¹ See Dr. Death, Season 1: Dr. Duntsch, Episode 3: Occam’s Razor, Wondery (Sept. 4, 2018), https://wondery.com/shows/dr-death/season/1 [https://perma.cc/6LCN-ZYTG].

² See Olga Khazan, The Hard-Partying, Rock-Obsessed Nurse at the Center of a Massive Opioid Bust, The Atlantic (Jan. 28, 2021, 10:28 PM), https://www.theatlantic.com/health/archive/2021/01/rock-doc-opioids/617405 [https://perma.cc/4XNK-Q2L8].

³ Carrie Teegardin et al., Doctors & Sex Abuse; Part 1: License to Betray, Atlanta J.-Const. (July 6, 2016), https://doctors.ajc.com/doctors_sex_abuse/?ecmp=doctorssexabuse_microsite_nav [https://perma.cc/5GUP-E83F].

⁴ Most of the legal academic work on professional discipline focuses only on one profession at a time (mostly on law and some on medicine), and none of these treatments deeply address regulatory design. For legal academic pieces on lawyer discipline, see Leslie C. Levin, The Emperor’s Clothes and Other Tales About the Standards for Imposing Lawyer Discipline Standards, 48 Am. U. L. Rev. 1 (1994) [hereinafter Levin, Emperor’s Clothes] (describing the inadequate outcomes of legal professional discipline, with little attention to the regulatory structure behind them); Leslie C. Levin, The Case for Less Secrecy in Lawyer Discipline, 20 Geo. J. Legal Ethics 1 (2007) [hereinafter Levin, Less Secrecy] (focusing on one aspect of regulatory design for lawyer discipline: secrecy); Stephen Gillers, Lowering the Bar: How Lawyer Discipline in New York Fails to Protect the Public, 17 N.Y.U. J. Legis. & Pub. Pol’y 485 (2014) (presenting a qualitative empirical study of legal disciplinary cases from one state); Michael S. Frisch, No Stone Left Unturned: The Failure of Attorney Self-Regulation in the District of Columbia, 18 Geo. J. Legal Ethics 325 (2005) (same). Deborah L. Rhode, who dedicated her career to studying the legal profession, has some discussion of legal discipline in two of her books, but it is not the focus of either. See Deborah L. Rhode, In The Interests of Justice: Reforming the Legal Profession 158–68 (2000); Deborah L. Rhode, The Trouble with Lawyers 87–120 (2015). Likewise, in his seminal article on the regulation of lawyers, David B. Wilkins discusses the failures of the legal disciplinary system in passing. David B. Wilkins, Who Should Regulate Lawyers? 105 Harv. L. Rev. 799, 822–24 (1992). Outside of law, medicine is the profession with the most legal academic attention; several articles address discipline, but none addresses the regulatory design question head-on. See Nadia N. Sawicki, Character, Competence, and the Principles of Medical Discipline, 13 J. Health Care L. & Pol’y 285, 307–14 (2010) (arguing that disciplining doctors for crimes and misbehavior outside of practice does not protect the public) (arguing that disciplining doctors for crimes and misbehavior outside of practice does not protect the public); Jing Liu & David A. Hyman, Physician Licensing and Discipline: Lessons from Indiana, 18 J. Empirical Legal Stud. 629 (2021) (presenting an empirical study of physician discipline outcomes); Elizabeth Chiarello, Barriers to Medical Board Discipline: Cultural and Organizational Constraints, 15 St. Louis U. J. Health L. & Pol’y 55 (2021) (offering a sociological perspective on medical board behavior); Marc T. Law & Zeynep K. Hansen, Medical Licensing Board Characteristics and Physician Discipline: An Empirical Analysis, 35 J. Health Pol. Pol’y & L. 63 (2010) (presenting an empirical study of medical board outcomes).

⁵ This estimate is from original empirical research, based on public records requests from several states, by Rebecca Haw Allensworth for her book The Licensing Racket: How We Decide Who Is Allowed to Work and Why It Goes Wrong (2025). This estimate is conservative when compared to other academic accounts of the percentage of the workforce that is licensed. See, e.g., Morris M. Kleiner & Evgeny Vorotnikov, Analyzing Occupational Licensing Among the States, 52 J. Regul. Econ. 132, 134 (2017) (“As of 2015, about 25% of the U.S. workforce had attained an occupational license, with the vast majority doing so at the state level.”) (citing 2016 Data on Certifications and Licenses (Current Population Survey), U.S. Bureau of Lab. Stat. (last modified Feb. 9, 2018), https://www.bls.gov/cps/certifications-and-licenses-2016.htm [https://perma.cc/CCY6-XRNG]); Beth Redbird, The New Closed Shop? The Economic and Structural Effects of Occupational Licensure, 82 Am. Soc. Rev. 600, 600 (2017) (“As of 2012, over 32 percent of workers were required to hold a license to work in their chosen occupation.”).

⁶ The Bureau of Labor Statistics estimates that about 10.0% of American workers belong to a union; most work in the public sector. U.S. Bureau of Lab. Stat., U.S. Dep’t of Lab., USDL Rep. No. 24-0096, Union Members — 2023, at 1 (2024), https://www.bls.gov/news.release/pdf/union2.pdf. The number of licensed workers is more than thirty times as many workers as are subject to the prevailing federal minimum wage or less. U.S. Bureau of Lab. Stat., BLS Rep. No. 1109, Characteristics of Minimum Wage Workers, 2023 (2024), https://www.bls.gov/opub/reports/minimum-wage/2023/home.htm [https://perma.cc/7WS5-N6HV].

⁷ This estimate is based on public records requests made in May 2019 for licenses issued by the states of Tennessee, California, and Illinois, where approximately two thirds of licensees are for medical and healthcare professions. Data on file with authors.

⁸ See, e.g., Sawicki, supra note 4, at 317 (“[L]egislatures grant medical boards disciplinary authority pursuant to broadly worded medical practice acts authorizing discipline for, among other things, ‘unprofessional conduct.’”); Levin, Emperor’s Clothes, supra note 4, at 5 (observing the “vague, often unarticulated standards used by state decision-makers when imposing discipline” and arguing that they “raise[] serious questions about whether sanctions could be imposed fairly”).

⁹ Rebecca Haw Allensworth, Foxes at the Henhouse: Occupational Licensing Boards Up Close, 105 Cal. L. Rev. 1567, 1570, 1572–74 (2017).

¹⁰ Only one medical practice act in the United States (Rhode Island) creates a licensing board that is not dominated by medical professionals. In almost every case (60/62) that majority is made up of physicians alone; in two states (Montana and Delaware), the medical professional majority can be comprised of physicians and other providers like Advanced Practice Registered Nurses (APRNs) or Physician Assistants. See Medical Licensing Boards Composition Fifty-State Survey (on file with authors); Id. at 1574; see also Aaron Edlin & Rebecca Haw, Cartels by Another Name: Should Licensed Occupations Face Antitrust Scrutiny?, 162 U. Pa. L. Rev. 1093, 1139–40 (2014) (arguing that because most state licensing boards are dominated by active practitioners in the profession, they are not immune to antitrust suits under the Sherman Act).

¹¹ See Morris M. Kleiner, Licensing Occupations: Ensuring Quality or Restricting Competition? 29 (2006).

¹² Although the imperative of public protections may feel most acute in discipline, the public is even more imperiled by poor licensing policy at the level of setting entry requirements, practice restrictions, ethical codes, and scopes of practice. These restrictions each carry the possibility of reducing the supply of critical professional services—like medicine and law—and raising their cost, leading to wider-spread social harm than bad actors not removed by the disciplinary system. In this arena, too, professionals regulating themselves strike the wrong balance because of self-regulation. See Haw Allensworth, supra note 5; Rebecca Haw Allensworth, The Hypocrisy of Attorney Licensing, in Rethinking the Lawyer’s Monopoly (forthcoming 2025) (on file with authors).

¹³ Nadia Sawicki’s article on medical boards’ misplaced disciplinary focus on addiction, mental health, or illegal or immoral behavior outside of practice uses “public protection” as a theory of discipline, without elaboration. Nor does she attempt to match sanction to offense as we do in this article. See Sawicki, supra note 4, at 302–05. Likewise, professional groups describe the goals of discipline vaguely. They fail to explain when which sanction is appropriate and when second or third chances should be granted. See, e.g., About Physician Discipline, Fed’n of State Med. Bds. [hereinafter About Physician Discipline, FSMB], https://www.fsmb.org/u.s.-medical-regulatory-trends-and-actions/guide-to-medical-regulation-in-the-united-states/about-physician-discipline/ [https://perma.cc/P2B4-ZM29] (last visited Aug. 7, 2024) (explaining that “[b]oards safeguard the public by disciplining physicians who engage in unprofessional, improper, or incompetent medical practice” and describing the disciplinary tools boards have to do so).

¹⁴ See Melissa McPheeters & Mary K. Bratton, The Right Hammer for the Right Nail: Public Health Tools in the Struggle Between Pain and Addiction, 48 U. Mem. L. Rev. 1299, 1332 (2018) (listing the common tools available for disciplining doctors).

¹⁵ See infra Part V.

¹⁶ See infra Section V.B.

¹⁷ See infra Part II; Rebecca Haw Allensworth, Licensed to Pill, N.Y. Rev. Books (July 21, 2020), https://www.nybooks.com/online/2020/07/21/licensed-to-pill/.

¹⁸ See, e.g., Sylvia R. Cruess & Richard L. Cruess, Op-Ed, The Medical Profession and Self-Regulation: A Current Challenge, 7 Virtual Mentor 320, 322–23 (2005) (justifying self-regulation as necessary due to the discrepancy of knowledge between members of the profession and the general public).

¹⁹ See infra Part V; McAllister, No. 7042366 (Med. Pracs. Tribunal Serv. Sept. 8, 2020) (record of determination), https://www.gmc-uk.org/ (select “Search the register” under “check a doctor’s registration status,” then search for “7042366,” navigate to the “Registrant history” tab, and look for the Sept. 8, 2020 entry under the heading “Hearings”).

²⁰ See Haw Allensworth, supra note 9, at 1572–74.

²¹ See, e.g., James M. DuBois et al., Serious Ethical Violations in Medicine: A Statistical and Ethical Analysis of 280 Cases in the United States from 2008–2016, 19 Am. J. Bioethics 16 (2019) [hereinafter DuBois et al., Serious Ethical Violations]; James M. DuBois et al., Preventing Egregious Ethical Violations in Medical Practice: Evidence-Informed Recommendations from a Multidisciplinary Working Group, J. Med. Regul., No. 4, 2018, at 23 [hereinafter DuBois et al., Preventing Egregious Ethical Violations]; Tristan McIntosh et al., Protecting Patients from Egregious Wrongdoing by Physicians: Consensus Recommendations from State Medical Board Members and Staff, J. Med. Regul., No. 3, 2021, at 5; James M. DuBois et al., A Mixed-Method Analysis of Reports on 100 Cases of Improper Prescribing of Controlled Substances, 46 J. Drug Issues 457 (2016) [hereinafter DuBois et al., 100 Cases of Improper Prescribing].

²² See Cynthia L. Krom, Disciplinary Actions by State Professional Licensing Boards: Are They Fair?, 158 J. Bus. Ethics 567, 568 (2019).

²³ See Azza AbuDagga et al., Crossing the Line: Sexual Misconduct by Nurses Reported to the National Practitioner Data Bank, 36 Pub. Health Nursing 109, 112–13 (2019) (finding that almost half of the nurses studied with sexual-misconduct-related malpractice-payment reports were not disciplined by the state licensing board); Khazan, supra note 2 (telling the story of a Jackson, TN nurse practitioner who wrote prescriptions in exchange for sexual favors).

²⁴ See, e.g., La. Legis. Auditor, Audit Control No. 40190023, Regulation of the Massage Therapy Profession Louisiana Board of Massage Therapists 4 (2021) [hereinafter Louisiana Massage Board Audit] (finding that the state massage licensing board needs to “better identify unlicensed and illicit establishments that threaten the integrity of the profession”); Ariz. Auditor Gen., Rep. No. 22-106, A Performance Audit and Sunset Review of the Arizona State Board of Massage Therapy 5 (2022) (finding that the “[b]oard did not investigate or timely investigate, document, or review all complaints it received, increasing public safety risk”).

²⁵ See Andrea Estes, Audit: State Licensing Agency May Have Failed to Perform Required Criminal Record Checks on Thousands of License-Holders, Bos. Globe, (Sept. 15, 2021, 11:22 AM) (reporting that Massachusetts’ state licensing boards, covering various professions including electricians, massage therapists and veterinarians, failed to perform criminal background checks for two-thirds of applicants, including one electrician who is a registered sex offender), https://www.bostonglobe.com/2021/09/15/metro/audit-state-licensing-agency-may-have-failed-perform-required-criminal-record-checks-thousands-licenseholders/; see also Commonwealth of Mass. Off. of the State Auditor, Audit No. 2020-0105-3S, Division of Professional Licensure for the period July 1, 2017 Through March 31, 2020, at 2 (2021) (reporting that Massachusetts’ home inspection, accounting, psychology, and cosmetology boards inadequately identify sex offenders among their licensees).

²⁶ States regulate lawyers not through acts of the legislature that create agencies subject to sunshine laws, but through their supreme courts, which in turn delegate discipline to either the state bar association or a board with even less lay representation and transparency than the typical medical board. See Jennifer M. Kraus, Attorney Discipline Systems: Improving Public Perception and Increasing Efficacy, 84 Marq. L. Rev. 273, 281–82 (2000) (“Attorney discipline boards are controversial in part because members of the legal profession handle all of the functions in the regulatory systems.”); Judith L. Maute, Bar Associations, Self-Regulation and Consumer Protection: Whither Thou Goest?, 2008 J. Pro. Law. 53, 58 (discussing the self-regulatory nature of bar associations).

²⁷ Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897) (positing that while morality guides most people, the law exists to impose consequences on the “bad man” who “cares nothing for an ethical rule”).

²⁸ See Krom, supra note 22, at 582 (finding that attorneys often face harsher punishments for misconduct directly relating to their professional practice in comparison to CPAs and Physicians in each jurisdiction surveyed).

²⁹ For a comparative account of medical board disciplinary procedure, for example, see Fed’n of State Med. Bds., U.S. Medical Regulatory Trends and Actions 10–11 (2018) [hereinafter FSMB, Regulatory Trends], https://www.fsmb.org/SysSiteAssets/advocacy/publications/us-medical-regulatory-trends-actions.pdf.

³⁰ See, e.g., Carrie Teegardin & Saurabh Datar, Doctors & Sex Abuse; Part 4: How Well Does Your State Protect Patients?, Atlanta J.-Const. (Nov. 17, 2016), https://doctors.ajc.com/states/?ecmp=doctorssexabuse_microsite_stories [https://perma.cc/N7N2-PETE] (ranking Tennessee 30th out of 51 in terms of how well it protects patients); Carol Cronin & Lisa McGiffert, Looking for Doctor Information Online: A Survey and Ranking of State Medical and Osteopathic Board Websites in 2021, at 22 (2022), https://www.patientsafetyaction.org/wp-content/uploads/2022/03/Looking-for-Doctor-Information-Online-1-7-22.pdf [https://perma.cc/B524-VH9V] (ranking Tennessee’s medical board just above the 50th percentile among the states for the transparency and usefulness of its website in providing information about discipline to patients).

³¹ Gillers, supra note 4, at 490 (describing the failures of attorney discipline in New York).

³² See Frisch, supra note 4, at 362 (finding legal discipline in the District of Columbia lacking).

³³ See Teegardin & Datar, supra note 30. See also Ga. Dep’t of Audits & Accts., Perf. Audit Div., Rep. No. 19-14, Georgia Composite Medical Board – Physician Oversight 25–30 (2020) [hereinafter Georgia Audit] (finding that Georgia has a relatively low rate of physician discipline and identifying possible structural causes).

³⁴ See David Hyman, Mohammad Rahmati & Bernard Black, Medical Malpractice and Physician Discipline: The Good, the Bad, and the Ugly, 18 J. Empirical Legal Stud. 131, 153–160 (2021).

³⁵ See Liu & Hyman, supra note 4, at 267, 272.

³⁶ See Hearing on Disciplinary Actions by the N.J. Bd. of Med. Examiners Before the S. Comm. on Health, Hum. Servs. & Senior Citizens, 2010 Leg., 214th Sess. (N.J. 2010) (testimony of Sidney M. Wolfe, Dir., Pub. Citizen’s Health Rsch. Grp.), [https://web.archive.org/web/20190717134208/ https://www.citizen.org/wp-content/uploads/migration/1941.pdf] (reporting that New Jersey Board of Medical Examiners consistently failed to take any disciplinary action against physicians even where performance was of such concern that hospitals took serious admitting privilege actions against them).

³⁷ See Letter from Sidney M. Wolfe, Dir., Pub. Citizen’s Health Rsch. Grp., to Rick Perry, Governor of Tex. (Aug. 22, 2012), https://www.citizen.org/article/letter-to-governor-perry-regarding-serious-deficiencies-of-the-texas-medical-board/ [https://perma.cc/6274-ZALU] (reporting evidence and identifying causes of “dangerously inadequate discipline by the Texas Medical Board”).

³⁸ S. David Young, The Rule of Experts: Occupational Licensing in America 81 (1987) (defining a “practice act”); Kara Schmitt, Demystifying Occupational and Professional Regulation 59 (Professional Testing Inc., 2015) (“[L]icensing laws are often referred to as practice acts because they define which aspects of practice are regulated.”).

³⁹ See Haw Allensworth, supra note 9, at 1572–73 (defining “occupational licensing” as “the imposition of educational, experiential, or examination requirements as a precondition of lawful provision of a service”).

⁴⁰ See supra note 5 and accompanying text.

⁴¹ See supra note 6.

⁴² Sawicki, supra note 4, at 292–93.

⁴³ Id. at 302–03 (presenting evidence showing that state boards do not prioritize “competency-related issues”).

⁴⁴ See Elizabeth Pendo et al., Protecting Patients from Physicians Who Inflict Harm: New Legal Resources for State Medical Boards, 15 St. Louis U. J. Health L. & Pol’y 7, 13 (2021) (noting that “sexual abuse of patients and other serious types of wrongdoing by physicians are alarmingly frequent, harmful, and under-reported”).

⁴⁵ Fed’n of State Med. Bds., Report and Recommendations of the FSMB Workgroup on Physician Sexual Misconduct, J. Med. Regul., No. 2, 2020, at 17, 26 [hereinafter FSMB, Recommendations of Workgroup on Sexual Misconduct] (“In cases involving sexual misconduct, it is simply not true that unsafe or high-risk care is better than no care at all. A single instance, let alone many instances, can cause an extremely high degree of damage to individuals and communities in which they reside.”).

⁴⁶ See Terry Spencer, Florida ‘Pill Mills’ Were ‘Gas on the Fire’ of Opioid Crisis, AP News (July 20, 2019, 1:14 PM), https://apnews.com/article/0ced46b203864d8fa6b8fda6bd97b60e, [https://perma.cc/B3XS-L5GH].

⁴⁷ See Hyman, Rahmati & Black, supra note 34, at 138.

⁴⁸ People v. Nassar, No. 345699, 2020 WL 7636250, at *1 (Mich. Ct. App. Dec. 22, 2020); Tracy Connor, Gymnastics Doctor Larry Nassar Loses License over Sex-Abuse Claims, NBC News (Jan. 25, 2017, 5:50 PM), https://www.nbcnews.com/news/us-news/gymnastics-doctor-larry-nassar-loses-license-over-sex-abuse-claims-n712241 [https://perma.cc/9E6T-F8DN].

⁴⁹ Bianca Fortis & Laura Beil, How Columbia Ignored Women, Undermined Prosecutors and Protected a Predator for More Than 20 Years, ProPublica (Sept. 12, 2023, 5AM), https://www.propublica.org/article/columbia-obgyn-sexually-assaulted-patients-for-20-years.

⁵⁰ Although USC had received complaints about Dr. Tyndall’s sexual abuse dating back to the 1990’s, he remained at USC until the university asked him to resign quietly in 2016. See Harriet Ryan et al., Must Reads: A USC Doctor Was Accused of Bad Behavior with Young Women for Years. The University Let Him Continue Treating Students, L.A. Times (May 16, 2018, 06:25 AM PT), https://www.latimes.com/local/california/la-me-usc-doctor-misconduct-complaints-20180515-story.html. The L.A. Times’s reporting sparked the lawsuits against USC as well as “the largest sex crimes inquiry involving a single suspect in Los Angeles Police Department History.” See Richard Hinton & Harriet Ryan, Former USC Gynecologist George Tyndall Charged with 29 Felonies in Sex Abuse Case, L.A. Times, (June 26, 2019, 9:37 AM PT), https://www.latimes.com/local/lanow/la-me-george-tyndall-arrest-usc-sexual-abuse-20190626-story.html; Meredith Deliso, Breaking Down University of Southern California’s $1.1 Billion in Sex Abuse Settlements, ABC News (Mar. 27, 2021, 5:03 AM), https://abcnews.go.com/US/breaking-university-southern-californias-11-billion-sex-abuse/story?id=76713012; see also Alex Wigglesworth, Former USC Gynecologist Who Was Accused of Abusing Patients Surrenders His Medical License, L.A. Times (Sept. 9, 2019, 3:56 PM PT), https://www.latimes.com/california/story/2019-09-09/former-usc-gynecologist-accused-abuse-surrenders-medical-license.

⁵¹ See Bruce A. Green, Selectively Disciplining Advocates, 54 Conn. L. Rev. 151, 180–81 (2022) (discussing the ethicality of the lawyers responsible for filing the sixty-two lawsuits on behalf of Donald Trump in state and federal courts contesting the results of the 2020 election).

⁵² Dru Stevenson, Monopsony Problems with Court-Appointed Counsel, 99 Iowa L. Rev. 2273, 2286 (2014); Richard L. Abel, Lawyers in the Dock: Learning from Attorney Discipline, at ix (2008).

⁵³ See Kyle Rozema, Professional Discipline and the Labor Market: Evidence from Lawyers, 67 J. L. & Econ. 371, 409 & fig.9 (“[O]f lawyers who are not disbarred after a first disciplinary action, 48 percent reoffend and 24 percent are eventually disbarred.”).

⁵⁴ See Lucian L. Leape & John A. Fromson, Problem Doctors: Is There a System-Level Solution?, 144 Annals Internal Med. 107, 109 (2006) (explaining various reasons for which a hospital may fail to discipline a physician).

⁵⁵ For example, the American Medical Association’s Council on Ethical and Judicial Affairs (“CEJA”) relies on information from state medical boards to determine an individual’s membership status with the association. Barbara L. McAneny & Elliot J. Crigger, Toward More Effective Self-Regulation in Medicine, 19 Am. J. Bioethics 7, 7 (2019).

⁵⁶ Teresa M. Waters et al., The Role of the National Practitioner Data Bank in the Credentialing Process, 21 Am. J. Med. Quality 30, 32 (2006).

⁵⁷ See NPDB Reporting Requirements and Query Access, U.S. Dep’t of Health & Hum. Servs., https://www.npdb.hrsa.gov/resources/tables/reportingQueryAccess.jsp (last visited Aug. 16, 2024).

⁵⁸ See Joanna Shepherd, Uncovering the Silent Victims of the American Medical Liability System, 67 Vand. L. Rev. 151, 166, 185 (2014) (explaining that high litigation costs prevent plaintiffs from bringing medical malpractice claims); Philip G. Peters, Jr., Doctors & Juries, 105 Mich. L. Rev. 1453, 1464, 1474 (2007) (explaining that juries tend to favor physician defendants in medical malpractice cases).

⁵⁹ See Pendo et al., supra note 44, at 28–29 (noting that the “failure to detect and report physician wrongdoing on the part of hospitals and other health care entities is a longstanding problem”); Fed’n of State Med. Bds., Position Statement on Duty to Report 2 (2016) [hereinafter FSMB, Duty to Report], https://www.fsmb.org/siteassets/advocacy/policies/position-statement-on-duty-to-report.pdf [https://perma.cc/QB7W-CXSD] (“FSMB has heard complaints from its member boards that hospitals and health organizations regularly ignore reporting requirements, find ways to circumvent them, or provide reports that are too brief and general to equip the board with relevant information for carrying out its regulatory functions.”).

⁶⁰ See Ryan et al., supra note 50; Wigglesworth, supra note 50; Complaint at ¶ 62, Doe v. Colum. Univ., No. 1:20-cv-01791 (S.D.N.Y. filed Feb. 28, 2020); Fortis & Beil, supra note 49.

⁶¹ See Dr. Death, Season 1: Dr. Duntsch, Episode 5: Free Fall, Wondery, at 39:23–42:04 (Sept. 18, 2018), https://wondery.com/shows/dr-death/season/1/; Matt Goodman, Dr. Death, D Magazine (Oct. 24, 2016, 1:00 PM), https://www.dmagazine.com/publications/d-magazine/2016/november/christopher-duntsch-dr-death.

⁶² See Rozema, supra note 53, at 398.

⁶³ Allensworth, supra note 17 (explaining that medical board discipline shunts problematic providers toward vulnerable patient populations).

⁶⁴ See Rozema, supra note 53, at 371, 406–07 (“[D]isciplined lawyers are more likely to subsequently end up practicing in areas of the law with unsophisticated clients.”); see also Leslie C. Levin, The Ethical World of Solo and Small Firm Practitioners, 41 Hous. L. Rev. 309, 312-14 (2004) (discussing the tendency of solo and small firm practitioners to violate ethical rules in the face of increased pressure to retain clients and the far greater discipline rates of solo and small firm practitioners as compared with other lawyers).

⁶⁵ See, e.g., Katherine Zheng, Nurse Practice Acts by State: Overview and FAQ, IntelyCare, https://www.intelycare.com/facilities/resources/nurse-practice-acts-by-state-overview-and-faq/ [https://perma.cc/Q2A5-ZRS9] (last visited Jan. 10, 2025) (compiling nurse practice acts for all fifty states); see also Medical Act 1983, c. 54, § 1(1A), (UK).

⁶⁶ See, e.g., Zara J. Bending, Reconceptualising the Doctor–Patient Relationship: Recognising the Role of Trust in Contemporary Health Care, 12 J. Bioethical Inquiry 189, 195 (2015) (“[B]y virtue of their illness and need for professional opinion, patients are the more vulnerable party in the exchange.”).

⁶⁷ See, e.g., Christopher M. Jones et al., Research Letter, Sources of Prescription Opioid Pain Relievers by Frequency of Past-Year Nonmedical Use: United States, 2008-2011, 174 JAMA Internal Med. 802, 802-03 (2014) (presenting national survey results showing that “[a]mong nonmedical users … opioid pain relievers were most often obtained via prescription from physicians”); see also Allensworth, supra note 17 (explaining the role that unethical prescribers have played in the opioid crisis).

⁶⁸ Nat’l Conf. of State Legis., The State of Occupational Licensing: Research, State Policies and Trends 4 (2017), sbp.senate.ca.gov/sites/sbp.senate.ca.gov/files/NCSL%20State%20of%20Occupational%20Licensing.pdf.

⁶⁹ See, e.g., About Physician Discipline, FSMB, supra note 13 (“Boards safeguard the public by disciplining physicians who engage in unprofessional, improper, or incompetent medical practice.”).

⁷⁰ Scholars, too, have been vague on this front. See, e.g., Schmitt, supra note 38, at 123; Benjamin Shimberg, Occupational Licensing: A Public Perspective 101 (1982). Cf. Gillers, supra note 4, at 494.

⁷¹ See DuBois et al., Serious Ethical Violations, supra note 21, at 20 (finding that almost every disciplinary case in a sample of 280 “involved repeated instances (97%) of intentional wrong-doing (99%)”).

⁷² See Am. Med. Ass’n Council on Sci. Affs., Drug Abuse Related to Prescribing Practices, 247 J. Am. Med. Ass’n 864, 864 (1982) (attributing improper prescribing to physicians “not [keeping] abreast of new developments in pharmacology and drug therapy”).

⁷³ The frequency of mental health diagnoses among disciplined providers would suggest that a provider’s mental health is often what has changed. See DuBois et al., Serious Ethical Violations, supra note 21, at 20 (collecting cases of egregious misconduct and noting that “[m]ore than half of cases involved a wrongdoer with a suspected Cluster B personality disorder (antisocial or narcissistic) or substance use disorder (51%)”).

⁷⁴ Cf. About Physician Discipline, FSMB, supra note 13 (discussing Board Action Categories and reflecting on importance of flexibility in applying appropriate level of discipline).

⁷⁵ Schware v. Bd. of Bar Exam’rs of N.M., 353 U.S. 232, 238-39 (1957) (“A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.”).

⁷⁶ See Schmitt, supra note 38, at 130.

⁷⁷ See About Physician Discipline, FSMB, supra note 13; Jacqueline Landess, State Medical Boards, Licensure, and Discipline in the United States, 17 Focus 337, 340–41 (2019).

⁷⁸ See FSMB, Recommendations of Workgroup on Sexual Misconduct, supra note 45, at 28–30 (defining physician practice monitoring).

⁷⁹ Alcoholism and other substance use disorders are seen as generally treatable conditions in physicians. See Robert L. DuPont et al., Setting the Standard for Recovery: Physicians’ Health Programs, 36 J. Substance Abuse Treatment 159, 170 (2009).

⁸⁰ See John R. Knight et al., Outcomes of a Monitoring Program for Physicians with Mental and Behavioral Health Problems, 13 J. Psych. Prac. 25, 29 (2007) (“While additional studies are needed, our findings suggest that physicians with MBH problems can be monitored using a strategy similar to that used for physicians with SUDs, and that most can be safely maintained in practice.”).

⁸¹ See, e.g., Dr. Death, Season 1: Dr. Duntsch, Episode 3: Occam’s Razor, Wondery, at 6:54–10:15, 18:04–20:25 (Sept. 4, 2018), https://wondery.com/shows/dr-death/season/1 (discussing Dr. Duntsch’s heavy alcohol and cocaine use before and while practicing medicine).

⁸² See McAneny & Crigger, supra note 55, at 8 (arguing that “physicians who are using their medical degree to operate illegal enterprises like the pill mills … [should be] permanently removed from the profession”); Vivek Pande & Will Maas, Physician Medicare Fraud: Characteristics and Consequences, 7 Int’l J. Pharm. & Healthcare Mktg. 8, 29 (2013) (arguing that a provider with a felony conviction for healthcare fraud should automatically lose their license).

⁸³ Professor DuBois calls this kind of conduct “counter to the core values of medicine” and says that physicians engaging in it are undeserving of second chances. See James M. DuBois et al, Preventing Egregious Ethical Violations, supra note 21, at 27. A closer case is presented by a consensual sexual relationship between professional and patient or client. The Federation of State Medical Boards recently took the position that a patient cannot consent to sex with his or her physician. See FSMB, Recommendations of Workgroup on Sexual Misconduct, supra note 45, at 26. The FSMB did not, however, go as far as to recommend permanent revocation for offending physicians, a curious conclusion because defining physician-patient sex as non-consensual would suggest that the FSMB views it as rape.

⁸⁴ See, e.g., U.S. Sent’g Guidelines Manual ch. 1, pt. A, introductory cmt.1(3) (U.S. Sent’g Comm’n 2023) (describing argument that punishment should be primarily based on practical crime control considerations to lessen likelihood of future crimes); U.S. Sent’g Guidelines Manual §6A1.3 cmt. (U.S. Sent’g Comm’n 2023) (stating that sentencing judges, in determining relevant facts, are not restricted to information that would be admissible at trial and may consider reliable hearsay evidence). In the context of medical practice, researchers have identified several risk factors for recidivism. See Matthew C. Holtman, Disciplinary Careers of Drug-Impaired Physicians, 64 Soc. Sci. & Med. 543, 551 (2007) (drug and alcohol abuse); James M. DuBois et al., Sexual Violation of Patients by Physicians: A Mixed-Methods, Exploratory Analysis of 101 Cases, 31 Sexual Assault 503, 516 (2017) [hereinafter DuBois et al., Exploratory Analysis of 101 Cases] (sexual assault); Bernard Black et al., Physicians with Multiple Paid Medical Malpractice Claims: Are They Outliers or Just Unlucky?, 58 Int’l Rev. of L. & Econ. 146, 156 (2019) (malpractice payments); Darren Grant & Kelly C. Alfred, Sanctions and Recidivism: An Evaluation of Physician Discipline by State Medical Boards, 32 J. Health Pol. Pol’y & L. 868, 877–78 (2007) (past state board disciplinary action).

⁸⁵ Tenn. Bd. of Med. Exam’rs, Tennessee Board of Medical Examiners Regular Board Meeting July 30-31, 2019 Minutes, at 14–15 (2019) [hereinafter TBME, Board Meeting Minutes], https://www.tn.gov/content/dam/tn/health/healthprofboards/medicalexaminers/ME073019.pdf [https://perma.cc/3AFK-ZK97].

⁸⁶ Plea Agreement at 1–2, United States v. Lapaglia, No. 3:18-CR-172 (E.D. Tenn. Oct. 25, 2018); Lapaglia, No. 201802040, at 3-5 (Tenn. Bd. of Med. Exam’rs Jan. 2, 2019) (order of summary suspension). To access this order or any of the subsequently-referenced orders from both the Tennessee Board of Medical Examiners and Tennessee Board of Nursing, go to https://apps.health.tn.gov/licensure/Default.aspx, search for the relevant license-holder (here Michael Anthony Lapaglia), and select “Adverse Licensure Actions.”

⁸⁷ Lapaglia, No. 201802040, at 2–5.

⁸⁸ See TBME, Board Meeting Minutes, supra note 85, at 14–15.

⁸⁹ Criminal Judgment, Tennessee v. Lapaglia, Case No. 103051 (Feb. 5, 2014); Lapaglia, Nos. 2013015321, 2013019391, at 4 (Tenn. Bd. of Med. Exam’rs Mar. 19, 2014) (consent order) (on file with authors).

⁹⁰ See Lapaglia, Nos. 2013015321, 2013019391, at 3–5.

⁹¹ See Lapaglia. No. 17.18-157362A, at 2 (Tenn. Bd. of Med. Exam’rs Aug. 13, 2019) (final order).

⁹² See Hearing Before the Tenn. Bd. of Med. Exam’rs at 2:23:30–2:33:00, Lapaglia, No. 17.18-157362A (Tenn. Bd. of Med. Exam’rs July 31, 2019), https://tdh.streamingvideo.tn.gov/Mediasite/Channel/98fe21d561e9489487745f0c7da678b25f/watch/ee17b74a7fa640d994571f4a5fee42261d.

⁹³ Id. at 3:25:45.

⁹⁴ Id. at 3:09:35.

⁹⁵ Based on my observations at the hearing.

⁹⁶ Id. at 4:17:05.

⁹⁷ Interview with Stephen Loyd, Member, Tenn. Bd. of Med. Exam’rs, in Brentwood, Tenn. (Aug. 11, 2021).

⁹⁸ Id.

⁹⁹ Hearing Before the Tenn. Bd. of Med. Exam’rs at 4:17:10, Lapaglia, No. 17.18-157362A.

¹⁰⁰ The database can be found at Licensee Search, N.C. Med. Bd., https://portal.ncmedboard.org/verification/search.aspx (after searching for Michael Anthony Lapaglia and selecting the result, navigate to “Actions – Adverse & Administrative”).

¹⁰¹ Lapaglia, at 2 (N.C. Med. Bd. Feb. 25, 2002) (notice of charges & allegations).

¹⁰² See Lapaglia (N.C. Med. Bd. Sept. 21, 2005) (notice of dismissal).

¹⁰³ See Booker v. Lapaglia, No. 3:11-CV-126, 2014 WL 4259474, at *3–5 (E.D. Tenn. Aug. 28, 2014), vacated, 617 F. App’x 520 (6th Cir. 2015).

¹⁰⁴ United States v. Booker, 728 F.3d 535, 540, 548 (6th Cir. 2013).

¹⁰⁵ See Lapaglia, No. 17.18-157362A, at 6–7 (Tenn. Bd. of Med. Exam’rs Aug. 13, 2019) (final order) (detailing Lapaglia’s probation); TBME, Board Meeting Minutes, supra note 85.

¹⁰⁶ The Texas Medical Board had reliable information about Dr. Duntsch’s dangerousness yet failed to act. See Dr. Death, Season 1: Dr. Duntsch, Episode 4: Spineless, Wondery, at 15:02–23:24 (Sept. 11, 2018), https://wondery.com/shows/dr-death/season/1.

¹⁰⁷ Ryan et al., supra note 50.

¹⁰⁸ AbuDagga et al., supra, note 23, at 113.

¹⁰⁹ According to the massage board, they do not use the sites because “establishments do not have control over what is posted on these websites and there are so many of these websites it would be hard to know which ones to search.” Louisiana Massage Board Audit, supra note 24.

¹¹⁰ Andrea Estes, FBI Investigating State’s Licensing of Massage Therapists with Fake Credentials, Bos. Globe (Feb. 26, 2020, 1:11 PM), https://www.bostonglobe.com/2020/02/26/metro/fbi-investigating-states-licensing-massage-therapists/.

¹¹¹ See, e.g., Georgia Audit, supra note 33, at 25.

¹¹² Levin, Emperor’s Clothes, supra note 4, at 8–9 (“Only about five percent of all complaints result in any sanctions against lawyers.”).

¹¹³ Id. at 9.

¹¹⁴ See Georgia Audit, supra note 33, at 25.

¹¹⁵ Seth Oldmixon, Pub. Citizen, The Great Medical Malpractice Hoax: NPDB Data Continues to Show Medical Liability System Produces Rational Outcomes 13 (2007), https://www.citizen.org/wp-content/uploads/npdb_report_final.pdf [https://perma.cc/E8B8-MTM7]; see also Hyman, Rahmati & Black, supra note 34, at 141–42 (finding that a physician in Illinois paying out on five or more malpractice claims had a 31% chance of facing disciplinary action).

¹¹⁶ See Alan Levine, Robert Oshel & Sidney Wolfe, Pub. Citizen, State Medical Boards Fail to Discipline Doctors with Hospital Actions against Them (2011) https://www.citizen.org/article/state-medical-boards-fail-to-discipline-doctors-with-hospital-actions-against-them/ [https://perma.cc/ED7D-K58Q].

¹¹⁷ Gillers, supra note 4, at 496.

¹¹⁸ See Steve Miller, Questionable Doctors Keep Licenses Because of Drawn-Out Investigative Process, Fla. Times-Union (Oct. 24, 2013, 1:38 PM), https://www.jacksonville.com/story/news/2013/10/24/questionable-doctors-keep-licenses-because-drawn-out-investigative-process/15811782007/.

¹¹⁹ See Rinehart, No. 17.18-146184A (Tenn. Dep’t of Health Nov. 27, 2018) (final order).

¹²⁰ Hodges, No. 17.18-138745A, at 8 (Tenn. Dep’t of Health Sept. 26, 2017) (final order) (revoking licensure); Tenn. Bd. of Med. Exam’rs, Regular Board Meeting Tuesday, March 20, 2018 & Wednesday, March 21, 2018 Minutes, at 5–6 (2018) (documenting reinstating of Dr. Hodges’ license subject to condition that all patients be chaperoned).

¹²¹ Teegardin et al., supra note 3, at 11.

¹²² Grant & Alfred, supra note 84, at 877.

¹²³ See Rozema, supra note 53, at 382.

¹²⁴ See infra Section V.B.

¹²⁵ Out of 79 Tennessee cases where the board found facts amounting to “[d]ispensing, prescribing or otherwise distributing any controlled substance not in the course of professional practice, or not in good faith to relieve pain and suffering, or not to cure an ailment, physician infirmity or disease, or in amounts justifiable and/or for durations not medically necessary, advisable or justified for a diagnosed condition,” the board kept 52 in practice by imposing a reprimand or probation; many retained their prescribing authority. Note that this language used by the board to justify these relatively light sanctions closely tracks the language of the federal code that makes such prescribing a felony. See Ruan v. United States, 597 U.S. 450, 452 (2022).

¹²⁶ See Stanley J. Gross, Of Foxes and Hen Houses: Licensing and the Health Professions 8–9 (1984) (defining a “practice act”); Young, supra note 38, at 81 (“Licensing laws are often called ‘practice acts,’ because they grant authority to licensees to engage in certain practices within a profession.”).

¹²⁷ See, e.g., McPheeters & Bratton, supra note 14, at 1332–33 (describing the regulatory authority of Tennessee’s health-related boards); Kleiner, supra note 11, at 29 (describing the duties and authority of licensing boards generally); Gross, supra note 125, at 97–98 (same). The interpretive power of boards is immense, especially when resolving individual disciplinary cases, because legislatures tend to be especially generous in delegating regulatory authority to boards by writing particularly vague practice acts for boards to interpret. See id. at 102 (observing that “[g]enerally the boards have wide latitude” in setting standards for entry and defining ethical practice); see also, e.g., Kleiner, supra note 11, at 31 (“[L]icensing appears to be responsive to political pressure from occupational associations seeking to become regulated.”).

¹²⁸ This structure was challenged and upheld in Martin v. Sizemore, 78 S.W.3d 249, 263–64 (Tenn. Ct. App. 2001).

¹²⁹ Allensworth, supra note 9, 1572–74.

¹³⁰ See David A. Johnson et al., The Role and Value of Public Members in Heath Care Regulatory Governance, 94 Acad. Med. 182, 184 (2019) (describing how public members, over time, “begin to identify increasingly with the interests of the profession or their professional colleagues”); Schmitt, supra note 38, at 79.

¹³¹ See, e.g., Guide to Medical Regulation in the United States — Introduction, Fed’n of State Med. Bds. (2024) [hereinafter Introduction, FSMB], https://www.fsmb.org/u.s.-medical-regulatory-trends-and-actions/guide-to-medical-regulation-in-the-united-states/introduction/ [https://perma.cc/7KRH-Z46R]; Gross, supra note 125, at 98.

¹³² Id. at 98–99 (discussing the power associations have in board appointment); Schmitt, supra note 38, at 77 (same).

¹³³ Schmitt, supra note 38, at 77; Shimberg, supra note 70, at 165 (observing that public member vacancies “often went to those who had worked in the governor’s campaign or made financial contributions”).

¹³⁴ See, e.g., State of Ill. Comm’n on Gov’t Forecasting and Accountability, Boards and Commissions with Salaries or Other Compensation (2023), https://www.ilga.gov/commission/lru/Salaries.pdf; see also Or. Admin. R. 847-003-0200 (2023).

¹³⁵ See Frisch, supra note 4, at 356–57, 360 (arguing that Washington D.C.’s disciplinary system, comprised of volunteer practicing attorneys, results in protracted delays).

¹³⁶ See Marshall J. Breger & Gary J. Edles, Independent Agencies in the United States: Law, Structure, and Politics 39, 57 (2015).

¹³⁷ For an overview of the disciplinary procedure that tracks the description provided here, see Ruth Horowitz, In the Public Interest 121–22 (2013) and Schmitt, supra note 38, at 123–30.

¹³⁸ For the online form used for filing a complaint against a health-related professional in Tennessee, see Filing Complaints Against Health Care Professionals, Tenn. Dep’t of Health [hereinafter Filing Complaints], https://www.tn.gov/content/tn/health/health-program-areas/health-professional-boards/report-a-concern.html [https://perma.cc/ZSM5-U4AB] (last visited Oct. 30, 2024). For a more detailed description of the complaint process, see Randall R. Bovbjerg et al., State Discipline of Physicians: Assessing State Medical Boards Through Case Studies 20 (2006).

¹³⁹ Barbara A. Van Horne, Psychology Licensing Board Disciplinary Actions: The Realities, 35 Pro. Psych. 170, 172–73 (2004).

¹⁴⁰ For a description of the investigatory powers of the health-related boards in Tennessee, see Tenn. Code Ann. § 63-1-117 (2019) and Tenn. Code Ann. § 68-1-104(2) (2011) (opioid-related investigations). See also Allan Barsky et al., Licensing Complaints: Experiences of Social Workers in Investigation Processes, Int. J. Soc. Work Values & Ethics, Autumn 2021, at 29, 30 (describing the complaint and investigation process).

¹⁴¹ See, e.g., Jonathan Yi, Proceed with Caution: The Effect of Disciplinary Determinations on Civil Suits Involving Engineers, Fla. B.J., Dec. 2007, at 10, 12 (2007) (describing using a majority-engineer “probable cause” panel to decide whether to bring professional disciplinary charges against an engineer under investigation). See also Filing Complaints, supra note 138; Bovbjerg et al., supra note 138, at 26; Grant & Alfred, supra note 84, at 869.

¹⁴² See Bovbjerg et al., supra note 138, at 26.

¹⁴³ This is usually a rubber stamp. See Grant & Alfred, supra note 84, at 869-70. For a general discussion of the settlement process, see Schmitt, supra note 38, at 127-28. For a discussion of the agreed order process in other professions, see Barsky et al., supra note 140, at 29, 35 (social workers); James Luther Raper & Randall Hudspeth, Why Boards of Nursing Disciplinary Actions Do Not Always Yield the Expected Results, 32 Nursing Admin. Q. 338, 341 (2008) (nursing).

¹⁴⁴ For a description of contested case hearings, see Yi, supra note 141, at 11, 12 (engineers) and Bovbjerg et al., supra note 138, at 26–27 (physicians).

¹⁴⁵ For a comparison of burdens among medical boards, see Fed’n of State Med. Bds., Standards of Proof Required in Board Disciplinary Matters (2021), https://www.fsmb.org/siteassets/advocacy/regulatory/discipline/standards-of-proof-required-in-board-disciplinary-matters.pdf. For the same information in nursing, see Edie Brous, Common Misconceptions About Professional Licensure, Am. J. Nursing, Oct. 2012, at 55, 56–57 & tbl.2.

¹⁴⁶ Schmitt, supra note 38, at 126 (“Boards or subsets of boards may act as a jury in formal hearing.”).

¹⁴⁷ See McPheeters & Bratton, supra note 14, at 1333; Bovbjerg et al., supra note 138, at 27–28.

¹⁴⁸ Schmitt, supra note 38, at 127. For profession-specific descriptions of who makes what decisions, see FSMB, Regulatory Trends, supra note 29, at 11 (doctors) and Raper & Hudspeth, supra note 143, at 341–2 (nurses).

¹⁴⁹ FSMB, Regulatory Trends, supra note 29, at 66.

¹⁵⁰ In California, for example, the board does not attend the hearings; however, the board votes on whether to adopt the administrative law judge’s decision. FSMB, Regulatory Trends, supra note 29, at 66 (medicine); Edie Brous, Professional Licensure: Investigation and Disciplinary Action, Am. J. Nursing, Nov. 2012, at 53, 55 (nursing).

¹⁵¹ See, e.g., Tenn. Code Ann. § 4-5-322 (2024).

¹⁵² See, e.g., id. § 4-5-322(h) (limiting power of courts to affect board decisions); Tenn. Dep’t of Health v. Collins, No. 18-492-IV, at 6 (Tenn. Ch. Jun. 25, 2019) (final order), aff’d, No. M2019-01306-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2020) (finding a board sanction inappropriate and remanding to the board).

¹⁵³ See Schmitt, supra note 38, at 121 (noting that a common stated reason for lack of board discipline is “inadequate funding to perform the necessary investigations”). Similar observations have been made in specific professions. See, e.g., Landess, supra note 77, at 140 (medicine); Van Horne, supra note 139, at 175 (psychology).

¹⁵⁴ See Schmitt, supra note 38, at 160–61; Introduction, FSMB, supra note 131.

¹⁵⁵ Law & Hansen, supra note 4 (finding that some of the only factors that correlated with disciplinary rates were staffing and funding).

¹⁵⁶ See, e.g., Deborah L. Rhode & Alice Woolley, Comparative Perspectives on Lawyer Regulation: An Agenda for Reform in the United States and Canada, 80 Fordham L. Rev. 2761, 2766 (2012); Pa. Dep’t of State, 50 State Comparison Report: A Comparison of State Occupational Licensure Requirements and Processes 17–18 (2021), https://www.dos.pa.gov/ProfessionalLicensing/Documents/50-State-Licensing-Comparison/50-State-Comparison-Report-full.pdf; Grant & Alfred, supra note 84, at 882; Landess, supra note 77, at 339; Bovbjerg et al., supra note 138, at 20.

¹⁵⁷ See, e.g., Horowitz, supra note 137, at 122; Jacqueline Landess & Bryan Holoyda, Medical Board Complaints, in Malpractice and Liability in Psychiatry 267, 268–69 (Peter Ash, Richard L. Frierson & Susan Hatters Friedman eds., 2022).

¹⁵⁸ See FSMB, Duty to Report, supra note 59, at 2; Linda Thorne et al., An Experimental Study of a Change in Professional Accountants’ Code of Ethics: The Influence of NOCLAR on the Duty to Report Illegal Acts to an External Authority, 191 J. Bus. Ethics 535, 539, 546 (2024).

¹⁵⁹ Cf. Abel, supra note 52, at 502 (noting that only about ten percent of complaints against lawyers come from other lawyers, including judges).

¹⁶⁰ See McPheeters & Bratton, supra note 14, at 1334 (emphasis added) (citing Tenn. Code. Ann. § 63-1-151(a)(2) (2016)) (“State and federal prosecuting attorneys are encouraged to notify the licensing agencies.”).

¹⁶¹ See Timothy S. Jost et al., Consumers, Complaints, and Professional Discipline: A Look at Medical Licensure Boards, 3 health matrix 309, 315 (1993); Bovbjerg et al., supra note 138, at 20–21.

¹⁶² Cf. Wilkins, supra note 4, at 824–29 (noting that only the most sophisticated clients are likely to know they have been harmed yet are also the least likely to complain to a board).

¹⁶³ See supra Section II.A.

¹⁶⁴ Victims of sexual misconduct are perhaps especially unlikely to make a complaint. See FSMB, Recommendations of Workgroup on Sexual Misconduct, supra note 45, at 24 (noting that boards’ typical requirement that disciplinary hearings be conducted in public may make patients hesitant to bring sexual misconduct cases).

¹⁶⁵ See David A. Hyman, Are We Driven by Data: The Problem of Bad Doctors, 96 Denv. L. Rev. 761, 772 (2019) (suggesting that malpractice history be used to identify problem doctors).

¹⁶⁶ See supra note 151–52 and accompanying text.

¹⁶⁷ One trial before the Tennessee Board of Medical Examiners took seventeen months from opening arguments to deliberations. Tenn. Bd. of Med. Exam’rs, Regular Board Meeting Tuesday, November 28 2017 & Wednesday, November 29, 2017 Minutes, at 18–19 (2017) (documenting contested case hearing of Brian S. Waggoner on September 27, 2017), https://www.tn.gov/content/dam/tn/health/healthprofboards/medicalexaminers/ME112817.pdf; Waggoner, No. 17.18-139095A (Tenn. Bd. of Med. Exam’rs Mar. 1, 2019) (final order), https://apps.health.tn.gov/DisciplinaryExclusion/boardorder/display/1606_27530_030119 [https://perma.cc/JT9D-J8H6].

¹⁶⁸ See, e.g., Gerard E. Lynch, Screening Versus Plea Bargaining: Exactly What Are We Trading Off?, 55 Stan. L. Rev. 1399, 1403 (2003).

¹⁶⁹ See supra discussion at notes 144–52.

¹⁷⁰ See, e.g., Angela Wheeler Spencer et al., The Disclosure of CPA Disciplinary Action, CPA J., Mar. 2015, at 60.

¹⁷¹ Professor Nadia Sawicki has pointed out that constitutional vagueness or overbreadth challenges to these practice acts have failed. Sawicki, supra note 4, at 317.

¹⁷² The Tennessee Board of Medical Examiners’ policy on sexual misconduct is a good example: it defines sexual misconduct at some length, but then asserts that in cases involving sexual misconduct, “the board will impose such discipline as the board deems necessary to protect the public.” Tenn. Bd. of Med. Exam’rs, Policy Regarding Sexual Misconduct ¶ II(A)(11) (2022), https://www.tn.gov/content/dam/tn/health/healthprofboards/medicalexaminers/BME_sexual_misconduct_policy.pdf.

¹⁷³ Levin, Emperor’s Clothes, supra note 4, at 5.

¹⁷⁴ Bovbjerg et al., supra note 138, at vii.

¹⁷⁵ Barsky et al., supra note 140, at 31.

¹⁷⁶ See, e.g., Landess, supra note 77, at 340 (finding a four-fold variation between states in terms of medical board disciplinary actions); Jon J. Lee, Catching Unfitness, 34 Geo. J. Legal Ethics 355, 393 (2021) (finding “a vast discrepancy among states” in how they apply the “fitness to practice” ethical rule).

¹⁷⁷ Gillers, supra note 4, at 503.

¹⁷⁸ Van Horne, supra note 139, at 170, 176.

¹⁷⁹ For example, the FTC combines adjudicatory and rulemaking authorities. The independence of one from the other are assured through structural design and incentives provided to the decision-makers within the agency. See 32 Charles Alan Wright, Charles H. Koch, Jr. & Richard Murphy, Federal Practice & Procedure: Judicial Review of Administrative Action § 8234–35 (2d ed. 2023).

¹⁸⁰ See Landess & Holoyda, supra note 157, at 272–73.

¹⁸¹ See, e.g., Frisch, supra note 4, at 362 (blaming the “disciplinary system dominated by volunteer lawyers” for a system that produces inadequate professional discipline).

¹⁸² DuBois et al., Serious Ethical Violations, supra note 21, at 25.

¹⁸³ Sociologist Elizabeth Chiarello makes this link between malpractice suits and licensing boards specific in her article on boards and the “white wall of silence”—the informal ethical code that prevents physicians from speaking ill of each other—that results in board members “easing their obligations… in favor of allying with fellow professionals.” Chiarello, supra note 4, at 76–77.

¹⁸⁴ See generally Law & Hansen, supra note 4.

¹⁸⁵ FSMB, Regulatory Trends, supra note 29, at 47–48.

¹⁸⁶ See Johnson et al., supra note 130, at 184; Schmitt, supra note 38, at 79.

¹⁸⁷ See, e.g., Adam P. Sawatsky et al., Autonomy and Professional Identity Formation in Residency Training: A Qualitative Study, 54 Med. Educ. 616, 619, 624 (2020) (medical profession); Kellye Y. Testy and Zachariah J. DeMeola, Leading the Way: The Power of Professional Identity Formation for Lawyers, 76 Baylor L. Rev. 115, 145–46 (2024) (legal profession).

¹⁸⁸ See Donald R. Wesson & David E. Smith, Prescription Drug Abuse: Patient, Physician, and Cultural Responsibilities, 152 W.J. Med. 613, 614 (1990); Am. Med. Ass’n Council on Sci. Affs., supra note 72, at 864.

¹⁸⁹ Cf. DuBois et al., 100 Cases of Improper Prescribing, supra note 21, at 458 (stating that “it is unclear” the extent to which the 4D Framework is “evidence based”).

¹⁹⁰ See Am. Med. Ass’n Council on Sci. Affs., supra note 72, at 864 (arguing for rehabilitation for “disabled” doctors); Wesson & Smith, supra note 188, at 614 (saying the 4D model was introduced to support education for “duped” and “dated” doctors).

¹⁹¹ See Hearing Before the Tenn. Bd. of Med. Exam’rs at 4:17:05, Lapaglia, No. 17.18-157362A (Tenn. Bd. of Med. Exam’rs July 31, 2019), https://tdh.streamingvideo.tn.gov/Mediasite/Channel/98fe21d561e9489487745f0c7da678b25f/watch/ee17b74a7fa640d994571f4a5fee42261d.

¹⁹² For an excellent account of this behavior on the part of pharmaceutical companies, see generally Barry Meier, Pain Killer (2003).

¹⁹³ Brett Kelman, This Pain Clinic Nurse Gave a Patient 51 Pills a Day. And She Kept Her License, The Tennessean, (Oct. 11, 2018), https://www.tennessean.com/story/news/2018/10/11/opioid-epidemic-tennessee-pill-mills-christina-collins/1488026002/ [https://perma.cc/H9W9-P2WS]; Collins v. Tenn. Dep’t of Health, 694 S.W.3d 170, 173–74 (Tenn. Ct. App. 2023) (detailing the procedural background and 2018 board order for two years of probation plus civil penalties, costs, and additional education). The board’s 2018 order was subsequently challenged by the Tennessee Department of Health and reversed on procedural grounds. Four years later, a new panel finally revoked Collins’ Advanced Practice RN license, permanently prohibited her from prescribing controlled substances, and voided her “multistate privilege,” although it permitted her to continue to practice as an RN in Tennessee. Id. at 175; Collins, No. 17.19-138846A (Tenn. Bd. of Nursing Feb. 28, 2022) (final order), https://apps.health.tn.gov/DisciplinaryExclusion/boardorder/display/1702_12828_022822.

¹⁹⁴ See Teegardin et al., supra note 3 (observing that boards often send sexually abusive doctors to treatment centers featuring art, yoga and equestrian therapy or ask them to attend “weekend ‘boundary’ classes at hotels or college campuses”).

¹⁹⁵ See, e.g., Ron Paterson, Independent review of the use of chaperones to protect patients in Australia 10 (2017), https://nhpopc.gov.au/wp-content/uploads/Chaperone-review-report-WEB.pdf [https://perma.cc/H9W9-P2WS] (calling for an end to using chaperones as a remedial licensure condition). One study found that 19% of cases of physician sodomy occurred the presence of a chaperone. DuBois et al., Exploratory Analysis of 101 Cases, supra note 84, at 518. See also Natalie Musumeci, How Larry Nassar Molested My Daughter Right in Front of Me, N.Y. Post (Feb. 9, 2018, 09:46 AM), https://nypost.com/2018/02/09/nassar-victims-mom-sickos-a-wolf-in-sheeps-clothing/ [https://perma.cc/U8GV-AWXN] (explaining the guilt the parents felt after finding out their daughters were unknowingly assaulted in their presence).

¹⁹⁶ See, e.g., Schmitt, supra note 38, at 122 (discussing case of a psychologist who had sex with a patient, in which a disciplinary order restricted him to treat women over 50).

¹⁹⁷ See Danny Robbins, Doctor Accused by 17 Females Loses License After Male Patient’s Accusation of Sexual Impropriety, Atlanta J.-Const. (July 13, 2018), https://www.ajc.com/news/public-affairs/limiting-doctor-male-patients-failed-stop-sex-abuse/lu2GbV9GxSNlkujDCI0AAN/ [https://perma.cc/9JZU-3B74].

¹⁹⁸ See Am. Med. Ass’n Council on Sci. Affs, supra note 72, at 864 (describing the four forms that lead to prescription drug over-prescribing).

¹⁹⁹ See Holtman, supra note 84, at 547 (identifying alcohol or drug use disorder as the largest specific category of board disciplinary actions against physicians); Martha Middleton, Big Trouble: Experts Say Substance Abuse and Mental Health Issues Are a Growing Problem for the Legal Profession, A.B.A. J., Dec. 2015, at 63, 64 ("Substance abuse plays a role in 40 percent to 70 percent of all disciplinary proceedings and malpractice actions against lawyers.").

²⁰⁰ For example, the Tennessee Board of Medical Examiners found that Dr. Kristin Dobay forged prescriptions in the names of his girlfriend and other patients for high-dosage drugs with street value (one example was for a daily dose of over thirteen times the recommended maximum), some of which he gave to his administrative assistant to resell. The board allowed the doctor to voluntarily surrender his license but articulated a path back to licensure that involved primarily completing drug recovery programs and assessments. Dobay, No. 2019007891 (Tenn. Bd. of Med. Exam’rs Sept. 18, 2019) (consent order); Brett Kelman, Nashville Doctor Loses Medical License due to Shady Prescriptions, Tennessean (Oct. 18, 2019, 5:00 AM), https://www.tennessean.com/story/news/health/2019/10/18/nashville-doctor-kristin-dobay-shady-opioid-prescriptions/3987949002/ [https://perma.cc/3G8Q-F8TS].

²⁰¹ See generally Mary Dixon-Woods, Karen Yeung & Charles L. Bosk, Why Is UK Medicine No Longer a Self-Regulating Profession? The Role of Scandals Involving “Bad Apple” Doctors, 73 Soc. Sci. & Med. 1452 (2011).

²⁰² See generally Mark Davies, Medical Self-Regulation: Crisis and Change (2007).

²⁰³ Medical Act 1983, c. 54, § 1(1A), (1B) (UK).

²⁰⁴ See Justin Waring, Mary Dixon-Woods & Karen Yeung, Modernising Medical Regulation: Where Are We Now? 24 J. Health Org. & Mgmt. 540, 543 (2010).

²⁰⁵ See generally Jean Ritchie, The Report of the Inquiry into Quality and Practice Within the National Health Service Arising from the Actions of Rodney Ledward (2000), https://chpi.org.uk/resources/the-richie-enquiry-into-the-activities-of-rodney-ledward-2000/ (describing the case of Dr. Rodney Ledward, who was accused of injuring women under his care during thirteen botched operations between 1989 and 1996); Secretary of State for Health, Learning from Bristol: The Report of the Public Inquiry Into Children’s Heart Surgery At The Bristol Royal Infirmary 1984-1995, 2001, Cm. 5207, at 133–76 (UK) (describing the case of two surgeons who persisted with substandard practice resulting in the avoidable deaths of over 30 children, despite evidence of excess mortality within an inadequate surgical program).

²⁰⁶ See generally, e.g., Anna Pauffley, Committee Of Inquiry, Independent Investigation into How the NHS Handled Allegations About the Conduct of Clifford Ayling, 2004, Cm. 6298 (UK) (detailing regulatory failures in the case of Dr. Clifford Ayling, an OB-GYN, who was convicted of 13 counts of indecent assault on female patients between 1991 and 1998 and was sent to prison for four years in December 2000); Secretary of State for Health The Kerr/Haslam Inquiry Report, 2005, Cm. 6640-I, at 83–412 (UK) (describing the cases of two psychiatrists, Dr William Kerr and Dr Michael Haslam, who sexually abused vulnerable female patients over a period of twenty years, were never disciplined by the GMC, and allowed to retire in 1988); Commission For Health Improvement, Investigation into Issues Arising from the Case Of Loughborough GP Peter Green (2001) (describing the case of Dr. Peter Green who was found guilty in 2000 of nine counts of indecent assault on young male patients between 1985 and 1999 and sentenced to eight years’ imprisonment before being disciplined by the GMC).

²⁰⁷ See generally Janet Smith, The Shipman Enquiry Fifth Report, Safeguarding Patients, Lessons From The Past - Proposals For The Future, 2004, Cm. 6394-I/II/III (UK).

²⁰⁸ See Sarah Boseley, Shipman Struck Off GMC Doctors’ Register for “Undermining Trust,” The Guardian, Feb. 12, 2000, at 3; Shipman Jailed for 15 Murders, BBC News (Jan. 31, 2000, 7:22 PM GMT), http://news.bbc.co.uk/2/hi/uk_news/616692.stm [https://perma.cc/8MZL-6KX4].

²⁰⁹ See generally Janet Smith, supra note 207.

²¹⁰ See Home Secretary and the Secretary of State for Health, Learning From Tragedy, Keeping Patients Safe: Overview Of The Government’s Action Programme In Response To The Recommendations Of The Shipman Inquiry, 2007, Cm. 7014, ¶ 2.17 (UK).

²¹¹ Id.

²¹² Dixon-Woods, Yeung & Bosk, supra note 201, at 1457.

²¹³ Secretary of State for Health, Trust, Assurance And Safety – The Regulation Of Health Professionals In The 21st Century, 2017, Cm. 7013, at 23–31 (UK).

²¹⁴ See Gen. Med. Council, Our Annual Report 2019, at 54 (2020); Gen. Med. Council, Sanctions Guidance for Members of Medical Practitioners Tribunals and for the General Medical Council’s Decision Makers ¶ 13 (2020) [hereinafter GMC, Sanctions Guidance]; Medical Act 1983, c. 54, § 1(1B)(c) (UK).

²¹⁵ See Allensworth, supra note 9, at 1572; Young, supra note 38, at 87–89; Fed’n of State Med. Bds., Board Membership Composition (2024), https://www.fsmb.org/siteassets/advocacy/regulatory/board-structure/board-membership-composition.pdf.

²¹⁶ See Our History, Gen. Med. Council, https://www.gmc-uk.org/about/who-we-are/our-history [https://perma.cc/5WKU-7XQN].

²¹⁷ The Privy Council of the United Kingdom holds the delegated authority to issue Orders of Council, which are used to regulate certain public institutions, including healthcare regulators. In the UK, the Privy Council is further guided in its member selection process by the oversight body for healthcare regulators: the Professional Standards Authority for Health and Social Care (PSA). There is a degree of uniformity across the fitness to practice processes of all healthcare regulators in the UK, which are guided by an oversight body – the PSA –which must review all fitness to practice cases by each regulator and may appeal decisions through the courts. In addition, the PSA carry out annual performance reviews against its Standards of Good Regulation to assess how well the regulators are carrying out their fitness to practice functions. See Pro. Standards Auth., Good Practice in Making Council Appointments: Principles, Guidance and the Scrutiny Process for Regulators Making Appointments Which Are Subject to Section 25C Scrutiny (2022), https://www.professionalstandards.org.uk/what-we-do/our-work-with-regulators/appointments-to-councils [https://perma.cc/HW87-FXV3].

²¹⁸ Gen. Med. Council, Requirements for Council member appointments and reappointments 2016, at 2, 4 (2016).

²¹⁹ Salaries and Expenses, Gen. Med. Council, https://www.gmc-uk.org/about/how-we-work/governance/executive-board/salaries-and-expenses (last visited Aug. 19, 2024).

²²⁰ The GMC must investigate if a doctor appears to have failed to maintain the required standards. General Medical Council (Fitness to Practise) Rules 2004, SI 2004/2608, ¶¶ 4,7 (UK). In addition to deviating from GMC guidance, such concerns may include misconduct, poor performance, a criminal conviction or caution, physical or mental ill-health that may impact the ability to practise medicine, or a determination of impaired fitness to practice by another regulatory body, including determinations by medical regulators from other jurisdictions and by other professional regulators in the UK. Medical Act 1983, c. 54, § 35C(2) (UK).

²²¹ General Medical Council (Fitness to Practise) Rules 2004, SI 2004/2608, ¶ 2 (UK) (requiring one “medical” and one “lay” case examiner); id. ¶ 8 (setting out role of case examiners). The use of case examiners was introduced as a resource-saving step, which allows straightforward or “clear-cut” cases to be disposed of without the need to convene a meeting of the Investigation Committee. See Cathal Gallagher et al., The Legal Underpinnings of Medical Discipline in Common Law Jurisdictions, 39 J. Legal Med. 1, 15-34 (2019).

²²² General Medical Council (Fitness to Practise) Rules 2004, SI 2004/2608, ¶ 8(2)(a) (UK).

²²³ Id. ¶ 8(2)(b), 8(3).

²²⁴ Id. ¶ 8(2)(d); Gallagher et al., supra note 221, at 20–21.

²²⁵ See, e.g., GEN. MED. COUNCIL, FITNESS TO PRACTISE STATISTICS 2023 (2024), where of 842 total cases progressing past triage, 632 were concluded in private versus 210 in public.

²²⁶ Because private board discipline is by its nature difficult to study, we only have the figure for one state, Georgia, where if the medical board takes any action at all on a complaint, there’s a 90% chance it will be with a private letter of concern. See, e.g., Georgia Audit, supra note 33.

²²⁷ How We Make Decisions, Gen. Med. Council, https://www.gmc-uk.org/concerns/information-for-doctors-under-investigation/how-we-make-decisions (last visited Aug. 19, 2024).

²²⁸ See Janet Smith, supra note 207, ¶¶ 27.204–.210.

²²⁹ Cathal T. Gallagher & C.L. Foster, Impairment and Sanction in Medical Practitioners Tribunal Service Fitness to Practise Proceedings, 83 Medico-Legal J. 15, 16 (2015).

²³⁰ See id.

²³¹ On January 22, 2021, there were a total of 247 panelists of whom 120 were medically qualified and 127 were lay members. Tribunal members, chairs and legal assessors are all known as MPTS associates, who are not directly employed by the MPTS. Rather, they are self-employed contractors. Current information on tribunal members is available at Who Makes the Decisions?, Med. Pracs. Tribunal Serv., https://www.mpts-uk.org/hearings-and-decisions/who-makes-the-decisions (last visited Jan. 12, 2025).

²³² Med. Pracs. Tribunal Serv., Criteria for the appointment of Tribunal Members (2018) [hereinafter MPTS, Appointment Criteria]; Med. Pracs. Tribunal Serv, Criteria for the Appointment of Chairs of a Tribunal (2016); Med. Pracs. Tribunal Serv., Criteria for the Appointment of Legally Qualified Chairs of a Tribunal (2015). A member or officer of the GMC, or a committee of the GMC, cannot serve on the MPTS. General Medical Council (Constitution of Panels Tribunals and Investigation Committee) Rules 2015, SI 2015/1965, art. 2, ¶ 4(3) (UK). Nor can any person who has been the subject of fitness to practise proceedings that resulted in their registration being suspended or made conditional upon compliance with any requirement, or who has been erased from the medical register. General Medical Council (Constitution of the Medical Practitioners Tribunal Service) Rules 2015, SI 2015/1967, art. 2, ¶ 7 (UK).

²³³ MPTS, Appointment Criteria, supra note 232. The Seven Principles of Public Life (also known as the Nolan Principles) are: selflessness; integrity; objectivity; accountability; openness; honesty; and leadership. See Comm. on Standards in Pub. Life, Standards in Public Life, 1995, Cm. 2850-I, at 14 (UK).

²³⁴ Medical Pracs. Tribunal Serv., Schedule for Services (2023).

²³⁵ Medical Pracs. Tribunal Serv., Report to Parliament 2020, at 24 (2021).

²³⁶ Id. at 25.

²³⁷ See Gallagher & Foster, supra note 229, at 16.

²³⁸ Legal assessors and legally qualified chairs, Medical. Pracs. Tribunal Serv., https://www.mpts-uk.org/about/how-we-work/legal-assessors-and-legally-qualified-chairs (last visited Feb. 4, 2025).

²³⁹ General Medical Council (Constitution of Panels Tribunals and Investigation Committee) Rules 2015, SI 2015/1965, art. 2, ¶ 7 (UK).

²⁴⁰ Id. ¶ 27. In some cases, the panel may be constituted with a chair who is not a lawyer, in which case the physician members may outnumber the lay member 2:1, but this is less common. Of the 152 first-instance cases heard by the MPTS in the six months immediately preceding the national lockdown on 23 March 2020, 108 (71%) were constituted with a majority of lay panelists and 42 (29%) had a majority of medical panelists.

²⁴¹ See supra note 215.

²⁴² See Medical Act 1983, c. 54, § 1(1B) (UK). Before imposing a sanction, it is common for an MPTS chair to read the following statement into the record: “The purpose of any sanction that we impose is threefold: firstly, it is to ensure the safety of the public; secondly, it is to maintain standards in the profession; and, thirdly, it is to maintain public confidence in the profession.” See, e.g., Burton, No. 3539187, at 123 (Med. Pracs. Tribunal Serv. July 31, 2023) (record of determination).

²⁴³ The High Court has emphasized the importance of bearing in mind the need to protect the public and maintain public confidence in the profession when determining the issue of impairment of fitness to practice. See Council for Healthcare Regulatory Excellence v. Nursing & Midwifery Council [2011] EWHC (Admin) 927.

²⁴⁴ General Medical Council (Fitness to Practise) Rules 2004, SI 2004/2608, ¶ 17 (UK).

²⁴⁵ Gallagher & Foster, supra note 229, at 16.

²⁴⁶ Id.

²⁴⁷ Id. If a doctor wishes to return to the register after being erased for disciplinary reasons, they must wait at least five years before submitting an application for restoration to the Registrar of the GMC and pleading their case to a tribunal. See Gen. Med. Council, Guidance for Medical Practitioners Tribunals on Restoration Following Disciplinary Erasure ¶ A1 (2019). These attempts rarely succeed. Of 13 who applied in 2019 only two were successful, and in 2018 only four of 14 applications were granted. See Clare Dyer, Doctors Who Was Struck Off for Misconduct Is Restored to the Register After Changing His Ways, 368 Brit. Med. J. m723 (2020), https://www.bmj.com/content/368/bmj.m723.

²⁴⁸ GMC, Sanctions Guidance, supra note 214.

²⁴⁹ See, e.g., Cohen v General Medical Council [2008] EWHC 581(Admin) (in which Justice Silber ruled that Dr Cohen’s fitness to practise should not have been regarded as impaired and the sanctions imposed by the Tribunal should be substituted for a warning).

²⁵⁰ GMC, Sanctions Guidance, supra note 214, ¶¶ 24–60.

²⁵¹ Id. ¶ 151.

²⁵² Gen. Med. Council, Guidance to the GMC’s Fitness to Practise Rules 2004 (as amended) (2012).

²⁵³ Med. Pracs. Tribunal Serv., Managing Medical Practitioners Tribunal Hearings: Guidance for Tribunal Chairs (2012).

²⁵⁴ Med. Pracs. Tribunal Serv., Expert Witnesses: Protocol for the Instruction of Experts to Give Evidence in Medical Practitioners Tribunal Hearings (2015).

²⁵⁵ Gen. Med. Council, Guidance on Making Decisions on Voluntary Erasure Applications and Advising on Administrative Erasure (2015).

²⁵⁶ Med. Pracs. Tribunal Serv., Imposing Conditions on a Doctor’s Registration (2019); Gen. Med. Council, Guidance for Decision Makers on Agreeing, Varying and Revoking Undertakings (2012); Gen. Med. Council, Guidance on Warnings (2018); Med. Pracs. Tribunal Serv., Undertakings at Medical Practitioners Tribunal Hearings (2016).

²⁵⁷ Resources for Parties and Representatives, Med. Pracs. Tribunal Serv., https://www.mpts-uk.org/doctors-and-representatives (last visited Jan. 12, 2025).

²⁵⁸ GMC, Sanctions Guidance, supra note 214, ¶ 149.

²⁵⁹ Id. ¶¶ 55, 109, 147.

²⁶⁰ Id. ¶¶ 62, 81, 92–94, 107–109.

²⁶¹ Medical Act 1983, c. 54, §§ 40A & 40B (UK).

²⁶² Medical Act 1983, c. 54, § 40 (UK). In Scotland, cases are appealed to the Court of Session; in Northern Ireland, to the High Court of Justice. Id. § 40(5).

²⁶³ McAllister, No. 7042366 (Med. Pracs. Tribunal Serv. Sept. 8, 2020) (record of determination).

²⁶⁴ See supra Part II.

²⁶⁵ McAllister, No. 7042366, at 36–39 (Med. Pracs. Tribunal Serv. Sept. 8, 2020) (record of determination).

²⁶⁶ Id.

²⁶⁷ Id. at 11, 18.

²⁶⁸ Id. at 15.

²⁶⁹ Id. at 41.; McAllister, No. 7042366, at 13 (Med. Pracs. Tribunal Serv. Nov. 15, 2017) (record of determination). At any stage of an investigation, a doctor may be referred to the MPTS for an Interim Order Tribunal hearing. The IOT can suspend or restrict a doctor’s practice while the investigation continues if it is necessary for the protection of the public, or otherwise be in the public interest or in the interests of the doctor. See General Medical Council (Fitness to Practise) Rules 2004, SI 2004/2608, ¶ 6 (UK).

²⁷⁰ See James Mulholland, Tattoo Parlour Doctor Acquitted of Killing Friend, The Times (May 27, 2017), https://www.thetimes.co.uk/article/tattoo-parlour-doctor-acquitted-of-killing-friend-33tdc9pvs [https://perma.cc/ZSV4-XAJ6].

²⁷¹ McAllister, No. 7042366, at 2 (Med. Pracs. Tribunal Serv. Nov. 15, 2017) (record of determination).

²⁷² Id. at 6–7. Evidence that the doctor understands the problem, has insight, and has made attempts to address or remediate it is considered a mitigating factor by the MPTS. See GMC, Sanctions Guidance, supra note 214, ¶¶ 25, 46.

²⁷³ McAllister, No. 7042366, at 11–13 (Med. Pracs. Tribunal Serv. Nov. 15, 2017) (record of determination). In determining that a period of suspension was the appropriate sanction, the tribunal quoted directly from the Sanctions Guidance, which reads, “Suspension will be an appropriate response to misconduct that is so serious that action must be taken to … maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration.” GMC, Sanctions Guidance, supra note 214, ¶ 91.

²⁷⁴ McAllister, No. 7042366, at 19–20 (Med. Pracs. Tribunal Serv. Sept. 8, 2020) (record of determination).

²⁷⁵ Id. at 12.

²⁷⁶ Id. at 35–41. The panel noted that “[t]he standard of proof is that applicable to civil proceedings, namely the balance of probabilities, i.e. whether it is more likely than not that the events occurred as alleged.” Id. at 10.

²⁷⁷ Id. at 44, 46–48, 55–58.

²⁷⁸ Id. at 64, 66–67.

²⁷⁹ Id. at 67–69.

²⁸⁰ Id. The tribunal stated that “[s]uspension may be appropriate … where there may have been acknowledgement of fault and where the tribunal is satisfied that the behaviour or incident is unlikely to be repeated.” Id. at 66. See also GMC, Sanctions Guidance, supra note 214, ¶ 93.

²⁸¹ McAllister, No. 7042366, at 67–68 (Med. Pracs. Tribunal Serv. Sept. 8, 2020) (record of determination); see GMC, Sanctions Guidance, supra note 214, ¶ 109.

²⁸² Katy McAllister, GMC. Ref. No. 7042366, Gen. Med. Council, https://www.gmc-uk.org/doctors/7042366 (last visited Jan. 12, 2024) (select “Registrant history” tab).

²⁸³ Compare McAllister, No. 7042366, at 12 (Med. Pracs. Tribunal Serv. Sept. 8, 2020), with Discussion supra notes 88–91.

²⁸⁴ McAllister, No. 7042366 at 13 (Med. Pracs. Tribunal Serv. Nov. 15, 2017) (record of determination).

²⁸⁵ McAllister, No. 7042366 at 1, 2, 8–10 (Med. Pracs. Tribunal Serv. Sept. 8, 2020) (record of determination).

²⁸⁶ See supra notes 100–05.

²⁸⁷ See supra notes 94–95.

²⁸⁸ McAllister, No. 7042366, at 44, 46–48, 55–58 (Med. Pracs. Tribunal Serv. Sept. 8, 2020) (record of determination).

²⁸⁹ See generally Hearing Before the Tenn. Bd. of Med. Exam’rs, Lapaglia, No. 17.18-157362A (Tenn. Bd. of Med. Exam’rs July 31, 2019), https://tdh.streamingvideo.tn.gov/Mediasite/Channel/98fe21d561e9489487745f0c7da678b25f/watch/ee17b74a7fa640d994571f4a5fee42261d.

²⁹⁰ McAllister, No. 7042366, at 63–68 (Med. Pracs. Tribunal Serv. Sept. 8, 2020) (record of determination).

²⁹¹ See supra note 99 and accompanying text.

²⁹² Katy McAllister, GMC. Ref. No. 7042366, Gen. Med. Council, https://www.gmc-uk.org/doctors/7042366 (last visited Aug. 20, 2024) (select “Registrant history” tab).

²⁹³ Id. (this information is compiled from the six records of determination spanning Nov. 15, 2017 to Sept. 8, 2020).

²⁹⁴ See text accompanying supra note 234.

²⁹⁵ See MPTS, Appointment Criteria , supra note 232.

²⁹⁶ See Public Use Data File, Nat’l Prac. Data Bank, https://www.npdb.hrsa.gov/resources/publicData.jsp (last visited Aug. 19, 2024).

²⁹⁷ License Verification, Tenn. Dep’t of Health, https://apps.health.tn.gov/Licensure/ [https://perma.cc/KW2Q-H82Y] (last visited Aug. 19, 2024).

²⁹⁸ McPheeters & Bratton, supra note 14, at 1332; Tenn. Code Ann. § 63-6-214(a) (2024)

²⁹⁹ Tenn. Comp. R. & Regs. § 0880-02-.10 to -.12 (2024); see, e.g., Tenn. Bd. of Med. Exam’rs, Regular Board Meeting Tuesday, May 16, 2023 Minutes, at 11, 22 (2023) (documenting consent orders voluntarily surrendering registrants’ medical licenses).

³⁰⁰ Freedom of Information Act 2000, c. 36, § 8 (UK).

³⁰¹ Medical Act 1983, c. 54, § 35D(2) (UK).

³⁰² Decisions from Case Examiners’ reports, Investigation Committee hearings and MPTS tribunals that conclude in a warning are published on the GMC website for a period of one year. See Gen. Med. Council, Publication and Disclosure Policy: Fitness to Practise (2022).

³⁰³ General Medical Council (Voluntary Erasure and Restoration following Voluntary Erasure) Regulations 2004, SI 2004/2609, § 3(8) (UK) (in cases where the applicant has an outstanding fitness to practice issue, the application must be referred to the MPTS to be determined accordingly).

³⁰⁴ For the five-year period from 2016 to 2020, 4.8% of hearings (18/378) heard by the Tennessee BME resulted in license revocation, compared to 27.5% (295/1071) of MPTS tribunals.

³⁰⁵ See, e.g., Regaining Certification, The Am. Bd. of Preventive Med., https://www.theabpm.org/continuing-certification-program-ccp/regaining-certification/ [https://perma.cc/R6AM-9W35] (last visited Jan. 12, 2025) (outlining steps for regaining certification after revocation); Allaina M. Murphy, Preponderance, Plus: The Procedure Due to Professional Licensees in State Revocation Hearings, 52 Conn. L. Rev. 943, 966 (2020); supra note 247.

³⁰⁶ R.A. Fisher, On the Interpretation of Χ² from Contingency Tables, and the Calculation of P, 85 J. Royal Stat. Soc’y 87, 88 (1922).

³⁰⁷ See Public Use Data File, Nat’l Prac. Data Bank, https://www.npdb.hrsa.gov/resources/publicData.jsp (last visited Aug. 19, 2024).

³⁰⁸ In 2019-2020, the NPDB recorded 5,357 penalties issued by US State Boards of Medicine, of which 2,084 (39%) were severe (i.e. involved the restriction of a doctor’s ability to practice medicine). Of these penalties, 69 were issued by the Tennessee BME, with 22 (32%) being severe. This small difference is not statistically significant (X² = 1.413; p = 0.235).

³⁰⁹ In 2018, which was the last pre-COVID calendar year for which both Tennessean and British data are available, there were 17,133 doctors practising in the state of Tennessee, compared with 250,210 in the UK. Ass’n of Am. Med. Colls., 2019 State Physician Workforce Report 8 (2019); Gen. Med. Council, Annual Report 2018, at 29 (2018). In that year, the BME received one complaint for every seven licensed doctors. The corresponding rate at the GMC was approximately one complaint per 30 registered doctors. Approximately one in every 1 in 535 registered doctors in Tennessee received a serious penalty in 2018: in the UK, this figure was 1 in 1,300. So, while the BME had higher absolute rates of both complaints and serious penalties than the GMC/MPTS, it received complaints against doctors at approximately four times the per doctor rate of the GMC but issued serious penalties at a rate only two-and-half-times that of its UK counterpart. That is to say, it issued fewer serious penalties relative to the number of complaints it received (1.3%) than the MPTS (2.3%).

³¹⁰ Cf. Vicki Osborne, Is the UK Facing its Own Opioid Crisis?, Drug Safety Rsch. Unit, https://www.dsru.org/blog/is-the-uk-facing-its-own-opioid-crisis/ [https://perma.cc/FKX8-VXNL] (“In the UK, we have generally not seen the same levels of [opioid] use [as in the US] which would cause concern in past years.”).

³¹¹ See Martin v. Sizemore, 78 S.W.3d 249, 265–66 (Tenn. Ct. App. 2001).

³¹² See Physician and Physician Assistants Disciplinary and Other Actions, N.Y. State Dep’t of Health, https://www.health.ny.gov/professionals/doctors/conduct/ (last visited Aug. 19, 2024); Milton Heumann et. al., Bad Medicine: On Disciplining Physician Felons, 11 Cardozo J. Conflict Resol. 501, 512–13 (2009).

³¹³ See supra note 231.

³¹⁴ See supra notes 9–10 and accompanying text.

³¹⁵ See Understanding New York’s Medical Conduct Program - Physician Discipline, N.Y. State Dep’t of Health, https://www.health.ny.gov/publications/1445/ [https://perma.cc/4Y5P-FJUL] (last visited Nov. 8, 2024).

³¹⁶ See Michael Tonry, The Functions of Sentencing and Sentencing Reform, 58 Stan. L. Rev. 37, 51 (2005) (observing that “overly rigid, overly detailed guidelines do not work well” in the context of the federal sentencing guidelines).

³¹⁷ Some states already go further in providing specific guidance to board members about discipline (although none match the specificity and rigidity of the British system). For example, Delaware codifies sanction ranges for specific conduct. See 24 Del. Admin. Code § 1700-17.0 to -17.16 (2013). The states should expand on Delaware’s model to make it as robust as the English.

³¹⁸ See General Medical Council (Fitness to Practise) Rules 2004, SI 2004/2608, ¶ 17 (UK).

³¹⁹ For a discussion of the problems with opacity in lawyer discipline, in particular, see Levin, Less Secrecy, supra note 4.

³²⁰ See GMC, Sanctions Guidance, supra note 214, ¶ 26(d).

³²¹ Cf. Cruess & Cruess, supra note 18, at 322–23.

³²² See, e.g., Velez, No. 2011-004642 (Mo. Bd. of Registration for the Healing Arts Nov. 12, 2019) (final order), https://pr.mo.gov/boards/healingarts/orders/MED-2007038367.pdf (lifting previous disciplinary order for nine botched spinal surgeries including misplaced screws and incorrectly fused vertebrae). Velez’ practitioner profile can be accessed through the Licensee Search & Downloads, Mo. Div. of Pro. Registration, https://pr.mo.gov/healingarts-online.asp (search for license number “2007038367”).

³²³ See N.Y. State Dep’t of Health, supra note 315.

³²⁴ See N.Y. State Dep’t of Health, supra note 315.

³²⁵ See Green, supra note 51, at, 180 (discussing the possibility of professional discipline for lawyers’ frivolous lawsuits contesting the results of the 2020 election).

³²⁶ See Former USC Doctor Charged with Sexual Abuse of Students Dies Before Going to Trial, PBS News (Oct. 5, 2023 4:55 PM), https://www.pbs.org/newshour/nation/former-usc-doctor-charged-with-sexual-abuse-of-students-dies-before-going-to-trial (describing the case of George Tyndall who abused more than 700 patients); Connor, supra note 48 (describing the case of Larry Nassar who abused over one hundred patients).

³²⁷ In stressing the avowed importance of self-regulation, the AMA’s Council on Ethical and Judicial Affairs has insisted of physicians that: “No other party in the health care system is charged with the responsibility of advocating for patients, and no other party can reasonably be expected to assume the responsibility conscientiously.” Carl Ameringer, State Medical Boards and the Politics of Public Protection 113 (1999). As recently as 2023, the AMA “advised state medical boards that proposals for national or federal medical licenses should be opposed,” and “laid out clear guidelines for state medical boards to oppose a national licensing registration scheme.” Cara Smith, Senate Approps Seek FTC Study on Interstate Licensing Merits, As AMA Poses Hurdles, Inside Telehealth (July 25, 2023, 03:38 PM), https://insidehealthpolicy.com/inside-telehealth-daily-news/senate-approps-seek-ftc-study-interstate-licensing-merits-ama-poses.

³²⁸ 328 Marsha Griggs, Outsourcing Self-Regulation, 80 Wash. & Lee L. Rev. 1807, 1815 (2024) (“[T]he ABA staunchly insists on an autonomous, self-regulated legal profession that is free from external interference.”). The preamble to the ABA’s Model Rules of Professional Conduct states: “An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.” Deborah L. Rhode, In The Interests of Justice 145–46 (2000). Despite the willingness of American courts to “permit some regulation of attorneys by legislatures and administrative agencies … lawyers retain considerable control over their own regulation,” particularly with respect to the promulgation, recommendation, and approval of bar codes of conduct, as well as the make-up of disciplinary committees. Id.

³²⁹ See Allensworth, supra note 5.

³³⁰ In the same way that lobbying for professional regulation has proved easier to accomplish state-by-state, lobbying for reform and change may be more effective at the state level than nationally. See Young, supra note 38, at 24–25. More effective local political organization may make it easier to counteract the political influence of practitioners, who “have a greater interest in licensing and may be better able to influence policy through their active professional associations.” Margie Castro, Occupational Licensing: Benefits, Costs, and Issues 22 (2016). For example, in the area of tort reform, despite efforts to nationalize tort law, “[t]he majority of … reform measures that have managed to succeed have occurred in state legislatures, whereas reforms at the federal level have—at least until 2005—encountered more obstacles.” John T. Nockleby & Shannon Curreri, 100 Years of Conflict: The Past and Future of Tort Retrenchment, 38 Loy. L.A. L. Rev. 1021, 1032 (2005).

³³¹ See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (“[A] single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”).

³³² See, e.g., Eliot Freidson, Profession of Medicine: A Study of the Sociology of Applied Knowledge 185, 368 (1970) (observing that in their quest for professional status, “[a]utonomy is the prize sought by virtually all occupational groups”).