Deterring Irresponsible Use and Disposal of Toxic Substances: The Case for Legislative Recognition of Increased Risk Causes of Action

Increasing risk does not ordinarily result in tort liability. For instance, every speeding driver increases the risk of a traffic accident.\u27 Tort liability, however, attaches only if the driver actually causes an accident, This means that of two reckless drivers who engage in exactly the same risky behavior, one might face great liability, while the other might escape with no liability at all. The difference between the two cases is in many ways a mere fortuity-whether timing and circumstance conspire to cause a traffic accident in a particular case or not. Many acts of reckless driving go unanswered in tort under this system. We accept this result in the case of the reckless driver, partly because the chance of an accident will probably deter potential defendants from engaging in risky behavior. Moreover, if no accident occurs, there is no plaintiff to compensate. The typical case involving human exposure to toxic substances, however, presents an entirely different set of concerns. Injuries often remain latent for many years, creating procedural and evidentiary barriers to tort recovery. Inherent difficulties in proving causation form an additional barrier. As a result, actual injuries may not result in appropriate tort liability. This calls into question current tort law\u27s ability to deter behavior that results in human exposure to toxic substances. Moreover, when the reckless driver parks her car, the risk is over. We know at that point whether any injuries have occurred. People exposed to toxic substances, however, remain at in- creased risk for contracting a disease long after the risk-creating activity has ceased. Tort law has not effectively addressed the unique problems presented by toxic exposure cases. These cases challenge traditional tort principles in ways reminiscent of some of the most vexing tort problems courts have faced in the twentieth century-wrongful life cases, DES litigation, and loss of chance cases. As in those situations, toxic tort cases call for special rules. To ensure clarity, uniformity and fair application, these special rules should be developed and implemented by state legislatures. Specifically, causes of action based on increased risk-medical monitoring, fear of future disease, and outright recovery for increased risk-should be recognized at law

Introduction: Current Issues in Mental Health Care - Special Edition

Today we think we know a lot more about mental health care than our country\u27s founders did. Yet in many ways we are in no better position than our eighteenth-century predecessors. Certainly, the decisions we as a society face about mental illness are just as difficult. The vocabulary we employ is more complex-- behavioral health organization, psychopharmacology, cost containment --but the issues are the same: Who should pay for mental health care? How much care is appropriate? And, more fundamentally, what exactly is mental health? This year\u27s Special Project addresses these issues. The Notes focus on particular legal issues in the mental health care field, but in doing so, they necessarily implicate the larger national debates about mental health care and health care in general. Policymakers are currently making crucial decisions in both areas. These Notes seek to inform those decisions

Toward a Fair and Practical Definition of Willfully in the Medicare/Medicaid Anti-Kickback Statute

Health care fraud takes on a variety of forms-from billing insurance companies for services not provided, to falsifying injuries for tort plaintiffs, to practicing medicine without a license.\u27 All these types of fraud contribute to the astronomical cost of health care in the United States. As federal policymakers have focused on ways to contain these costs, health care fraud has become an increasing object of scrutiny. At the same time, the health care industry is experiencing significant institutional change, particularly with the emergence of health maintenance organizations ( HMOs ) and other managed care systems. The Medicare/Medicaid anti-kickback statute, which prohibits payments from one provider to another in exchange for future referrals, is caught in the crossfire. On the one hand, it addresses a costly form of fraudulent activity that may be pursued more vigorously in the overall attempt to control health care fraud and abuse. On the other hand, the statute is broadly worded, and technically it prohibits certain provider arrangements that are inevitable and desirable consequences of health care reform in the United States. Courts interpreting the statute will face the challenge of balancing concerns about the costs of fraud with the need to encourage health care reform in a fair, practical and consistent manner. The anti-kickback statute prohibits offering, paying, soliciting or receiving any remuneration in exchange for future referrals or future use of a particular good, service, or facility. A common example of prohibited conduct involves a medical laboratory paying handling fees or referral fees to doctors who send specimens to the laboratory.\u27 The statute prohibits not only cash payments, but also remuneration in kind.\u27 Thus, for example, a hospital violates the statute by providing amenities to staff physicians in order to influence them to refer their patients to that hospital. A wide variety of business conduct potentially falls within the statute, because technically a violation occurs any time one health care entity gives something to another as part of an effort to increase its own business. The broad reach of the statute, confirmed by current caselaw, has caused considerable anxiety in the health care industry. Furthermore, the criminalization of this type of conduct is implicated in a larger debate about the appropriateness of creating criminal penalties for conduct that is not inherently or obviously criminal.\u27 Such overcriminalization may compromise due process rights by failing to give adequate notice of what behavior will result in criminal prosecution