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Civil Remedies

Generally, the unlicensed practice of medicine by a physician person is an offense subject to criminal prosecution.  But, civil sanctions are also available for a physician who practices medicine without a license.

An injunction is a civil remedy available against a person practicing medicine without a license.  However, only some jurisdictions have recognized injunctions as a civil remedies for the unlicensed practice.  A court has the power to pass orders against the unlicensed practice of medicine even in the absence of statutes forbidding unlicensed medical practice[i].  The power of a court to prevent such an injury has been recognized by various courts of the U.S[ii].

A court may interfere by way of an injunction to restrain a physician from practicing without a license in a situation where the practicing physician is untrained and practice by such a person may cause injury to public health.  Also, a court may provide civil relief in the instance where a criminal prosecution is not considered to be sufficient to prevent such practice.

The suit for an injunction to restrain a person from unlicensed medical practice has to be instituted by the attorney general of a state .  A private individual or a representative of a group of persons may also bring a suit for injunction.  The factors that are necessary to be proven in an action to prohibit the  unlicensed practice of medicine are that the defendant is not licensed, and s/he has done acts constituting the practice of medicine.  A state will be entitled to an injunction on proving these two factors[iii].

However, a person may not move for an injunction to restrain the unlicensed practice for his/her own selfish motive like, protecting oneself against competition from an unlicensed physician.

The practice of medicine and surgery are not generally treated as nuisance.  But the unlicensed practice of medicine is held to be a nuisance by most courts.  A person practicing as a physician may not be treated as a nuisance merely due to the reason that s/he failed to obtain a license in violation of the state statute.

Another civil remedy available against a defendant in the offense of medical practice without a license is Quo warranto.  It is a demand made by the state upon a person to show by what right s/he performs a duty which is to be done by virtue of a grant of authority from the state.  The state has the right to proceed by quo warranto to prevent incompetent persons from engaging in the practice of medicine.  It is one of the limitations on the right to practice medicine under the common law.

[i] State v. Howard, 214 Iowa 60, 1932 Iowa Sup. LEXIS 55.

[ii] Id.

[iii] Nighohossian v. State, 75 Ariz. 162 (Ariz. 1953).

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