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March 1, 2021
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Healthcare and law have always had an uneasy relationship, but it has become especially uneasy during the pandemic, when long held assumptions of public policy fell apart, when the assumed regulatory authority overseeing healthcare lost credibility.
Healthcare has become so regulated in recent years that it has become defined by the regulations. Regulations that failed to withstand the pandemic. So now that we are approaching a new post-pandemic normal, how will this new relationship play out?
How will healthcare and law now interact?
It is imperative that medical licensing boards across the country take the opportunity to revisit long held assumptions about healthcare statutes and regulatory policies, and assess the benefit of these statutes and policies. In much the same way we evaluated the financial systems through stress tests after the Great Recession, we should evaluate the medical appropriateness of healthcare law as it pertains to actual patient behavior.
It must begin with medical licensing boards. Long relegated to the role of administrative bureaucrats, medical licensing boards theoretically contain significant sway with their respective state’s office of attorney general – the top prosecutorial body in each state – and have the potential to influence the interpretation of many healthcare statutes.
Yet we often find medical licensing boards serving as glorified agents of the state, rubber stamping laws already agreed upon by attorney generals, and acquiescing without much resistance to federal policies. During the pandemic we saw a slew of regulatory policies coming and going seemingly by the day, yet never once did any medical licensing board question the medical efficacy of these policies.
When states mandated widespread lockdowns, not a single medical licensing board warned of the effects to patients. Yet academic physicians throughout the country were cautioning against the effects of such extreme measures and predicting what soon proved to be true – that the emotional aspects of the pandemic will overwhelm the actual effects of the pandemic itself.
What Milton Friedman cautioned, “the cure is worse than the disease”.
What this pandemic has shown is that healthcare is decidedly local and that the laws we have enacted to regulate healthcare at a federal level simply do not work unless they are tailored for local populations. We need an administrative body, localized to the level of the state, to oversee the appropriate implementation of healthcare laws and policies – to ensure they are fundamentally medically appropriate.
This organization should be the medical licensing board. It comprises of state appointed physicians who are spread across the state and include successful physicians who are leaders in their community.
Their voices matter and their voices should be more active in healthcare policy going forward.
But to empower the physicians on the medical licensing boards, there needs to be a shift in how medical licensing boards work with the state’s legislatures – namely the state’s attorney generals.
Typically when an issue is presented to the medical licensing board, it passes through a swath of attorneys, nominally to organize the process for the board. But in reality, it limits the context through which medical licensing boards make decisions.
This is a critical distinction that limits the overall effectiveness of medical licensing boards. When the framework of any decision is limited, the opportunity to discuss the issues related to that decision are also limited. For many issues presented to the board, the topic has already been decided.
Say a physician challenges a patient lawsuit. The medical licensing board only weighs in on the issue if the state’s attorney general requests that they be included. Otherwise, the medical licensing board plays no consistent role, nor provides any structured input for these cases.
But the federal and state courts have venues through which independent third parties can influence the decision of judges. These are called amicus curiae briefs, or independent documents by third parties who have an interest in the outcome of states. Often these briefs are submitted by interested independent third parties who confer with the legal parties prior to submitting the documents. They help the judge better understand key issues that may impact the impartiality of the ruling.
Medical licensing boards can provide some variation of these documents for healthcare legal cases to ensure that the interpretation of the law is medically appropriate. Which would help in situations as we saw during the pandemic when states were uncertain how to proceed and often made decisions based upon political rhetoric.
Many states relied upon their departments of health, but often those physicians are appointed by the politicians themselves and are reluctant to speak out against political leaders openly. The medical licensing board is different, they have longer appointments and are less influenced by the political rhetoric.
Furthermore, medical licensing boards do not necessarily have to weigh in on the specifics of the case, they can focus on the medical fundamentals underlying the case.
Often many legal battles are fought by lawyers who simply lack the medical context necessary to properly adjudicate the law, and develop novel interpretations of the law that may run contrary to effective patient care. Precisely because the lawyers do not understand the underlying medical fundamentals in the issue.
Creating a direct mechanism through which state medical licensing boards can actively engage in legal issues, be it public policy or direct legal cases, will enable an authorized, recognized legal body – the medical licensing board – to impart medical context to a legal system that is severely lacking the appropriate medical context.
It would ensure the legal system operates in a manner conducive towards patient care.
If legal interpretations lack appropriate medical context, they can be interpreted in medically harmful ways. And if that interpretation is upheld in court, it eventually creates case law.
Medical licensing boards have a duty to regulate the practice of medicine. Normally we assume that to mean regulating the behavior of individual physicians. But that also includes regulating the interpretation of healthcare laws in court. For the two are not mutually exclusive and clearly influence one another.
As physicians behave according to the interpretations of healthcare laws. So medical licensing boards should have the authority to oversee both.
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