Glenn knows she is overweight and needs to lose about 100 pounds. She feels desperate until she sees an advertisement in a newspaper about a medication that helps people lose weight. She calls the number at the bottom of the advertisement and makes an appointment with the weight loss clinic. When she goes to the clinic, she is seated in the doctor’s office. Glenn is a smart woman. She looks closely at the framed certificates on the wall until she finds the doctor’s license. If the doctor is licensed, he must know what he is doing. Or does he?
Each state government sets its own requirements for the licensing of doctors, nurses, hospitals, and other health care professionals and facilities. The state does this to protect the health and safety of you and your neighbors. Once a doctor is licensed to practice medicine, that doctor is licensed to practice any type of medicine. In theory, a dermatologist can deliver a baby, an obstetrician can perform liposuction, and a plastic surgeon can perform brain surgery. In reality, hospital regulations, fear of malpractice claims, and disciplinary actions discourage doctors from giving medical care outside their fields of expertise.
The states began to pass laws in the 1870s and 1880s requiring doctors to be licensed. Before that, doctors did not need a license to practice medicine. These laws usually required that a doctor pass a state’s licensing examination in order to receive a license. In the early part of the 1900s, the American Medical Association (AMA) set standards for medical schools and lobbied for laws that would allow only graduates of those schools that met those standards to take the licensing examination. That is how the AMA came to oversee the accreditation of medical schools, a power it retains to this day.
That varies by state. In general, states will license chiropractors, dentists, doctors, surgeons, physical therapists, nurses, optometrists, psychologists, physician assistants, respiratory therapists, pharmacists, and clinical social workers. Some states may also decide to license hearing aid dispensers, eyeglass and contact lens dispensers, clinical laboratory technologists, and midwives.
The state legislators believe that by requiring a license for doctors, they can help ensure that you will receive quality medical care. A license means they can make sure that doctors graduated from medical schools that taught them what they need to know to treat you. These laws can prevent you from being cared for by a person who has a criminal history or a character defect. It means that if a doctor does not care for you in medically acceptable ways, the doctor may be disciplined by license revocation or suspension.
On the other hand, licensing requirements are not favored by everyone. Some commentators argue that the licensing requirements discriminate against minorities or raise the price of your medical care. Others suggest that licensing requirements impose a stifling conformity on medicine, because all doctors attend strictly regulated medical schools that teach the same classes and do not encourage other ways of thinking or treating patients.
THREE LONG STEPS
In most states, to become a licensed doctor a person must:
A state may use the licensing standards as a way to promote public policy. For example, when the California legislature determined that many doctors knew less about human sexuality than most nondoctors, the California Medical Licensing Board added training in human sexuality as a requirement for licensing.
The state legislature enacts laws regarding who may receive (and sometimes lose) a license. The laws are then used by state medical boards to regulate doctors, nurses, facilities, and other health care professionals. For example, a board of doctors will use the laws to decide what new doctors must know or do to receive their licenses, as well as how the doctors must perform once they are licensed. The state medical board will also use the laws when deciding whether to discipline a doctor. Note that it is the profession of medicine—the doctors—that carries the regulatory burden. In general, a hallmark of a profession—as opposed to a vocation—is self-regulation.
MINIMUM REQUIREMENTS
For a health professional to be licensed, he or she must usually:
The profession of nursing really got its start on bloody battlefields. The heroic contributions of Florence Nightingale and other nurses in the Crimean War and of Clara Barton and her colleagues in the American Civil War established the value of nursing.
The first nursing school was founded in 1873. The early nursing schools were based in hospitals and provided unpaid labor by student nurses to the hospitals. In the 1890s, many of the first nursing students, particularly those from well-to-do families, were now nurses and teaching the next nursing classes their profession. At the same time, there were women from the lower classes of society who did not attend nursing schools but who nevertheless held themselves out as nurses. The teaching nurses began to press for licensing of nurses so that they could improve patient care. By 1923, forty-eight states required nurses to be licensed. To be licensed, the nurses had to attend a nursing school.
THE BAD OLD DAYS
In the 1800s, women were considered to be better suited to nursing because they were considered compassionate and reassuring to patients and were expected to clean the wards and make the beds. Nurses worked 60 to 70 hours a week for little pay, living in the hospital or school, and were subjected to harsh discipline, such as room inspections at any time of the day or night.
Today, professional nursing associations continue to push for more education in order for nurses to be licensed. In many states, nurses are not required to attend college to take the standardized test and receive a license. A diploma from a hospital-based nursing school is enough. Many nursing associations believe a college degree is needed for nurses to be fully trained. Hospital-based nursing schools and nurses without college degrees disagree; they oppose adding a further educational requirement.
Usually. Most states allow physician assistants to be licensed, certified, or registered in some way in order to make physician assistants meet professional standards. Being licensed, certified, or registered requires the physician assistants to meet the standards set by the state for their profession.
Physician assistants do certain things that are delegated to them by the doctors they assist. What a doctor may delegate to a physician assistant depends on the law of each state and the customs of the medical profession. All physician assistants must be supervised by a licensed doctor, but each state differs as to how much supervision is required. In some states, physician assistants may prescribe medication. In others, the practice is strictly forbidden.
It is difficult to get a doctor’s or a nurse’s license revoked. A professional license is considered “property” under the Constitution, so the person must be told the reason for the revocation and given a fair hearing. The most common ground for suspending a license is unprofessional conduct.
Each state has a medical board and other boards in charge of licensing, investigating complaints, and disciplining doctors and other health care professionals. You can look in the telephone book, or you can do an online search, using a search such as the name of your state + medical + board. The medical board or other board will tell you how to get a complaint form to begin the process. Some boards put this form on their website, and you can print it from there. Be sure to fill out the form completely and clearly. This form will ask you to sign a release allowing the board to look at your medical records. You are not required to sign this; but without looking at your records, the board may not be able to investigate your complaint fully. Some states require that your complaint form be notarized, which would require your name on the form.
Usually the board will examine the complaint form and decide whether the complaint should be investigated. In some situations the board will not have the authority to investigate. For example, if you complain that your doctor kept you waiting too long for your examination, the board may decide that complaint does not have merit and will inform you that it will not be investigated.
Following are some types of complaints that would probably be investigated by a medical board:
The medical board will notify the doctor of the complaint and ask your doctor to respond. When the board receives the doctor’s response, it will decide whether to continue the investigation. If an investigation is needed, the board will look at your medical records (and others as deemed necessary) and interview witnesses.
An investigation can take anywhere from a few weeks to several years, depending on the complexity of the complaint and the difficulty of the investigation. You can check on the status of your complaint by contacting the medical board.
If the board finds that the complaint is unwarranted, it will dismiss it. If it finds that the complaint is justified, it may request that the complaint be investigated further. In some cases, the complaint will be dismissed, but the board will notify the doctor that certain methods or actions must be changed in the future. It may order your doctor to take more training or to stop performing particular treatments. It may require that the doctor enter into treatment for substance or alcohol abuse. If the board finds that the doctor should be disciplined, there will be an administrative hearing, at which time the doctor may be disciplined in some way, including having his or her license revoked or suspended.
Some medical boards will not investigate a complaint that is anonymous. It would be nearly impossible to investigate a complaint without access to the complaining patient’s medical records. On the other hand, medical boards will often keep your name confidential if you so request. In other words, your doctor will not find out directly from investigators that it was you who complained, even though the medical board knows your name and sees your medical records. However, the doctor may be able to infer that it was you when the board requests your records.
These documents typically become part of the doctor’s file kept by the medical board. In some states this is available to the public because it is considered a public record.
No. There is no appeals process through the medical board. When a complaint is dismissed by the medical board, it may mean only that an investigation would not provide enough proof to discipline the doctor.
Yes. The dismissal of your complaint by a medical board does not affect your right to bring a legal action, such as for medical malpractice, against your doctor. Medical malpractice is discussed in the next chapter.
Just as doctors must be licensed and meet certain standards, so must hospitals, nursing homes, and most other types of health care facilities. Unlike doctors though, health care facilities (including hospitals and nursing homes) are regulated by a combination of state and federal laws, including Medicaid and Medicare. These regulations dictate the type of care that may be provided, the way that the professional staff may be selected and trained, and the maintenance and sanitation of the buildings and equipment. In addition, health care facilities may choose to meet the standards of private accreditation organizations to boost their public image or to increase their competitive edge.
There are some health care facilities that do not fit the legal definition of a hospital or a nursing home or a clinic. Depending on the state and where those facilities are located (such as separate from a hospital), those facilities may not need to be licensed unless they fall under some other legal definition that requires licensing. Examples of facilities for older persons that may offer some level of medical care but not be licensed are board-and-care facilities, continuing-care retirement communities, residential-care facilities, homes for the aged, and assisted-living facilities.
Although every hospital must be licensed and is regulated by both state and federal governments, hospital standards are largely set by a private group, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). Both state and federal regulations defer to JCAHO for enforcing those standards.
JCAHO is the leading accreditation organization for hospitals, and it also accredits nursing homes and other types of health care facilities. When a hospital joins JCAHO, it agrees to comply with the organization’s standards of quality and agrees that JCAHO may enforce the standards against the hospital.
The benefit of having a private organization such as JCAHO perform this function is that it saves the government millions of dollars. In addition, JCAHO is able to change and to enforce its standards much more quickly than the government, which must follow lengthy procedures to alter its standards or rules. In fact, most states incorporate JCAHO standards into their licensing requirements for hospitals, and the Medicare law considers JCAHO-accredited hospitals to meet the standards for Medicare certification. Although JCAHO is not the only hospital accreditation organization in the country, it is by far the largest.
Nursing homes can be accredited by JCAHO as well, but nursing homes have not participated in accreditation programs to the extent of hospitals. Nursing homes are required by every state to be licensed, but the quality of care may leave something to be desired. Most states require a registered nurse to supervise nursing care, but nursing care is often offered by nurses’ aides with little or no training. Compare this with licensed nurses who take care of patients in hospitals. Several scandals over poor care in nursing homes have caused an uproar in both the public and state legislatures.
As a result, nursing homes are more stringently regulated by the government, and those regulations are more rigorously enforced than those for hospitals. With hospitals regulating themselves through JCAHO, state and federal agencies are able to concentrate their efforts on making sure that nursing homes are following the requirements set out in the licensing standards.
Each state has laws that forbid anyone but licensed doctors from practicing medicine. Practicing without a license is known as the unauthorized practice of medicine. How these laws define medicine varies from state to state, with most states using a broad definition. For example, the Pennsylvania medical practice act defines medicine as “the art and science of which the objectives are the cure of diseases and the preservation of the health of man, including the practice of the healing art with or without drugs, except healing by spiritual means or prayer.”
Usually medicine does not include the sale of books that discuss healing nor the sale of vitamins or nutritional substances, as long as those activities do not involve making a diagnosis of the patient. It does not include home remedies, the self-injection of insulin, or tattooing.
However, prescribing vitamins to cure an illness is practicing medicine, and someone would need a license to do that. The same is true of taking blood or urine samples for analysis in order to diagnose or treat an illness or injury.
The unauthorized practice of medicine occurs when an unlicensed person does something that is part of the legal definition of medicine. This does not include simply offering general advice (as, for example, in a magazine article for the general public) or offering informal advice about a co-worker’s cold, but it does involve holding yourself out as a licensed doctor when in fact you do not have a license to practice medicine. For instance, if you diagnose a person as having cancer, but you are not a doctor, you engaged in the unauthorized practice of medicine and you may be prosecuted in a criminal court. If you prescribe a healing salve for a skin condition or give obstetrical examinations but you are not a licensed health professional, you engaged in the unauthorized practice of medicine and you may be prosecuted in a criminal court.
LEARNING THE LINGO
Unauthorized practice of medicine: This occurs when someone holds herself out as being a licensed doctor when in fact the person has no license, or when the person does something that is considered “medicine,” such as diagnosing or treating a patient.
Even a person who is licensed may commit an unauthorized practice of medicine. If a licensed nurse sells her services as a midwife in a state that does not allow midwives, that nurse may be subject to discipline by a nursing board or in a criminal court. Physician assistants are allowed to provide medical care only under the supervision of a licensed doctor. If the doctor does not provide the required supervision, the doctor may be disciplined by a medical board for knowingly aiding, assisting, or advising an unlicensed person to practice medicine.
In most states it does not matter if you have agreed to be treated by a health care professional whom you know is not licensed. The medical practice acts of each state are intended to protect your health and safety. Those acts allow the states to make the unauthorized practice of medicine illegal regardless of your consent to the treatment.
That usually falls to the medical board within the state. As mentioned earlier, the law defines medicine very broadly, which leaves the board room to make flexible decisions depending on available medical technology and the custom of the medical profession. Sometimes a state may try to be more specific in its definition of medicine, but that can backfire. When the Medical Association of Georgia wanted to keep optometrists from using lasers on patients to correct vision problems, the Georgia legislature passed a law that only doctors, dentists, podiatrists, and veterinarians were allowed to perform any surgery or invasive procedure in which tissue would be cut, pierced, or otherwise altered. An unintended side effect of the law was that it was suddenly illegal for nurses to insert intravenous lines. It was suddenly illegal for diabetics to inject themselves with insulin. Even ear piercing and tattooing was suddenly illegal unless performed by a doctor, dentist, podiatrist, or veterinarian. While the legislature did not intend to make those activities illegal, the new law did just that. The Georgia courts soon struck down the law as unconstitutional.
A handful of states allow the practice of naturopathy and homeopathy. In other states naturopathy and homeopathy are considered the unlicensed practice of medicine.
LEARNING THE LINGO
Naturopathy: A method of treating an illness with natural processes, such as nutritional science.
Homeopathy: System of medical practice that treats a disease by the administration of minute doses of a remedy that would in healthy persons produce symptoms of the disease treated.
Currently only Arizona and Nevada allow for the practice of homeopathy. In Utah, Oregon, Washington, and Kansas, the practice of naturopathy is legal and regulated by the states. Even in states that allow alternative forms of medical treatment, doctors may hesitate to use them if those forms of treatment are not accepted by the mainstream medical profession.
The corporate practice of medicine doctrine makes it illegal for corporations and other businesses to practice medicine. This prevents corporations from hiring doctors to treat employees, insurance companies from providing medical care, and partnerships between doctors and people who are not doctors. Most states do not allow corporations to control doctors’ practices because it is considered an unauthorized practice of medicine. The reasoning behind the doctrine is that doctors need to be able to treat patients according to the patients’ needs rather than according to the rules set up by corporate management. The fear is that corporations will commercialize the practice of medicine to the point that patients will lose confidence in doctors and medical care.
In the 1970s a group of San Antonio, Texas, residents created a nonprofit corporation to hire doctors to serve people who did not have access to medical care. The Texas Medical Society took the group to court and had the corporation shut down because state law did not allow doctors to work for organizations controlled by people who are not doctors.
The corporate practice of medicine doctrine seems distinctly out of step in these days of managed care, where health maintenance organizations directly affect how doctors practice medicine. Managed care, in theory at least, makes health care more affordable and efficient, which in turn increases the quality of care for the patient. Although few states have decided to abandon the corporate practice of medicine doctrine outright, it looks as if that is the direction in which health care is moving.
To find out if your doctor is licensed, call the licensing board in your state. This is usually in the phone book under your state’s name, followed by “medical examination” or “licensing board.” Or check out the website for the Association of State Medical Board Executive Directors at http://www.docboard.org/. This website will link you to your state’s licensing board. Many of the states give you instructions on the Internet for lodging complaints against your doctor in addition to checking on a license. There are also resources at the end of this chapter that you can use to find out whether your doctor is, in fact, licensed.
First of all, double check the information—you don’t want to make a false report. If you’re certain, report that person to the medical board in your state. Earlier in this chapter we explained how to find the medical board in your state and how to file a complaint. The person practicing without a license may be subject to criminal penalties and will face trial. Depending on the situation, you may have a civil action against the person for battery—wrongful physical action, usually a beating or something similar, but possibly a wrongful physical examination—and you may be able to bring a lawsuit seeking monetary damages against the person.