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effective preventive strategies for children who are at risk should save considerable money in the long run.

CONCLUSION

The explosive growth of managed care and chang-ing public responsibilities, especially in state pro-grams for children with special health care needs, accentuates the importance of a clear definition of children with special health care needs. Working as a broad-based consensus panel, we considered several ways of defining children with special health care needs, including diagnostic listings and measures of functional status, but concurred on a definition based on increased service use or need. We also clarified the importance of including at-risk populations along with those already demonstrating special health care needs.

This new definition of children with special health care needs should help guide public programs and other organizations interested in program planning for this population. The definition is currently being used at the federal level for program development and interagency policy planning. State Title V pro-grams are expected to use this definition in meeting federal legislative requirements for needs assess-ments and development of plans for community sys-tems of services for children with special health care needs. Additional efforts are now underway to de-velop operational methods for identifying children with special health care needs within health plans for the purposes of monitoring, quality assurance, and risk adjustment.

Merle McPherson, MD

Division of Services for Children With Special Health Care Needs

Maternal and Child Health Bureau Polly Arango

Family Voices Harriette Fox, MSS

Fox Health Policy Consultants Cassie Lauver, ACSW

Bureau of Children, Youth and Families State of Kansas

Margaret McManus, MHS McManus Health Policy, Inc Paul W. Newacheck, DrPH

University of California, San Francisco James M. Perrin, MD

Ambulatory Care Programs Massachusetts General Hospital Jack P. Shonkoff, MD

Florence Heller Graduate School Brandeis University

Bonnie Strickland, PhD Integrated Services Branch Maternal and Child Health Bureau

ACKNOWLEDGMENT

This work was supported by the Maternal and Child Health Bureau, US Department of Health and Human Services, (Cooper-ative Agreement MCU-06 MCP1).

REFERENCES

1. Nelson R. The legislative base of programs for children with special health care needs. In: Wallace HM, Nelson RP, Sweeney PJ, eds. Mater-nal and Child Health Practices.Oakland, CA: Third Party Publishing Company; 1994:681– 686

2. Halfon N, Newacheck P. Trends in hospitalization for acute childhood asthma, 1970 – 84.Am J Public Health.1986;76:1308 –1311

3. Klerman LV, Perloff JD. Recent trends in the health of US children. In: Stein REK, ed.Health Care for Children—What’s Right, What’s Wrong, What’s Next.New York, NY: United Hospital Fund; 1997:15–37 4. Kaye HS, LaPlante MP, Carlson D, et al. Trends in disability rates in the

United States, 1970 –1994.Disability Statistics Abstract.No. 17. Washing-ton, DC: US Department of Education, National Institute on Disability and Rehabilitation Research (NIDRR); 1996

5. Hobbs N, Perrin JM, Ireys HT.Chronically Ill Children and Their Families.

San Francisco, CA: Jossey-Bass Inc, Publishers; 1985

6. Newacheck PW, Stein REK, Walker DK, et al. Monitoring and evaluat-ing managed care for children with chronic illnesses and disabilities.

Pediatrics. 1996;98:952–958

7. Neff JM, Anderson G. Protecting children with chronic illness in a competitive marketplace.JAMA.1995;274:1866 –1869

8. Stein REK, Bauman LJ, Westbrook LE, et al. Framework for identifying children who have chronic conditions: the case for a new definition.

J Pediatr. 1993;122:342–347

9. Perrin EC, Newacheck PW, Pless IB, et al. Issues involved in the definition and classification of chronic health conditions.Pediatrics. 1993;91:787–793

10. Newacheck P, Strickland B, Shonkoff JP, et al. An epidemiologic profile of children with special needs.Pediatrics.1998:102:117–123

11. Stanton WR, McGee R, Silva PA. Indices of perinatal complications, family background, child rearing, and health as predictors of early cognitive and motor development.Pediatrics. 1991;88:954 –959 12. Newacheck P. Poverty and childhood chronic illness.Arch Pediatr

Ado-lesc Med.1994;148:1143–1149

13. Runyan DK, Hunter WM, Socolar RS, et al. Children who prosper in unfavorable environments: the relationship to social capital.Pediatrics. 1998;1:12–18

14. National Committee to Prevent Child Abuse.Child Abuse and Neglect Data: Fact Sheet #1.Englewood, CO: National Committee to Prevent Child Abuse; 1994

15. Rosenstreich DL, Eggleston P, Kattan M, et al. The role of cockroach allergy and exposure to cockroach antigen in causing morbidity among inner-city children with asthma.N Engl J Med.1997;338:1356 –1363 16. Bendersky M, Lewis M. Environmental risk, biological risk, and

devel-opmental outcome.Dev Psychol.1994;30:484 – 494

17. Sameroff AJ. Environmental context of child development.J Pediatr.

1986;109:192–200

Physician’s Duty to Warn Third

Parties About the Risk of Genetic

Diseases

A

lthough the traditional legal rule states that a physician has a legal duty only to the patient, courts have expanded the duty to third par-ties other than the patient in situations involving the protection of public health or the community at large. Current examples of this expanded duty rule include: a physician’s duty to warn a specific third party about potential harm threatened by a patient1_; a physician’s duty to warn a third party who may be at foreseeable risk for contracting a sexually

trans-Received for publication Jul 28, 1997; accepted Feb 5, 1998.

Address correspondence to: Gary N. McAbee, DO, JD, FAAP, 40 E Laurel Dr, Suite 100, Stratford, NJ 08084.

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mitted or communicable disease2_{; and rare cases of a} physician’s duty to a third party who is injured by the physician’s epileptic patient who has a seizure while driving.3_{Two recent appellate court decisions} are relevant to physicians who treat patients with genetic disorders.

InPate v Threlkel,the highest state court in Florida unanimously held that a physician has a duty to warn a third party about a genetically inherited dis-ease.4_{The plaintiff was receiving treatment for} med-ullary thyroid carcinoma and sued the physicians who had previously treated her mother for the same condition, but with whom the plaintiff had no pa-tient-physician relationship. The plaintiff alleged that the physicians failed to warn the mother that her condition could be genetically transmitted and that her children should be tested. The court stated that a duty to warn the patient of the genetic nature of the cancer is determined by expert testimony. If such a duty exists, it is also applicable to the children. How-ever, the court, citing state confidentiality laws, held that the duty was satisfied by warning the patient about any genetic ramifications of the disease.

InSafer v Pack, an intermediate appellate court in New Jersey unanimously ruled that a physician has a duty to directly warn those third parties known to be at risk of avoidable harm from a genetically trans-missible condition.5_{Safer involved a suit by a} plain-tiff against the estate of a physician who had treated the plaintiff’s father for multiple polyposis with ad-enocarcinoma of the colon.30 years earlier. At the time of the father’s death in 1964 caused by meta-static cancer, the plaintiff was 10 years old. At age 36, the plaintiff was diagnosed with cancerous blockage because of multiple polyposis of the colon with evi-dence of metastatic disease. The cause of action against the physician was for professional negli-gence, alleging that multiple polyposis is a heredi-tary condition that, if undiscovered or untreated, invariably leads to metastatic colorectal cancer. The appellate court held that the physician’s duty to warn those known to be at risk of avoidable harm from a genetically transmissible condition extends to members of the immediate family. The highest state court in New Jersey refused to consider the case on appeal.

The Safer court failed to resolve several conflicting issues. The court did not adequately define the con-cept of immediate family. The court also ruled that the physician must take reasonable steps to assure that the information reach those likely to be affected, yet did not provide guidelines as to what these steps should be. The ramifications to patient-physician confidentiality were also not adequately addressed. In fact, if evidence existed that the patient requested nondisclosure of the illness to family members, the court determined that the trial judge must decide, as amatter of law, if there are or ought to be limits on patient-physician confidentiality. There was no con-sideration given to the patient’s right not to know which is often exercised when the child or children are not yet mature enough to understand and/or cope with the information.

The issue of avoidable harm raised by the Safer

court questions whether treatment of a disease can always avoid harm to the patient. This issue is even more complex as it would relate to third parties. Advances in genetics that permit some individuals to identify their risk for various types of cancer also permit these same individuals to take prophylactic precautions. For example, carriers of theBRCA1and

BRCA2genes who are at risk for breast and ovarian cancer may elect to have total bilateral mastectomy or oophorectomy. However, these prophylactic pre-cautions do not guarantee freedom from cancer, nor does the presence of such cancer genes always result in an individual with breast and ovarian cancer.

The theory underlying these cases is troubling for physicians in an era that is being marked by an explosion in genetic knowledge and testing. The Pate court determined that the existence of a duty to warn about the potential genetic transferability of a disease is determined by expert testimony. The Safer court inferred that such a duty is a matter of law that is determined by the judge. Neither court addressed the issue of whose responsibility it is to inform pa-tients and families as new information, tests, or treat-ments become available. If the courts hold physicians responsible for contacting third parties regarding their risk for a disease, will the physicians be respon-sible to the third parties for updates on the disease? The genetics community has a long history of de-bate regarding the issue of patient confidentiality versus the potential risks to other family members. The majority of genetic practitioners have, with oc-casional dissatisfaction, sided with the essential need for strict patient confidentiality. The Pate court rec-ognized the need for confidentiality and its approach seems reasonable in its determination that a physi-cian can satisfy the duty to warn by warning the patient. This protects the family as well as the phy-sician. Yet, Pate is disturbing in its recognition of a duty to persons whose only relationship with the physician is the physician’s treatment of a family member. The Safer analysis, for reasons stated, is unsatisfactory for patients, for physicians, and for allied health professionals.

According to the National Conference of State Leg-islatures, at least 26 states have adopted genetic pri-vacy laws as of 1997. However, the typical focus of these laws prevents an insurer from requiring ge-netic tests or denying coverage based on gege-netic tests results. In addition, most of the laws refer to asymp-tomatic persons and do not necessarily protect those afflicted with a genetic disease. For example, provi-sions relevant to Safer in the New Jersey Genetic Privacy Act (PL 96, C. 126) prohibit a person from disclosing genetic information about an individual in a manner that permits the individual’s identification. It also prevents a person from being compelled to disclose the identity of an individual upon whom a genetic test has been performed. Neither provision is inconsistent with the Safer court rationale requiring notification because third parties can be informed about risks without identifying the patient.

Currently, physicians treating patients with ge-netic diseases should be cautious about disclosing genetic information to third parties because of state

COMMENTARIES 141

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laws regarding confidentiality. However, these two appellate court decisions occurred recently (within a 1-year period) in two separate jurisdictions. Thus, physicians should be concerned about the potential for a trend of similar legal rulings in other jurisdic-tions, especially those expanding the duty of physi-cians that was established in Safer. Lobbying for appropriate legislative action may be necessary to establish more appropriate guidelines.

Gary N. McAbee, DO, JD, FAAP Department of Pediatrics (Neurology)

University of Medicine & Dentistry of New Jersey Stratford, NJ 08084

Jack Sherman, MD, FAAP, FACMG Barbara Davidoff-Feldman, MS, CGC Department of Pediatrics (Genetics)

Nassau County Medical Center/SUNY at Stony Brook East Meadow, NY 11554

ACKNOWLEDGMENT

We appreciate the helpful comments of Lori Feldman-Winter, MD.

REFERENCES

1. Tarasoff v Regents of Univ. of Cal.,551 P2d 334 (Cal 1976)

2. Shephard v Redford Community Hospital,151 Mich. App. 242, app. den’d, 431 Mich. 872(1988)

3. Duvall v Goldin,139 Mich. App. 342, leave den’d, 422 Mich. 976(1985) 4. Pate v Threlkel,661 So2d. 278 (Fla 1995)

5. Safer v Pack,677 A2d 1188, cert. den’d, 683 A2d 1163 (NJ 1996)

Reducing Inappropriate Oral

Antibiotic Use: A Prescription

for Change

ABBREVIATIONS. AOM, acute otitis media; AAP, American Academy of Pediatrics; NAMCS, National Ambulatory Medical Care Survey; URTI, upper respiratory tract infection; OME, otitis media with effusion.

T

here is increasing concern in the medical com-munity1–5 _{about inappropriate oral antibiotic} use. This concern is fueled by changes in anti-biotic susceptibility patterns of many bacteria. In pediatrics, the increasing resistance of Streptococcus pneumoniae to penicillins is particularly worrisome, becauseS pneumoniaeis the leading bacterial cause of acute otitis media (AOM), sinusitis, pneumonia, bac-teremia, and meningitis.6_{In some communities, the} rate of resistance has influenced antibiotic therapy for AOM,7_{and, because of concerns about} pneumo-coccal resistance, the American Academy of Pediat-rics’ (AAP) Red Book has changed its recommenda-tion for empiric antibiotic therapy for

life-threatening infections in which the pneumococcus is a possible etiologic agent.8

The purpose of this commentary is to review what we know about inappropriate oral antibiotic use and to suggest a series of steps that primary care physi-cians can take to promote the judicious use of anti-biotics. The campaign to reduce inappropriate oral antibiotic use must be balanced—patients and phy-sicians must both be reeducated about antibiotics. Our premise is that to reduce inappropriate oral antibiotic use pediatricians will need to discuss with parents the role of antibiotics in the care of children with minor infectious disease, sharpen their diagnos-tic skills, and become more familiar with specific indications for antibiotics and other therapeutic op-tions. While current efforts to reduce inappropriate antibiotic use have focused on the need to reeducate physicians, and although we believe these efforts are important, primary care pediatricians have indicated overwhelmingly that educating families is the most important aspect of promoting judicious use of anti-biotics (Bauchner H, Pelton SI, Klein JO. Parents, physicians, and antibiotic use. Submitted for publi-cation.) In addition, patient education can impact on physician behavior. Davis and others9_{reported in a} metaanalysis of 99 trials that patient-mediated inter-ventions are one of four strategies that are effective in changing physician behavior. They further com-ment that patient-mediated strategies are particu-larly effective when physicians are ready to change their practice; we believe that most pediatricians want to use antibiotics judiciously.

EXTENT OF INAPPROPRIATE ORAL ANTIBIOTIC USE

It is difficult to estimate the percentage of oral antibiotic use in children that is inappropriate. Data from the National Ambulatory Medical Care Survey (NAMCS)10_{suggest that antibiotic use will reach 128} million doses in 1998, an increase from 86 million prescriptions in 1980. Not only has there been an increase in overall antibiotic use, but there has also been a shift in the leading diagnoses for which anti-biotics are prescribed. In 1980, the most common diagnosis for which antibiotics were prescribed in-cluded upper respiratory tract infection (URTI), fol-lowed by otitis media, bronchitis, pharyngitis and acne. In 1992, otitis media led the way, followed by URTI, bronchitis, pharyngitis, sinusitis (added to the reporting system in 1985), and acne. Based on the NAMCS data, we estimate that approximately 30 million prescriptions will be written for AOM this year, an increase from 12 million prescriptions in 1980.

Recently Gonzalez and others11_{reported that each} year 12 million prescriptions are written for adults with colds, URTI, and bronchitis— diagnoses for which antibiotics are not clearly indicated. In a fol-low-up study from the same data set that focused only on children, Nyquist and others12 _{found that} antibiotics were prescribed to 44% of children with common colds, 46% with URTIs, and 75% with bron-chitis. Although pediatricians were less likely than nonpediatricians to prescribe antibiotics for these

Received for publication Mar 26, 1998; accepted Apr 1, 1998.

Reprint requests to (H.B.) Boston Medical Center, 818 Harrison Ave, Boston, MA 02118.

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DOI: 10.1542/peds.102.1.140

1998;102;140

Pediatrics

Gary N. McAbee, Jack Sherman and Barbara Davidoff-Feldman

Physician's Duty to Warn Third Parties About the Risk of Genetic Diseases

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DOI: 10.1542/peds.102.1.140

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Gary N. McAbee, Jack Sherman and Barbara Davidoff-Feldman

Physician's Duty to Warn Third Parties About the Risk of Genetic Diseases

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