Document Type

Article

Publication Date

3-3-2009

Abstract

State medical boards derive their licensure and disciplinary authority from the police powers reserved to the states under the 10th Amendment. Though it is clear that public health, safety, and welfare are well-served by the educational and examination requirements uniformly imposed upon medical professionals, many medical practice acts also authorize discipline for professional misconduct that does not directly implicate clinical competence or patient safety - for example, being convicted of a felony or a crime of moral turpitude, failing to comply with a child support order, providing expert opinion to a court without reasonable investigation, ordering unnecessary laboratory tests, engaging in conduct that brings the medical profession into disrepute, or violating a professional code of ethics. Supporters of such broad disciplinary powers commonly justify them by reference to the easy truisms of professionalism and public trust, but fail to situate their arguments within police power-based theories of state action. This paper aims to develop a comprehensive account of the legal justifications for sanctioning professional licensees for behavior that does not clearly implicate clinical competence.

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