State Regulation of Medical Practice

Pre-Constitutional Period

Limited Occupational Licensing

NY Passed Licensing Law in 1760s

Not Enforced

Extensive Public Health Regulation

Old Notion of Dirt

Nuisance

Managing Fear

People Terrified of Epidemic Disease

Yellow Fever and the Constitution

Constitution - Post Civil War

Jacksonian Populism and Distrust of Institutions

Decline of Occupational Licensing

Existing Laws Were Rescinded

Doctors

Lawyers

Continued Growth of Public Health Regulation

Driven by Snow's Discoveries

Pure Water

Schools of Practice - Pre-Science

Allopathy

Opposite Actions

Toxic and Nasty

Homeopathy

Same Action as the Disease Symptoms

Tiny Doses

Less Dangerous

Naturopaths, Chiropractors, Osteopaths, and Several Other Schools

Legal Consequences

No Testimony Across Schools of Practice

Different from Medical Specialties

Surgery, Internal Medicine, Pediatrics

All Same School of Practice - Allopathy

All Same License

Cross-Specialty Testimony Allowed

Locality Rule

The Profession - 1870s

Most Medical Schools are Diploma Mills

No Bar to Entry to Profession

Small Number of Urban Physicians are Rich

Most Physicians are Poor

Cannot Make Capital Investments

Training

Medical Equipment and Staff

Physicians Push for State Regulation

Why regulate Medical Practice?

Protection of Licensees

Quality of Care

Availability of Care

Fair Pricing

Governmental Interests

Protection of Licensees

Critique from the Left

Paul Starr - Social Transformation of American Medicine

Critique from the Right

Milton Friedman

"Hostile" v. "Friendly" Licensing

Not Incompatible with Other Goals

Quality and Availability of Care

Require Training

Exclude Unorthodox Practitioners

Discipline Incompetent or Impaired Docs

Subsidize Indigent Care with Required Treatment Mandates

EMTALA

Medicare/Medicaid Non-Discrimination Rules

Fair Pricing

Sustain Prices to Assure Supply

Prevent Monopoly Pricing

Prevent Gouging Based on Patient's Limited Bargaining Position

Emergency Conditions

Emotional Vulnerability

Lack of Knowledge

Governmental Interests

Cross-Subsidize Government Programs

Tax the Profession

Political Influence of Professionals

Draw on Professional Expertise

Traditional Public Health

Traditional Mental Health

Authority to Regulate
The Police Power

Historical Right of Societal Self-Defense

Central Colonial Function

Not Police Forces

Public Health and Safety

Left to the States by the Constitution

Can Be Preempted by Federal Legislation

Tobacco Labeling

Medical Device Labeling

 

Constitutional Attacks on State Regulation

Equal Protection/Due Process

Discriminating Based on Training

Discriminating Based on Theory of Practice

License as Property Right

Inception of Licensing Laws

Discipline of Licensees

All Trumped by Police Power

Limits on the Police Power

Civil Rights

Chinese Laundry Cases

Other Shams for Discrimination

Contraception

Sterilization and Abortion

Access to Adequate Pain Relief?

1880s to the Modern Period

Medicine Starts to Work!

Semmelweis

Koch and Pasteur

Morton and Lister

Physicians Have A Reason for Licensing

Eliminate Untrained Practitioners

Control Unorthodox Practitioners

Consolidation of Power

American Medical Association Gains Power

Linked State and Local Societies to the National Society

Linked Medical Staff Membership to Local and State Society Members

Exclusionary Politics

Blacks

Women

Jews

Reform of Medical Education

Schools with High Standards Could not Compete

Degree Cost More

Took More Time

Did not Affect Entry to Practice or Success

Race to the Bottom

Schools Were Closing

Curriculum was Weakening

Effect of Licensing

State Required Training in Approved Programs

Some Programs Were Not Approved

Unorthodox Practitioners Had Their Own Schools so They Cooperated

Students Had an Incentive to Attend a Better School

 

Outside Forces

Carnegie Foundation

"Flexner Report"

Most Schools Failed

Not Like US News and World Report Rankings

Incentives to Change

Foundation Money

Student Selection Pressures

How Did Medical Schools Change?

Professionalism of Faculty

Full-Time Salaried Positions

Education Requirements

Emphasis on Research

Driven by Outside Money

Reinforced by the Success of the Research

Development of Modern Residency Training

What Happened to Unorthodox Practitioners?

Homeopaths and Osteopaths

Homeopathic Schools Closed

Osteopathic Schools Evolved to be Much the Same as Other Medical Schools

Osteopaths are Now Licensed and Treated the Same as Other Physicians

Chiropractors

Politically Very Powerful

Got Their Own License and Allowed to Practice

Where Are We Now?

All States Require A Medical School Degree

Most Require One Year Post-Graduate Residency Training

No States Have Separate Licenses for Specialties

Private Certification of Medical Specialties

Required by Most Hospital and Health Plans

Extra Training and Examinations