baby feet

If You Give a Law Student a Baby

Editor’s Note: Congratulations, Bobby, and welcome to the world, baby Stroup!

By Bobby Stroup

If you give a law student a baby, they’re going to look for legal risk. And if they live in the Bay State, they’re going to want a class on ‘MILK’ (Massachusetts Infant Legal Knowhow). 

Then, after learning about the relevant law and policy, they’re probably going to want to write a legal blog post. They’ll need to do additional research to see how they can legally imitate a popular children’s book. Their research will show that “fair use” allows them to parody the book series by exaggerating its format in a new story.  Read More

Emergency room.

Hospitals That Ditch Masks Risk Exposure

By Nina Kohn and Irina D. Manta

This month, New York became the latest to join the growing list of states that have ended their requirements for routine masking in hospitals and other healthcare settings.

In response, at least one of the state’s largest hospital systems is throwing off the mask despite the continued high level of virus transmission in New York City and most of the rest of the state. NYU’s Langone hospital system decided that — outside of the Emergency Room — patients would generally only be required to mask “if they have fever and cough” (query what percentage of individuals with recent COVID-19 infections did not have this specific combo of symptoms — spoiler: it’s probably high). Similarly, the hospital announced that masking by direct care staff was optional in most situations, with masks required mainly during certain procedures, in particular patient rooms, or — more cryptically — when “there is concern for exposure to infectious aerosols.”

Ending routine masking in hospital settings is a dangerous move. It puts patients and staff at risk for infection, and its potential long-term effects. It also exposes hospitals to the risk of liability.

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Emergency room.

Hospitals in Poor Rural Counties Face the Greatest Financial Threat from COVID

By Robert I. Field and Anthony W. Orlando

The latest wave of COVID cases and hospitalizations has raised concerns about the financial resilience of many hospitals in the United States. Throughout the pandemic, we have witnessed shortages of medical supplies, exhaustion of frontline workers, and the overflow of patients beyond the physical capacity of hospital beds and buildings. Now, after nearly two years of repeated COVID surges, there is a real danger that some institutions might run so low on funding that they will need to downsize or close altogether.

Large hospitals in metropolitan areas have, for the most part, weathered the storm. Ample financial resources enabled them to survive with fewer lucrative elective procedures and sudden overwhelming demand for less profitable intensive care for COVID patients. But in many parts of the country, especially rural regions, smaller hospitals lack such financial cushions. For them, COVID could be an existential threat.

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Doctor in white coat neck down

Buzzwords in Patient Safety: Some Preliminary Thoughts

By John Tingle and Amanda Cattini

Every profession, service, or industry maintains what can be termed, “buzzwords.” A “buzzword” can be defined as transient, flavor-of-the-month-type word, which describes a concept than can be seen to direct policy and practice until it becomes less topical and eventually fades away from general use. These terms come and go and are often refined and come back into use. In the National Health Service (NHS) in England, we have seen such pervading terms as clinical governance, patient empowerment, controls assurance, and patient advocacy.

Today there is what can arguably be called a new buzzword, “decolonization.” This word seems very much to be the term of the day. It pervades vast areas of academic and professional life and discourse. In terms of health law and patient safety research, the decolonization of national and global patient safety systems and structures seems an interesting perspective to further peruse.

One benefit of adopting decolonization perspectives to patient safety is that we can utilize the concept as a disrupter of established thinking and seek to establish new foundations of knowledge.

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Map of remote execution requirements for advance directives.

Advance Care Planning in an Online World: State Law Activity and Challenges Since COVID-19

By Nikol Nesterenko, Jonathan Chernoguz, and Sarah Hooper

Advance care planning — the process by which an individual documents their wishes for health care in the event that they become incapacitated — has become particularly urgent during the COVID-19 pandemic.

However, individuals that wish to engage in advance care planning, and specifically to document their plans in a written form (i.e., advance directives), have faced significant hurdles due to legal execution requirements. State advance directive law often requires or presumes live, in-person witnessing or notarization, actions which were prohibited by social distancing orders or simply unsafe during the pandemic.

In this piece, we summarize the state of remote execution requirements for advance directives before and during the COVID-19 pandemic. Broadly speaking, while many states took some action in this regard, most did not enact comprehensive changes, and therefore failed to meaningfully facilitate remote execution of advance directives.

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Game of whack-a-mole.

Stop Playing Health Care Antitrust Whack-A-Mole

By Jaime S. King

The time has come to meaningfully address the most significant driver of health care costs in the United States — the consolidation of provider market power. 

Over the last 30 years, our health care markets have consolidated to the point that nearly 95% of metropolitan areas have highly concentrated hospital markets and nearly 80% have highly concentrated specialist physician markets. Market research has consistently found that increased consolidation leads to higher health care prices (sometimes as much as 40% more). Provider consolidation has also been associated with reductions in quality of care and wages for nurses

In consolidated provider markets, insurance companies often must choose between paying dominant providers supracompetitive rates or exiting the market. Unfortunately, insurers have little incentive to push back against provider rate demands because they have the ability to pass those rate increases directly to employers and individuals, in the form of higher premiums. In turn, employers take premium increases out of employee wages, contributing to the growing disparity between health care price growth and employee wages. As a result, rising health care premiums mean that every year, consumers pay more, but receive less. 

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NHS building

When Will the NHS Get Its Complaints System Right?

By John Tingle

The National Health Service (NHS) in England has been trying to get an effective, fit-for-purpose complaints system for at least 28 years, and it has still not succeeded.

This has been one of the NHS’s perpetual and intractable problems. History has not served the NHS well here, despite the publication of countless reports on patient safety and NHS complaint handling, and several major crises happening, such as Mid Staffordshire.

More often than not, the reports into patient safety crises and NHS complaints system reform all say the same (or similar) thing, and point to the same issues.

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NHS building

Health Care Providers’ Legal Duty to Be Open and Honest with Patients

By John Tingle

Last September, the first ever prosecution of a National Health Service (NHS) trust for failure to comply with the regulation concerning duty of candor was adjudicated.

University Hospitals Plymouth NHS Trust was ordered to pay a total of £12,565 after admitting it failed to disclose details relating to a surgical procedure and to apologize following the death of a 91-year-old woman.

Duties of candor require that patients be informed of adverse events as soon as possible after they occur. These duties serve as mechanisms to help balance power dynamics in health care and to advance patient rights. In England, duties of candor are contained in the professional codes of ethics of doctors and nurses, and in statutory regulations.

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