The Evolution of Government Intrusion on the Medical Profession

This week found me sitting alone in our law firm library, preparing to defend a physician before the Texas Medical Board. In an era of electronic research, both legal and medical, it is rare to find anyone, (other than me), in the library. I not only enjoy flipping through real pages; some of which were bound and placed on these shelves 70 years ago, I enjoy getting momentarily sidetracked from my original mission.

I picked up this habit as kid reading the World Book Encyclopedia. Regardless of what I might be looking for, I would always stop and absorb eight to ten articles, just to learn about some historical fact I didn’t know existed.  

This week, flipping through historical reports of medical ethics cases, many dating to the 1950s, I began to see a clear picture of something I wasn’t expecting to find.  Virtually every federal regulatory concern currently plaguing the modern practice of medicine also existed in some form in the 1950s.

Comparable to Medicare RAC and external audits; physicians were losing their practices for improper charting and documentation. However, these losses usually pertained to life-and death matters, such as the prescription of narcotics. “Off-label promotion,” similar to the fen-phen scandal, usually concerned mundane, unapproved uses of common household remedies.

For example, a physician in the 1950s lost his license for charging patients $49 each for a treatment to remove gallstones using olive oil. (The board found that the oil, mixed with stomach acid, actually produced “soap balls,” not gallstones, as the physician improperly claimed.)

“Bundling and unbundling” issues were also present sixty years ago when a physician was disciplined by the board for routinely including fee-for-services charges that were already billed to the patient as part of the hospital’s charges.

Time and again, modern coding, charting and regulatory issues “pop” from the pages of history. Some cases represent quaint precursors to FTC “advertising” regulations. These appear as ethics disputes over the size of the lettering appearing on a physician’s office window, to questions about the exact line between acceptable public service promotion and impermissible advertising.

Half a century ago, one party was notably absent from the dusty pages of medical ethics cases: the federal government. There is a reason for this. Until the post-Civil War period of reconstruction, no federal laws governed a person’s conduct in any way. Slowly, beginning with the regulation of racially motivated murder, and laws pertaining to civil rights violations, Title 42 of the United States Code (containing laws related to civil rights and health and human services), began to grow in size and scope.

Today, in addition to racial offenses (42 U.S.C. §1983); Stark Law (42 U.S.C. 1395nn); the Anti-kickback Statute, (42 USC § 1320a–7b); HIPAA (42 U.S.C. § 300gg); and the Medicare law (42 U.S.C. 1395) are located in the growing Title 42 of the United States Code. 

Many fear, and rightly so, that as healthcare insurance exchanges offered at healthcare.gov become fully operational, the federal takeover of the practice of medicine will soon be complete.

In the not-too-distant future, the common law principle, “A physician and patient are free to contract for services in any way they see fit,” will seem just as quaintly anachronistic as limits on the size of lettering on a physician’s office window.