisons has emerged recently as an important issue in the areas of public health and prisoners' rights. Prison conditions have long been of concern to both the medical and legal professions. However, little progress was made in prison health care until the early 1970s when the federal courts began to recognize civil rights actions by prisoners pressing for adequate medical care. This article discusses the problems involved with providing medical care in prisons, the development of constitutional standards for prison medical services, and, collaterally, the difficulties encountered when pursuing prison reform by means of federal litigation.

This article will discuss the rights of a licensed physician to acquire and retain a hospital medical staff appointment. The focus of the discussion will be the relationship between the independent fee-for-service private practitioner and the community general hospital. The relationship of the organized medical staff to both the hospital and the individual doctor will also be clarified. The hospital involved this discussion may be owned by a governmental unit and hence identified as a “public hospital,” but more likely it will be aprivate, non-profit charitable corporation and will be referred to as a “private” hospital. Specifically, this article will explore the differences, if any, between a physician's rights vis-a-vis the public hospital and his or her rights when a private hospital is involved.

Excluded from this analysis are situations where the doctor is an employee of a hospital or health care institution. Also excluded are cases involving hospitals which limit their service to particular patients (e.g., the mentally ill or children), and university-owned teaching hospitals that impose a faculty appointment in the medical school as a pre-requisite to staff privileges.

Today's hospitals and health care facilities are being increasingly subjected to pressures to monitor the quality of the health care provided in their institution. One vehicle is the courts which, utilizing the doctrine of hospital corporate liability, have imposed a duty upon the hospital to use reasonable care in the selection and maintenance of physicians on its medical staff. This article will discuss three different approaches from three different states.

The first case is Johnson v. Misericordia Community Hospital, decided by the Wisconsin Supreme Court in January 1981. In its decision, the court sought to answer two questions: “Does a hospital owe a duty to its patients to use due care in the selection of its medical staffand the granting of specialized surgical (orthopedic) privileges?;” and second, “What is the standard of care that a hospital must exercise in the discharge of this duty to its patients…?”

The goals of the federal and state antitrust laws and of the federal and state health planning laws often appear to be in conflict. The health planning laws encourage cooperation among providers of health care services and the sharing of facilities and services, based upon the premise that competition in the health care field has not succeeded in containing costs or adequately distributing resources. Generally, it can be said that the health planning laws, by establishing controls to prevent the unnecessary duplication of services, protect service monopolies. In contrast, antitrust laws are designed to prevent the establishment of monopolies which are able to control the supply of services. The antitrust laws are intended to promote a vigorous and competitive economy, in which businesses have a full opportunity to compete on the basis of price, quality and service. As a result of this conflict, those involved in health planning have become concerned about the legal environment in which they act.

On October 29, 1979, Judge Joseph Tauro of the United States District Court for Massachusetts issued a nationally publicized decision in a case entitled Rogers v. Okin, declaring that voluntary and involuntarily committed patients at Boston State Hospital had a constitutional right to refuse treatment in non-emergency situations. The suit, brought as a class action, was filed on April 25, 1975, by seven patients who were either voluntarily admitted or involuntarily committed to the May and Austin Units at Boston State Hospital. On April 30, 1975, a temporary restraining order was issued by the District Court enjoining the doctors at Boston State Hospital from continuing their practice of forcibly medicating patients in non-emergencies. This temporary order remained in effect through the trial and until the District Court issued its permanent order in October 1979.

The ruling was widely criticized by some psychiatrists as an unwarranted intrusion by the courts into the practice of medicine. However, others within the medical and the legal communities considered the decision a major victory for the civil and human rights of institutionalized patients.

Within the past decade, in vitro diagnostic kits have become increasingly important to the clinical laboratory. Smaller hospital laboratories, in particular, lack the resources to develop and evaluate the large number of laboratory tests considered standard today. For these laboratories, the commercially available reagents, packaged with directions for use, provide a simple method of adding an otherwise unavailable test to the laboratory “menu.” These laboratories, however, are precisely the ones which lack the time, resources, and personnel to evaluate each kit. Furthermore, many manufacturers provide little or no information to back up their labeling claims for in vitro diagnostic kits, and there is little independently published information on the subject. The laboratory director is left to rely upon the integrity of the manufacturer, and typically chooses between competing products on the basis of unit cost and ease of performance.

Congress addressed these problems with the Medical Device Amendments of 1976, which extended the application of the Food, Drug and Cosmetic Act.

Probably the most vexing result of the Massachusetts Supreme Judicial Court's [SJC] opinion in the Spring case is that judges, lawyers, and others faced with similar problems in other jurisdictions are likely to read the opinion and commend the Supreme Judicial Court for its efforts. Yet, once the background of this case is known, or once one reads the opinions of the Court of Appeals or of the Probate Court, or the briefs submitted by the parties and the amici curiae, the inadequacies of the opinion become apparent. In our view, the Spring decision works a disservice on all those both within and without Massachusetts who seek guidance from the courts as they attempt to resolve similar cases.

The Illinois Association of Hospital Attorneys [IAHA], among others, filed a brief amicus curiae in the Spring case for three reasons: First, to ask that the SJC reconsider the position it had taken in Saikewicz, and thereby to alleviate some of the misunderstanding caused by that decision. Second, to ask the court to reconsider whether the tests it enunciated in Saikewicz were truly workable in the contemporary health care delivery system.

In the health care field, the concept of protected employee activity under the National Labor Relations Act (NLRA) must be balanced against the need to avoid the disruption of patient care. Congress acknowledged the need to balance these competing concerns when it included Section 8(g) within the 1974 Health Care Institution Amendments to the NLRA.

Section 8(g) establishes a notification procedure with which a labor organization must comply before commencing a strike or other concerted work-stoppage. In an effort to ameliorate the threat which an unannounced and unanticipated stoppage of work poses to the delivery of health care, Section 8(g) requires that a labor organization provide the health care institution and the Federal Mediation and Conciliation Service with written notice specifying the date and time of any strike, picketing, or other work-stoppage at least ten days in advance of the planned activity.