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Welcome
Welcome to our first issue of 2026 of The Health Record -- our healthcare law insights e-newsletter. We have been publishing The Health Record for three years and we hope you find it informative and helpful. If you have suggestions for content, format, or anything else, please let us know. We appreciate you taking the time to read and engage with our content.
In this edition, we look at trends for rising mergers and acquisitions in healthcare services, the top HIPAA risks to avoid and what to expect from HIPAA in 2026, why medical malpractice awards are increasing, how Pennsylvania healthcare workers are addressing workplace violence, the latest in litigation challenging North Carolina’s Certificate of Need law, the possibility of Ohio pharmacists prescribing medications, and how physicians are using AI for more than just administrative support.
ABA 2026 Joint Regional CLE Program, January 28, 2026 – January 30, 2026
Steamboat Springs, Colorado
We are pleased to sponsor this multi-day program featuring eight plenary presentations on hot litigation topics, including committee-specific content, broader litigation interests, and ethics. In addition to an agenda of diverse educational sessions, there will be time to enjoy outdoor activities and network with your colleagues. Our own Cliff Kinney will be serving as a moderator. Click here to learn more.
2026 National Labor & Employment Law Symposium, February 1, 2026, Steamboat Springs, Colorado
For those of you interested in labor and employment law topics, please join this exclusive gathering of top national and international labor and employment lawyers for the latest legal updates in a close-knit, collegial atmosphere. More than a dozen sessions, in a roundtable format, will cover cutting-edge labor and employment topics. In between sessions, participants will have plenty of time to enjoy skiing in Steamboat Springs or networking over drinks or dinner. Click here to learn more.
Thank you!
Brienne T. Marco
Member, Chair of the Corporate Department, Co-Chair of the Health Care Practice Group, and Editor of The Health Record
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“Dealmaking in the sector is poised to increase next year after a lull in 2025, as companies use technology, like artificial intelligence, to attract buyers, according to the report.”
Why this is important: After a relatively slow year for M&A transactions in the health services sector in 2025, and despite regulatory and reimbursement challenges for the sector heading into the new year, PwC is predicting M&A transactions in the health services sector to rise in 2026. PwC attributes the expected growth in deal value and volume to more favorable market conditions as well as a shift in the type and quality of assets marketed. Specifically, the expectation is that private equity investors will focus on software and services platforms that support care delivery, such as AI-based telehealth platforms and tools for revenue cycle management, over assets that are susceptible to reimbursement and regulatory exposure. AI will be a game changer in 2026 (in more ways than one), and in the M&A space, it will be a differentiator for the identification of attractive acquisition targets in the health services sector. --- Brienne T. Marco
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By Eric E. Kinder
All readers of The Health Record understand the importance of complying with HIPAA’s Privacy, Security and Breach notification rules. But where do violations most often occur?
Click here to read the entire article.
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“A major update to HIPAA is long overdue, and steps were taken in December 2020 to address the need for HIPAA changes and HIPAA updates when the HHS’ Office for Civil Rights (OCR) issued a Notice of Proposed Rulemaking (NPRM) to make multiple changes to the HIPAA Privacy Rule and in December 2024, OCR proposed a long-awaited update to the HIPAA Security Rule.”
Why this is important: While it is difficult to forecast when a major update to HIPAA will materialize, two recent developments may provide insight into what the update may look like.
In January 2024, HHS released voluntary cybersecurity goals for healthcare and public health organizations that are broken down into essential and enhanced safeguards. The goals aim to assist organizations in preventing cyberattacks, improving their response if an incident occurs, and minimizing remaining risk after security measures are applied.
A portion of the voluntary cybersecurity goals was incorporated as mandatory requirements in HHS’s January 2025 proposal to update the HIPAA Security Rule, including multifactor authentication, encryption, and comprehensive risk analysis. The proposed HIPAA Security Rule attracted substantial pushback during the public comment period and a final rule has not been issued. The final iteration of the HIPAA Security Rule will likely include significant cybersecurity mandates and healthcare organizations will need to plan accordingly. --- Joseph C. Unger
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“The number of $10 million-plus medical malpractice jury awards is growing.”
Why this is important: Medical malpractice verdicts are on the rise in the United States, which means medical liability insurance premiums are expected to rise as a result. In February 2025, the American Medical Association (AMA) issued guidance to physicians and physician advocates through its “Medical Liability Reform NOW!” report in order to address the broken medical liability system.
In this article, Wes Cleveland, a senior attorney at the AMA, identifies “drivers of social inflation” that help explain why a medical liability insurer’s average claim amount might grow faster than the overall inflation rate. One such driver is related to the COVID-19 epidemic. After a significant loss of public esteem from the COVID-19 public health emergency, physicians have been trying to reinforce the importance of the patient-physician relationship by prioritizing trust, empathy, compassion and time caring and fighting for patients. Second, healthcare has become corporatized, resulting in impersonal encounters and a lack of long-standing care relationships. Third, juries are showing more empathy to plaintiffs even when negligence cannot be proven. Another driver of social inflation is that multi-million-dollar verdicts do not seem to be a big deal anymore to the overall public, who hear big numbers in the news all the time.
Of course, you can’t talk about medical liability without talking about the “reptile theory” and its impact on verdicts in this country. Since 2009, plaintiffs’ use of the “reptile theory” has resulted in large verdicts by activating a juror’s “survival mode” instincts by portraying the medical professional as highly dangerous and posing a threat to public safety. Large verdicts are expected to serve as a deterrent to those behaving badly. This trial strategy is so successful that several states are trying to get laws passed to limit its use. Another explanation for these high verdicts is through the use of anchoring, which is where a plaintiff’s attorney may intentionally ask a jury for an exaggerated amount in damages to set the bar really high, with actual results coming in at a higher amount than would have been awarded without the higher anchor number being requested. Finally, plaintiffs’ attorneys have also resorted to the use of threats to go after a physician’s personal assets to induce acquiescence if their exorbitant demands for settlement are not met. Some states are also starting to act to combat anchoring and bullying tactics. --- Jennifer A. Baker
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“SEIU Healthcare Pennsylvania, which represents more than 23,000 health care workers across the commonwealth, is circulating the petition in an effort to improve workplace safety across all health care systems.”
Why this is important: Healthcare workers and nurses form the first line of care, comfort and communication for a patient and the patient’s family during a medical crisis, and they are also on the front line when it comes to their own safety. A union representing healthcare personnel in Pennsylvania is circulating a petition, supported by its members, requesting metal detectors, an increase in security personnel, enforcement of limits on visitors, and crisis training, as well as other demands. Two incidents of extreme violence in hospitals in Pennsylvania prompted this petition. In one event, a worker suffered a fractured skull when attacked by a behavioral-health patient. In another instance, healthcare workers were taken hostage and shot in the intensive care unit of a hospital. Two people, including a police officer, died during the incident. Biting, punching and pushing are reportedly frequent occurrences in hospitals and other healthcare facilities.
The dire situation in Pennsylvania is not limited to the Commonwealth. Nurses and healthcare personnel in many states face similar frustrations and threats. Some nurses face punching, pushing, biting, and spitting by patients and visitors on nearly every shift. Many healthcare providers believe that criminal repercussions should be leveled against patients who are guilty of these bad acts. The workers question why they are not protected as well as any other citizen. In the future, one should expect to see healthcare providers continue to demand greater protection while performing their duties. In addition, patients and visitors to medical facilities will see an increase in security measures. --- Lynn P. Michael
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“Challenge to constitutionality of certificate of need law, regulating medical facilities expansion, could be headed back to NC Supreme Court.”
Why this is important: This article discusses the constitutional challenge to North Carolina’s Certificate of Need Law brought by an ophthalmologist in New Bern. Dr. Singleton argues that North Carolina’s Certificate of Need Law creates monopolies that violate North Carolina’s Constitution. The Court of Appeals disagreed with Dr. Singleton and ruled unanimously against him. His lawyers have indicated they will appeal to the North Carolina Supreme Court, looking to overturn the ruling of the Court of Appeals. This case is one to keep an eye on because, if the Supreme Court rules in favor of Dr. Singleton, the entire structure of how medical facilities and practitioners are allowed to operate and offer services will be turned on its head, the results of which will be far-reaching and unpredictable. --- Matthew W. Georgitis
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“The act would allow patients to receive treatments for minor health conditions like lice, COVID-19 or the flu.”
Why this is important: Pharmacists are only able to issue medications, not prescribe them. However, a new Ohio bill may change that. If passed, House Bill 629 (the Pharmacist Prescribing Authority Act) will allow pharmacists in Ohio to prescribe medications for minor health conditions for individuals age 13 and older. Teenagers and adults will no longer be required to visit a doctor for conditions such as the flu, strep throat, and urinary tract infections. This will save patients time and money, reducing barriers to care for routine medical treatment. --- Charity K. Lawrence
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“Physicians report rising comfort with artificial intelligence as a chart reviewer and clinical assistant, but data gaps persist.”
Why this is important: AI has significantly integrated into our healthcare system. A recent survey by athenaInstitute finds that the use of AI is expanding in healthcare as it now supports clinical decisions during patient care. The survey, fielded by Sago Health, polled 501 physicians and practice administrators across the United States and found that the majority of those polled are using AI to assist in quickly accessing a patient’s clinical information and test results, and relying on the technology to catch details across patient records. A critical inflection point has been reached with the discussion of AI in healthcare shifting from “will it be adopted” to “how will it be adopted.” Physicians are certainly seeing the benefit of efficient automated information synthesis, which can help improve care delivery and patient outcomes. Other benefits identified include faster creation of patient care plans, reduced billing and coding errors, and sophisticated analysis of patterns resulting in increased confidence with clinical decisions, among others. Several concerns voiced by some of the physicians polled included data barriers from fragmented or outdated information systems, rendering the AI less efficient and/or helpful, and the lack of human connection. --- Jennifer A. Baker
| | Featured Attorneys Question & Answer | | |
In each issue of The Health Record, we feature our attorneys by posing a legal question to them and soliciting their answer and recommendations. To kick off 2026, we have collected each of 2025’s questions and answers and outlined them below. If you missed these last year, you can simply click on the question you find of interest and scroll to the bottom of that newsletter.
Is there a question or area of the law you would like addressed? Please let us know!
Q: By any measure, efforts related to billing and collecting medical debt are a challenging enterprise. The survival of a healthcare provider can often depend on understanding the issues and nuances in this unique area of practice. As someone who has worked with clients in this arena for many years, what are some suggested best practices for healthcare organizations facing this increasingly important and, sometimes, difficult part of the business? - David D. Amsbary
Q: As two attorneys with extensive experience in union organizing efforts, we know that unions often try to organize healthcare employees. Given the new political climate and the ever-changing healthcare landscape, what are your “best practices” when it comes to maintaining high employee morale and how do you suggest employers address the potential of unionizing efforts? – Kevin L. Carr and Mitchell J. Rhein
Q. As we all know, the rules and regulations surrounding nursing homes are quite involved and can be cumbersome. As the Co-Chair of Spilman’s Nursing Home Practice Group and someone with extensive experience in this unique area of law, what are your best practice recommendations for compliance? Is it enough to cover all compliance rules? Or should nursing homes be doing more? – Matthew W. Georgitis
Q: With the recent shift in policies regarding diversity, equity and inclusion (DEI) programs, many companies and institutions are left wondering how best to create and maintain a diverse workforce while honoring long-standing obligations to provide equal employment opportunities. As someone whose primary areas of practice are labor and employment law, what guidance are you giving your clients on how best to move forward in these uncertain times? – Eric E. Kinder
Q: Bonds issued for healthcare projects (like building hospitals, clinics and medical research facilities, and securing investments for equipment) often involve complex legal issues. As the Chair of Spilman’s Public & Project Finance Practice Group and Co-Chair of our Banking and Finance Practice Group, what are your baseline recommendations when it comes to bond deals and public financing scenarios? – Joshua L. Jarrell
Q: Certificate of Need (CON) emerged as a central issue during West Virginia's recent legislative session, with substantial efforts to eliminate the system ultimately falling short. Drawing from your experience in government service and current role as co-chair of Spilman's Government Relations Practice Group, how do you assess the political dynamics surrounding these reform efforts, and what developments should we anticipate? – James M. Bailey
Q: Is healthcare fraud something I should be concerned with if I am in the medical industry? When it comes to healthcare fraud, there are two areas that should be considered – criminal and civil liability. What are your best practice suggestions for healthcare organizations when dealing with fraud issues? Are there any particular issues that a healthcare administrator should be prepared for when it comes to healthcare fraud? – William S. Thompson
Q: As we all know, safety in the healthcare industry is of utmost importance and is gaining in prominence every single day. As attorneys who are considered top of your fields regarding workers’ compensation issues, what are your best practices for healthcare organizations when it comes to safety policies, human resources trainings, and workers’ compensation programs? – H. Dill Battle III and Charity K. Lawrence
Q: In your experience working with clients on construction projects, have you observed any issues particular to the construction of medical facilities that you can share with medical facility owners and contractors? – Stephanie U. Eaton and Julian E. Neiser
Q: As someone well-versed in labor and employment law, we wanted to get your thoughts regarding two key issues affecting the healthcare industry: immigration and H-1B visas. With all of the activity related to immigration issues and the latest regarding the fees for H-1B visas, what are your best suggestions for healthcare facilities moving forward in this changing environment? - Emily R. Merritt
Q: Mergers and acquisitions in the healthcare industry are uniquely complex due to regulatory, compliance and patient care considerations. As the Chair of Spilman’s Corporate Department and Co-Chair of Spilman’s Healthcare Practice Group, you have seen your fair share of these types of transactions and are well-versed in this area of law. What are your best practice recommendations for a successful transaction? – Brienne T. Marco
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