James C. Mohr, Licensed to Practice: The Supreme Court Defines the American Medical Profession, Johns Hopkins University Press, 2013
Gregory Dolin, M.D.
University of Baltimore, School of Law
Baltimore, MD, USA
When picking up a book titled Licensed to Practice: The Supreme Court Defines the American Medical Profession, one cannot be faulted for expecting a rather dry legal (and perhaps historical) discourse on the Supreme Court case(s) that cemented medical licensure as the norm of American life. James Mohr dispels these expectations from the very first page of the volume. Instead of recitation of legal doctrine (on which more later), Mohr begins with a murder mystery. While we know from the very first pages the answer to “whodunit,” the rest of the book masterfully explains why they did it. As it turns out, what led to the murder was an intense fight over the proper way to practice medicine.
Mohr’s work is an entertaining read, but behind the colorful history of some larger-than-life characters in post-Civil War West Virginia lie real lessons and questions about the control over access to the medical profession.
After setting the stage with the murder of one of the book’s protagonists, Mohr sheds light on the unenviable state of medical science in post-Civil War America. The reader learns that most physicians and their prescribed treatments were not grounded in any science, and many were outright fraudulent. While that, in and of itself, is perhaps not a great revelation, what is striking is that these shortcomings afflicted not just fly-by-night charlatans, but also the “Regular” physicians who held degrees from prestigious institutions. And to the extent that the latter group did have some scientific underpinnings for its practices, the patients were still no better off, as the scientific knowledge of the day (such as it was) rarely translated into clinical success. That is certainly not the story that is often presented by, among others, the American Medical Association. Instead, the late 19th and the early 20th century are often presented as a time when the benevolent forces of education, science, and true medical cures battled the dark forces of ignorance, superstition, and harmful medical treatment. As Mohr shows, the reality was far more complex. Not only were multiple scientific questions unsettled, thus making multiple (and often conflicting) methods of treatment quite appropriate (even if with the passage of time, one of the methods proved to be erroneous or even detrimental), but the clinical outcomes were hardly dependent on the level of scientific knowledge. Thus, the fight over medical education, practice, and licensure, was ultimately a fight over economics and prestige. Mohr’s book does an excellent job in showing this to be the true motive for the moves towards licensure rather than the encomiums to “[s]cientific advancement, standards for medical education, launching a program of medical ethics, improved public health” (AMA).
The true motives for the initial push for physician licensure identified by Mohr are hardly confined to the late 19th century. The guild mentality that drove Dr. James Reeves—the early chief proponent of West Virginia’s licensure regime—has survived him and is alive and well in today’s licensure boards and medical societies. While Mohr’s book was limited to the initial fights over the licensure and in the Supreme Court case that resolved the legality of these laws, and therefore it is understandable that the book doesn’t delve into licensure and credentialing debates subsequent to Dent v. West Virginia, Mohr seems to accept that the purpose of licensure in today’s America is finally patient’s protection rather than physicians’ economic interests. Thus, he writes “[f]ortunately for American society, the policy wager made in West Virginia in 1882—and elsewhere over the next four decades—eventually paid off in the form of significantly better treatments for a host of maladies” (160). But in many ways, this confuses correlation with causation. It is true that the licensing laws helped drive from the marketplace out-and-out charlatans, and it is equally true, as Mohr points out, that physicians from all schools of thought as well as the public at large were supportive of these efforts. But it does not follow that particularly restrictive licensing statutes (like West Virginia’s) and the official and semi-official power of the AMA and state medical societies were a cause of improving treatments. Indeed, in some cases these factors likely slowed down the development of, or at least access to, treatment and continue to do so to this day.
Milton Friedman once stated that he is “persuaded that licensure has reduced both the quantity and quality of medical practice…. It has forced the public to pay more for less satisfactory medical service” (Friedman 1962, 158). Though the point is eminently debatable, there is significant support for this proposition. For example, as I wrote over a decade ago,
The AMA and its constituent state and county societies refused to admit members who were trained at accredited and reputable schools of osteopathy. The whole study of osteopathy was derided as “idiocy.” Refusal to admit osteopathic physicians to medical societies effectively barred them from practicing medicine…. Although membership in a local society (and hospital privileges) and a state license are two distinct things, the people who ran the societies were either the very same people who sat on licensing boards or who lobbied licensing boards to keep licensure exclusive to those with an M.D. degree from an AMA-approved school. (Dolin 2004, 322-323)
This obstinacy continued long after it became evident that osteopaths were fully qualified to practice medicine. Indeed, it continued for over a decade after both the Civil Service and the Pentagon accepted osteopaths as fully qualified physicians. Chiropractors, nurses, physician assistants, and others suffered the same fate. Not only that, but allopathic physicians (the “Regulars”), continued and continue to be subject to sanctions up to and including loss of license for practices that deviate from the accepted norms. These sanctions are imposed even absent any complaint from any of the patients and often in the face of patients’ opposition. It is hard to accept that this systematic cutting-out of alternative avenues of treatment and inquiry, even when patients wish to have choices, has “paid off in the form of significantly better treatments for a host of maladies.” Or rather, that at least some of the advances have not been offset by the slowing down of research and treatment that could have been provided by practitioners who are either not MDs or are MDs but wish to experiment with treatment protocols.
Furthermore, even if it were true that fairly restrictive physician licensure is likely to lead to improvements in patient care, today’s licensing process is hardly designed to do so. For example, passing United States Medical Licensing Examination (“USMLE”) is a requirement for licensure in every state. The USMLE consists of four separate exams spread out over the course of several years. The costs to take these exams run into thousands of dollars. Ostensibly, these exams were designed to assess “a physician’s ability to apply knowledge, concepts, and principles, and to demonstrate fundamental patient-centered skills, that are important in health and disease and that constitute the basis of safe and effective patient care” (USMLE). The passage rate on each step of the sequence for US medical graduates, however, exceeds 90%. The last exam which was added to the sequence for the Class of 2005 and beyond has a staggering 98% passing rate. With such high passage rates, very few applicants are actually “weeded-out,” and therefore it would appear that the goal is not to assess “a physician’s ability” but to raise the costs of becoming a physician, thus limiting supply and raising prices for those already in the profession, all to the benefit of the organizations administering these exams and to the detriment of the patients.
Another example of such guild-like behavior is the licensing regime of the State of Texas. Texas refuses to issue a medical license to a physician who has not sat for some sort of exam in the last 10 years. To be sure, it doesn’t care whether the exam was the USMLE, or a specialty certification exam, or a “Special Purpose Exam” (the “special purpose” being the satisfying of Texas’s requirement). The bar applies to all physicians, no matter how experienced, qualified, or eminent, and irrespective of licensure in any other state. If a physician has not taken and passed an exam in ten years, Texas requires him or her to sit for one. And to test the ability to provide medical care, Texas obligates physicians to pass a “standardized, cognitive examination of current knowledge requisite for the general, undifferentiated practice of medicine” (NBME). That requirement applies even if the physician seeking licensure is a specialist who does not deal with the “general, undifferentiated practice of medicine.” Again, it is hard to see how such restrictions benefit patients instead of simply limiting the supply of physicians.
Notwithstanding the above criticisms, Mohr’s book does a superb job presenting not just the history and the legal debates leading to Dent, but also offers well-thought-out criticisms of the consequences of the Supreme Court’s Dent decision for issues such as the medical malpractice system and the policing of physician competence post-licensure. He manages to present all of this, including the rather arcane and complex legal issues in an accessible and easily-understood manner even for those who are not steeped in constitutional law or historical research. The book provides an insight into the true motives that drove the early proponents of medical licensure, and serves as a starting point for discussion to those who may be interested not just in historical knowledge for the sake of knowledge but rather would have history inform present-day decisions. While most everyone should find this book an entertaining read, it is the reader who understands that the story of the book did not end in 1889, but is ongoing, who will get the most out of Mohr’s work.
Gregory Dolin, M.D.
University of Baltimore, School of Law
Baltimore, MD, USA
REFERENCES
AMA (American Medical Association). “The Founding of the AMA.” Accessed July 17, 2015. http://www.ama-assn.org/ama/pub/about-ama/our-history/the-founding-of-ama.page.
Dolin, Gregory. 2004. “Licensing Health Care Professionals: Has the United States Outlived the Need for Medical Licensure?” Georgetown Journal of Law & Public Policy 2 (1): 315-336.
Friedman, Milton. 1962. Capitalism and Freedom. Chicago: University of Chicago Press.
NBME (National Board of Medical Examiners). “Special Purpose Examination (SPEX).” Accessed July 17, 2015. http://www.nbme.org/clinicians/spex.html.
USMLE (United States Medical Licensing Examination). “United States Medical Licensing Examination.” Accessed July 17, 2015. http://www.usmle.org.