Chapter 8.C.1 (or 2.C.1).  Professional Licensure

 

Notes: Professional Licensure

 

Note 1. Historical Roots 

 

On the issue of licensure for alternative health providers, see Thomas R. Clark, Licensing Alternative Approaches to Medicine: The Naturopathic Doctors’ Act of 2003, 35 McGeorge L. Rev. 387 (2004).

 

Note 4. Licensure v. Credentialing

 

See also, Randall G. Holcombe, Eliminating Scope of Practice and Licensing Laws to Improve Health Care, 31 J L Med & Ethics 236 (2003).

 

Notes: Unlicensed Practice of Medicine

 

Note 1. Criminal Prosecution.

 

See also, Green v. State, 137 S.W.3d 356 (Tex.App. - Austin 2004) in which the defendant was convicted of practicing medicine without a license.

 

Note 2. Defining Medical Practice.

 

See also, O’Brien v. Rizvi, 898 So.2d 360, 2004-2252 (La. 2005)) in which it was held that the defendant was not a qualified health care provider under the Medical Malpractice Act and therefore not entitled to protections afforded under the Act. An increase in the popularity of tattoos and body piercing has led to a rise health licensure and concerns. For an article outlining some of these issues see Lorraine Kreahling, The Perils of Needles to the Body, N.Y. Times, February 1, 2005.

 

Note 4. A Right to Provide Care?

 

See Cryns v. Hewson, 540 U.S. 818, 124 S.Ct. 83 (2003) in which the Supreme Court denied certiorari in a decision involving whether or not there is a constitutional right to provide care as a lay midwife.  In the case below, the Supreme Court of Illinois had held that a lay midwife did not have such a right and must be licensed in accordance with the provisions of the Nursing and Advanced Practice of Nursing Act; lay midwife violated the provisions of the Act; the Court also affirmed that the General Assembly has wide regulatory power over health care professions.

 

Note 5. A Right to Receive Treatment?

 

See Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, 445 F.3d 470 (D.C.Cir.2006). (where no government approved treatment options exist, competent terminally ill patients have the due process right to potentially life saving drugs that have been approved for human trials).

 

Note 6. Midwifery.

 

See also, Valerie Vickerman Morris v. The Department of Professional Regulation, 824 N.E.2d 1151 (Ill.App. 1 Dist. 2005) (nurse participated in the unlicensed practice of midwifery in contravention of the Nursing Act).

 

Note 7. Alternative Healing Techniques

 

On the issue of licensure for alternative health providers, see Thomas R. Clark, Licensing Alternative Approaches to Medicine: The Naturopathic Doctors’ Act of 2003, 35 McGeorge L. Rev. 387 (2004). See California’s Naturopathic Doctors Act, Chapter 485.

 

See generally Barbara L. Atwell, Mainstreaming Complementary and Alternative Medicine in the Face of Uncertainty, 72 UMKC L Rev 593 (2004).

 

Note 9. Physician Extenders

 

Can a physician employ another physician whose licensed has been suspended without risking being charged with assisting in the unlicensed practice of medicine?  See People v. Santi, 3 N.Y.3d 234 (2004) (defendants’ convictions upheld where unlicensed defendant allegedly administered anesthesia).

 

See generally, Laura Hermer & William Winslade, Access to Health Care in Texas: A Patient Centered Perspective, 35 Tex Tech L Rev 33 (2004).

 

Note 10. Interstate Practice of Medicine: Telemedicine and Utilization Review

 

See Linda Fentiman, Internet Pharmacies: Why State Regulatory Solutions Are Not Enough, Administrative and Regulatory Law News (2004).

 

See Telemedicine Information Exchange at http://tie.telemed.org/ (last visited June 5, 2006)

 

Notes: Professional Disciplinary Actions

 

Note 1. Grounds for Disciplinary Action

 

See generally, Richard J. Shoop, Preparing Yourself and Your Client for an Appearance Before a Health Care Licensing Board on Disciplinary Matters, Florida Bar Journal, January 2004, at 20.

 

Note 1.a. Quality of Care

 

See, Jha A., et al., Care in U.S. Hospitals – The Hospital Quality Alliance Program, 353 N Engl J Med 265 (2005). For an online resource, see The Hospital Quality Alliance www.aha.org/aha/key_issues/qualityalliance/index.html. (last visited June 5, 2006)

 

The American Medical Association has agreed to develop a more than 100-point quality of care standard. Medicare payment will be tied to the doctors’ reports to the federal government on these indicia of performance, see Robert Pear, A.M.A. to Develop Measure of Quality of Medical Care, N.Y. Times, February 21, 2006 at A12.

For a case dealing with physician quality of care see, Lee v. Trinity Lutheran Hospital 408 F.3d 1064 (8th Cir. 2005) reh’g and reh’g en banc denied, (2005).

Note 1.d. Restrictions on Advertising or Business Arrangements

 

Some restrictions on advertising do bear a close relationship to the protection of public health. See, e.g., State ex re. State Bd. of Healing Arts v. Thomas, 97 P.3d 512 (Kan. App. 2004) (dentist restricted from using initials “M.D.” in advertising despite First Amendment speech protection; he received his degree from a foreign medical school and was not licensed to practice medicine in state).

 

See, David Vladeck, Gerald Weber & Lawrence Gostin, Commercial Speech and the Public’s Health: Regulating Advertisements of Tobacco, Alcohol, High Fat Foods and Other Potentially Hazardous Products, 32 J L Med & Ethics 32 (2004).

 

Note 4.  Other Due Process Issues within the Administrative Process

 

See also, Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916 (9th Cir. 2004) (members of board entitled to absolute immunity).