An article in the August 9, 2025, issue of the New England Journal of Medicine highlights the opportunity, if not the responsibility, of the bar in the private law sector to fill the gaps in healthcare access, quality, and accountability resulting from the Trump administration’s deregulation efforts regarding federal administrative agencies and legislation. Moreover, the termination or redirection of many federal programs and funding will put increased strain on the regulation of healthcare at a state-law level. State-level regulation has commonly encompassed insurance requirements and consumer protection issues. But there are other aspects of healthcare that need attention.
The authors of the NEJM article are professors of law and public health at Boston University and the University of Chicago. They identify the body of law encompassing contracts, torts, and fiduciary duties as the key areas that will respond to the potential vacuum following federal deregulation efforts. They characterize the changes being implemented by the Trump administration as “causing a seismic shift in health care governance.”
Beginning their review with the diminution in the authority and staffing of the Food and Drug Administration, the authors foresee an increased use of contractual provisions to enable private entities such as insurers to require evidence of safety or efficacy to obtain reimbursement for new products and services. They also note that states that purchase healthcare for large numbers of people can build public health goals into their contracts with private payers and healthcare organizations, commenting that the use of market leverage to promote cost containment or quality improvement is not new but is of increased importance with the erosion of public law regulators.
Tort law will likely become “a critical backstop for accountability and quality control in health care” through medical malpractice actions, including informed consent, and product liability claims. The civil justice system including tort liability is widely recognized as advancing objectives of compensation for losses, deterrence of future wrongful conduct, and encouraging safety. The conservative Cato Institute has acknowledged that “[i]n some instances tort liability does serve a potentially risk-reducing role by fostering new safety measures” although it questions whether it makes economic sense to make all products risk-free.
Corporate governance and fiduciary responsibilities are highlighted by the weakening of governmental regulators. The NEJM authors hypothesize that “[i[f public oversight wanes, courts may face pressure to dial up enforcement of duties of care and loyalty in private-law frameworks.” They also note the hybrid nature of some actions that might be taken in the private law sector springboarding from statutes such as the False Claims Act, antitrust statutes, and civil rights laws. Many, but not all of these provide a private right of action.
The NEJM article concludes with a discussion of several risks in relying on private law. These include the difficulty of developing standards for robust ethical conduct and clear comprehensive contracts. The authors foresee a return to an atmosphere of “caveat emptor” for patients, with a need to be wary of insurance policy provisions and treatment options and to subject them to appropriate scrutiny and evaluation. They also point out the inherent imbalance across the general population that follows from the advantage that well-informed or well-resourced parties have in negotiating and navigating these circumstances. Legal counsel is not automatically available to everyone. Even in the setting of tort actions where representation is commonly provided through a contingency fee agreement, there is delay and unpredictability of result that takes away from the appeal of pursuing tort remedies. The authors conclude: “Regardless of whether the elevation of private law in health care represents a temporary stopgap or a durable shift, the time to reckon with its implications is now.”
Ironically, in the same week that the NEJM article appeared, Heather Cox Richardson, a professor of American history at Boston College, published one of her “Letters from an American” making note of the 90th anniversary of the signing of the Social Security Act by President Franklin Delano Roosevelt on August 14, 1935. The primary focus of her historical review was the role of Frances Perkins as Secretary of Labor and the experiences in her life that led her to be the driving force behind the legislation. The Social Security Act was a move away from the notions of “rugged individualism” toward a basic social safety net of interdependence with the pooling of funds available from tax dollars. The congressional vote on enacting the Social Security Act was 371 to 33 in the House of Representatives and 77 to 6 in the Senate. Perkins is the longest serving Secretary of Labor in the country’s history, serving from 1933 to 1945. In a speech delivered in 1962, Perkins stated: “One thing I know: Social Security is so firmly embedded in the American psychology today that no politician, no political party, no political group could possibly destroy this Act and still maintain our democratic system.”
The juxtaposition of Perkins’ 1962 comments with the observations regarding healthcare deregulation in the 2025 NEJM article is thought-provoking. At least since Justice Brandeis’ 1932 decision in New State Ice Co. v. Liebman, the states have been recognized as “a laboratory [to] try novel social and economic experiments without risk to the rest of the country.” While there is the potential of returning to the era when “states’ rights” was a code word, the strong tradition of federalism to the contrary was recognized by Justice Brennan in his classic 1977 Harvard Law Review article entitled “State Constitutions and the Protection of Individual Rights.”
The NEJM article identifies several areas of challenge to the bar. Are we ready?
