Physicians


A physician is a doctor of medicine who is legally licensed to practice medicine.  A physician diagnoses and treats physical diseases and injuries[i].

Generally, the power to regulate the practice of medicine is vested in the state legislatures.  However, the federal government has power to make laws regulating medical practitioners as long as they are constitutional.

The federal physician self-referral law is known as the Stark Law.  The Stark Law prohibits physicians from making referrals for a designated health service, payable by Medicare or Medicaid, to any entity with which the physicians have a financial relationship.  Penalties for violating the Stark Law include denial of payment for the service, civil monetary penalties, or even the possibility of being excluded from the Medicare or Medicaid programs.

The federal anti-kickback law was enacted to protect patients and the federal health care programs from fraud and abuse by curtailing the corrupting influence of money on health care decisions.  The law states that anyone who knowingly and willfully receives or pays anything of value to influence the referral of federal health care program business, including Medicare and Medicaid, can be charged with a felony.  Violations of the law are punishable with up to five years in prison, criminal fines up to $25,000, administrative civil money penalties up to $50,000, and exclusion from participation in federal health care programs.

The Health Insurance Portability and Accountability Act (HIPPA) is a multi-step approach that is geared to improve the health insurance system.  HIPAA regulates the availability of group health plans and certain individual health insurance policies.  The Act also defines numerous offenses relating to health care and sets civil and criminal penalties for them.  It creates several programs to control fraud and abuse within the health care system.  The HIPAA Privacy Rule is the first comprehensive federal protection for the privacy of personal health information.

The State has the police power in regulation of the public health[ii].  Physicians in the U.S. are regulated by licensing.  Legislatures have the power to require a license or certificate to practice medicine within the state and to make practicing medicine without a license a criminal offense.  However, regulations made to control the practice of physicians should be constitutional and reasonable[iii].  Such regulations should be to protect the public from mistreatment by incompetent physicians[iv].  State legislatures have delegated the authority to supervise licensing, exam, and suspension and revocation procedures involving a medical practitioner to a state board of medical examiners[v].  States also have the power to oversee advertising made by physicians to verify if the advertisement is fraudulent, misleading, or deceptive[vi].

When a physician is provided with a license to practice medicine, the physician will have authority to treat any ill person by any legitimate method of treatment.  When a person is practicing medicine without a license the physician is committing a criminal offense.  Civil remedies under a suit for injunction can also be sought when an unlicensed physician violates the statute by practicing medicine illegally.  When a physician is unskilled and incompetent, the unlicensed practice can amount to a nuisance.  When a physician is practicing without a license the act constitutes a misdemeanor[vii].

A physician-patient relationship is essential to ensure high quality health care in disease diagnosis and treatment.  The relationship thus arising between a physician and patient creates a duty on the part of the physician to exercise proper care[viii].  For effective treatment, a patient must have confidence in his/her physician.  A physician-patient relationship is a legal prerequisite to a medical malpractice cause of action[ix].  Generally, a physician-patient relationship is characterized as a contractual one.  The physician-patient relationship is a fiduciary in nature.  The relation is based on trust and confidence.  In the U.S. the communication between a physician and a patient is amply protected.  All the U.S. states have enacted statutes protecting patients from compulsory disclosure of confidential communications between a patient and physician.

All types of medical treatment require a patient’s consent that should be voluntarily made, after the physician gives the patient information about treatment.  However, when a patient is mentally incapable of understanding the treatment and make a decision, a physician can provide treatment that is beneficial to the patient.  Failure of a physician to adequately disclose the risks and alternatives of a proposed diagnostic or surgery constitutes claims for assault and battery[x].

A physician is supposed to take reasonable care and treat the patient with due diligence.  A physician will be answerable for an injury to his/her patient resulting from want of the requisite knowledge and skill.  A physician must exercise reasonable and ordinary care, skill, and diligence as physicians and surgeons in similar communities and surroundings engaged in the same general line of practice ordinarily exercise in like cases[xi].  However, a physician is not liable for want of the highest degree of skill[xii].

Even though, the relationship between a physician and patient is contractual, the remedial action is for negligence when a physician misdiagnosed or mal-administered treatment.  Criminal sanctions can also be provided against medical personnel for medical acts that result in harm to patients.  When a physician prescribed or furnished drugs illegally to a patient with malicious intentions s/he can be criminally liable for the offense[xiii].  Mistreatment of mentally disordered patients will also constitute a crime under state statutes.

[i] Sutton v. Facey, 1 Mich. 243 (Mich. 1849).

[ii] Aitchison v. State, 204 Md. 538 (Md. 1954).

[iii] Reeves v. State, 36 Okla. Crim. 186 (Okla. Crim. App. 1927).

[iv] State v. Randolph, 23 Ore. 74 (Or. 1892).

[v] State ex rel. Chapman v. State Board of Medical Examiners, 34 Minn. 387 (Minn. 1885).

[vi] Thompson v. Van Lear, 77 Ark. 506 (Ark. 1906).

[vii] State v. Paul, 56 Neb. 369 (Neb. 1898).

[viii] Kelley v. Middle Tenn. Emergency Physicians, P.C., 133 S.W.3d 587, 592 (Tenn. 2004).

[ix] Oja v. Kin, 229 Mich. App. 184, 187 (Mich. Ct. App. 1998).

[x] Tabor v. Scobee, 254 S.W.2d 474, 475 (Ky. 1951).

[xi] Van Sant’s Adm’r v. Overstreet, 261 Ky. 58, 63 (Ky. 1935).

[xii] Robert H. Josselyn v. Grant Dearborn and James Payson, 143 Me. 328, 337 (Me. 1948).

[xiii] United States v. Evers, 453 F. Supp. 1141 (M.D. Ala. 1978).

Inside Physicians