10 J. Health Care L. & Pol'y 121 (2007)
Medicine and Public Health: Crossing Legal Boundaries

handle is hein.journals/hclwpo10 and id is 125 raw text is: MEDICINE AND PUBLIC HEALTH:
CROSSING LEGAL BOUNDARIES
WENDY K. MARINER*
INTRODUCTION
On December 14, 2005, the New York City Department of Health and Mental
Hygiene adopted a new diabetes surveillance program. The new health code
regulations require medical laboratories to submit to the Health Department the
results of every patient's blood sugar tests, together with the patient's name, date of
birth, address, physician, and other information.' The report does not require the
patient's consent. The Health Department will review the reports to see which
patients are not controlling their blood sugar levels and will contact the physician,
or sometimes the patient, to encourage the patient to change his or her behavior by
losing weight, eating better, taking medication, and seeing a physician more often.
Is this an innovative way to improve the health of several hundred thousand New
Yorkers, a presumptuous invasion of privacy, or usurpation of the physician's role?
Dr. Thomas R. Frieden, Commissioner of the New York City Department of
Health and Mental Hygiene, is enthusiastic about the new program, hoping it will
reduce the number of people in New York City with uncontrolled diabetes,
particularly Type 2 diabetes.2 Critics, on the other hand, worry that the program
Copyright © 2007 by Wendy K. Mariner.
* Professor of Health Law, Bioethics and Human Rights, Boston University School of Public Health;
Professor of Law, Boston University School of Law (Boston, MA); Professor of Socio-Medical Sciences
and Community Medicine, Boston University School of Medicine (Boston, MA). This article is adapted
from the author's lecture at the Association of American Law Schools' Annual Meeting in Washington,
D.C., Empirical Scholarship: What Should We Study and How Should We Study It?, which was co-
sponsored by the AALS Sections on Law, Medicine and Health Care; Socio-Economics; and Torts and
Compensation Systems, entitled Public Health in Law (January 2006).
1. NEW YORK CITY, N.Y., 24 HEALTH CODE §§ 13.03-.04 (2006). See infra note 6 for the text of
these regulations, which took effect on January 15, 2006.
2. David B. Caruso, NYC Proposes Tracking Diabetics, Raising Privacy Fears: Critics Say
Consent Must Be Asked Before Collecting Data to Help Patients, THE STAR-LEDGER (NEWARK, NJ),
July 26, 2005, at 28. Type 2 diabetes arises, typically in adulthood, from a body's inability to use insulin
properly and is believed to result from excess body weight and physical inactivity. World Health Org.,
Fact Sheet No. 312, Diabetes (2006), http://www.who.int/mediacentre/factsheets/fs3l2/en/index.html
[hereinafter Fact Sheet No. 312]. It accounts for about ninety percent of diabetes cases worldwide. Id.
Type I diabetes is a genetic condition in which the pancreas fails to produce insulin; it is usually
diagnosed in childhood and typically well-controlled. Am. Diabetes Ass'n, Type I Diabetes,
http://www.diabetes.org/type-l-diabetes.jsp (last visited Nov. 10, 2006); Lucile Packard Children's

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