This Article considers the influence and implications of the application of genetic technologies to definitions of disease and to the treatment of illness. The concept of “geneticization” is introduced to emphasize the dominant discourse in today's stories of health and disease and the social construction of biological phenomenon is described. The reassurance, choice and control supposedly provided by prenatal genetic testing and screening are critically examined, and their role in constructing the need for such technology is addressed. Using the stories told about prenatal diagnosis as a focus, the consequences of a genetic perspective for and on women and their health care needs are explored.

In law, with rare exception such as legislative action, change is evolutionary and methodical. Unlike biomedical science where a breakthrough can quickly lead to dramatic changes in medical practice, legal precedent is more adherent and must evolve either through the legislative process or on a court by court basis in case law. Nevertheless, compelling evidence will pave the road to change within the law. Health care research conducted over the last three decades has produced a body of empirical evidence that suggests an overhaul of our current legal standards of informed consent is overdue.

This article uses health services research to examine the fundamental assumptions of our current informed consent laws and propose legal reform. Much has been written on how to bring the law to bear on medical practice in order to improve patient rights and protect physicians, but far less has been done to bring the practice of medicine to inform our legal standards. Prior legal scholarship on informed consent has made arguments regarding reform from both ethical and legal perspectives; however, only a small few have incorporated clinical and health services research as well as ethical and legal principles to analyze informed consent.

We humans tend to worry first about our own happiness, then about our families, then about our communities. In times of great stress, such as war or natural disaster, we may focus temporarily on our country but we rarely think about Earth as a whole or the human species as a whole. This narrow perspective, perhaps best exemplified by the American consumer, has led to the environmental degradation of our planet, a grossly widening gap in living standards between rich and poor people and nations and a scientific research agenda that focuses almost exclusively on the needs and desires of the wealthy few. Reversing the worldwide trends toward market-based atomization and increasing indifference to the suffering of others will require a human rights focus, forged by the development of what Vaclav Havel has termed a “species consciousness.”

“Illustration” or “map” are among the most frequently used words for translating the Chinese character tu, a graphic representation of any phenomenon that can be pictured in life and society, whether in traditional China or elsewhere. Investigations of the early role of tu in Chinese culture first set out to answer questions about who produced tu, the background of its originator, and the originator's purpose. How were pictures conceptualized? Interpreted? In examining tu, Chinese scholars stressed the relational aspect of tu and shu (writing) to answer both these questions, as well as to the importance of not robbing an image of its overall beauty and life with too much graphic detail. In the West, specific concepts of technical or scientific illustrations did not exist before the Renaissance. With the coming of that age, technical illustration became a specific branch of knowledge and activity, with its own specific goals and ends.

In an effort to clarify the concept of “medically futile care,” two types of futile care are identified: 1) care that produces no demonstrable effect; and 2) care that produces an effect that is believed by the speaker to be of no net benefit. It is the second type of futile care, when a patient or surrogate and the clinician disagree over the benefit that the patient will receive from an intervention, that is most interesting morally and that cannot properly be labelled medically futile. As such, decisions to limit access to care deemed futile should not rest with medical professionals. This Article argues for a limited duty of clinicians to provide life-prolonging and some other fundamental care that is equitably funded and desired by the patient while competent, even if the clinician believes that such interventions will produce no net benefit.

Online sales of pharmaceuticals are a rapidly growing phenomenon. Yet despite the dangers of purchasing drugs over the Internet, sales continue to escalate. These dangers include patient harm from fake or tainted drugs, lack of clinical oversight, and financial loss. Patients, and in particular vulnerable groups such as seniors and minorities, purchase drugs online either naïvely or because they lack the ability to access medications from other sources due to price considerations. Unfortunately, high risk online drug sources dominate the Internet, and virtually no accountability exists to ensure safety of purchased products. Importantly, search engines such as Google, Yahoo, and MSN, although purportedly requiring “verification” of Internet drug sellers using PharmacyChecker.com requirements, actually allow and profit from illicit drug sales from unverified websites. These search engines are not held accountable for facilitating clearly illegal activities. Both website drug seller anonymity and unethical physicians approving or writing prescriptions without seeing the patient contribute to rampant illegal online drug sales. Efforts in this country and around the world to stem the tide of these sales have had extremely limited effectiveness. Unfortunately, current congressional proposals are fractionated and do not address the key issues of demand by vulnerable patient populations, search engine accountability, and the ease with which financial transactions can be consummated to promote illegal online sales. To deal with the social scourge of illicit online drug sales, this article proposes a comprehensive statutory solution that creates a no-cost/low-cost national Drug Access Program to break the chain of demand from vulnerable patient populations and illicit online sellers, makes all Internet drug sales illegal unless the Internet pharmacy is licensed through a national Internet pharmacy licensing program, prohibits financial transactions for illegal online drug sales, and establishes criminal penalties for all parties—including websites, search engines, and health care providers—who engage in and facilitate this harmful activity.

Owen Barfield, the British solicitor and literary scholar, reminds us that many legal concepts have their origin as metaphors and legal fictions. We often fail to see the nature of legal metaphors, Barfield argues, because over time they ossify and we read them literally rather than figuratively. Look closely at changes in law over time, Barfield advises us, to see how effectively metaphor works in law and language. Many legal categories and procedures we now use had their origin in using a metaphor that revealed a new way of looking at a problem or that helped solve a legal problem. Legal metaphors also help us to identify critical limits and strains in adapting to new facts and circumstances.

George Annas has pointed out that our choice of metaphors for medicine can reframe our debates about health policy reform. And Analee and Thomas Beisecker remind us that patient-physician relations have been viewed through many metaphors. These include parent-child relations (paternalism); seller-purchaser transactions (consumerism); teacher-student learning (education); relations among partners or friends (partnership or friendship); or rational parties entering into negotiations or contracts (negotiation or rational contract).

Genetic discrimination is detrimental to public health programs, as well as to society generally. Advances in genetic testing and screening, accelerated and prompted by the Human Genome Initiative, increase society's ability to detect and monitor chromosomal differences. These technologies and their resulting genomic data will enhance medical science, but may also encourage discrimination. Although few employers or insurers currently utilize genetic screening, testing or data, rising employee benefit costs and market forces create powerful incentives for usage.

Current municipal, state and federal laws, including the Americans with Disabilities Act (ADA), may not sufficiently protect employees and insureds from genetic discrimination. While municipal and state protections should not be overlooked, the ADA's sweeping scope may currently provide the most comprehensive safeguard. Federal laws banning discrimination on the basis of race or sex might also successfully redress some forms of genetic discrimination. Genetic technologies’ advent necessitates efforts to rectify state and federal statutory coverage gaps, strictly regulate employers and produce comprehensive guidelines regarding its use.

This article contrasts the prevailing model for assessing and improving medical care—the quality of care paradigm—with an alternative approach—the patient accountability paradigm. The first approach is technocratic: it measures and promotes the quality of medical care through technical and objective means. It relies on outside experts, analysis of data and protocols, and impersonal judgements of professionals to guide decisions. The second approach guides physicians and providers and subjects them to patient control. It enlists the participation of patients and consumers to evaluate and change the medical care system and to promote the rights and choices of patients and consumers. The strengths and limitations of the patient accountability approach are illustrated by four movements: 1) the patients’ rights movement; 2) medical consumerism; 3) the women’s health movement; and 4) the disability rights movement.

The Institute of Medicine Report, Unequal Treatment: Confronting Racial and Ethnic Disparities, affirms in its first finding: “Racial and ethnic disparities in healthcare exist and, because they are associated with worse outcomes in many cases, are unacceptable.” The mechanisms that generate racial and ethnic disparities in medical care operate at the levels of the healthcare system and the clinical encounter. Research demonstrates the role of healthcare system factors, including differences in insurance coverage and other determinants of healthcare access, in producing disparities. Research also shows, however, that even when insurance status and other measures of access are controlled for by statistical methods, racial and ethnic disparities persist. These disparities remain when researchers try by various methods to control for patients’ clinical characteristics. Disparities are especially well documented through comparisons between white patients and African Americans and Latinos, but they are believed to affect other minority groups. As a result, many members of minority racial and ethnic groups receive less or inferior care.

Recent advances in understanding the genetic basis of disease has inspired hope but also fear. While establishing a link between a person's genetic makeup and a propensity to disease may lead to better treatment, many scientists, physicians and genetic counselors also worry that it may lead to discrimination. Although access to health insurance is the primary concern, people also fear discrimination in life and disability insurance, employment and other contexts, such as child custody decisions or adoption. In response to this concern, many state legislatures have passed laws forbidding genetic discrimination. While most of these laws focus on health insurance, some also prohibit genetic discrimination in employment or in life or disability insurance coverage.

These laws have been the subject of both praise and criticism. Defenders of the laws see them as important and necessary, though arguably incomplete. Critics view them as unjustified and unwarranted. However, the question that dominates current literature is whether genetic discrimination is meaningfully different from discrimination on the basis of general health status; or as the debate is often framed, whether anti-discrimination laws ought to be genetic or generic.

Assisted reproductive technologies (“ARTs”) have enabled many infertile couples to have children but have long been controversial. Opposition initially focused on the “unnaturalness” of laboratory conception and the doubts that healthy children would result. Once children were born, ethical debate shifted to the status and ownership of embryos and the novel forms of family that could result.

The new century has brought forth both new and old ethical concerns. The growing capacity to screen the genomes of embryos has sparked fears of eugenic selection and alteration. In addition, concerns about safety have reasserted themselves. Several studies suggest that in vitro fertilization (“IVF”) may be associated with lower birth weights and major malformations. Ethical attention has also focused on whether all persons seeking ARTs should be granted access to them, regardless of their child-rearing ability, age, disability, health status, marital status, or sexual orientation.

This passage prefaces a landmark report on the application to health care of quality improvement methods used successfully in other industries.

Prescription opioids are an important tool for physicians in treating pain but also carry significant risks of harm when prescribed inappropriately or misused by patients or others. Recent increases in opioid-related morbidity and mortality has reignited scrutiny of prescribing practices by law enforcement, regulatory agencies, and state medical boards. At the same time, the predominant 4D model of misprescribers is outdated and insufficient; it groups physician misprescribers as dated, duped, disabled, or dishonest. The weaknesses and inaccuracies of the 4D model are explored, along with the serious consequences of its application. This Article calls for development of an evidence base in this area and suggests an alternate model of misprescribers, the 3C model, which more accurately characterizes misprescribers as careless, corrupt, or compromised by impairment.

Americans rely extensively upon prescription medications to maintain health and quality of life. According to the National Center for Health Statistics, in 2002, at least 1.5 billion drugs were prescribed to patients in physician offices, 196 million in US emergency departments, and 140 million in outpatient settings. Almost two-thirds of visits to physician offices and hospital outpatient departments had at least one drug associated with the visit, and 7% of visits had five or more drugs. In 2004, US pharmacies dispensed over 3.5 billion prescriptions to patients. Estimates indicate that annual expenditures for prescription drugs in the US top $230 billion dollars each year—and there is every indication that these numbers will only increase.

By now everyone is familiar with the recent accomplishments of the Human Genome Project. Accomplished in ten, rather than the initially expected fifteen, years, the human genome has been fully sequenced. Genetics is in its golden age. A product of the technology era, genetics has, in a short time, offered vast amounts of information. This increased knowledge promises potential benefits for our understanding of the disease process and, ultimately, treatment and prevention. The rapid flow of information, however, presents complications and challenges. It can complicate the decision making process for those involved in genetic testing, not only because our knowledge of genetics is more complex, but because there is so much more potential information to obtain. The sheer quantity of information for both researcher, clinician and especially patient, can be overwhelming. In addition, our ability to glean predictive or susceptibility information has vastly exceeded our ability to develop cures for diseases; patients can increasingly identify risks for conditions that they can do little to avoid.

A review of reports, bills and legislation from around the world, during the period from 1987 to 1991, reveals certain areas of consensus on the possible or actual, ethical and legal regulation of medically assisted conception. Other areas remain controversial, due not only to cultural and religious differences but also to the social significance of the very implementation of these new technologies. Irrespective of these differences, the reformulation of certain shared international principles of human rights permits a greater specificity both in their translation and in their application to medically assisted conception. Areas discussed include the dignity of the person, the security of human genetic material, the quality of services, the inviolability of the person and the inalienability of the person.

Statistical adjustment is a ubiquitous practice in all quantitative fields that is meant to correct for improprieties or limitations in observed data, to remove the influence of nuisance variables or to turn observed correlations into causal inferences. These adjustments proceed by reporting not what was observed in the real world, but instead modeling what would have been observed in an imaginary world in which specific nuisances and improprieties are absent. These techniques are powerful and useful inferential tools, but their application can be hazardous or deleterious if consumers of the adjusted results mistake the imaginary world of models for the real world of data. Adjustments require decisions about which factors are of primary interest and which are imagined away, and yet many adjusted results are presented without any explanation or justification for these decisions. Adjustments can be harmful if poorly motivated, and are frequently misinterpreted in the media’s reporting of scientific studies. Adjustment procedures have become so routinized that many scientists and readers lose the habit of relating the reported findings back to the real world in which we live.

“The expression ‘barbarians at the gate’ was … used by the Romans to describe foreign attacks against their empire.” “[It] is often used in contemporary English within a sarcastic, or ironic context, when speaking about a perceived threat from a rival group of people, often deemed to be less capable or somehow ‘primitive.’”