It has been seven years since the last major medical malpractice crisis, when the cost of liability insurance rose so astronomically that several important insurers withdrew from providing insurance coverage to physicians and health care institutions. Government and private policy groups at that time established committees to evaluate the medical malpractice crisis and to recommend changes that would bring about an amelioration of the adverse financial and health care features surrounding medical malpractice. The United States Department of Health, Education and Welfare published its Report of the Secretary's Commission on Medical Malpractice in 1973, documenting the extent of the crisis and recommending that alterations be made in the existing tort law to alleviate some of the financial burdens brought on by the increasing number of cases. In 1977, the Institute of Medicine of the National Academy of Sciences formed a Steering Committee on Medical injury Compensation that reviewed some of the special problems of the medical malpractice system and published its report.

Medical centers. with increasing frequency, are employing their own in-house attorneys. The express purpose for this is to avoid the cost of large corporate law firms, as well as to secure greater control over costs connected with medical malpractice litigation, such as loss control, risk management, and self-insurance programs. But are these offices appropriately and competently providing the full spectrum of legal services to the medical centers they serve?

This past spring, a conference in Chicago explored the role of in-house counsel in controlling corporate legal costs. The general consensus was that corporate clients, who consume from 65 to 85 percent of the legal services in the country, have allowed themselves to be “cowed by the demands of prestigious outside counsel.” According to press reports, ineffectual in-house counsel were criticized for their inability to curb excessive corporate legal fees and expenditures. The legal fees of outside firms were characterized as “just plain unnecessary.”

In an article in the June, 1982 issue of this journal, Barry Furrow suggested that changing the name of the tort of “wrongful life” to “diminished life” would overcome the reluctance that many courts have shown to recognize its existence. Others have made similar suggestions, differing only in the names which they proposed as a replacement for “wrongful life.” It is my belief, however. that the problems that many courts and commentators have had with “wrongful life” are inherent in the nature of the action and will not be resolved by simply changing its name.

In the remainder of this article, 1 will employ the neutral term “X” to refer to any action brought by a child for having been born with some defect or handicap which could only have been prevented, given the current state of medical knowledge, by either aborting the child or preventing its conception. It is hoped that this device will avoid the danger of “semantic overload,” of which Professor Furrow wrote.

The Hill-Burton Program was enacted in 1946 to provide federal assigtance to communities for the purpose of constructing and modernizing health care facilities. As a condition of Hill-Burton funding, the contracting hospital is required to assume obligations of “uncompensated care” and “community service.” Indigents eligible for Hill-Burton free care can, after exhausting administrative remedies, obtain injunctive relief to enforce compliance with the Program's regulations. However, it is unsettled today whether a hospital's noncompliance with these obligations to provide free care can be raised as an affirmative defense in a hospital collection action. Until recently, courts throughout the country have held that a patient could not raise the affirmative defense of Hill-Burton noncompliance. Yet, the 1979 Hill-Burton Regulations, as well as the recent decision in Hospital Center at Orange v. Cook, are indicators of the start of a contrary trend to allow the defense. This article examines the 1979 Regulations and court decisions on the affirmative defense and argues against allowing the defense.

In a lawsuit involving nursing negligence in the course of an operative procedure, generally the question arises as to whether liability for the nurse's negligence will rest on the nurse's employer or on the operating physician.

Imposition of vicarious liability for a plaintiff's injury is based upon a master-servant relationship between the negligent actor and a third party, such as a hospital or surgeon. Under the doctrine of respondeat superior, liability is imposed upon an employer for the negligent acts of employees, which arise in the course and scope of employment. The operating physician, however, may also be declared liable through the application of two legal mechanisms: the doctrines of captain of the ship and borrowed servant.

Under the captain of the ship doctrine, responsibility is imposed upon the physician because he is the one who is looked to by the patient as responsible for the patient's welfare and safety generally.

Corporate liability has proven to be fertile ground for claimants against hospitals. Charitable hospitals’ loss of immunity has produced a sudden and often traumatic change in hospital liability. The impact of corporate liability has been slower, but has produced the same result—extended hospital liability.

In the October 1980 issue of Medicolegal News, Lee J. Dunn, Jr., discussed the then-current tendency of courts to find hospitals culpable in tort litigation under the theory of corporate liability. That article concentrated on two decisions: Johnson v. Misericordia Community Hospital, and Bost u. Riley. Six months later, an article by Miles J. Zaremski discussed the continuing trend to hold hospitals accountable for the selection and maintenance of physicians on their medical staffs, and examined the Johnson decision, Fridena v. Evans, and Capan v. Divine Providence Hospital.