One and done: how Ohio's one-year, nonrenewable visiting medical faculty certificate is harming the state's economic recovery.

AuthorMcGuan, Austin
  1. INTRODUCTION II. MEDICAL-LICENSING HISTORY AND OHIO'S MEDICAL-LICENSING LAWS A. America's Early Medical-Licensing History: Licensure, Deregulation, Licensure B. The Formation of the Modern Medical Board C. Ohio's Medical-Licensing History D. Ohio's Current Medical-Licensing laws E. Ohio's Visiting Faculty Certificate III. POSSIBLE ARGUMENTS AGAINST MAKING THE VISITING FACULTY CERTIFICATE RENEWABLE A. An Argument: The Visiting Faculty Certificate is Nonrenewable to Protect Patients B. An Argument: The Visiting Faculty Certificate is Nonrenewable to Manage Risk C. An Argument: The Board May Be Held Liable for Issuing a Renewable Visiting Faculty Certificate to a Doctor Who Injures a Patient IV. THE ONE-YEAR, NONRENEWABLE VISITING FACULTY CERTIFICATE NEGATIVELY AFFECTS OHIO A. The Visiting Faculty Certificate's Cost: Lost Federal Grants B. The Visiting Faculty Certificate's Cost: Lost Tax Revenue C. The Visiting Faculty Certificate's Cost: Lost Medical Expertise D. The Visiting Faculty Certificate's Cost: Doctor Shortages at Small, Rural Hospitals V. OHIO MUST MAKE THE VISITING FACULTY CERTIFICATE RENEWABLE A. Other States' Visiting-Faculty Licenses 1. North Carolina's Medical School Faculty License 2. Michigan's Clinical Academic License 3. California's Certificate of Registration B. A Renewable Visiting Faculty Certificate: A Competitive Ohio and Safer Patients VI. ADDITIONAL PATIENT-SAFETY REQUIREMENTS FOR THE VISITING FACULTY CERTIFICATE VII. AMBIGUITIES IN THE VISITING FACULTY CERTIFICATE VIII. OHIO PRECEDENTS FOR A RENEWABLE VISITING FACULTY CERTIFICATE A. De Facto Renewals of the Visiting Faculty Certificate B. Ohio's Original Medical-License Statute C. The Limited License of Ohio's Dental Profession IX. CONCLUSION A. The "Terrific Idea": A Renewable Visiting Faculty Certificate B. The Process of Changing the Law X. EPILOGUE I. INTRODUCTION

    In 1992, the State of Ohio Medical Board (the board) recommended that the legislature create the Visiting Faculty Certificate, a license that allows certain non-fully-licensed doctors to practice in the state for one year. (1) A then board member hailed it as a "terrific idea [that would] solve a lot of problems, allowing Ohio to attract physicians" to the state. (2) Unfortunately, because it is nonrenewable and expires after one year, the Visiting Faculty Certificate has not lived up to its promise and has actually harmed Ohio. Consider the following hypothetical about Dr. Marcus Bierman, whose departure from the state illustrates one way that the one-year, nonrenewable Visiting Faculty Certificate can negatively affect Ohio. (3)

    Doctors at Case Western Reserve University (Case) recruited Dr. Bierman, an experienced and accomplished German radiologist, to come to Cleveland, Ohio, to conduct medical research. (4) This research involved the clinical care of patients, which requires a medical license. So, before coming to America, Dr. Bierman applied for and received Ohio' s one-year, nonrenewable Visiting Faculty Certificate, the only medical license immediately available to him because he is a foreign-educated doctor. (5) After Dr. Bierman arrived in Cleveland, the National Institutes of Health granted him $300,000 to conduct his research. Dr. Bierman allocated the grant to equipment and salaries for his research assistants and himself.

    Dr. Bierman conducted his research for one year, until his Visiting Faculty Certificate expired. Unable to continue his research in Ohio

    without a medical license, Dr. Bierman left the state and moved to North Carolina, which allows foreign doctors to practice indefinitely under a license similar to the Visiting Faculty Certificate. (6) When Dr. Bierman moved to North Carolina, he took with him his National Institutes of Health grant, the job that he created, his expertise, and the equipment that he purchased. After moving to North Carolina, Dr. Bierman received other National Institutes of Health grants to perform other important medical research.

    As this hypothetical illustrates, the one-year, nonrenewable Visiting Faculty Certificate harms Ohio. Not only does it drive highly-qualified doctors from the state, but it also discourages them from coming to Ohio. In recent years, Ohio has lost thousands of jobs as major corporations and government entities have left the state. (7) Meanwhile, Ohio has been trying to correct this trend by taking advantage of its universities, world-class hospitals, and research centers (8) and moving towards a "knowledge-based" economy. (9) But, as medical-research doctors depart and are discouraged from coming to the state--with their expertise, research, and technology--Ohio's effort to establish itself as a bio-tech hub becomes more difficult. (10) An amended, renewable Visiting Faculty Certificate can help solve Ohio's problems by attracting doctors to the state and making it easier for them to stay in Ohio. Besides making the Visiting Faculty Certificate renewable, Ohio can make patients safer by adding requirements to receive and maintain that license.

    This note is divided into nine parts. Part II of this note explains the history of medical licensing in America and Ohio and describes Ohio's Visiting Faculty Certificate. Part HI discredits three of four possible arguments for keeping the Visiting Faculty Certificate nonrenewable, and part IV quantifies and discusses the Visiting Faculty Certificate's effect on Ohio. Part V describes other states' visiting-faculty licenses and prescribes how Ohio should make the Visiting Faculty Certificate renewable. Part VI suggests additional Visiting Faculty Certificate requirements to make patients safer, and part VII points out ambiguities in the Visiting Faculty Certificate. Part VIII cites Ohio precedents for a renewable Visiting Faculty Certificate. Part IX concludes this note, and part X updates this note with developments that occurred during the editing process.

  2. MEDICAL-LICENSING HISTORY AND OHIO'S MEDICAL-LICENSING LAWS

    Throughout America's history, licensure of the medical profession has been controversial. Medical-licensing proponents argue that licensure reduces or eliminates phony doctors, protects the public from the harm and the cost of "dubious and ineffective therapies," and improves education and training. (11) Conversely, medical-licensing opponents argue that limiting medical licenses to a select group creates a monopoly which raises prices and stifles innovation. (12) Regardless of the reasons for and against medical licensing, any vocation that "evolve[s] specialized skills ... seek[s] to limit membership to those who attained such skills." (13) The rest of this section summarizes America's and Ohio's medical-licensing histories and describes Ohio's Visiting Faculty Certificate.

    1. America's Early Medical-Licensing History: Licensure, Deregulation, Licensure

      Since 1649, when the colony of Massachusetts adopted a law that regulated doctors, people in America have tried to protect both the public and the medical profession through licensing. (14) Most colonial medical laws regulated fees, rather than the quality of services. (15) Although England's Royal College of Physicians had licensing power over the English medical profession by 1745, Parliament did not allow it to exercise that power over England's American colonies. (16) England's decentralized approach to licensing differed from that of Spain, which extended its medical-licensing laws to its American colonies. (17) By using that approach, England influenced how the United States would leave medical licensing to the states, rather than have a centralized, national licensing system. (18)

      In America, "virtually no oversight over medical practice had been exercised before 1780." (19) Because few colonial medical schools existed, it was hard to "enforce or even to define licensing standards." (20) By 1815, most of the original states--and by 1830, most other states--had established medical societies, which advocated for exams and licensing. (21) State legislatures responded by creating state examining boards or by granting medical societies the power to test and license. (22) Massachusetts' medical society originally had the sole power to grant licenses. (23) After 1803, however, a candidate could receive a license by either having a Harvard diploma or passing the medical society's exam. (24) Even with many other states following this "dual system," medical schools licensed most nineteenth-century doctors. (25)

      From 1820 until 1875, medical schools controlled licensing in most states. States revoked medical boards' licensing power for at least three possible reasons, (26) First, "irregular" doctors (e.g., homeopathic, eclectic, and botanic) argued that licensure created a monopoly for "regular" doctors and limited the number of doctors, thus increasing fees. (27) Second, state legislatures thought that one kind of medical practice was as effective as another. (28) Third, the medical profession "suffered from the individualism and anti-intellectualism associated with Jacksonian democracy"--i.e., people generally distrusted doctors as a learned group and believed that people could evaluate competence for themselves. (29) Differing opinions exist on the effects of deregulation. One view is that because students paid professors directly, professors lowered standards so that they could enroll as many students as possible; thus, licensing requirements "deteriorated" when medical schools licensed doctors. (30) Another view is that without the control on the supply of doctors that licensing provided, the number of doctors increased, and few doctors made a good living. (31) Under yet another view, deregulation raised standards and increased the number of doctors and medical schools, making health care more affordable, accessible, and safer. (32)

      Regardless, by the Civil War, no state had an effective state-controlled licensing system. (33) Towards the end of the nineteenth century...

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