Professor Hall is to be congratulated on his thoughtful analysis of an issue that, as he rightly suggests, “is one of the most important issues that will confront health care tort law throughout the remainder of the century.”’ He argues that malpractice law currently can accommodate considerable latitude both for a conservative streamlining of medical practices in general and for a cost-sensitivity in individual treatment decisions. And he further argues that existing tort principles, such as the locality rule, can comfortably be stretched to embrace still greater room for economics in the medical standard of care. I quite agree.

Unfortunately, Hall's arguments do not go nearly far enough, for they are framed around a seriously oversimplified picture of the economic changes that are revolutionizing medicine in the United States. He envisions a fairly uniform, global set of resource constraints that generally pressure physicians to conserve on care—pressures that tort law can then encompass equally globally as it accepts more cost-efficient standards of care. However, neither the changing economics of medicine nor the resulting jurisprudential challenges are anywhere near this generalized.

The issuance of do-not-resuscitate orders was one of the first dilemmas scrutinized by lawyers, health care professionals and philosophers in the field of bioethics. In 1983, the President's Commission articulated the basic principles that should guide decisions about CPR: respect for the choices of patients capable of deciding for themselves, recognition of family members as appropriate surrogates for decisionally incapable patients and the importance of an open dialogue with the physician as a predicate to informed consent.

Six years have passed since the President's Commission issued its landmark report. More than a decade of discussion and written commentary has clarified the ethical and social questions presented by resuscitation decisions. In many states, judicial decisions and legislation have addressed some of the legal uncertainties associated with do-not-resuscitate (DNR) orders. Nonetheless, the gulf between recognized ethical principles and clinical practice remains broad and resistant to change. Nowhere is this gap more evident than in decisions about cardiopulmonary resuscitation (CPR) for competent patients.

A decision not to hospitalize, dialyze or resuscitate a dying, elderly, nursing home resident is regarded as “possible abuse.” Any physician, nurse, administrator, social worker, aide or other staff member who learns of plans to withhold treatment is required to report this fact to a state official. That official will conduct an investigation “to determine whether the legal guidelines...are satisfied.” While the often protracted investigation is pending, “the facility itself (must) preserve the patient's health.”

A letter declaring this to be the requirement of current New Jersey law was recently sent to administrators of all nursing homes and psychiatric hospitals by the state's Office of the Ombudsman for the Institutionalized Elderly.

The policy has provoked strong protests from health professional organizations and advocates for the privacy of patients and families. Alert clinicians are reportedly maneuvering to place their patients beyond the Ombudsman's reach.

On July 3,1989, the Supreme Court finally handed down its much-anticipated decision in Webster v. Reproductive Health Services. Observers interested in the issue of abortion rights had anxiously awaited the decision for indications of whether the court would maintain the constitutional course it had charted in Roe v. Wade. At stake was the extent to which the Court would continue to find limits in the Fourteenth Amendment upon the power of states to proscribe and regulate abortions. The majority which had supported Roe and other abortion cases3 had been whittled away. Two dissenters from the original 1973 decision (Chief Justice Rehnquist and Justice White) and one subsequent appointee (Justice O’Connor) had consistently shown antipathy to Roe. The author of the Court's opinion in Roe (Justice Blackmun), two other participants in the original decision (Justice Brennan and Marshall), and a subsequent appointee (Justice Stevens) had been consistent defenders of Roe and were still on the Court. But with the retirement of Chief Justice Burger and Justice Powell, two new, reputedly “conservative” Justices (Scalia and Kennedy) had been appointed to the Court. Webster would be their first opportunity to show where they stood on Roe.

America is burning at a faster rate than any other industrialized nation. Approximately 2.3 million fires costing $40 billion were reported in 1984. Over 5,400 American citizens are killed as a result of these fires and an estimated 130,000 are seriously injured. The leading cause of fire death and injury is cigarette initiated fires with the 1984 toll being 1,570 deaths and 7,000 serious injuries.’ Property damage alone totals over $390 million.

These numbers do not portray the human devastation caused by fires. No other injury causes more pain and suffering. Movies, television and radio have rarely documented the emotional and physical sequelae of a severe burn injury. One day's headline proclaims the devastation of a house fire, and then the story disappears at the point when the survivors begin the agonizing process of healing. The daily routine of burn treatment in America's burn centers is hidden from public view.

One thing is certain about the Supreme Court's decision in Webster v. Reproductive Health Services: It will stimulate state legislatures to enact more legislation regulating abortion. Justice Blackmun candidly described the main opinion, written by Chief Justice Rehnquist (part majority, part plurality), as an “implicit invitation to every State to enact more and more restrictive abortion laws, and to assert their interest in potential life as of the moment of conception.” For many pro-choice advocates, this is an ominous development; for some, it is extremely frightening. For most pro-life advocates, however, this is a hopeful result; some enthusiastically perceive the prospect to reenact the 19th century abortion prohibition. But the most passionate activists on both sides are mistaken; both those who are frightened about “dark ages” abortion prohibitions and those who are gloating about turning back the clock misunderstand the significance and holding of Webster. Webster is a victory for moderation; it signifies the revival of a long-term process of political give-and-take, public education and debate, and legislative compromise.

The chain saw emerged in the marketplace as a powerful and useful new consumer product in the 1960s. Once a massive and awkward professional logging tool, the device has been transformed into a hand held tool that a casual user can easily use to cut trees and branches. By 1970, 2.3 million saws had been sold; by 1979, 3.5 million. From 1973 to 1977 sales of gasoline chain saws grew at an average rate of 1 2 percent per year, and electric saws at 37 percent per year. The largest increase in sales occurred in the lower priced saws. By 1986 22 million chain saws could be found in American households, the result of an expansion in the market due to both the energy crisis of 1970 and aggressive marketing and price cutting by manufacturers. During the calendar year 1987 an estimated 1,350,ooo chain saws were shipped to dealers, the same level as 1986, and manufacturers anticipate that 1988 shipments may increase 2 percent. The market has softened considerably, but is still expanding.

In the Brief for the United States as Amicus Curiae supporting the Attorney General of Missouri in the Webster case, the Department of Justice invoked a favorable image of European legislative responses to the practice of abortion in order to argue the appropriateness of locating legislative control at the state level, as opposed to the level of federal law. It was further claimed that it was necessary for the Court to set aside its 1973 decision in Roe v. Wade in order for legislation in the U.S. to be consistent with the laws of other countries with which the U.S. “shares a common cultural tradition.”

The foundation on which these arguments were based is fundamentally flawed. The Department's brief omitted reference to the setting of Western European national legislation within the framework of international law , and in particular of the European Convention on Human Rights and Fundamental Freedoms.

In 1967 Osamu Takeuchi of Honda Research and Development Co., Ltd. took some spare motorcycle parts to an outdoor area in Japan. American Honda Motor Corporation, the United States distributor for Honda Motor Company, Limited of Japan had requested the development of a vehicle to compete with snowmobiles. The result of Mr. Takeuchi's work was the All Terrain Vehicle (ATV), first distributed in the United States in 1970.

By the end of 1987, an estimated 2.5 million ATVs had been sold by the major Japanese manufacturers and distributors: Honda, Yamaha, Kawasaki and Suzuki, and by Polaris, the sole American-owned manufacturer and distributor. According to U.S. Consumer Product Safety Commission (CPSC) estimates, over 340,000 hospital-emergency-room treated injuries have been associated with the use of ATVs. Almost 1000 deaths have been recorded by CPSC through their system for tracking state medical examiner's and coroner's offices. Almost half the deaths were children under 16 years of age and approximately 20 percent were children 12 and under. CPSC estimates that approximately 5 percent, or one of every 20 three-wheeled ATVs, is involved in a hospital emergency room treated injury each year.

High U.S. health costs have been one of the main barriers to enacting universal access to care in recent decades. It is therefore surprising that Massachusetts, with the nation's highest per capita health spending, last year promised health insurance to all citizens. Declaring that “the access of residents of the Commonwealth to basic health care services is a natural, essential, and unalienable right” protected by the Massachusetts Constitution, the new health law, Chapter 23 of the Acts of 1988, legislates a promise that insurance be offered to all by 1 April 1992.

The law was the product of almost three years of bargaining. One closely involved person said this was “the most controversial and heavily fought battle in the past 25 years in the Massachusetts State House.” Deals had to be struck. Perhaps the most important of the law's compromises is embodied in its title: “An Act to Make Health Security Available to All Citizens of the Commonwealth and to Improve Hospital Financing.” Obtaining the votes for the law's universal access provisions required promising Massachusetts hospitals substantially higher revenues.

Opinions differ about whether the legality of induced abortion is the most divisive social issue of the present time, but all agree that it is a strong contender for that status. The argument about which form of legislation would lower or raise the incidence of abortion has an empirical dimension, but many of the opposing arguments concern values and ideologies. The value of human life and the respect to which it is entitled, represented in the sympathetic form of the human fetus, are pitted against the value of women's self-determination and well-being, and the respect and status that women enjoy as decision-makers over their bodies and destinies.

The very language in which different persuasions are expressed often resonates with values. The pro-life/pro-abortion distinction incorrectly suggests that those who favor women's choice prefer that it be made in favor of abortion, whereas the pro-choice/anti-choice distinction incorrectly suggests that opposition to abortion rests on hostility to self-determination rather than on the assertion of more positive values, notably the sanctity of human life at all stages of development. The practice adopted below will be to give protagonists of different views the descriptions they give themselves, namely pro-choice and pro-life, although the author will not attempt to conceal a personal pro-choice preference.