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Licensure of Health Care Professionals: The Consumer's Case for Abolition

Published online by Cambridge University Press:  29 April 2021

Charles H. Baron
Charles H. Baron*
Affiliation:
Boston College Law School; Harvard Law School, University of Pennsylvania. Community Legal Services, Philadelphia, Pa.; Resource Center for Consumers of Legal Services, Washington, D.C.; Omnidentix, Inc. (for-profit franchisor of dental centers)
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Abstract

While state medical licensure laws ostensibly are intended to promote worthwhile goals, such as the maintenance of high standards in health care delivery, this Article argues that these laws in practice are detrimental to consumers. The Article takes the position that licensure contributes to high medical care costs and stifles competition, innovation and consumer autonomy. It concludes that delicensure would expand the range of health services available to consumers and reduce patient dependency, and that these developments would tend to make medical practice more satisfying to consumers and providers of health care services.

I don't know that I cared much about these osteopaths until I heard you were going to drive them out of the State; but since I heard this I haven't been able to sleep . Now what I contend is that my body is my own, at least I have always so regarded it. If I do harm through my experimenting with it, it is I who suffer, not the State."

Mark Twain

Type
Articles
Information
American Journal of Law & Medicine , Volume 9 , Issue 3 , Fall 1983 , pp. 335 - 356
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1983

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References

1 Friedman, M., Capitalism & Freedom 158 (1962)Google Scholar.

2 Pertschuk, , Professional Licensure, 43 Conn. Med. 793, 794 (1979)Google Scholar.

3 R. Shryock, Medical Licensing in America 1650-1965, at 45-49 (1967). See also B. Shimberg, B. Esser, & D. Kruger, Occupational Licensing: Practices and Policies 12-16 (1972); R. Derbyshire, Medical Licensure and Discipline in the United States 7-12 (1969);' Sigerist, , The History of Medical Licensure, 104 J. A.M.A. 1057 (1935)CrossRefGoogle Scholar.

4 R. Shryock, supra note 3, at 17-27.

5 Id. at 27-29.

6 A. de Tocqueville, Democracy in America 189 (1969). John Stuart Mill captured this pervasive sense of personal autonomy:

[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise or even right …. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

J. S. Mill, On Liberty 9 (1978).

7 R. Shryock, supra note 3, at 47-48, 59-61.

8 P. Starr, The Social Transformation of American Medicine: The Rise of A Sovereign Profession and the Making of a Vast Industry 140-41 (1982).

9 B. Shimberg, Occupational Licensing: A Public Perspective 15-17 (1980).

10 Gellhom, , The Abuse ofOccupational Licensing, 44 U. Chi. L. Rev. 6, 11 (1976)Google Scholar. See also E. Rayack, Professional Power and American Medicine: The Economics of the American Medical Association (1967); M. Friedman, supra note 1, at 137-160; Kessel, , Price Discrimination in Medicine, 1 J.L. & Econ. 20 (1958)Google Scholar.

11 Gellhorn, supra note 10, at 11.

12 See Rayack, , Medical Licensure: Social Costs and Social Benefits, 7 Law & Hum. Behav. 147, 152-54 (1983)Google Scholar.

13 Freeh, The Long-Lost Free Market in Health Care, in A New Approach to the Economics of Health Care 57 (M. Olson ed. 1981); see also M. Friedman, supra note 1, at 155 (other social costs). See generally P. Feldstein, Health Care Economics 322-28 (1979).

14 Gibson, , Waldo, & Levit, , National Health Expenditures, 1982, 5 Health Care Fin. Rev. 1, 19 (1983)Google Scholar.

15 Id. at 4; see Factors Responsible for Increasing Cost of Medical Care, 44 Conn. Med. 447 (1980).

16 Gibson, Waldo & Levit, supra note 14, at 1.

17 Id.

18 The per capita expenditure in 1960 was 146. Id. at 4.

19 Wing, & Craige, , Health Care Regulation: Dilemma of a Partially Developed Public Policy, 57 N.C.L. Rev. 1165, 1166 (1979)Google Scholar.

20 American Med. Ass'n v. FTC, 455 U.S. 676 (1982), reh'g denied 456 U.S. 966 (1982).

21 See, e.g., Medical Serv. Corp. of Spokane County, 88 F.T.C. 906 (1976); Forbes Health Sys. Med. Staff, 94 F.T.C. 1042 (1979).

22 In re Michigan State Med. Soc'y, Trade Reg. Rep. (CCH) 21, 991 (1983).

23 The McClure-Melcher bill was tabled in the Senate, 128 Cong. Rec. S15.069-80 (daily ed. Dec. 16, 1982).

24 See infra notes 79-82 and accompanying text.

25 Hogan, , The Effectiveness of Licensing: History, Evidence, and Recommendations, 7 Law & Hum. Behav. 117, 117 (1983)CrossRefGoogle Scholar.

26 See Freeh, supra note 13, at 47.

27 Annas, , The Case for Medical Licensure, 8 Medicolegal News 20 (1980)Google Scholar. See also A. Moritz & R. Morris, Handbook of Legal Medicine 134-35 (1970); R. Derbyshire, supra note 3. But see Baram, , Managing Risks to Health, Safety and Environment by the Use of Alternatives to Regulation, 16 New Eng. L. Rev. 657, 663-64 (1981)Google Scholar.

28 Holden, & Levit, , Medical Education, Licensure and the National Board of Medical Examiners, 303 New Eng. J. Med. 1357, 1358 (1980)Google Scholar.

29 Cririblett, , National Policies for Medical Licensure Through the Federation of State Medical Boards, 303 New Eng. J. Med. 1360 (1980)Google Scholar.

30 Id.

31 See Hogan, supra note 25, at 121-33; Grad, F. & Marti, N., Physicians Licensure and Discipline : The Legal and Professional Regulation of Medical Practice 115-116, 126, 128, 130 (1979)Google Scholar.

32 Id. at 74-139.

33 At the present time, recertifkation programs have had little effect on physician competence. Specialty boards are the primary regulators of competence in medical specialties, but only four have active recertification programs, and two of these programs are voluntary . Id. at 95. The failures of effective enforcement and of physicians to report the improper practices of colleagues both reflect certain self-protective professional attitudes. Id. at 115.

34 See Havighurst & King, Private Credentialing of Health Care Personnel: An Antitrust Perspective (pt. 1), 9 Am. J.L. & Med. 132-33 (1983); see also infra notes 70-71 and accompanying text.

35 See, e.g., Mass. Gen. Laws Ann. ch. 112, 74A (West 1983). The certification requirements and limits of nursing practice are interpreted by the Massachusetts Board of Nursing Discipline and Registration to mean that a nurse could have her license revoked if she were discovered to be practicing medicine. Nurses are limited in their practice to counseling, advising, and implementing orders and medication prescribed by physicians, dentists and podiatrists, and must work under the supervision of a physician. Telephone interview with Eleanor Burke, Executive Secretary, Commonwealth of Massachusetts Board of Nursing Discipline and Registration, in Boston (March 1, 1983).

36 498 F. Supp. 1038 (S.D. Tex. 1980).

37 Any person shall be regarded as practicing medicine within the meaning of this law: (1) who shall publicly profess to be a physician or surgeon and shall diagnose, treat or offer to treat, any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, to effect cures thereof, (2) or who shall diagnose, treat, or offer to treat any disorder, mental or physical, or any physical deformity or injury by any system or method and to effect cures thereof and charge therefor, directly or indirectly, money or other compensation .

Id. at 1039 n.3.

38 Id. at 1041 n.9. The text of the Am. resolution read:

Resolved, that it is the current judgment of the American Medical Association that since the practice of acupuncture in the United States is an experimental medical procedure it should be performed in a research setting by a licensed physician or under his direct supervision and responsibility, and therefore the Am. urges its constituent state and territorial associations to seek appropriate legislation and rules and regulations to confine the performance of acupuncture to such research settings.

Resolution 55, House of Delegates of the American Medical Association.

39 498 F. Supp. at 1040-41. In January, 1976, the board formally reconsidered its December, 1974 policy statement in response to claims that it could not rule by way of such statements. Although it took no evidence and heard no testimony, the board reissued the statement as a set of formal rules having the force of law. Id.

40 Id. at 1055.

41 Id. at 1056.

42 The plaintiffs have a constitutional right, encompassed by the right of privacy, to decide to obtain acupuncture treatment. The challenged articles and rules effectively deprive them of that right, and are not necessary to serve the State's interest in protecting the patient's health. That being so, they cannot stand.

Id. at 1057.

43 See, e.g., Arizona, v. Maricopa County Med. Soc'y, 102 S. Ct. 2466 (1982) (physicians maximum price-fixing plan struck down as an antitrust violation).

44 Iatrogenesis is the production of disease by the manner, diagnosis or treatment of a physician or some other member of the health care team. Editorial, Iatrogenesis: Just What the Doctor Ordered, 5 J. of Community Health 149, 149 (1980)Google Scholar.

Sartwell has catalogued a series of iatrogenic empidemics over the past 50 years. A computerized listing of medical journal citations on iatrogenic reports on surgery and drugs over a 30-month period uncovered almost 200 articles. They read like a shelf of gothic novels, a testimony to Murphy's law. One dramatic description of the extent of iatrogenic illness notes that the number of deaths and nonfatal hospitalizations directly attributable to medical intervention equals or exceeds the average number of deaths and nonfatal casualties from either the Korean or Vietnam wars.

Editorial, supra note 44, at 149; see also I. Illich, Medical Nemesis 270-71 (1976).

46 P. Starr, supra note 8, at 347 (quoting R. Carter, Breakthrough: The Saga of Jonas Salk (1966)).

47 According to present rates, about 66 million Americans now living, or about 30 percent of the population, will eventually have cancer. It was estimated that in 1983 about 855,000 people would be diagnosed as having cancer. American Cancer Society, Cancer Facts and Figures: 1983, at 3 (1982).

48 Law school enrollment in ABA-approved schools rose from 40,381 in 1960 to 82,041 in 1970, and 122,860 in 1979. American Bar Association, Review of Legal Education.

49 See Miller & Kellman, How to Choose a Holistic Practitioner, Whole Life Times, Nov., 1983, at 28.

50 Informed consent rules provide a strong incentive to physicians to explain procedures and potential effects and side effects. See Hosford, B., Making Your Own Decisions 158, 159, 174-176 (1982)Google Scholar.

51 Am. Acad. Pol. Sci. Ann. 96-122, 453 (1981); Warner & Lewis, Trends inEducation and Earnings, 1950-1970; A Structural Analysis, 61 Social Forces, Dec. 1982, at 436, 443-44. It is important to note here that the number of adults who have completed four years of high school or more has increased steadily and dramatically over the past 40 years. In 1950, 36% of adults had completed high school, while in 1981 the figure had increased to 70%.

52 In 1939, 1,364,815 students were enrolled in four-year institutions of higher learning. U.S. Dep't. of Health, Education and Welfare, Fall Enrollment in Higher Educational Institutions (1954). By 1954, enrollment had risen to 2,499,750, id., aria, by 1960, to 3,610,007. U.S. Dept. of Health, Education and Welfare, Opening [Fall] Enrollment in Higher Educational Institutions (1960).

The near future will offer consumers of health care more powerful self-education and reference tools than ever before. Computer software has been developed to assist health professionals with diagnosis and treatment.

In medicine, the computer which started by keeping records and sending bills, now suggests diagnoses. Caduceus knows some 4,000 symptoms of more than 500 diseases; Mycin specializes in infectious diseases; PUFF measures lung functions. All can be plugged into a master network called Sumex-Aim, with headquarters at Stanford in the West and Rutgers in the East The process may sound dehumanized, but in one hospital where the computer specializes in peptic ulcers, a survey of patients showed that they found the machine more friendly, polite, relaxing and comprehensible than the average physician.

Friedrich, Machine of the Year: A New World Dawns, Time, January 3, 1983, at 14, 21. See also Pauker, & Kassirer, , Clinical Decisions Analysis by Personal Computer, 141 Arch, of Intern. Med. 1835 (1981)Google Scholar; Gorry, , The Personal Computer and Clinical Practice, 141 Arch, of Intern. Med. 1745 (1981)Google Scholar. The technology already exists for making these programs available to health care r consumers through low-cost personal computers with modem connections via telephone. Estimates for the number of personal computers in use by the end of the century run as high as 80 million. Friedrich,supra at 16. A poll conducted for Time magazine in December, 1982 revealed that nearly four out of five Americans expect that in the fairly near future, home computers will be as commonplace as television sets or dishwashers. Id. at 14.

53 See supra notes 12-13 and accompanying text. Contra White, Public Health and Private Gain 17-24, 120 (1979).

54 Payton, & Posner, , Regulation Through the Looking Glass: Hospitals, Blue Cross and Certificate-of-Need, 79 Mich. L. Rev. 203, 227-28 (1980)Google Scholar. See also Heitler, , Antitrust and Third Party Insurers, 8 Am. J.L. & Med. 251, 252 (1982)Google Scholar.

55 J. Thompson, Trends in the Third Party Reimbursement for Non-Physician Health Care Providers, at 1 (paper delivered at the Licensing and Credentialing of Health Care Providers Conference, American Society of Law and Medicine, October, 1982).

(O)bstetricians at Yale-New Haven Hospital were advised that their admitting privileges would be revoked if they attended non emergency home births . The reason for the prohibition was obvious: the physicians and hospital wished to squelch competitive and threatening new modes of delivering care by manipulating admitting privileges.

Dolan, , The Law and the Maverick Health Practitioner, 26 St. Louis U.L.J. 627, 645 (1982)Google Scholar.

57 To some extent, such options are already offered to consumers. At Boston College, for example, faculty and staffare currently offered a choice of six health care plans, including five health maintenance organizations (HMOs) and Blue Cross-Blue Shield. If an employee chooses an HMO (Harvard Community Health Plan, Lahey Clinic, Multi-Group, Tufts Associated, or Bay State), the university contributes the same dollar amount that would be applied to the corresponding Blue Cross premium. An employee selecting the Harvard Community Health Plan (HCHP) need only make a contribution of one dollar per month for individual coverage, as contrasted with 21.25 for Blue Cross-Blue Shield. The employee's monthly premium for family coverage under the HCHP is 43.47 as contrasted with the Blue Cross- Blue Shield monthly premium of 99.51. The price differential results from the somewhat more restrictive approach of the HMOs, which, unlike Blue Cross-Blue Shield, limit the patient's choice of primary care physician and use of specialists. HMOs also tend to discourage patients from using hospital emergency rooms by requiring those seeking medical attention after working hours to call the HMO. Usually patients are counseled to wait until the following day to visit an HMO, or are directed to an HMO evening facility. If emergency room care is necessary, the HMO generally directs the patient to a designated hospital.

58 Nurse-midwifery is becoming increasingly popular and its benefits cannot be underestimated.

Avoidance of unnecessary intervention in the birth process, with modern technology immediately available when really needed, may produce better perinatal outcomes by eliminating many iatrogenic problems.

Stewart & Clark, Nurse-Midwifery Practice in an In-Hospital Birthing Center, J. of Nursemidwifery, May/June, 1982, at 21, 25.

59 Fagin, Nursing as an Alternative to High-Cost Care, Am. J. Nursing, Jan. 1982, at 56, 58.

60 Id.; see also Ramsay, , McKenzie, & Fish, , Physicians and Nurse Practitioners: Do They Provide Equivalent Health Caret, 72 Public Health Briefs 55 (1982)Google Scholar.

61 Tom, , Nurse Midwifery: A Developing Profession, 10 Law, Med. & Health Care 262 (1982)Google Scholar.

62 Precisely such practices are now being employed in some free-standing minor emergency clinics. See, e.g., Martin, The Emergency Care Controversy: Can the New Clinics Pass the Physical?, Memphis, Sept., 1982, at 81.

63 IIA Hospital Law Manual, Principles of Hospital Liability, 1-2 (1981).

64 IIA Hospital Law Manual, Immunity, 2-7 (1982).

65 IIB Hospital Law Manual, Principles of Hospital Liability, 4-1 (1983).

66 W. Prosser, Handbook of the Law of Torts, 161-62 (4th ed. 1971) (citations omitted).

67 Fraijo v. Hartland Hosp., 99 Cal. App. 3d 331, 160 Cai. Rptr. 246, 252 (Cal. Ct. App. 1979).

68 Such a standard of care would reflect the expectation, for example, that a nursepractitioner know, among other things, when to refer a patient to a phyisician.

69 Cooper v. Roberts, 220 Pa. Super. 260, 267, 286 A.2d 647, 650 (1971).

70 Locke, Mode & Binswager, The Case Against Medical Licensing, 8 Medicolegal News, Oct. 1980, at 13-14.

71 The personal representative of the estate of a deceased minor claimed that the minor's death was caused by the negligence of two Christian Science practitioners who sought to treat the minor according to the practices of the Church. The plaintiff alleged as one ground for tort recovery against the Christian Science Church the physicians departure from the Church's own medical standards. The plaintiff claimed:

65. That defendants owed a duty to the plaintiffs to perform their practitioner work in accordance with the rules and regulations of the Christian Science Church.

66. That the defendants breached that duty in the following particulars:

  • (a) That neither defendants reported the case of Matthew Swan to the Committee on Publication.

  • (b) That defendant, June Ahearn, failed to frequently visit Matthew Swan.

  • (c) That neither practitioner saw to it that Matthew Swan's case was reported to the local health official.

  • (d) That defendant, Jeanne Laitner and defendant, June Ahearn, owed a duty to send a Christian Science nurse with a card to assess Matthew Swan.

  • (e) That defendants speculated, and thus engaged in diagnosing, as to the reason for Matthew Swan's problems, i.e., cutting a tooth, roseola, rheumatic fever and paralysis.

  • (f) In failing to consult with a physician on the anatomy involved.

  • (g) In failing to communicate to the parents any change in Christian Science policy regarding medical treatment of minor children if in fact there had been one.

Complaint and Demand for Jury Trial, May v. Laitner, Mich. Cir. Ct., filed Feb. 5, 1980.

72 J. S. Mill, supra note 6, at 56.

73 See generally Faden, , Becker, , Lewis, , Freeman, & Faden, , Disclosure of Information to Patients in Medical Care, 19 Med. Care 718 (1981)Google Scholar; Denney, , Williamson, & Penn, , Community Medicine; Informed Consent: Emotional Responses of Patients, 60 Postgrad. Med. 205 (1976)Google Scholar; Alfidi, , Informed Consent: A Study of Patient Reaction, 216 J. A.M.A. 1325 (1971)Google Scholar.

74 Mazis, , Morris, & Gordon, , Patient Attitudes About Two Forms of Oral Contraceptive Information, 16 Med. Care 1045 (1978)Google Scholar; Pratt, , Seligmann, & Reader, , Physician Views on the Level of Medical Information Among Patients, 47 Am. J. Pub. Health 1277 (1957)Google Scholar.

75 See Denney, Williamson & Penn,supra note 73; Pemberton. Diagnosis: Ca: Should We Tell the Truth?, Bull, of the College of Surgeons, March, 1971, at 11; Skipper, and Leonard, , Children, Stress, and Hospitalization: A Field Experiment, 9 J. Health Soc. Behav. 275 (1968)Google Scholar; Dumas, & Leonard, , Effect of Nursing on the Incidence of Postoperative Vomiting, 12 Nurs. Research 12 (1963)CrossRefGoogle Scholar; Egbert, , Battit, , Turnadoff, & Beecher, , The Value of the Postoperative Visit by an Anesthetist: A Study of Doctor-Patient Rapport, 185 J. A.M.A. 553 (1963)Google Scholar; Abram, & Gill, , Predictions of Postoperative Psychiatric Complications, 265 New Eng. J. Med. 1123 (1961)Google Scholar.

76 See Alfidi, supra note 73.

77 See Faden, Becker, Lewis, Freeman & Faden, supra note 73, at 731; Korsch, & Negrete, , Doctor-Patient Communication: Patient Response to Medical Advice, 280 New Eng. J. Med, 535 (1969)Google Scholar.

78 Telephone interview with Stephen Rechstaffen, M.D., staff physician at the Rhinebeck Institute and president of the Omega Institute in Rhinebeck, New York (Dec. 14, 1983). This is not to say, however, that all persons who choose for themselves schools or systems of alternative medical care display readiness to take on an adult role in the physician-patient relationship. Unfortunately, the classic relationship of medical authority figure and obedient patient seems to repeat itself far too often among holistic practitioners and their clients. Individuals sometimes accept the most far-fetched remedies uncritically, putting themselves unquestioningly in the hands of nutritionists, bodywork therapists, spiritual gurus, naturopaths, and chiropractors (to mention but a few)wanting them to be all-knowing and magically effective. Miller & Kellman, supra note 49, at 28.

79 Miller & Kellman, supra note,49, at 29. As part of their general consumerist approach, the authors advise:

Don't be afraid of disappointing or insulting the caregiver with your questions or decision. The practitioner should not act or be treated as someone who is superior to you, or has any special power. He is simply someone who has particular expertise and information that you may want. You are your own healer;.the practitioner is your assistant. (Research is beginning to appear showing that cancer patients who argue with their doctors and sometimes defy them recover more frequently than patients who are quiet and obedient.)

Id.

80 S. Shem, The House of God 129 (1978).

81 M. Ferguson, The Aquarian Conspiracy: Personal and Social Transformation in the 1980's, at 245 (1980).

82 Under the paternalistic model, the physician-parent takes on ultimate responsibility for the health of the patient-child. Where the responsibility is shared on an adult-to-adult basis, the physician is able to feel more relaxed. His role is more limited and success is gauged by a different standard. He is not a guarantor of outcomes. The patient shares in the responsibility for the outcome, and the physician merely has to play as well as he can his role of expert counselorand technician.

In this connection, consider the example of a medical doctor in his early forties who opened a center for holistic health in Cambridge, Massachusetts in 1977. His patients realize that they take primary responsibility for their health and that he is basically a consultant and assistant in that enterprise. Much of his work is educational. He publishes leaflets on nutrition, vitamins, exercise, and preventive self-care, and distributes nutritional supplements and self-care books. He also examines, advises, and offers medical treatment to his patients. They do not always fully accept the proffered advice or treatment, but that is their choice. He believes that proper respect for the whole patient requires the doctor to allow the patient to decide his health questions for himself. This doctor works essentially from 9 to 5 and enjoys a full personal life along with his professional life.

83 New Physician, the official publication of the American Medical Students Association, devoted an entire issue in 1977 to alternative practices and has a regular department on humanistic medicine. Laurel Cappa, who served as AMSA's president in 1976, told a physicians convention of the students interest in family practice and in nontraditional approaches such as meditation and Gestalt psychology. Medical students, she said, want to be partners, not authority figures, to their patients. M. Ferguson, supra note 81, at 265.

84 Editorial, Let (Health) Freedom Ring, Prevention, Jan., 1983, at 12.

85 In the same editorial that announced the formation of the Society, its founders called for repeal of licensure:

Many of our most valuable health freedoms are limited by the medical practice acts of each of the 50 states and the District of Columbia. These laws were originally put on the books to set standards for the practice of medicine, and thereby protect the public from people calling themselves doctors who were poorly trained, or who had insufficient skill .

What you must care about is that all these laws protect a medical monopoly, which we never needed, and which we especially don't need now. There has been a turnaround. It is no longer the public that is primarily being protected by the medical-licensing acts. It is the doctors who are finding shelter behind them. And that shield takes money out of our pockets and takes the idea of health self-generation out of our heads.

Id. at 10-11. The Society has recently published a scholarly monograph which makes a strong case for major overhaul or repeal of medical licensing laws. See L. Andrews, Deregulating Doctoring: Do Medical Licensing Laws Meet Today's Health Care Needs? (1983).

86 See supra note 23 and accompanying text.

87 The Americans enjoy explaining almost every act of their lives on the principal of self-interest properly understood. It gives them pleasure to point out how an enlightened self-love continually leads them to help one another and disposes them freely to give part of their time and wealth for the good of the state . Every American has the sense to sacrifice some of his private interests to save the rest.

De Tocqueville, supra note 6, at 498-99.