This essay argues that the concept of professionalism as it appears in health law is undergoing transformation as the applicable common law doctrines are increasingly being superseded by statutes and regulations. The doctor-patient relationship is being subjected to new rules of conduct intended to affirm the fights not only of patients but also of society at large. The bilateral relationship between doctor and patient has in many respects been transformed into a triadic one in which the concerns of public, as consumer and payor, are increasingly taken into account. In many respects this change has been necessary and inevitable as medicine has become a more commercial enterprise; but the change has also put traditional notions of professionalism at risk. Where professionalism is adversely affected by the process of its codification, it is incumbent upon law and policy makers to be aware of the fact. To this end, this essay first undertakes to define medical professionalism as a legal construct, and then formulates an analytic method with which to determine when professionalism is implicated and whether it is adequately accommodated by the law. The definition of professionalism the author advances is informed by concepts established in the literature of sociology, which identifies four core attributes--functional specificity, trust, disinterestedness and self-regulation. Each of these attributes is examined in turn with reference to case law selected to identify the value in question and to illustrate the nature of the change resulting from its codification.
INTRODUCTION A. The Law of Medical Professionalism B. Physician As Service Provider: The Statutory Context C. Physician As Agent: The Common Law Context II. THE LAW OF PROFESSIONALISM: AN ESSENTIALIST APPROACH A. Functional Specificity B. Trust C. Disinterestedness D. Self-Regulation III. A METHODOLOGY FOR ASSESSING THE EFFECT OF CODIFICATION ON MEDICAL PROFESSIONALISM IV. THE CODIFICATION OF MEDICAL PROFESSIONALISM A. Functional Specificity 1. Licensure Laws 2. Antitrust Laws B. Trust 1. Confidentiality 2. HIPAA C. Disinterestedness 1. Human Subject Research 2. Referral and Managed Care Legislation 3. Managed Cale D. Self-Regulation V. CONCLUSION I. INTRODUCTION
For better of for worse, the body of law that shapes our idea of professionalism where health care providers are concerned has undergone a process of codification over the past several decades, and that process has accelerated recently. Much of the relevant doctrine that was historically left to common law is now located in statute, rule and regulation. In the process, our concept of medical professionalism is undergoing transformation. It is not just that the concept is now located in a different place than it was half a century ago, in the volumes of state and federal statutes and codes rather than in case reporters, but rather that the concept is being fundamentally changed through its codification. Society has deemed it necessary to articulate the rights and responsibilities of both sides of what has historically been an intensely personal and self-contained relationship between doctor and patient, and in so doing society has introduced itself into the relationship as a third party. Pressure for this change has steadily mounted as the cost of health care has escalated, large segments of the population have chronically lacked adequate access, and quality concerns have persisted. But the potential costs of codification cannot be ignored. There is a price to pay in exchanging a culture in which professionals regulated their conduct principally with reference to their ethical canons and personal codes of conduct for one in which doctors and patients tend to refer to their respective legal rights obligations--trading a culture of responsibility for a culture of rights. (1) This essay urges that where law is a catalyst for producing fundamental changes in professional relationships, someone, whether legislatures or courts, should be taking a second look.
My thesis is built upon a premise that should be identified at the outset, namely that there is in fact a legal doctrine defining medical professionalism. To establish this I will look briefly at agency law, where the applicable doctrines have traditionally reposed, concluding, however, that this body of law is not adequate to explain the concept of professionalism as it is currently evolving. Then, in Section II below, I propose what may be termed an essentialist approach to defining professionalism as a legal construct. (2) Among other things, what is needed to understand medical professionalism as it currently makes its appearance in the law is a construct in which the interests of more than the doctor and patient alone are addressed. The significant body of literature on professionalism developed by sociologists is a valuable resource for this purpose. In Section III below I propose an analytic method by which we can determine when the core elements of the concept of medical professionalism are at issue in the law, and whether courts and policy makers may be justified in calling for a change in direction. Section IV applies the methodology to case law, most of which will be familiar to health law scholars as classics. I conclude, in Section V, that it remains important for the law to acknowledge the concept of professionalism in health care, and to understand its transformation, albeit the law may not in the last analysis be entirely sufficient to the underlying concept. Professionalism cannot ultimately be confined to its legal parameters.
The Law of Medical Professionalism
The subject of this essay is the law of medical professionalism. I wish to emphasize from the outset that the subject is the law of medical professionalism, as opposed to medical ethics, and that it is the law of medical professionalism, as opposed to the variety of laws that may from time to time affect medical professionals--as tort law notably does--but without necessarily defining them as such. That is, I propose to deal with the concept of professionalism as it appears in the body of American law dealing with the aspect of the conduct of medical practitioners that distinguishes them from other service providers. I wish to stress that this perspective on professionalism differs from that typically encountered in the law school curriculum, where discussion of professionalism tends to focus on the ethical canons of professional associations. As a legal doctrine, professionalism has consequence in terms of enforceable rights and responsibilities, authority and duty. It is one thing, for example, for practitioners collectively to exhort themselves in their canons of professional conduct to keep patients informed; (3) it is another thing for a court of law to provide a patient with recourse against a physician for a breach of his or her obligation under the legal doctrine of informed consent. It is the latter circumstance, and others like it, in which this essay seeks to locate the law of medical professionalism.
It must be conceded that the body of law to which I refer is not conspicuous, or at least it has not been so in the past. There is no Restatement of the Law Governing Medical Professionals. (4) The jurisprudence of medical professionalism has relatively low visibility for reasons that have important implications for the subject. One reason is that the concept of professionalism is already at least partially accommodated within the larger doctrine of agency law, the patient being the principal and the physician being the agent in the case of medical professionalism; but even so, there are other reasons that tell us more about the nature of medical professionalism. Historically, the body of law addressing professionalism has had a low profile because courts and legislatures have given professions latitude to self-regulate. Self-regulation, as we shall see, is in fact one of the defining attributes of professionalism. Another closely related factor is that professional relationships have historically been viewed as fundamentally different from the commercial relationships for which the law of contract has developed. The law of contract has emerged to address transactions between self-interested parties; the relationship between a physician and his or her patient, by contrast, has traditionally been seen as a fiduciary one in which the interests of the physician are aligned with those of the patient in a way that largely obviates the need for marketplace law. (5) Thus it has long been elementary in defining professionalism to begin by distinguishing it from commercial activity:
[T]he dominant keynote of the modern economic system is almost universally held to be the high degree of free play it gives to the pursuit of self-interest. It is the "acquisitive society," or the "profit system" as two of the most common formulas run. But by contrast with business in this interpretation the professions are marked by "disinterestedness." The professional man is not thought of as engaged in the pursuit of his personal profit, but in performing services to his patients or clients, or to impersonal values like the advancement of science. Hence the professions in this context appear to be atypical.... (6) Whereas in the law of commercial contract courts have historically been ready and willing to apply certain warranties, (7) they have typically been reluctant to do so in the case of medical professionalism. (8) The classic argument against professional warranties, as stated in Sullivan v. O'Connor, is that only doctors of substandard integrity would promise specific results, given the uncertainties of medicine. (9) Similarly, whereas the law of agency involves subordination of the autonomy of the agent to the will of the principal in significant respects, (10) courts have acknowledged the relationship between doctor and patient to be materially different...