Health Law as Private Law delves into the complex relationship between private law and health care. During the COVID-19 pandemic, the importance of public ordering and state-created rules was evident, yet this work reveals the equally important role of private agreements in shaping health care policy. The volume's five sections – theory and structure, reproductive care, costs and financing, innovation and institutions, contracts and torts – include innovative conceptualizations and approaches to applying private law to health law. Chapters authored by leading experts explore how private law can be utilized to address significant health care and public health problems, and to achieve much-needed health care reform. Comprehensive and timely, Health Law as Private Law opens new pathways that will influence future policy, jurisprudence, and regulation. This title is also available as open access on Cambridge Core.
Table of Contents:
Introduction Susannah Baruch, I. Glenn Cohen, Wendy Netter Epstein, Christopher Robertson, and Carmel Shachar; Part I. What is Private Law? Theory and Structure: 1. Public funds, public functions, private actors: the cognitive dissonance of US health law William Sage; 2. Private ordering is ubiquitous in health care, but why? Barbara J. Evans; 3. Abandoning fiduciaries in health care Lauren R. Roth; 4. European distinctions between private and public law in health care and the emerging influence of private lobbies Barry Solaiman; Part II. Tools of Private Law: Torts, Contracts, and Property as Vehicles of Health Policy: Introduction Wendy Netter Epstein; 5. Data transparency, ERISA preemption, and freedom of contract Craig Konnoth; 6. States as contractor: attempts to drive health care cost containment through state purchasing power Christine H. Monahan, Maanasa Kona and Madeline O'Brien; 7. Adaptation of tort law to modern health care delivery in the restatement of medical malpractice Mark A. Hall; 8. Pandemic harms and private law's limits: a proposal for tort replacement Jill R. Horwitz, Alberto De Diego Carreras and Daniel B. Rodriguez; 9. The human body commons: a private law contribution for the advancement of the right to health Enrique Santamaría Echeverría; Part III .Russian Dolls, Reproduction, and Private Law: Introduction I. Glenn Cohen; 10. Employer-sponsored abortion coverage: private law's role in reproductive freedom Valarie K. Blake and Elizabeth Y. McCuskey; 11 Reproductive innovation and reproductive exceptionalism: how private health insurance coverage of fertility treatment compliments hostile governmental action and expands access to assisted reproduction in the United States Myrisha Lewis; 12. Business Responses to Dobbs: the return to a 'reproductive rights' approach, and suspicions around corporate care Asees Bhasin; 13. Privatizing the creation of equity in women's health Thomas Williams; Part IV. Controlling Costs: Private Law's Impact on Health Care Financing and Pricing: Introduction Christopher Robertson; 14. Federalism, private law, and medical debt Erin C. Fuse Brown; 15. Paying for health care and private law's internal point of view James Toomey; 16. Health law's sheathed sword: why hasn't civil litigation dented health care costs? Jackson Williams; 17. The canary in the coal mine: private antitrust law and new dynamics in health care markets Jaime S. King 18. Health care finance law's relational bias Jessica Mantel; Part V. Private Law Applied: The Pharmaceutical Industry, Nursing Homes, and the End of Life: Introduction Carmel Shachar; 19. Private equity firms and digital clinical trials: tensions between efficiency and drug evidence access Ximena Benavides; 20. Shareholder resolutions and access to medications Rebecca E. Wolitz; 21. The hollowed-out American nursing home: using private law to police poor quality care and expand owner responsibilities Barry Furrow; 22. Health Care organization policies about the California end of life option act: the paper victory of the medical aid in dying movement Megan Wright and Cindy L. Cain.
