When you go to a doctor, what you really want to know about that doctor is how he or she has done with previous patients. How competent is this doctor? Yet unfortunately, the license hanging in your doctor's office has little, if anything, to do with the question you want answered. It tells you that this doctor graduated from an accredited medical school, did the required internship, and passed the medical boards, but not much beyond that. For it is a fact that under the present licensing system, it is the exception rather than the rule for incompetent health care professionals to lose their licenses. And that doesn't sound like very good protection for consumers. Could it be that that wasn't the goal of licensing anyway? And that, the way licensing works now, it's not the best way to protect people from quacks?
Medical licensure in America dates back to the original colonies in the 17th century. Early laws were very loose, however, and enforcement was sporadic. So for a long time medical care was provided by persons in a variety of professions, including ministers, southern planters, barbers, and ships' doctors.
As American society developed in the late 1700s and early 1800s, a number of medical schools were established, and these produced an ever-increasing group of "official" physicians. These official physicians in turn established state medical societies, which proceeded to lobby—successfully—for licensure laws in most states. Not surprisingly, the medical societies asked for and were granted the power to establish the criteria for licensing.
The requirements for obtaining a license varied, but one criterion became almost universal: possession of a diploma from a medical school. With diploma in hand, licensure was almost automatic. In fact, many states waived the requirement for any qualifying tests if a person had acquired a medical degree. This led to the development of "diploma mills," proprietary (privately owned) schools that issued "diplomas" without providing much medical training. Some schools even issued diplomas simply for the payment of a fee. While not all proprietary schools operated this way, diploma mills were quite common.
This was an undesirable development (since it debased respect for all diplomas), but it was a natural and predictable reaction to government licensure of medicine. In effect, licensure told people to judge health care professionals, not by their ability, but by their credentials. The door was opened for charlatans of all types to acquire respectability in the medical field. The result was a deterioration in medical services—a paradoxical result from the vantage point of our own day, when professional licensing is seen as the best way we can come up with to protect consumers when they need a service as important as health care. In fact, however, we see that state legislatures did not mandate medical licensing in response to some popular outcry against shoddy medical practices; rather, such laws were passed at the urging of the medical establishment itself.
By the early and mid-1800s, medical diplomas bore little relationship to medical competence. Many states responded to this unintended consequence of their earlier actions by repealing licensure laws. By 1849, only the District of Columbia and New Jersey retained any real control over who could practice medicine. Further developments awaited the American Medical Association (AMA).
The AMA was founded in 1847 on a two-pronged policy position: (1) that medical students should acquire a suitable primary education, and (2) that a uniform, elevated standard be adopted by all medical schools in awarding degrees. Again, the aim was to make the quality of official practitioners of medicine more consistent.
To accomplish its goal the AMA first directed its energies toward reinstatement of licensure requirements. With the financial and political power of physicians behind it, this was quickly accomplished. By 1900, almost all states again had passed and were enforcing licensure requirements. In 1903, 31 states required both a diploma and an examination to obtain a medical license. And many states, following the policies of the reformist Illinois Medical Society, granted licenses only to those with a diploma from a school certified by the Association of American Medical Colleges, an organization formed under the auspices of the AMA.
And control over the caliber of medical schools was the AMA's next focus of attention. The earlier experience with licensing and diploma mills had taught the "official physicians" that licensing was not enough to keep the profession free of unofficial healers. Interestingly, during this period (1899-1925), the AMA was led by one "Doc" Simmons, a skillful political manipulator.
Simmons left the field of journalism in 1884 to launch a career of medical quackery in Lincoln, Nebraska. In newspaper ads and brochures, he claimed to have a medical education from various institutions that were in fact nonexistent. He had received his only "authentic" degree from one of the many diploma mills that sold them through the mails. Simmons's activities included providing abortions and running a massage parlor, a beauty parlor, and a fraudulent sanitarium. Through political maneuvering, Simmons rose to gain control of the AMA.
Charlatan, thief, and liar, this was the man who controlled organized medicine for the first quarter of the 20th century and molded its "code of ethics" (including a ban on advertising). Under Simmons the AMA was to become the dominant voice in who could practice medicine.
In its attempt to standardize medical education in America, the AMA first directed its wrath toward proprietary medical schools. The AMA was disturbed that some of these schools trained persons from the "poor and working class" to be physicians, the "very kind and class of people the 'profession' was trying to keep out." It is pretty clear that the intent of the AMA was not only to raise the quality of medical education but also to improve the social status of the profession. And so it did not put its seal of approval on many of the proprietary schools. Graduates of unapproved medical schools challenged the AMA in court, but the courts held that state boards had the authority to establish criteria for licensing.
Some proprietary medical schools run by physicians with political influence in the state societies were classified as approved even though the level of education was below that at many other schools that were not approved. One example at the time was the College of Physicians and Surgeons of Columbia University. Clearly, licensing that depended on having a diploma from an "approved" school opened the door to political, rather than strictly professional, considerations.
TOO MANY DOCTORS, TOO MANY SCHOOLS
The Flexner Report, published in 1910, strengthened the reliance on approved schools in the licensing process. The background of this influential report and its author, Abraham Flexner, is enlightening.
Flexner was not a physician or a scientist or a medical educator. He had earned a degree in arts from Johns Hopkins University, had operated a private preparatory school in Kentucky, and then joined the Carnegie Foundation. As part of a Carnegie Foundation project to provide funding to upgrade medical education, Flexner made a tour of existing medical schools. The deans of the schools, hoping to receive Carnegie grants, laid bare all of their problems.
A few years later the AMA's Council on Medical Education joined with the foundation to produce a formal evaluation of the medical education system. Flexner, using the material he had collected for his report and setting forth Johns Hopkins as a model of the "ideal" system, evaluated the facilities, the faculties, and the curricula of the medical schools. The judgment of some schools was based on no more than half-day visits. There was no attempt to evaluate the caliber of any of the schools' actual graduates. Flexner's aim was to standardize curriculum and teaching techniques in medical schools.
The philanthropic image of the sponsoring Carnegie Foundation lent considerable respectability to the policy recommendations of the Flexner Report. The report concluded that a substantial number of existing medical schools should be closed, that standards should be raised in the remainder (only three medical schools—Johns Hopkins, Harvard, and Western Reserve—were given a clean bill of health), and that admissions should be sharply curtailed.
Flexner argued that the country suffered from an overabundance of doctors and that it was in the public interest to have fewer doctors who were better trained. The public would be protected from the consequences of buying medical services from what were deemed to be inadequately trained doctors if the "poorer" medical schools were put out of business.
With the Flexner Report in hand, the AMA and state medical societies went to the state legislatures for reform of the licensing laws. From now on, only people who had graduated from AMA-approved schools—approved by the Flexner criteria—would be allowed to take the licensing examinations. In this way, the medical establishment gained essentially complete control over entry into the practice of medicine. The effect was to reduce the number of medical schools. In 1906 there were 162; by 1920 there were 85; and the number had fallen to 69 in 1944. The number of graduates from these schools declined from 4,400 to 2,656 just between 1910 and 1919.
Equally dramatic was the effect on minority representation in the medical profession. Reuben Kessel, in a detailed look at the Flexner Report, comments:
Flexner's views on medical education for negroes were patronizing: "A well-taught negro sanitarian will be immensely useful; an essentially untrained negro wearing an M.D. degree is dangerous."
Following implementation of the Flexner Report, the number of medical schools serving blacks dropped from seven to two. And the number of women and Jews in medical schools showed a marked decrease.
Because of the increased cost of instituting and maintaining the mandated reforms, and with potential medical students clamoring for a greatly reduced number of openings for new students, fees for attending medical schools rose so much that all but the wealthy were effectively excluded. The profession had come a long way from the day when a person seeking medical care might be treated by a minister, a barber, or the "graduate" of a diploma mill. Of course, all of this meant a vast improvement in the social standing and economic well-being of physicians. Licensure and the restrictions on medical schools meant fewer physicians, from "proper" backgrounds, making more money because of less competition.
But licensure of physicians, dentists, and other health care professionals was not made the law of the land because it is a good deal for them (even if that was the true motive behind the professionals' lobbying for the laws). The lawmakers agreed to "a partnership between government and medicine" because they believed that without legally enforcible standards in the profession, the public would run the serious risk of being duped by quacks; sick people might easily fall into the hands of charlatans and not receive the proper care available under established methods of treatment.
Today, some of the side-effects of this remedy are quite apparent. Economic studies have shown that, as in any other case of reduced competition, the prices people pay for medical care are higher than they otherwise would be. Unorthodox health care providers such as chiropractors find it extremely difficult to offer their services to the public. The high cost of medical education prompts government to subsidize most students so that the profession is not open only to the rich. And so on. Yet whatever the disadvantages of licensure backed by the control of medical education, it is widely believed that they are outweighed by the advantages provided to society. So the million-dollar question is whether this common belief is justified. How well does licensure really protect the public?
PROTECTION THAT ISN'T
All of us in medical practice know at least one and possibly several physicians or dentists who do not provide very good care. But how many of these doctors are reported to the state licensure boards? Very few. There are, of course, exceptions, where the offenses are blatant or where the deficiencies in judgment create a major hazard to a large number of people.
Why are incompetent physicians and dentists not reported to licensure boards more frequently? It is not because health care professionals are in favor of protecting incompetents in their midst. But the procedures leading to the revocation of a license so favors the accused that the likely result of reporting incompetent physicians is embarrassment to the accuser with no action taken against the accused. It is like the case of a woman who is raped: if she presses charges it is she, and not the rapist, who endures the embarrassment, emotional trauma, and potential loss of reputation.
In many cases the procedure for revoking a license is so complicated that the status of licensure is little more than a sham, as a few examples will show.
• A physician was accused of sexually molesting a young girl in his office. To avoid a lengthy trial, the county prosecutor agreed to enter into plea bargaining. This resulted in the charges being dropped in exchange for the physician agreeing to leave the area in which the incident occurred. He moved to another part of the state and established a new practice. Although the physician was never convicted, the publicity that surrounded the case prompted several individuals to alert the prosecutor's office to similar instances of sexual abuse of other young female patients, cases not previously reported.
Did the state licensure board look into a single one of these cases? It did not. It took no action whatsoever.
• A physician was convicted in federal court of Medicaid fraud and sentenced to a term in jail. The rules of procedure in the state where he was licensed specify that before a license can be revoked a physician is entitled to a hearing before the licensure board. Since this convicted physician was in jail, he could not have his hearing so his license was not revoked.
Prior to going to jail this physician had a malpractice-consultation service that he advertised nationwide. He would agree to testify in any malpractice suit against any physician in any state, claiming to be an expert in any specialty. While in jail he continued to offer his services (his testimony to be taken by deposition), still claiming (rightfully) that he had a license to practice medicine.
• There was a case of a physician who was well known to those who had worked over the years in the emergency rooms of a large city. He was known because so many patients on whom he had performed therapeutic abortions had hemorrhaged, become infected, or developed other complications and had to seek emergency treatment.
He was accused of murder as a result of the death of a young woman following one of his procedures, but his license could not be revoked because of the way in which the licensure laws were written. While awaiting trial he had to leave his practice in the city because of the publicity surrounding the case. But he was able to go to a neighboring jurisdiction, where he held a second license, and continued to practice there.
These are just a few examples of the inadequate protection given society under our present system of licensure. The problem cannot be solved by revising the licensure laws so that it's easier to revoke someone's license in such cases, because that would be unjust. If an employer fires a worker for incompetence, there is no injustice. Why isn't he entitled to a hearing before impartial jurors to make sure that the employer's accusations are correct? Because there is no legal compulsion involved. The worker can attempt to sell his services elsewhere—he is not prevented by law from plying his trade. But once a license is required by law in order to practice one's profession, revoking that license ("firing the worker") does involve compulsion. By law the person is prevented from offering his services any longer. And because of our constitutional commitment to the right to be free of compulsion unless one has committed a crime, it is unjust to deny an individual a license because he is accused of wrongdoing. Involvement of government in the licensing process means that innocence must be assumed until guilt is proven, by the rigorous methods required in a court of law. But there must be a better way to protect health care consumers!
PROTECTION FROM WHAT?
Were it not for quacks and frauds, of course, most people wouldn't see any need for government licensing. But what is a quack, really? It usually turns out to mean someone who uses methods of treatment different from those of the person using the term. (There is one major exception to this use of the word—Christian Science Healers. They are not referred to as quacks, at least publicly, because religious beliefs are involved.) Physicians often refer to chiropractors as quacks, naturopaths as quacks, etc. But many people have experienced relief of symptoms from these practitioners—symptoms that physicians, with their "standard" modes of therapy, have been unable to relieve.
I believe that the greatest criticism that can be directed at these unorthodox disciplines of health care is their failure to know their limitations and stay within them. But physicians, with their licensing laws, have contributed to the problem! Their code of ethics, which is enforcible via the licensing process, prevents them from performing consultations for chiropractors. Radiologists cannot report the results of X-ray studies to chiropractors.
Moreover, physicians are open to the same criticism—not knowing their limitations. Witness the number of patients suffering from "nervousness," anxiety, depression, etc., treated with psycho-therapeutic drugs, drugs that only mask symptoms and do not treat the underlying problem. If a physician treated a patient with recurrent severe headaches by prescribing strong doses of narcotics and did not investigate whether the patient had a brain tumor, he would justifiably be criticized. But giving an anxious patient tranquilizers is considered reasonable therapy. So the term quack is clearly a circular one: licensing is to protect us from quacks, but quacks are those who are not licensed!
The other main rationale for licensure is the possibility of deception, that someone might falsely claim to be a physician or dentist or nurse. Of course, this can and does happen even with licensing. Fake licenses, just like fake passports, can be bought. What happens to such people when they are caught? They are taken to court and penalized for fraud and misrepresentation. It is not licensing itself, but existing statutes prohibiting fraud, that protects us from fakes.
So this is where we stand with licensing: The license hanging in your doctor's office doesn't tell you for sure that he's not a quack. The so-called quacks who are not permitted to obtain licenses are not necessarily incapable of treating some disorders. Frauds we have other protection against. And the whole process of government licensing discourages other doctors—the ones most likely to know—from reporting an incompetent colleague. There must be a better way!
Suppose a decision were made that one year from now health care professionals would no longer require a license in order to practice. Far from spelling disaster for the consumer, the new arrangement would give rise to a system of protection that is superior to licensing in every respect.
We would see developing a variety of "accrediting" organizations. Nationwide we now have the various specialty boards and medical "colleges," such as the American College of Surgeons and the American College of Obstetrics and Gynecology. We also have such organizations as the American Medical Association, the American Association of Physicians and Surgeons, and the American Dental Association. On the state level, we have state medical societies and state specialty societies. On the local level we have specialty societies, county medical and dental societies, and hospital staffs. Any or all of the groups could, with little modification of their present structure, become "accrediting" organizations. Why would they? Their membership would no doubt demand it so that they would have, in effect, letters of recommendation to their prospective employers—that is, health care consumers.
Of even greater importance to the people in a particular area would be the development of competing local groups of health care professionals. They would probably be in the same field, such as pediatricians or surgeons. They would probably associate based upon similar philosophies of what constituted good care. They would establish standards of practice and methods of "policing" members within their group to see that these standards are maintained. It would be in their interest to weed out incompetents so that customers remain satisfied and return with their business the next time they need care.
All of these accrediting groups would find it advantageous to establish the highest of standards and to inform the public of what these standards are and what mechanism had been established for ensuring that their members maintained these standards. Would there be a tendency to oversell themselves, exaggerating their quality in order to win customers? Other features of the new system would protect against this. For example, it would be in the interest of health insurance companies to keep the various accrediting groups honest by evaluating them and denying payment for services rendered by a member of a substandard group. Malpractice insurance rates could be negotiated by the individual accrediting organizations; the greater the competence of their members, the lower their rates. So there would be a number of forces working to ensure quality in medical care and to foster consumers' ability to distinguish and choose among a healthy variety of providers.
And why involve the government in this process? It opens the way to corruption, drives up the price of medical care, and distorts incentives so that known incompetents are left to practice at will.
So the next time you turn to the yellow pages of your phone book to pick out a doctor, and all you know about the scores of doctors listed is that each has an identical license to practice in your state, think about it: Isn't there a better way to know your doctor's not a quack?
Dallas Cooley, M.D., is the editor of Vital Signs. This article is adapted from one that was published in Vital Signs and for which Dr. Cooley acknowledges the research of Steven Beckner and the help of Jarrett Wollstein.