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Health Law
University of North Carolina School of Law
Krause, Joan H.

Health Law


Fall 2010


Background: The Nature of Medical Practice

1. Arbitrary Definitions of Disease and Illness

i. Not all society use same standard in deciding what is what should be regarded as disease or illness

ii. These definitions vary from culture to culture

2. Role of Uncertainty: Variations in Physician Practice

i. Variation of treatments due to:

a. Uncertainty, biases, errors, difference of opinions, motives, and values

ii. Uncertainty exists in:

a. Defining a disease, making a diagnosis, selecting a procedure, observing outcomes, assessing probabilities, assigning preference, or putting it all together

iii. Defining a disease

a. Blurred line between normal and abnormal

iv. Selecting a procedure

a. Many procedures for a certain condition with each list of pros and cons

b. Natural variation in the way people respond to a medical procedure

v. Putting it all together

a. Final decision requires putting all the information about a disease, Pt, signs and symptoms, effectiveness without knowing precisely what the Pt has

vi. Consequence

a. Physician is less likely to be sued for doing too much than too little

3. Law and Medicine

i. Lawyer – generalities of the law and burden of proof

ii. Doctor – avoids generalization

Acute Care v. Chronic Care

i. Acute care is what we typically think of; it is the type of care you seek when you have an immediate problem

ii. Chronic care is long-term care

Public v. Private

i. Public hospitals are county hospitals that are government funded

ii. Private hospitals are non-profit or for-profit

Non-profit v. For-profit

i. Non-profits are typically run by religious organizations, academic health centers and receive tax exemptions

ii. For-profit hospitals are run like businesses. There is generally no proof that non-profit give better care than for-profits

Teaching v. Community

i. Teaching hospitals get interesting cases, they are less efficient and the patients are more expensive to treat. Doctors may be employees of the university and practice at the hospital. Still not employees of hospital

Rural v. Urban

i. Rural hospitals may not be able to draw physicians, not as many specialists

ii. There is more selection with urban hospitals. They have better technology, there is more competition among them, and people they treat are poorer, sicker. There are more specialists in urban hospitals

Types of Hospitals

i. Private vs Public

ii. Generalized vs Specialties

iii. Teaching vs Community

iv. Important when considering who is the responsible party (D); and the extent the law holds D liable – i.e. when neuro surgery is not available, no duty to provide

Organization of Medical Care


i. Board

a. Doesn’t have direct authority over doctors, but does have authority over administration

ii. Admin

a. Interns/residents; nurses; employees of the hospital

b. Contracts admitting that they are employees of hospital and not on medical staff

iii. Medical Staff

a. Affiliation of doctors, not employees of the hospital

b. Lacks direct board control; hard to find vicarious liability when suing Dr

c. Dr are allowed to work at the hospital

d. Bylaws are used to discipline Dr who act as independent contractors

iv. Patients

a. Needs to consider when bringing a suit against Dr: whether Dr is simply the member of the “medical staff” or is employed directly by the hospital

C. Medical Licensure

1. Education

i. 4 years of college and 4 years of medical school; 2 years of basic science and 2 years of clinical

ii. USMLE (US Medical Licensing Examination) – result recognized in all states

a. Step 1

1. End of MS2

2. Focus on basic science concepts

b. Step 2

1. During MS 4; before graduation and residency

2. Clinical Knowledge – science concept and hypothetical

3. Clinical Skills – simulation with standardized Pt

c. Step 3

1. After 1 year of residency

2. Testing all medical abilities – multiple choice and case studies

iii. All three steps of the USMLE must be passed before a physician with an MD degree can apply for a license to practice medicine

2. Licensure (required)

i. Required; can’t practice without it

ii. National Board of Med Examiners

iii. Results accepted by the State Board of Medicine

iv. Every state requires physician to be licensed in the state

v. General requirements

a. Educated in accredited school, pass state board requirements, complete residency

3. Certification (voluntary)

i. National Medical Specialty Boards

ii. Not required legally, but required as a practical matter since usually required by the hospitals

iii. Recertification usually required every 6-10 years

4. Functions of the Licensure Requirement

i. Gate-keeping mechanism

a. Provides assessment over time, tests ability to apply knowledge in clinical settings

ii. Assure quality

a. Protecting patients from poor quality of care

iii. Create liability

a. Physicians lose license when doing something wrong

b. Effect of social control – states create “legitimate” class of physicians when they decide which category of practice to license

iv. Cons

a. Monopoly for doctors

5. Unlicensed Practice of Medicine

i. Criminal Liability

a. It is a crime if you practice without a license; a physician who practice medicine in a state he is not actively licensed to practice is committing a crime. If you move, must get licensed

’s decision can be appealed to state court; but court won’t usually review board decisions unless it is arbitrary or characterized by an abuse of discretion

1. Court only looks at whether Board’s findings are flawed by the mistake of law

2. Court does not judge on whether certain therapy is or is not an acceptable form of care – doesn’t look at the issue of standard of care?

3. The board must go through the proper steps and must explain their reasoning – most often overruled for failure to cite reasoning for decision, looks arbitrary

4. It is difficult for the board to adjust to changes in standards of care (i.e. pain management) and this bias as to what the standard of care is often reflected in their decisions

E. Challenges to the Administrative Procedures

a. Standard of Proof – board must prove its case by:

i. Preponderance of evidence – majority jurisdictions

ii. Clear and convincing evidence – minority jurisdictions

iii. Heightened burden of proof on the ability of an agency to prove a violation can be both good and bad

1. Good – protect physicians from their unintentional acts

2. Bad – more risk to public health

b. Notice and Hearing

i. Licensee is entitled to adequate notice and hearing before the imposition of sanctions

ii. Notice – sufficient to inform the basis for proposed disciplinary action

iii. Hearing – must be given opportunity to contest the alleged violations in an appropriate hearing

1. Does not need to be procedurally equivalent to a formal trial

a. i.e. limited discovery rights

iv. Must be made before an impartial decision maker

1. Often an issue when the Board is responsible for carrying out all of the disciplinary and hearing functions

c. Judicial Review and Substantial Evidence

i. Judicial Review

1. Licensee must exhaust their administrative remedies before seeking judicial review

2. Limited scope – no de novo review

ii. Substantial Evidence

1. Court will determine whether the agency’s decision is supported by “substantial evidence” – a standard for this?

2. As long as the Board gives some sort of explanation?

d. Judicial Review of Sanctions

i. Court will not interfere unless the agency has abused its discretion or exceeded its statutory authority

Mere harshness of the sanction is not sufficient for judicial intervention