Health Law 2015: Individuals and Populations

Abstract

In this article, we assess two particular trends in judicial doctrine that are likely to emerge in the post-ACA era. The first trend is the inevitable emergence of enterprise medical liability (EML) that will supplant tort law's unstable attempt to apportion liability between physicians and institutions. Arguments favoring EML in health law date back to the early 1980s. But health care's ongoing consolidation suggests that the time has arrived for courts or state legislatures to develop legal doctrine that more closely resembles the ways in which health care is now delivered. This would result in a more appropriate allocation of liability to the institutional level. The second judicial trend will be the convergence of health law and public health law concepts. Because the ACA arguably stimulates closer engagement between health systems and public health departments, health systems will have greater responsibility for keeping their communities healthy along with obligations for individual patient care (i.e., individuals and populations). If so, courts will need to incorporate elements from health law and public health law in resolving disputes.

Accounting for accountable care: Value-based population health management

“…In the process, relations among providers, payers and patients are also reordered: Basing care on monetary incentives (and penalties) for the outcomes of patients puts providers in the position of arbitrating financial and health risks, blurring their role with that of insurers. Boundaries between clinical care and public health are blurred as population health management becomes a matter of data-intensive sourcing about individuals in their everyday lives, and individuals are viewed as risk objects in relation to others within unconventionally defined populations (Jacobson and Dahlen, 2016). At the same time, infrastructures established to document accountability facilitate data-intensive sourcing of personal health information for broader purposes of data collection beyond healthcare.…”