Bioethics Discussion Blog: "Legitimate Medical Purpose" and State Medical Boards

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Saturday, January 21, 2006

"Legitimate Medical Purpose" and State Medical Boards

In the previous posting, regarding "legitimate medical purpose", I wrote: "What still remains is the question as to what physician acts represent “legitimate medical purpose” and particularly who are the ones to define it? My visitor Moof wrote a comment:Dr. Bernstein ... do you believe that the government should even be involved in any of this?
and I responded:Moof, federal government--no. State government and its physicians--yes. Moof then asked: Dr. Bernstein ... why would the state gov be any better? I know that it's more local, but still ... what real business does any government have in medicine?


My response would be the following:


In response to the 10th Amendment of the U.S. Constitution (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) , each state legislature created a Medical Practice Act that defines the proper practice of medicine and the responsibility of the medical board to regulate that practice. The Federation of Medical Boards, established in 1912, provided a sounding board for establishing a consensus of what each state could put into their own Medical Practice Acts. The following is a brief description of the Federation and it’s guidelines for the states as taken from the above link. I think this should answer the question of how state government got into the regulation of medical practice. ..Maurice.


The Federation of State Medical Boards is a national non-profit association established in 1912, which serves as a collective voice for 70 state medical licensing and disciplinary boards of the U.S. and its territories. The Federation′s primary mission is to improve the quality, safety, and integrity of health care by promoting high standards for physician licensure and practice, as well as supporting and assisting state medical boards in the protection of the public.

State Medical Boards

Authority
Under the 10th Amendment of the U.S. Constitution, states have the authority to regulate activities that affect health, safety and welfare of their citizens. To protect the public from the unprofessional, improper, unlawful, fraudulent and/or incompetent practice of medicine, states provide laws and regulations that outline the practice of medicine and the responsibility of the medical board to regulate that practice in the state′s ″Medical Practice Act.″

Responsibility
The primary function of a state medical board is to protect consumers of health care through proper licensing and regulation of physicians.

Public protection begins with the licensure process which is designed to ensure that practicing physicians have appropriate education and training, and that they abide by recognized standards of professional conduct in treating patients. Licensed physicians must periodically reregister with the board. During reregistration, a physician is required to demonstrate that they have maintained acceptable standards of ethics and medical practice by a variety of means, such as, compliance with continuing education requirements and/or recertification by a specialty board, etc. In addition, the board will review complaints regarding a physician′’s medical practice to verify their compliance with state law and board rules and regulations and to identify patterns of substandard care.

On its own initiative or upon receipt of information reported by others, the state medical board investigates any evidence that appears to indicate that a physician is or may be incompetent, guilty of unprofessional conduct, or mentally or physically unable to engage safely in the practice of medicine or that the Medical Practice Act or the rules and regulations of the Board have been violated. The Board has full discretion and authority with respect to disciplinary actions when it determines that a violation has occurred.

Structure
State medical boards are typically comprised of physician and public members who are, in most cases, appointed by the governor. Some boards are independent in structure, exercising all licensing and disciplinary powers, while others are part of a larger state agency, such as the Department of Health, which exercises varied levels of responsibility or functions in an advisory capacity. State medical boards employ an administrative staff that may include an executive officer, attorneys and investigators. Legal services are often provided by the state′s Attorney General′s Office. The structure and responsibilities of each state medical board are set out by the state legislature in the Medical Practice Act. While these statutes have many similarities, each is unique in its specific language which means there is variety in how boards are structured and how their responsibilities are described.

Funding
Funding for medical board staff and activities comes from physician licensing and registration fees, as well as fines imposed as part of a disciplinary action. Some specific activities, such as physician profiling, may receive a special appropriation of state funds.

Medical Practice Act
A state Medical Practice Act is created by legislative authorization. Each state Act is unique, therefore, there are some significant variations among states in how they address the privilege of practicing medicine. Medical Practice Acts generally include:

  1. A definition of the practice of medicine
  2. What constitutes the unlawful practice of medicine
  3. Structure of the state medical board
  4. Provisions for medical licensing examinations
  5. Requirements for licensure and reregistration
  6. The range of disciplinary actions that may be taken against physicians
  7. Procedures for enforcement of disciplinary actions
  8. Handling impaired physicians
  9. Authority for investigations
  10. Legal protection and immunity for board members
  11. Authority for the board to promulgate rules and regulations to facilitate enforcement of the Act.
  12. Source of funding for the board

The Federation of State Medical Boards publishes a guide for states in reviewing and revising Medical Practice Acts: A Guide to the Essentials of a Modern Medical Practice Act.

Policy Development
Additionally, the Federation supports its member boards through policy analysis and development. The Federation periodically convenes representatives of state medical boards, together with experts in specific subject areas, to study and develop recommendations on issues pertinent to medical regulation. The policies are intended to give guidance and encourage consistency among state medical boards in addressing trends in medical practice and regulation in order to protect the public and improve the quality, safety, and integrity of health care.

Enforcement Procedures and Disciplinary Actions
The Medical Practice Act sets out procedures that permit the board to take appropriate enforcement and disciplinary action, while assuring fairness and due process to the physician subject of a report. Common board actions include:

  1. Revocation – A permanent loss of license to practice medicine. Under certain conditions, a physician may petition for reinstatement after a specific time period.
  2. Probation – Physician′s practice is monitored for a specific period of time.
  3. Suspension – Physician may not practice for a specific period of time.
  4. Summary Suspension – Immediate suspension of a physician′s license when there is evidence that his/her continued practice presents an immediate danger to the public health and safety.
  5. Reprimand or Censure – A public admonishment.
  6. Voluntary Surrender of License – Physician surrenders his/her license to practice in lieu of further disciplinary action.
  7. Limitation or Restriction – Physician′s license to practice is restricted in some way; e.g. prohibited from performing specific procedures.
  8. Denial – Physician’s license is not initially awarded or subsequently renewed.
  9. Administrative Fine/Monetary Penalty – A civil penalty imposed by the board for certain types of professional misconduct.
  10. Restitution – Statutory authority to require a physician to reimburse an individual/entity for monies improperly obtained.
  11. "Stay" – The board withholds enforcement of a board action, usually under some enumerated conditions.


7 Comments:

At Sunday, January 22, 2006 10:58:00 AM, Anonymous Moof said...

Dr. Bernstein ... thank you so much for posting that information. It was a revelation to me, since I was a bit confused about how the Medical Boards mesh with the government.

I can now see a purpose for a (local) regulatory body, although I have to wonder why the members of such a board would be "appointed by the governor" rather than elected or otherwise chosen by the physicians of the area in question.

It would be more comfortable to think that the practice of medicine (requirements, safeguards, etc.,) was regulated unhindered by the medical community rather than by a single politician who could have his own agenda re issues like abortion, assisted suicide, etc. ...

In my own experience, the government (on any level, city, state, federal) only extends its grasp on an area once it gets its foot in the door, and often does not seem to have any concept of boundaries.

I find the idea of a Medical Board made up of physicians, and perhaps even ethicists, a comforting thing ... while the same idea with the government thrown in doesn't sit nearly as well.

.

 
At Sunday, January 22, 2006 4:25:00 PM, Blogger Maurice Bernstein, M.D. said...

Moof, I can speak only for California and not Medical Boards in other states.
In California, The Medical Board has 21 members — 12 physicians and 7 public members appointed by the Governor; 1 public member is appointed by the Speaker of the Assembly; and 1 public member is appointed by the Senate Rules Committee. Government officials are not part of the board. I have not heard any complaints by physicians about the board's functioning. There has been, a few years ago, some complaining by patient's about not enough identification and disciplinary action taken for problem physicians. I think there has been an energetic improvement by our board in recent years.


To read more about our California Medical Board go to http://www.medbd.ca.gov

To look up other state boards, check with Google for their URLs. ..Maurice.

 
At Monday, January 23, 2006 6:52:00 AM, Anonymous Bob Koepp said...

Maurice -
The situation here is parallel to that addressed by Socrates in the Euthyphro. What is it about X in virtue of which it can be said to have a legitimate medical purpose? Is it because an allwise Medical Board opines that X has a legitimate medical purpose? Or does this get things backwards?

 
At Tuesday, January 24, 2006 3:58:00 PM, Anonymous Moof said...

Dr. Bernstein and Mr. Koepp ... I believe that perhaps Mr. Koepp and I may have a few of the same concerns.

Mr. Koepp, could I bother you to expand on your previous comment please?

.

 
At Wednesday, January 25, 2006 6:33:00 AM, Anonymous Bob Koepp said...

I'll try to be very brief since this is, after all, Dr Mo's blog.

In the Euthyphro, Socrates argues that the fact that the gods say something is good does not make it so. Rather, the if the gods say truthfully that something is good, it is because it is good independently of their pronouncements.

I think parallel considerations apply to the notion of "medical legitimacy." In other words, the fact that a medical board or a legislature says some intervention is medically legitimate doesn't make it so. And when somebody (or some body) makes such determinations, we have every reason to demand that they provide a coherent "rationale" for their judgment. In the field of medicine, I think, such a rationale must be framed in terms of improving health status and/or ameliorating the effects of disease. That wouldn't eliminate all controversy from the determination, but it would place it in an appropriate medical framework.

Hope this helps.

 
At Wednesday, January 25, 2006 8:10:00 AM, Blogger Maurice Bernstein, M.D. said...

Bob, in an earlier post (Fri, Jan 13, 2006) you wrote: "I've never objected to including psycho-social dimensions of health and disease in the domain of medical concerns." Therefore, if that is your view, as you know it is also mine, wouldn't you include psycho-social into the rationale regarding "improving health status and/or ameliorating the effects of disease"? It seems to me that it is most reasonable to consider that the major motivating factor which has led those 200 or so patients in Oregon to choose to die was the intolerable and untreatable psycho-social impact of their illness on their attempt or direction toward "wellness". Their final act, therefore, through the medium of physician written prescription drugs, has, for them, in effect ameliorated the effects of their underlying disease.

I think the law implies a rationale which would represent the psycho-social impact of the end result of the illness, independent of age or the symptoms of disability but to permit the course of the terminal illness,itself, to end in a "in a humane and dignified manner."

127.805 §2.01. Who may initiate a written request for medication. (1) An adult
who is capable, is a resident of Oregon, and has been determined by the attending
physician and consulting physician to be suffering from a terminal disease, and who has
voluntarily expressed his or her wish to die, may make a written request for medication
for the purpose of ending his or her life in a humane and dignified manner in
accordance with ORS 127.800 to 127.897.
(2) No person shall qualify under the provisions of ORS 127.800 to 127.897 solely
because of age or disability. [1995 c.3 §2.01; 1999 c.423 §2]


Bob, do you think I am stretching the "psycho-social" argument too far? ..Maurice.

 
At Wednesday, January 25, 2006 8:42:00 AM, Anonymous Bob Koepp said...

Maurice -
Yes, I do think you stretch the psycho-social argument too far. I think there are psycho-social components to health and disease, but only to the extent that there are natural psycho-social functions -- i.e., only to the extent that we are "by nature" psychological and social creatures. Although boundaries are, as usual, vague and ill-defined, I do distinguish between natural functions and socially constructed functions (i.e., it is a natural function of the nose to direct the flow of air in various ways; but providing a perch for eye glasses is a socially constructed function).

To illustrate: being unhappy with one's lot in life is not necessarily to have a psycho-social "disease." It's only when unhappiness results from or causes dysfunction vis a vis natural functional capacities that there is any reason to view it as a medical condition.

In the case of PAS, it's an odd locution to say that killing a patient ameliorates the effects of an underlying disease. Undoubtedly, killing a patient halts _all_ disease processes (a corpse can't be ill, after all) -- but that's hardly what we usually mean by amelioration.

 

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