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Health Law
SUNY Buffalo Law School
Szczygiel, Anthony H.

Health Law
Chapter 1: Licensing of Health Care Professionals
o I) Discipline

o In Re Williams (p.2)
§ PROCEDURAL POSTURE: Appellant medical board sought certiorari review of an order of the Court of Appeals for Franklin County (Ohio) affirming the common pleas court’s order reversing the medical board’s suspension of appellee physician’s license for practices relating to the distribution of prescription medication.
§ OVERVIEW: The medical board brought a charge against the physician alleging that his practice of prescribing certain Schedule II drugs, on a long-term basis, as part of a weight loss program fell below the acceptable standard of medical practice. At the hearing, expert witnesses testified that the physician’s practice, though considered the minority view on weight loss, was not unacceptable. The court ruled that the common pleas court properly determined that there was insufficient evidence to support the medical board’s determination. While acknowledging that expert testimony was not always needed to establish substandard medical care, the court ruled that the medical board was not at liberty to convert its disagreement with the experts’ testimony into affirmative evidence of unacceptable medical practice. In so ruling, the court noted that, at the time of the charge, the physician’s practice was not prohibited by statute. The fact that it was later prohibited by Ohio Admin. Code § 4731-11-03(B) would only become applicable if the physician continued to prescribe such medications for long-term care in the future.
§ OUTCOME: The court affirmed the appellate court’s order affirming the common pleas court’s order reversing the medical board’s determination against the physician.

o Hoover v. Agency for Health Care Administration (p. 5)
§ PROCEDURAL POSTURE: Appellant physician sought review of a decision, by the appellee Agency for Health Care Administration, Board of Medicine (Florida), penalizing the appellant and restricting her license to practice medicine.
§ OVERVIEW: Following a decision by the appellee Agency for Health Care Administration, Board of Medicine, penalizing appellant physician and restricting her license to practice medicine based upon the charge that appellant had inappropriately and excessively prescribed certain medications, the appellant sought review. The court held that the appellee acted overzealously in supplanting a hearing officer’s valid findings of fact regarding the appellant’s prescription practices based upon a woefully inadequate quantum of evidence. The appellee merely stated that the hearing officer’s findings of fact were not supported by competent substantial evidence and did not state valid reasons for rejecting the findings with particularity. The hearing officer did not, as the appellee asserted, rely solely on federal guidelines in finding that appellant’s prescription practices were not excessive. Rather the federal guidelines merely buttressed findings of fact that were independently supported by the hearing officer’s determination of the persuasiveness of medical testimony. Because the appellee supplanted valid findings of fact with its own opinion, the decision of the appellee should be reversed.
§ OUTCOME: The court reversed the findings of the appellee medical board because the appellee rejected the hearing officer’s valid findings of fact and supplanted those findings with its own independent and unsupported determination. Rather than finding valid reasons for rejecting the hearing officer’s findings, the appellee merely came to a peremptory conclusion that the original findings of fact were not supported by competent substantial evidence.

o Note Federal Regulation of Prescribing Practices (p.7)
§ DEA and FDA also regulate physician prescribing
· FDA has authority to approve and monitor safety of drugs
o However once approved and prescribed FDA does not have authority to restrict prescribing for particular purposes
o So once a drug is approved for one thing its approved for all other things too
§ Called off label prescribing
· DEA has more direct role through Controlled Substances Act
o Allows for control of some drugs by DEA
o Puts drugs on particular schedule which dictates prescribability
§ Sch. 1-4 require Dr. to have permit
o No medical necessity defense for prohibited drugs
o Notes (p.9)
§ National Practitioners Database
· Tracks Physician disciplines to prevent them from moving from one state to another to escape their past failings

o II) Complementary and Alternative Medicine (CAM)
o Group of Diverse medical practices not considered to be part of conventional medicine.
o Falls into 4 groups (p. 12)
§ Whole Medical Systems
§ Mind-Body Medicine
§ Biologically based practices
§ Energy medicine
o State licensure systems often include CAM practices for 2 reasons
§ Protects patients by requiring licensing to prescribe
· Ensuring that the individuals being treate

‘ petition for a declaratory judgment and injunction to determine whether the nurses’ conduct was authorized under Mo. Rev. Stat. § 335.016.8 (1978).
§ OVERVIEW: The Board alleged that the nurses were guilty of unauthorized practice of medicine, pursuant to Mo. Rev. Stat. § 334.010 (1978), and that the physicians were guilty of aiding and abetting such unauthorized practice. The nurses, employed by a health agency, were performing duties related to family planning, obstetrics, and gynecology, under standing orders and protocols approved by the physicians, also employees of the agency. The nurses and physicians sought to enjoin the Board from enforcing § 334.010 against them and to find that they were performing duties authorized under Mo. Rev. Stat. § 335.016.8 (1978). The court held: 1) by § 335.016.8, the legislature expanded the definition of professional nurses and eliminated the need for direct supervision, so long as responsibilities were consistent with specialized education and skill; 2) the nurses’ actions fell within the legislative standard and were performed pursuant to clearly established protocols; 3) there was nothing in the statute to restrict the nurses’ continued use of such practices; and 4) because the nurses’ actions were authorized by § 335.016.8, the actions did not constitute the unauthorized practice of medicine.
§ OUTCOME: The court reversed and remanded with instructions for the trial court to enter judgment in favor of the nurses and physicians.

o Notes (p.30)
§ Physician Assistants and nurses view themselves as different types of providers

Chapter 2: Quality Control Regulation of Health Care Institutions
o I) Introduction
o A bunch of public and private efforts influence the quality of health care facilities
o However, there has been a general breakdown of market forces to improve health care
§ To fix this fed and state level gov’t has been implementing “command and control” system of licensure or certification