Category: Medical Quality

A protester holds a sign with a quote that reads: "Pf all the forms of inequality injustice in health care is the most shocking and inhumane."

Structural Racism, Social Determinants, and the Contested Scope of Public Health Law

The Petrie-Flom Center Staff Leave a comment

By Lindsay F. Wiley

For centuries, public health advocates have understood that our health is shaped by the conditions in which we live and work — conditions public health researchers now refer to as the social determinants of health. Law itself is a social determinant of health. Structural racism and other forms of socioeconomic subordination, which are embedded in our laws and public and private policies, are social determinants of health.

Unfortunately, these statements are not uncontroversial. Commentators have debated whether structural racism and other forms of subordination are social determinants of health, and whether dismantling these forms of subordination is within the legitimate scope of public health law and policy. Critiques run along at least three main lines—semantic, civil libertarian, and progressive.

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Medicine law concept. Gavel and stethoscope on book close up

Addressing Racism through Medical-Legal Partnerships

The Petrie-Flom Center Staff Leave a comment

By Medha D. Makhlouf

Numerous studies have documented that racism is a social determinant of health (SDoH) that negatively impacts Black, Indigenous, and people of color (BIPOC). As such, racism is one of “the conditions in which people are born, grow, live, work, and age” that are “mostly responsible for unfair and avoidable differences in health statuses.”

The U.S. health care system was not designed to respond to SDoH, much less to address racial health disparities. In fact, U.S. health care institutions have racist legacies that continue to influence the way they operate today. When health care providers fail to confront racism within and outside their walls, they perpetuate the racial health disparities that have plagued our nation since before its founding.

Medical-Legal Partnership (MLP) is a model of collaboration and joint advocacy between lawyers and health care providers who seek to improve social conditions that affect health and well-being. MLPs aim to address SDoH on three levels: direct representation in civil legal matters, institutional change, and systemic advocacy. They typically employ legal interventions to ensure that people’s basic needs are met, such as nutritious food, health care, income, safe and stable housing, and uninterrupted energy and water utilities. Improving access to such resources is an important way of engaging with the work of health equity.

While some MLPs incorporate a racial justice lens in their work, many do not. MLPs are generally more oriented toward addressing the effects of racism as a SDoH, rather than as the cause of poor health. But considering the cross-cutting nature of racism as a SDoH, MLPs can and should address it directly. As Director of the MLP Clinic at Penn State Dickinson Law, whose faculty has resolved to incorporate discussions of racism and inequality in the curriculum, I have begun researching Critical Race Theory (CRT) as a framework to understand how MLPs can build on their core activities to further address racism as a SDoH and make explicit the connections between racism and poor health. This post describes how MLPs can address racism as a SDoH in at least four ways that align with the goals of CRT.

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Man holds up a sign at the Black Lives Matter protest in Washington DC 6/6/2020.

How Social Movements Shape the Law to Address Health Disparities

The Petrie-Flom Center Staff Leave a comment

By Aziza Ahmed

We are facing a health crisis in America. In thinking through the causes of health disparities, a now well-developed body of public health law scholarship focuses in on the central issue of law as a social determinant of health. This scholarship examines the issue of how legal rules can determine health outcomes. Property laws that explicitly or implicitly discriminate against minorities, for example, often result in poor Black communities living in neighborhoods in which they may be more exposed to pollutants, resulting in higher rates of breast cancer or asthma. Or, immigration practices, including ongoing profiling at the border, as well as detention practices, may have mental and physical health impacts.

What is missing from legal scholarship on the social determinants of health is an account of how communities respond to change the legal environments that have the effect of producing poor health outcomes. In other words, how do communities demand a better legal system with regard to health inequality? Here, we must turn to social movements who often drive our national conversation on access to health care by doing the hard work of identifying, naming, and drawing attention to the complexity of issues that people face.

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Civil rights march on Washington, D.C. Film negative by photographer Warren K. Leffler, 1963. From the U.S. News & World Report Collection. Library of Congress Prints & Photographs Division. Photograph shows a procession of African Americans carrying signs for equal rights, integrated schools, decent housing, and an end to bias. https://www.loc.gov/item/2003654393/

Structural Racism: The Root Cause of the Social Determinants of Health

The Petrie-Flom Center Staff Leave a comment

By Ruqaiijah Yearby, J.D., M.P.H.

In 1906, W.E.B. DuBois noted that social conditions, not genetics, impacted the health of Blacks, causing racial disparities in mortality rates. In 2010, the federal government formally recognized that social conditions, specifically the social determinants of health (SDOH), were responsible for racial health disparities.

Racial health disparities, estimated to cost the United States $175 billion in lost life years and $135 billion per year in excess health care costs and untapped productivity, persist because of the failure to address their root cause: structural racism.

Structural racism describes the way our systems are structured to produce racial inequalities between whites and racial and ethnic minorities in the SDOH, leading to racial health disparities.

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Close-up Of Doctor's Hand Measuring Blood Pressure Of Male Patient.

Understanding the Role of Race in Health: A New Digital Symposium

The Petrie-Flom Center Staff Leave a comment

By Craig Konnoth

In the 1980s, a vanguard of critical race theorists debated their contemporaries as to whether law could or should play a role in achieving equity — in particular, racial equity. Scholars such as Kimberlé Crenshaw and Patricia Williams argued that while legal discourse historically had been used to oppress Black, Indigenous, and people of color (BIPOC), history had shown that in the law also lay the seeds of empowerment. Conceptualizing BIPOC as persons endowed with legal rights, and as a community subject to heightened legal solicitude because of the historical injustices they have faced, has helped undergird their selfhood, dignity, identity and activism. Law could thus be a discourse of despair — but also one of hope.

Whether or not the years have proved those claims correct as to the law, today, a similar debate unfolds in the context of race, medicine, and health care. Today, medicine and the health care system embody discourses of power that rival the law. Will these discourses inevitably serve to oppress BIPOC — and if not, how can we harness their power to achieve justice? Those are the questions that this symposium seeks to answer.

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Uganda Flag Against City Blurred Background At Sunrise Backlight 3D Rendering.

Ugandan Court Decision Enshrines Access to Basic Maternal Health Care as a Right

The Petrie-Flom Center Staff Leave a comment

By Moses Mulumba

On August 19, 2020, the Constitutional Court of Uganda passed a landmark judgment in which it pronounced that the Government of Uganda’s omission to adequately provide basic maternal health care services and emergency obstetric care in public health facilities violates the right to health, the right to life, and the rights of women as guaranteed under the country’s Constitution.

Uganda’s maternal mortality rate is unacceptably high, at 343 per 100,000 live births. This means that Uganda loses 15 women each day from pregnancy and child birth related causes.

In its judgment, the Court directed the Government of Uganda to prioritize and provide sufficient funds in the national budget for maternal health care. The Court also ordered, through the Health Minister, that all the health care workers who provide maternal health care services in Uganda be fully trained and all health centers be properly equipped within the next two financial years (2020/2021 and 2021/2022).

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Assessing legal responses to COVID-19 graphic.

New Report Assesses Legal Responses to COVID-19

Nicolas P. Terry Leave a comment

Assessing Legal Responses to COVID-19 is a new, in-depth analysis of U.S. legal and policy responses to the pandemic.

In the report, 50 top national experts offer a new assessment of the U.S. policy response to the crisis. The research details the widespread failure of the country’s leadership in planning and executing a cohesive, national response, and how the crisis exposed weaknesses in the nation’s health care and public health systems.

The report’s authors also offer recommendations on how federal, state and local leaders can better respond to COVID-19 and future pandemics. Their proposals recommend how to strengthen executive leadership for a stronger emergency response; expand access to public health, health care, and telehealth; fortify protections for workers; and implement a fair and humane immigration policy.

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corridor with hospital beds

Hospitals Bear the Costs of Detention and Incarceration

The Petrie-Flom Center Staff Leave a comment

By Blake N. Shultz and Pooja Agrawal

While individuals with recent criminal justice involvement represent only 4.2% of the population, they make up 8.5% of all emergency department (ED) expenditures, which translates to an additional $5.2 billion in annual spending across the health care sector.

The federal government has complete control over access to medical care for incarcerated individuals and immigrants in detention facilities, and is primarily responsible for the quality of the sanitation, nutrition, and shelter accommodations. Despite this level of control, conditions in many detention facilities and prisons are exceptionally poor.

Over eighty percent of recently released prisoners are uninsured, and upon re-entry into society they struggle to obtain quality medical care for both pre-existing conditions and those that may have been caused or exacerbated by detention.  As they often do not have a medical home, upon release many will present to emergency departments (EDs) for their health care needs, and, because of the low rates of insurance coverage, hospitals are left to pick up the bill for the gaps in care created by the government’s deficiencies.

The disaggregation of government detention facilities and financial responsibility for downstream health care costs of released individuals creates a “regulatory moral hazard,” in which the government has little incentive to invest in the health and health care of incarcerated and detained individuals. In the absence of federal reform incentivizing investment and reducing cost-shifting to the health care sector, hospital systems should build interdisciplinary care teams focused on formerly incarcerated and detained individuals while investing in comprehensive, community-based health care.

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NHS building

The Long and Winding Road of NHS Complaints System Reform

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By John Tingle

Sadly, the NHS (National Health Service) has not been able to get its complaint system right, even after decades of trying.

Despite several reports published over two and half decades detailing the challenges the complaint system faces, as well as potential solutions, it still is not fit for purpose. Most recently, the Parliamentary Health Service Ombudsman (PHSO) has produced a report on complaint handling with a focus on the NHS. It is a good, hard-hitting report, which spells out clearly the problems, difficulties, and opportunities to put things right with NHS complaints.

It is, however, another good NHS complaint system reform report in a long line of others. The other reports failed to change adequately the NHS complaints culture and there is little evidence to suggest that this one will succeed where the others have failed.

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TWIHL: Innovation and Protection: The Future of Medical Device Regulation, Episode 3

Nicolas P. Terry Leave a comment

This is the last of three episodes of “Innovation and Protection: The Future of Medical Device Regulation,” a podcast miniseries created to replace the 2020 Petrie-Flom Center Annual Conference in light of the COVID-19 pandemic.

These episodes highlight a selection of papers that were written for the conference, which was organized in collaboration with the University of Copenhagen’s Center for Advanced Studies in Biomedical Innovation Law (CeBIL) and the University of Arizona Health Law Program. All of the papers will be published in an edited volume.

This third episode looks at recent advances in medical device regulation in the U.S. and abroad, and the effects of the COVID-19 pandemic on national and international medical device regulation.

First, Timo Minssen, Professor of Law and Director, Center for Advanced Studies in Biomedical Innovation Law (CeBIL), University of Copenhagen and Researcher in Quantum Law, Lund University, interviews Helen Yu, Associate Professor at the University of Copenhagen, Faculty of Law and Associate Director of CeBIL about her paper “Regulation of Digital Health Technologies in the EU: Intended vs. Actual Use.”

Minssen returns to talk with Janos Meszaros, Postdoctoral Research Fellow at Taiwan’s National Academy of Science about “Challenges at the Interface of EU Medical Device Regulation and the GDPR: Do the Rules on Privacy and Scientific Research Impair the Safety of AI Medical Devices?”

Finally, Christopher Robertson discusses “Preventing Medical Device-Borne Disease Outbreaks: Improving High-Level Disinfection Policies for Scopes and Probes,” with author Preeti Mehrotra, Attending Physician, Beth Israel Deaconess Medical Center and Instructor of Medicine, Harvard Medical School.

The Week in Health Law Podcast from Nicolas Terry is a commuting-length discussion about some of the more thorny issues in health law and policy. Subscribe at Apple Podcasts or Google Play, listen at Stitcher Radio, Spotify, Tunein or Podbean.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find me on Twitter @nicolasterry or @WeekInHealthLaw.