Barry R Furrow

This reflection article examines the trajectory of health law — using scholarly work by George Annas, Wendy Mariner, and Fran Miller as a platform.1 These three health law scholars have been analyzing the complications of health law in the U.S. economy for decades, and each of them has been prescient in anticipating what the future of health care delivery will look like and how we might improve it.

This article proposes ethical - and legal - accountability for lawyers representing clients such as private equity (PE) firms who create ownership structures for nursing home systems. Using PE ownership as a case study, I will show that nursing home residents are often harmed and Medicaid costs inflated. I propose private law provides tools to compel such accountability, through (1) aiding and abetting doctrines and (2) fiduciary doctrines that require that the fiduciary be responsible for its vulnerable beneficiaries, not just ethically but for damages and equitable relief. I further propose that the teaching of Professional Responsibility needs to be changed to force law students to consider the effect of legal practice on third parties in situations like health care financing.

Treatment of mental illness in the United States is woefully inadequate. One-third of adults report having a mental health condition or substance use disorder, but less than half receive treatment for their condition.Access is the problem. The U.S. is short on mental health professionals: more psychiatrists are needed and psychologists and social workers are overextended. Proposed solutions are to (1) increase reimbursement rates for psychiatrists and other mental health practitioners, and (2) use a wider range of providers, including nurses and family support specialists-all good ideas. My focus however is on two other forces that are moving into the behavioral health area, offering both financing and technologies to extend the reach of mental health services-private equity and telemental health.First, private equity firms see high demand in this market. Behavioral health is desperately needed but is highly fragmented and lacking in innovation. Private equity is attracted to outpatient programs that target specific conditions that have evidence-based clinical models-programs aimed at addiction, eating disorders, and autism; these areas require less capital. Federal and state reimbursement is available, some regulations have been relaxed to allow remote prescribing of medicine; and innovative telehealth tools can be used. The problem is that private equity has a poor track record in both nursing home care and behavioral care for teens. The private equity model and its financial incentives are at odds with good care.Second, telemental health tools, already in use because of the need during the pandemic, appear attractive. These tools require less capital to treat a higher volume of patients and promise much improved access to mental health treatment for populations that could not get such care because of travel distance, costs, and time limitations. The problem is that the telemental health tools have yet to be subjected to evidence-based testing.My goal in this article is to test whether these two developments - private equity and telemental health -can improve access for patients at an acceptable level of quality. I conclude that both have substantial problems and I offer a range of regulatory approaches to control patient abuses and poor quality.

  Furrow discusses some effective practices for patient safety. The field of patient safety has grown in the US as a subspecialty within health law and policy over the past fifteen years. Patient safety efforts have included both private market-based initiatives and state and federal regulatory initiatives to reduce the problems. The general strategies can be summed up in six major regulatory categories: Standardizing Good Medical Practices; Tracking Adverse Events in Hospitals; and Disclosing Provider Performance.

I. Introduction WE live in tense times. We worry about government surveillance and corporate snooping. 1 We fear misuse of our private information. We properly value privacy: it is a desirable end state and a precondition for identity, allowing individuals to achieve goals such as autonomy and solidarity with peers; it may protect the vulnerable from exposure to stigma and other harms in the larger world; it may allow us an essential space for our own thoughts and a chance to develop heretical ideas. 2 But we also know that privacy is a complex idea - that concealment of secrets by others may do us harm. At the same time, we fear that information critical to our safety will not be properly discovered and analyzed. Both the government and the private sector increasingly use "data mining" - that is, the application of database technology and techniques (such as statistical analysis and modeling) to uncover hidden patterns and subtle relationships in data, and to infer rules that allow for the prediction of future results. Many federal data mining efforts involve the use of personal information mined from databases maintained by public and private sector organizations. A recent Government Accounting Office (GAO) study found that out of 199 data mining efforts identified, 122 used personal information. 3 For these efforts, the primary purposes were detecting fraud, waste and abuse; detecting criminal activities or patterns; analyzing intelligence and detecting terrorist activities; and increasing tax compliance. 4 Most recently, a political ...

Introduction Medical care injures and kills patients. The Institute of Medicine came up with the now familiar projection of up to 98,000 deaths per year, and hundreds of thousands of unnecessary injuries and extra days of hospitalization. 1 The Utah-Colorado Medical Practice Study (UCMPS) found that adverse events connected to surgery accounted for about half (44.9%) of adverse events across both states, with only 16.9% of the surgical adverse events involving negligence. 2 The authors concluded that the UCMPS produced results similar to the earlier New York Harvard Study - three to four percent of all hospitalizations give rise to adverse events. 3 These data suggest that iatrogenic injury is a significant, enduring, and innate feature of the United States hospital system. 4 A new survey of patients by the Commonwealth Fund concludes that nearly 22% of patients have experienced a medical error, with adverse drug events the largest contributor to these errors. 5 System failures account for the vast majority of medical errors in hospitals. 6 Almost 80% of adverse drug events are traceable to a system malfunction. 7 Institutional staffing errors, for example, are often the culprit in patient injury, and long working hours may also contribute. 8 Adverse drug events are a major contributor to iatrogenic illness in hospitals and may account for nearly 10% of hospitalizations. 9 Errors in administration of drugs by nurses are often a primary cause. 10 Most of these drug errors are due to problems with information access and dissemination. ...