What Do you Know about Medical Providers?

Wednesday, February 11, 2015 | 0

Who should provide medical care for us? How do we make decisions selecting a medical provider – from the Yellow Pages, referrals, recommendations? Who licenses providers, and what are the constraints of their practices?

Part of our federalist system is that regulation of medical practice limitations and parameters are primarily handled by states. The federal government is one of limited powers, defined for it by the Constitution. There are enumerated powers which define the scope of the federal government's influence and power. That has expanded in recent decades.

This is dissimilar to the regulation of pharmacology itself. When the federal government regulates, then the states may not be able to regulate in that particular area. This is called "preemption." It is intertwined with the federal government's use of the Interstate Commerce Clause (ICC) to regulate activities, some of which may not appear "interstate" to the casual observer. The ICC has been involved in desegregation, securities regulation, highway construction and so much more.

As an example of preemption, we saw the approval of the opioid Zohydro last year by the United States Food and Drug Administration, the "FDA." This was not a popular decision in some quarters, see Zohydro or Pot, a Study in Federalism and Zohydro and Closed Forumlaries.

Massachusetts tried to ban Zohydro. The courts concluded that the state could not regulate Zohydro, because the FDA had regulated distribution. The FDA concluded distribution was appropriate, and therefore, the state was preempted from contradicting the FDA decision. There will thus arguably be significant consistency across the county when the federal government regulates. This may not be true with issues like marijuana, but that is for another day.

The federal government has not elected to regulate who may or may not practice medicine, or law for that matter. Therefore, each of the states regulate who may or may not practice medicine, and what practice of medicine means. So, while the federal government has significant influence on the how of practice, the who of medical practice is the states.  

As with any subject of state law, that means there will be variations from state to state. There will be differing views on a variety of issues. Physician dispensing is legal in some states, but not in others. Another example is the extent to which a physician might delegate to a nurse or physician's assistant, which may vary from state to state. Regulation is up to the state to define and monitor. There may, therefore, be distinctions between states in terms of who may practice, and what practitioners may do.  

Who are these people who provide medical care for us?

The Atlanta Journal Constitution did some investigative work recently, as reported by WorkCompCentral. WCC reports that there were almost "two dozen occasions" in which the "Georgia Composite Medical Board allowed doctors cited for criminal offenses or other misconduct to practice in the state." That is, Georgia essentially concluding that specific background and history were perhaps not that relevant, or at least not persuasive, in the analysis of who should be providing medical care there.

Reasonable minds might differ as to whether some particular violation is serious enough to deny licensure. It is equally likely that everyone would draw the line somewhere, particularly with their own physician. We would likely each be guided by differing standards in selecting a physician. We would each have our own priorities.

Apparently, one of the physicians uncovered by the AJC had previously been a physician in Texas, where he had "pleaded no contest to solicitation of capital murder after being accused of trying to hire a hitman to kill a patient" over a "disagreement over a workers' compensation claim." Apparently, the doctor offered a police officer $20,000 to kill this patient. Texas revoked the doctor's medical license, as did California. Georgia, however, issued him a license.

This is federalism. States regulate the licensing of physicians. States decide who may practice, and the decision of one state to deny or revoke a license may or may not influence or persuade some other state's decision regarding that same physician.

That one might have been good enough for me. Can you see confronting your physician with "you tried to have me killed?" I can see, in classic Hollywood shtick, the doctor (picture Groucho Marx lounging in a chair, staring at the ceiling, as he asks) replying, "and how do you feel about that?" This doctor/patient relationship issue might be a little difficult to work yourself through.

Of course, it might not be that large of a deal. In this instance, according to WCC, the attorney for Dr. Sanchez said that "the charge was a misunderstanding and that Sanchez never intended to arrange a murder." No explanation was published as to why he pled no contest. It seems if it was all a misunderstanding, one might defend the charge?

Perhaps that "misunderstanding" closure to the conversation makes it better? The patient asks "you tried to have me killed?" and the doctor replies, "it was a misunderstanding. I think I will go practice in Georgia for a while." The patient quietly leaves to go search for a new doctor. Mark Twain said, "truth is stranger than fiction, but it is because fiction is obliged to stick to possibilities; Truth isn't." This story and the "misunderstanding" explanation are curious at best; could Hollywood write this?

There is perhaps little we can do on an individual level to control who practices medicine. However, we may be able to make better consumer decisions about which licensed professionals we use. We live in a digital age, with access to massive amounts of information. Do you know what resources are out there? The Florida Department of Health has a provider database. You can look up information on any practitioner. They also have a license verification tool. The Florida Department of Financial Services has a database of malpractice claims.

There are also private companies with databases regarding medical practitioners. One allows verification of Board Certification. Search engines like Yahoo, Google, AOL or Safari can provide access to a variety of information about physicians, just from a search of the name. There are a multitude of sites on the internet, like Healthgrades.com, Vitals.com and WebMD.com that also provide profile information. Some allow rating of physicians. Even the Yelp.com platform, which many use for finding and rating restaurants and other businesses, has entries for various physicians.

Of course, those private platforms may be open access. That is, anyone with a computer may be able to rate a doctor, and it may be difficult to decide whether a recommendation or condemnation is deserved or contrived. I have read horrible restaurant reviews on Yelp that absolutely did not conform to my personal perceptions of that restaurant. Different people will have different perceptions and conclusions. Even the best restaurant (or doctor) may have a bad day.

Should we be better consumers? Should we play a role in examining the history of those who provide us medical care? Should we be curious whether our choice of physician has ever tried to hire a hitman to have a patient like us killed? It seems we should assume some responsibility for such research and analysis. We must perhaps take what we see on the Internet with a grain of salt, but we should see it nonetheless, to make informed decisions.

David Langham is deputy chief judge of the Florida Office of Judges of Workers' Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.