Some Origins of State-based Medical Regulation

In the years following the American Civil War (1861-65) multiple states and territories passed laws to regulate and limit the practice of medicine—specifically, requiring individuals to meet criteria set by the designated state entity (e.g., state board of medical examiners) and obtain a license before practicing medicine. Half a dozen states established medical licensing boards by the end of the 1870s, another dozen were established in the 1880s and most remaining jurisdictions did so in the 1890s.

For those with any familiarity on the subject, there is nothing new in what I just shared. The “when” in this evolving regulatory system can be presented in a straightforward chronology presenting the introduction of medical practice acts and the establishment of state medical boards.

However, the question of “why” is a different story. Specifically, why did state-based medical regulation emerge at that particular moment in America’s history? People had been practicing medicine long before any state laws regulating the practice—so why did the state legislatures suddenly feel it necessary to begin regulating medicine?

Here we enter speculative grounds but I would offer several reasons for the emergence of medical regulation in the post-Civil War era.

Push back against the “democratization” of medical care

In 1822, the New England folk healer Samuel Thomson published his “New Guide to Health; or Botanic Family Physician.” This modest beginning marked the start of Thomson’s widely successful efforts to re-establish the practice of medicine with its rightful practitioners and materia medica—specifically, family and friends drawing upon herbal or botanic-based remedies. Thomson’s success with direct to consumer guidebooks for medical practice and agents in the field selling his “system” of botanical remedies resonated deeply with Americans of that era increasingly adverse to privilege and hierarchy.

sam thomson

Thomson’s success irked physicians (no surprise!) who felt their knowledge and skill denigrated by home practitioners. When the home medicine-tide finally began to ebb in the post-Civil War era, physicians were already organized (i.e., AMA and state medical societies) and poised to push back. Physicians could point to major advances ongoing in medicine as a basis for establishing themselves as professionals with exclusive control over the practice of medicine. Staking out and securing their “turf” legislatively, including controlling entry into the profession, became a priority for physicians.

Explosive growth in the number of medical schools

At the opening of the 19th century, there were a handful of medical schools in America. By mid-century, there were  50 medical schools. By 1884, there were approximately 100 schools.

US map

Weak chartering laws and the didactic nature of US medical education meant that all that was required to establish a medical school was a building, a minimal amount of materials (books, lab supplies, access to cadavers) and a handful of physicians willing to collaborate as faculty. The result was a sharp increase in the number of individuals holding an actual medical degree and eager to seek a financial return on their modest investment through practicing medicine. Just as important, this era predates even de facto accreditation efforts. Consequently, wide variability in quality characterized US medical education.

From a demographic and educational perspective, this situation posed serious challenges for US physicians seeking to establish medicine as a legitimate profession. To use a metaphor, medical schools were like a faucet with a broken handle gushing forth newly-degreed physicians. It was impossible to cut off the flow; but if one attached new piping to the opening of the faucet, it would be possible to reduce the flow. The “new piping” was state legislation setting forth criteria for the legal practice of medicine and a designated authority (state medical board) empowered to evaluate individual qualifications and issue licenses. Statutory requirements could be set in such a way as to either restrict or encourage the flow of graduates from medical schools. Organized medicine worked doggedly toward restricting the flow.

Rise of the penny press newspaper

Medical societies and individual physicians had another stalking horse at their disposal in arguing for a medical practice act in their state –the quack[1] or the charlatan. Hawkers of medical cures and remedies can be traced into the Middle Ages where they often combined medical, theatrical and itinerant elements. With so many, at best, modestly educated practitioners pouring out of American medical schools—including those with degrees from schools little more than medical diploma mills—the medical establishment could point to outlier practitioners (conveniently labeled quacks or charlatans) as a tangible example of the need for medical legislation. snake oil

Their case was further bolstered by the ready availability of cheap print advertising in the daily penny press newspapers. Wild claims involving all manner of lotions, potions, pills, nostrums and elixirs filled newspapers, short-lived medical journals and circulars. Physicians could point to the over-the-top claims in these ads from outlier practitioners as proof of a danger to the public.

I would argue that all three forces were at work in the post-Civil War years; combining in a mutually reinforcing way that resulted in a steady push toward a state-based system of medical regulation.

The views expressed are those of the author and not the FSMB.

Resources:

William G. Rothstein, American Physicians in the Nineteenth Century: From Sects to Science (Baltimore: Johns Hopkins Univ. Press, 1985)

John S. Haller, Jr., The People’s Doctors: Samuel Thomson and the American Botanical Movement, 1790-1860 (Carbondale: Southern Illinois Univ. Press, 2000)

M. A. Katritzky, “Marketing Medicine: The early modern mountebank,” Renaissance Studies 15, no. 2 (2001).

 

[1]  Quack derives from the Dutch quacksalver meaning a hawker of salves.

Bias in Testing?

I spent time recently reviewing records from the North Carolina Medical Board spanning the late 19th and early 20th centuries. In doing so, I ran across a small parenthetical item that peaked my interest. Nestled discreetly next to the name of a physician who passed the board’s licensing examination in 1933 was this small notation — (c)

Further review of the board’s records for other years soon confirmed my suspicion as to the meaning of this notation. I found that in other years, the notation appeared as (Col) or (colored). As part of the segregated South, the North Carolina board’s records explicitly identified black physician candidates for medical licensure. (See image below)C designation

This finding did not surprise me considering the socio-politico and legal tenor of the times. But it did raise a question in my mind…or rather a series of questions. Why did the board’s secretary feel compelled to identify black physicians in their records? Was this a benign action merely consistent with routine administrative practices in most or all the state’s agencies? Or did this flagging of black physicians in the record point toward bias in the examining and licensing of these physicians? Ultimately, I found myself wondering, “Was the medical licensing examination in North Carolina conducted in a reasonably fair and unbiased manner for all candidates?”

This question seemed overly ambitious at first; but as I looked deeper into the board’s records, I realized that sufficient details had been captured that answering this question might just be possible. Specifically, the board’s records contained details on the administrative practices and scoring of their examination.

For example, the board’s examination was conducted as an essay exam spanning usually 3-4 days. The day prior to testing the candidates arrived and presented the board Secretary with their completed registration, credentials, references, etc.

A single member of the board was assigned to administer and then score specified content areas. (See the example from 1940 below).

test admin

To guard against potential bias in scoring, the candidates for licensure by examination were issued either a pseudonym or a number by the board Secretary on the day prior to testing. The examinees used this identifier, rather than their actual name, on their examination papers.

roster

Pseudonym shown at far left for examinees

This administrative protocol, if followed correctly, offered a reasonable mechanism to diminish the likelihood of bias.

The North Carolina board’s records also provided critical details related to scoring—specifically, the board routinely listed the actual scores (both passing and failing) for all candidates taking their examination. Similarly, these records capture the board’s composition for each administration of the exam, including identifying specific board members assigned to score papers for designated content areas.

These details make statistical analysis possible along several lines of inquiry. For example, pass percentages and mean and median performance by race and by medical school…and by cohorts reflecting changes in the North Carolina board’s composition.

I have not yet completed my analysis of this fascinating set of records spanning the period from 1886-1925. Stay tuned.

 

The  views expressed are those of the author and not the FSMB.

Con Man or White Collar Criminal?

I’ve spent a good deal of time writing and thinking about Dr. John Buchanan in recent years. His colorful career saw him play many roles including physician, author, educator, patent medicine entrepreneur and…criminal. His infamy, despite having been largely forgotten today, rests upon his latter role as the moving force behind America’s largest medical diploma mill in the 19th century. (See my forthcoming book Diploma Mill: The Rise and Fall of Dr. John Buchanan and the Eclectic Medical College of Pennsylvania from Kent State Univ. Press, August 2018.)

Johnson_Diploma Mill_amazon (002)

Over a career spanning roughly four decades, John Buchanan’s transgressive behaviors included the sale of medical degrees, conspiracy to defraud, bribery, apparent theft of corpses for anatomical instruction, allegations of criminal abortion and political chicanery designed to swing a state legislative election to one of his colleagues.

Buchanan’s career, while colorful, is not entirely unique. Scoundrels populate the history of medical regulation in America. The rogues’ gallery where Buchanan resides includes hucksters and charlatans like goat gland specialist John Brinkley, cancer-cure specialists like Norman Baker and Harry Hoxsey, snake-oil salesman Clark Stanley and countless locally infamous rascals that bedeviled state medical boards and the medical profession.[1]

 

(Left to right: John Buchanan, John R. Brinkley, Harry Hoxsey)

One of the questions I have found difficult to answer about Buchanan should be a simple one.  Why did he do it? Why did he risk—and ultimately throw away—a promising medical career at a legitimate educational institution?

Money—that’s the obvious answer, right? The diploma trade proved not only lucrative but relatively easy to conduct during the post-Civil War era despite the periodic outcry of critics.

But that doesn’t really answer the question. Think about it. There is nothing at this moment preventing you or I from engaging in an activity that could reap a financial windfall—drug dealing, income tax evasion, identity theft, various types of fraud, etc. And yet we don’t do these things from a mixture of motives, e.g., our sense of moral or ethical values, our fear of being caught and punished. Indeed, the vast majority of the human population rejects transgressive behavior on a daily basis in favor of our remaining in good standing in what is collectively hopefully a safer, stable, more just social order.

If greed doesn’t explain John Buchanan’s behavior, what does? Here I think it is helpful to see John Buchanan as a specific type of scoundrel in the medico-regulatory world. Not the confidence man of the sort represented by a Brinkley, Baker and their ilk but as a type we more often think of as a creature of the 20th century—the white collar criminal.

The federal prosecutors who charged Buchanan with mail fraud in 1880 attempted to portray him as a con man preying upon the public through his issuance of mail order diplomas that became the basis for some physicians to secure a medical license. While this was a rational argument to present in trying to secure a conviction on mail fraud charges, it represented an overreach. Why? Quite simply, no fraud entered into the transaction between Buchanan and the purchasers of the diplomas as both sides were aware of the true nature of the transaction. The judge agreed, acquitting Buchanan on this specific charge. (below left)

acquittal

No, unlike the con men fleecing naïve but ultimately trusting patients, John Buchanan acted in a manner more consistent with the white collar criminal. The term itself dates to the late 1930s and its introduction by the sociologist Edwin Sutherland. Generally defined as a non-violent offense involving financial motive, we generally think of white collar criminals as professional men who have exploited their position or authority for personal gain, e.g., Bernie Madoff, Jeffrey Skilling (Enron), etc.

Traditionally, scholars explained white collar criminal behavior in wholly rational terms—as individuals engaged in a conscious, almost deliberative mental process involving analysis of risk and reward related to a specific opportunity. More recent research,[2] including interviews with convicted white collar criminals, suggests a more nuanced explanation involving a triangulation of variables:

  • perceived pressure
  • perceived opportunity
  • individual integrity/rationalization

Here I believe we find the more compelling answer to why John Buchanan moved into diploma sales. Financial pressures on Buchanan and his school increased markedly in the early 1860s with the start of the Civil War and the disrupted flow of matriculating students. In his published confession from 1881, Buchanan also cited personal financial pressures.

As for opportunity, at the time Buchanan joined the school faculty in 1860, there were virtually no legal restrictions on the practice of medicine anywhere in the United States. As the professionalizing trend evolved in medicine, pressures mounted to increase standards for medical education, including the issuance of medical degrees. Legitimate degree issuance practices such as ad eundem and honorary degrees and the awarding of advance standing to experienced physicians were practices vulnerable to abuse for those willing to “rationalize” deviations from conventional or accepted standards.

In this regard, Dr. John Buchanan differed markedly from the contemporary charlatans knowingly peddling nostrums based upon hokum and pseudo-science to a gullible public. Buchanan’s downfall derived from the hubris of a criminal who convinced himself that his drift into questionable practices could be justified in the laissez-faire era of lax business practices and that his golden goose (the diploma trade) could lay eggs just a little longer despite the emerging regulatory landscape rapidly changing his world.

The opinions expressed reflect the views of the author and not those of the FSMB.

Sources:

David Alan Johnson. Diploma Mill: The Rise and Fall of Dr. John Buchanan and the Eclectic Medical College of Pennsylvania (Kent State Univ. Press, August 2018)

Bill Barrett. “Inside the Mind of the White Collar Criminal.” Accessed July 24, 2018 at https://www.accountingweb.com/technology/trends/inside-the-mind-of-the-white-collar-criminal

[1] See Pope Brock, Charlatan (New York: Three Rivers Press, 2008) and Eric S. Junhke, Quacks and Crusaders (Lawrence: Univ. of Kansas Press, 2002)

[2] Experts in the field have also identified psychopathic traits commonly seen among white collar criminals. See Isabella Merzagora, et. al., “Psychology and Psychopathology of White Collar Crime,” Organized Crime, Corruption and Crime Prevention October 2013.

The Nice Quiet 1950s, cont.

In my last blog entry, I shared the page (below right) from the 1953 FSMB annual meeting program. I did so in order to spotlight the fact that discipline was such a minor concern of state medical boards that as a topic it appeared only once (1953) on the formal program of the Federation’s  annual meeting during the decade of the Fifties.

FSMB 1953 program

I think any member of a state medical board or its staff looking at this today would find this remarkable. After all, they understand all too well the extent to which the disciplinary role is a time, labor and resource intensive element of medical boards’ functioning.

So what was going on during the 1950s? Certainly physicians in those days were not demi-gods immune to human flaws and failures. I think a couple factors were at work.

Medical boards of that era still thought largely in terms of the primary function envisioned for them at the time of their creation in the late 19th century—writing and developing an examination to assess physician knowledge prior to issuing a medical license.

Just how much priority and precedence did this aspect of medical boards’ activities take? It would be difficult to overstate the case.  Take this example. From 1906 to the mid-1960s, JAMA produced an annual issue featuring statistical data on the medical licensing examinations each year. (example below) Examinee counts, pass rates, licenses issued, statistical breakdowns by board, by medical school, etc. The list could go on for several paragraphs but my point is simple. Administering examinations and issuing licenses were the heart-n-soul of medical board activities in the 1950s. That is where they placed their greatest emphasis and focus.

JAMA stats

So what does this mean about discipline? Here I will offer the opinions of a few medical regulators of the day.   Asked about the disciplinary role of state medical boards in 1952, the FSMB’s own president said, “The influence of professional organizations coupled with the desire for the respect of fellow practitioners is usually sufficient.” One regulator, when asked about his board’s budget for disciplinary investigations, explained that “none is needed” because “discipline is…of secondary importance.”

Admittedly, the plural of anecdote is not evidence. Yet statements like these from medical regulators of that era seem telling.

This is not to say that state medical boards had abandoned their disciplinary role entirely. While no definitive national data exists for this period, my own count of disciplinary actions published through the Federation Bulletin found approximately 1,800 actions taken by boards between 1950 and 1959. To put that in at least some type of context, in 2015 medical boards in the U.S. took 7,000 actions that year alone.

Ultimately, the problem of discipline in that era was attitudinal. The regulators themselves did not see discipline as a priority; in part, because they presumed others were tending to this. Specifically, the literature of the day underscores a dominant theme: the assumption that the profession would address—and if necessary remove—its outlier actors. Along with this was a bristly reaction to anyone outside the profession asking questions about problem physicians or questioning the efficacy of professional self-regulation.

To many retrospective observers, the Fifties ended in 1961 when America’s then-oldest president (Eisenhower) gave way to our youngest elected president (JFK). The quiet so often ascribed to the Fifties in popular culture was really more a matter of willfully overlooking some of the disquieting and disturbing issues that some preferred not to think about. The same might be said for medical regulation in the 1950s as a blithe professional attitude toward discipline soon gave way in the 1960s to a siren call: the medical profession and regulators had to clean up their act and make discipline a priority…or else.

The views expressed are those of the author and not the FSMB.

Sources:

See Chapter 6 of Johnson, Chaudhry. Medical Licensing and Discipline in America: A History of the Federation of State Medical Boards (Lexington Books, 2012)

The Nice Quiet 1950s?

Popular culture seems to enjoy looking back at the 1950s and characterizing it as this quiet but fun era that preceded a raucous psychedelic Sixties. That decade is often remembered as a period of sock hops, big cars with large fins fueled by cheap gas, suburbia, a grandfatherly President (Ike), I Love Lucy and early rock-n-roll. This selective nostalgia seemed to peak in the 1970s with Happy Days and American Graffiti; then sporadically resurfaced in films like Back to the Future.

happy days

Of course, pop culture is not history. It doesn’t aspire to be history and should never be mistaken for it. Popular culture seems selective in forgetting all those elements of the 1950s that were neither quiet nor fun. This same period witnessed the Civil Rights movement and the often violent responses it drew in places like Selma, Birmingham and Greensboro. Baby boomers have vivid memories of duck-n-cover drills at school and fallout shelters amidst our Cold War with the Soviet Union.

I’m sure there’s an apt metaphor for this juxtaposition of perception and reality… …pressure building and then released. Maybe it’s a tea kettle or the smooth surface of a pond hiding a tree stump just below the water line. In some ways, medical regulation in the 1950s mirrored this juxtaposition.

A sense of this disquiet despite the relative calm in medical regulation can be seen in a retrospective look at two documents from this period.

Pictured below is a page from the program of the 1953 annual meeting of the Federation of State Medical Boards (FSMB).

FSMB 1953 program

At first glance, there is nothing particularly remarkable about the document. The program contains much that we might expect to see: remarks from the organization’s president; committee nominations; program sessions on medical board discipline; etc.

Every year since 1913, state medical boards in this country convened as part of the annual meeting of the Federation of State Medical Boards. These yearly gatherings allowed members and staff from medical boards to discuss issues great and small relative to medical regulation.

Yet there is something truly remarkable about this page of the 1953 FSMB annual meeting program that only becomes obvious in retrospect. That year’s program marked the only time during the entire decade of the 1950s that medical boards’ disciplinary role and function were featured topics on the agenda of the FSMB annual meeting.

Thing about this for a moment. The single biggest area of medical board activities today warranted virtually no time on the agenda in 1953. Over a ten year period and as the only forum for a national gathering of medical regulators, discipline appeared on the formal agenda only once!

How should we interpret this? What does this suggest about how medical boards once regarded their disciplinary role?  To be perfectly honest, the evidence suggests that…

  • Discipline represented a secondary function for medical regulators;
  • medical boards seemed not particularly interested in carrying out this role and function; and
  • medical boards once presumed that others (i.e., the profession through its local and state medical societies) were taking care of disciplinary matters.

How could this possibly be?

In my next blog post, I’ll share a second document from the 1950s that adds a little more context to our picture of medical regulation in the 1950s.

 

The views expressed are those of the author and not the FSMB.

The “lost” powers of state medical boards Part 2

Last time I explained the authority of state medical boards to identify “approved” and “unapproved” medical schools as one criteria in the decision to issue or deny a medical license—one of the “lost” powers of state medical boards. The information presented on the left side of the chart below reflects this information.[1] Now let’s explore the other side of the chart.

stats 1921

Co-existing with the statutory authority of state boards to issue a license for the practice of medicine is their primary historical function—developing and administering an exam to determine the knowledge of a prospective licensee.

As noted earlier, the quality of U.S. medical schools varied widely in the late 19th and early 20th centuries. Thus, the medical degree could not be accepted at face value as definitive evidence of preparedness to practice medicine. Accordingly, state medical boards were empowered to independently assess the knowledge of prospective licensees.

State medical boards—or the state board of medical examiners to use the more common title of that era—embraced this assessment role. Their exams typically were multi-day affairs relying upon open-ended questions, i.e., extended short answer or essay questions.

Look closely at the right side of this chart; one element jumps out immediately. The fail rate on these exams differed dramatically among the various states. At one end of the spectrum, sixteen states reported a fail rate of less than 1% on their licensing examination over the period from 1916-1920.

At first, I was suspicious whether this was accurate so I double checked the JAMA state board issues for this period. Sure enough, in places like Vermont and Idaho only 1-2 people failed during this entire period. Thus, a fail rate of less than 1% was accurate.

At the other end of this spectrum, five states reported fail rates of 22% or higher during this period. These weren’t all small states either. Heavily populated states like Massachusetts and Pennsylvania were in this cohort.

Furthermore, there didn’t seem to be a strong correlation between the number of schools not recognized by a state and the fail rate on its exam. Theoretically, we’d expect states like Delaware and Massachusetts to have lower fail rates because they already precluded so many graduates from substandard schools from sitting their exam. Yet, their fail rates were actually quite high—33% and 23% respectively.

Similarly, we might anticipate a higher fail rate in places like Utah and the District of Columbia since they precluded no one from sitting their exam. Yet, their fail rates were modest (5-7%) and well below the national average.

All of which leads to a suspicion that state medical board exams of this era were idiosyncratic tools that diverged markedly not only in their rigor (i.e., pass/fail standard) but probably to some extent in their content as well.

NBME logoIt is no wonder that the National Board of Medical Examiners developed and administered a certifying exam beginning in 1916 with eligibility criteria and professional standards designed to meet and exceed those of every state board exam…and no wonder that thirty-one states by 1925 accepted a pass on this exam as meeting their requirements for licensure.[2]

State medical boards remained in the business of creating licensing examinations until the late 1960s when the transition to nationally developed exams began. I’ll talk about that transition later.

Technically, state medical boards have not “lost” the power of assessment. What has happened is a shift in statutory language reflecting these boards’ responsibility to identify the examination(s) they will recognize and accept as evidence of medical knowledge: USMLE and COMLEX-USA.

USMLE logo

They have delegated (wisely) the daunting task of developing and administering their own medical licensing exam to professional entities with expertise in the science of assessment. In doing so, these boards retain their key role as an invaluable independent audit of medical education with their exam…but now they do so in concert with experts in assessment.

 

The opinions expressed are those of the author and not the FSMB.

[1] Federation Bulletin, June 1921, p.

[2] Johnson, Chaudhry. Medical Licensing and Discipline in America, 72.

The “lost” powers of state medical boards Part 1

State medical boards operate under-the-radar of most physicians and the public at large despite the fact they have been integral players in the U.S. medical regulatory system since their appearance in the last quarter of the nineteenth century.

By any objective measure, however, state medical boards exerted their greatest power and influence nearly a century ago.  I was reminded of this when I ran across this intriguing chart (below) from the June 1922 issue of the Federation Bulletin.

stats 1921

Take a closer look. The author of the article cobbled together statistics presented in JAMA’s annual report presenting statistics and information on the activities of state medical boards. The chart took a clever approach in consolidating two disparate pieces of information: state medical boards’ decisions to refuse licenses to graduates of certain schools and performance on their examination for medical licensure.

Let’s start on the left with state boards’ recognition of U.S. medical schools. With the exception of Massachusetts, Wyoming and the District of Columbia, every state board flagged a subset of schools that they refused to recognize for the purposes of licensing their graduates. Indeed, most of these boards identified 8-10 schools that they refused to recognize; nearly double that number in states like Pennsylvania and New Hampshire.

You’re probably wondering, “How was it possible someone could graduate from a US medical school and not be eligible for a license in most states?” To answer this question, we have to forget the medical education landscape as we know it in 2018.

We are so accustomed to the presence and function of trusted accrediting bodies for medical education (both undergraduate and graduate) that it’s easy to forget the realities of an earlier era.

In the first decades of the medical licensing (roughly the period from 1870 to 1910) there were no agencies or mechanisms providing assurance that anything substantive stood behind the issuance of a medical degree. At the time that state medical boards were established, they relied on generalized language (either in statute or developed by the board) that spoke in terms of licensing graduates of “reputable” or “legally chartered” schools.

Practical experience soon proved the uselessness of such language. A vague term like “reputable” offered little guidance and no measurable basis for distinguishing reputable from disreputable schools. Similarly, holding a legal charter was no guarantee. Even a medical diploma mill like the Eclectic Medical College of Pennsylvania held a valid, legal charter

Enter Dr. John Rauch and the Illinois Board of Health who quickly became the most influential players in the medical licensing community.

john h rauchRauch and his board colleagues embarked upon an ambitious information gathering effort that led to the first list of “approved” medical schools. A listing soon utilized by multiple states and claimed by several historians in recent years as being just as impactful as the later Flexner report.[1]

The American Medical Association (AMA) later took up the mantle of bolstering medical education standards with the creation of its Council on Medical Education. The Council undertook surveys and inspections in 1907-1908 that led to their own assessment of schools and a classification system. The Council classified medical schools into three groups. Schools of the highest quality were categorized as Class A; schools with deficiencies but still salvageable were categorized as Class B. The remainder (Class C) were deemed beyond the pale and believed to be unsalvageable.

By the time of the chart pictured here, medical boards were no longer as involved in investigating and monitoring the quality of medical schools. Instead, they drew upon the Council’s classification system to identify approved or recognized schools (Class A & B) and routinely deny licenses to graduates of Class C schools.

By the end of the 1920s, Class C schools had all but disappeared. Fast forward to 1942. This classification system evolved into the accrediting body that we know today for schools issuing the MD degree—the Liaison Committee for Medical Education (LCME).

Consequently, medical boards no longer have the need for formal lists of approved or recognized schools. The imprimatur of LCME accreditation assures medical boards of the meaningful education experience behind an MD degree.[2]

I would argue that this “lost” power of medical boards is a good thing…a positive reflection of just how far medical education and licensing have come over the past century.

Next time (in Part 2), we’ll look at the right side of this chart and the other “lost” power of state medical boards—state board examinations.

The opinions expressed are those of the author and not the FSMB.

[1]  See Lynn E. Miller, Richard M. Weiss, “Medical Education Reform Efforts and Failures of US Medical Schools, 1870-1930,” Journal of the History of Medicine and Allied Sciences (July 2008)

 

[2] The Commission for Osteopathic College Accreditation (COCA) accredits osteopathic medical education programs issuing the D.O. degree.

Proxy Wars Episode 2: The imposter strikes back

Episode one closed with the California and Georgia medical boards stripping “Dr.” Phillip Dyment of his medical license. The good doctor was nothing, however, if not persistent. Like any good charlatan, he lawyered up. Today, we conclude the story of “Dr” Dyment but first a little context.

dyment calif app

In 1920, state medical boards were quasi-legal entities straddling two spheres. On the one hand, they served as an extension of the state (i.e., government). In Dent v. West Virginia (1889) and Hawker v. New York (1898), the U.S. Supreme Court accepted the authority of the state (or one of its agencies) to “provide for the general welfare of its people” in matters of public health. Specifically cited was the authority of the state to license and/or examine physicians for the practice of medicine.

On the other hand, state medical boards were bodies heavily weighted toward the interests of physicians and the medical profession in general. Gubernatorial appointment may have been the mechanism for inclusion on these boards but state medical associations exerted tremendous influence by identifying or recommending appointees to these exclusively physician boards. (Note: public members were non-existent at the time)

I share this because legal challenges arose almost as soon as the first medical board issued a decision to issue or revoke a license. Medical boards quickly found themselves on the receiving end of a crash course: Intro to Law 101. Because they operated with a fair degree of autonomy and often lacked access to in-house counsel, medical boards were sometimes outflanked by savvy physicians quick to lawyer up and exploit legal missteps.

Though he was a fake, Dyment proved a savvy fake.

Having learned from the Georgia board about Dyment’s use of a proxy/ringer on their licensing exam, the California medical board notified Dyment in August 1920 of their complaint against him for “unprofessional conduct.” The board demanded he appear before them in October to answer the charge. Apparently operating from a parental rather than a legal mindset (“You know what you did, young man!”), the board didn’t bother to list any detail in its complaint for unprofessional conduct.

Dyment (through his attorney) spotted the board’s error immediately. Instead of appearing before the board in October, he replied with a letter of his own. The legal term for his responding letter is a demurrer but what it comes down to really is this: Dyment said he could not answer the charge—and had no legal obligation to do so—because the board had not been “sufficiently definite and specific” by explaining which of the twelve statutory bases for unprofessional conduct that he had violated.

At its hearing in October sans Dyment, the board decided to ignore the point of law raised by Dyment. They had nothing in their regulations about responding to demurrers so they opted to proceed based upon the facts of the case as they understood them. The board found Dyment guilty of unprofessional conduct and revoked his license.

Dyment took this decision and ran to the courts. A California Superior Court sided with the medical board—apparently citing the board’s enacting regulations as not providing for demurrers. Having lost the first two rounds, an unbowed Dyment pressed on to a state appellate court. Here he found success.

The appellate court reversed the decision stating the fundamental right of a citizen that a complaint against them be sufficiently definite and specific that they can respond adequately to the charge. The court stated that the medical board erred by not first addressing Dyment’s demurrer (the insufficiency of the complaint) before proceeding with its hearing on the facts of the case.

Having said all this, the appellate court acknowledged the valuable work of the medical board. “The work done by the medical boards…in purging the ranks of the medical profession of quacks and charlatans is a most commendable one.” This, however, did not outweigh the board’s legal responsibility to “notify [Dyment] of the nature of the offense attempted to be placed against him.” pacific reporter

Rebuked but not discouraged, the California medical board went after Dyment again—this time sufficiently setting forth the details of the complaint. Again after a hearing, the board revoked Dyment’s license.

Dyment struck back on two points of law that did not conclude until 1928. First, Dyment claimed that the board operated in a “quasi-judicial” capacity and that evidence of bias on the part of one of the board members violated California law requiring judges with bias or interest in a matter to recuse themselves. The court disagreed citing previous case law that a state medical board served an “administrative” rather than judicial function; thus, the law was not applicable in this case.

On his second point, Dyment found success. He claimed the only evidence against him (the affidavit of the proxy test taker wife) was hearsay. While the court acknowledged that the substance of the evidence may have been true, its form (hearsay) was not admissible; and lacking other evidence that did not constitute hearsay, the appellate court once again ruled in favor of Dyment.

This case offers a great example of the many difficulties facing state medical boards of this era. They may have been quasi-judicial bodies serving an administrative role but the legal system held them accountable for observing procedural and substantive due process. Not surprisingly, physicians on these boards floundered at times in navigating unfamiliar legal waters.

And “Dr” Phillip Dyment? The last I found of him dates to 1929…he was still practicing medicine in California.

The opinions stated here are those of the author and not that of the FSMB.

Sources:

Dyment v. Board of Medical Examiners, 93 Cal. App. 65. 268 P. 1073

The Pacific Reporter, 207, July 3-September 11, 1922 (St. Paul: West Publishing Co., 1922), 410-12

“Phillip Dyment Still Practicing,” Federation Bulletin 15, no. 6 (June 1929), 190.

Proxy Wars: A state board saga Episode 1: The Clone Wars

When state medical boards were being established throughout the United States in the last quarter of the 19th century, one of their primary statutory functions called for examining prospective candidates prior to issuing a license. This made sense as perhaps the greatest distinguishing feature of America’s medical schools at that time was their wide variation in quality and rigor.

As the medical license became the exclusive gateway to the legal practice of medicine, the stakes surrounding each state’s licensing exam grew higher. Some physicians were unwilling to accept the challenge to demonstrate their knowledge. Others—likely a small number—resorted to subterfuge, i.e., using proxy or substitute or ringer to take the exam for them.  Case in point – “Dr.” Phillip Dyment.

Dyment’s factual record seemed straightforward. He graduated from the Homeopathic Medical College of Missouri. In 1914, the Georgia Board of Medical Examiners issued him a license after passing their requisite exam. The following year, 1915, Dyment obtained a license in California (below) through a reciprocity certificate issued based upon his Georgia exam and license.dyment calif app

For reasons that are not entirely clear, staff working in the AMA’s Biographical Department took a closer look at Dyment’s record trail in 1919. Several items jumped out at them.

(1) Dyment graduated from medical school in 1891 but did not secure a medical license until his 1914 in Georgia. So what had he been doing all those years prior? Not practicing as a physician apparently. In a 1909 advertising flyer prepared by Dyment, he described himself as practicing “Mechano-Therapy.” Nowhere in the flyer did he claim an M.D. (see below right)

flyer

(2) The Homeopathic College from which he claimed to have graduated had a suspect history. In a 1918 publication, the AMA listed the school as a fraudulent” institution—a classification applied to institutions that operated outside even the relatively loose parameters for diploma issuance in the late 19th century.

(3) Inquiries through two of the school’s registrars and one of its trustees suggested that Dyment never attended, much less graduated, from the school.

(4) The only person associated with the school who substantiated Dyment’s claim to being a graduate was a former dean of the school, Dr. L. C. McElwee. As early as 1908, however, McElwee had been implicated in issuing a certificate to an unsuccessful applicant for licensure in Illinois, Dr. G. B. B. Larkeque.

So how did Phillip Dyment transition from mechano-therapist (i.e., chiropractor) to physician? With a little help from his friends, of course.

Investigation by the Georgia board revealed that Dyment (via Larkeque) secured the services of Dr. Lucius G. Wright to sit the examination for Dyment at the board’s offices in Atlanta, Georgia in the fall of 1914. McElwee’s substantiation of Dyment’s claim of an M.D. likely reflected his role in brokering the aid of Larkeque and Wright –both of whom traveled to Atlanta for the exam.

Wright received $150 for his efforts in taking (and passing) the exam on Dyment’s behalf. Larkeque’s role apparently involved doctoring photographs and signatures involved with the licensing application in Georgia. The key evidence in the case came from a deposition secured by Wright’s [disgruntled?] wife. (see below)post card

It is impossible to know whether the Dyment case was an extreme outlier or just one example of a practice more prevalent that one might have imagined. Certainly, medical boards feared exam proxies and worked to establish elaborate protocols designed to forestall such tactics.

The minutes from a meeting of the North Carolina medical board in 1889 captured one of its “rules” pertaining to exam administration. These included a signed written oath by the applicant that he had “neither given nor received” exam information; and that he had not “used any unfair means” to pass the exam. In the aftermath of the Dyment case, California board secretary, Dr. Charles Pinkham, wrote extensively on “safeguards” to the medical examination and licensing systems.

As for Dyment?  In 1920, the California and Georgia medical boards revoked the licenses issued to him. End of story, right? Not quite.

I’ll share the rest of the Dyment story next time. I think I’ll call title it: “Episode 2: The Imposter Strikes Back.”

The opinions expressed are those of the author and not the FSMB. 

Sources:

“Secured Licenses by Fraud,” Federation Bulletin 5, no. 10 (October 1919): 223-29

Charles Pinkham, “Safeguards Against Impositions in State Board Examinations,” Federation Bulletin 7, no. 8 (August 1921): 178-81.

Medical Colleges of the United States and of Foreign Countries (Chicago: American Medical Association, 1918)

 

 

State medical boards and prescribing violations in 1934

A few weeks ago, I came across the fold out chart pictured below in a May 1934 issue of the Federation Bulletin. The data sheet accompanied a paper presented by Harry Anslinger*, the U.S. Commissioner of Narcotics, at the February 1934 annual meeting of the Federation of State Medical Boards (FSMB). The Bulletin also published a transcription of the subsequent Q&A between presenter and audience.

graph Rx chart

The commissioner’s responsibilities, established in 1930 as U.S Treasury Department’s Federal Bureau of Narcotics, included determining the quantity of crude opium and coca leaves allowable into the United States for medical and scientific purposes. Dispensing or prescribing derivatives of these materials fell under the Harrison Narcotics Act (1914), legislation ostensibly enacted as a tax/revenue measure though its underlying purpose and subsequent enforcement ultimately regulated and limited access to narcotic drugs such as opium.

The legislation required authorized practitioners (e.g., physicians, dentists) to register with, and pay a small tax to, the federal government (Treasury Dept.) to legally prescribe narcotic drugs. In due course, the legislation helped to effectively criminalize drug addiction rather than handling it as a disease or medical condition requiring treatment.

As interpreted by law enforcement, the Harrison Act also allowed for prosecution of physicians who prescribed to addicts. Authorities pointed to the language in the law describing allowable prescribing as something done “in the course of his professional practice only.” Drug addicts were not patient according to law enforcement. Thus, prescribing to them became illegal. Initially, the US Supreme Court supported this approach with two decisions (Webb v. US, 1919 and US v. Behrman, 1922) that upheld prosecutions against physicians prescribing narcotics to comfort addicts in withdrawal or as part of “cure” programs.

Federal prosecution of physicians under the Harrison Act was later struck down by the U.S. Supreme Court (Linder v. United States, 1925) as the court cited the regulation of the practice of medicine as a state prerogative. Thus, it fell to the individual states to regulate, and if necessary prosecute, illegal prescribing as a violation under their state’s medical practice act.

So how do state medical board figures into all this? Let’s go back to the pictured chart. The data—while confusing with its densely packed columns and small font headings—reflected cases brought by Anslinger’s office against 705 physicians between October 1, 1930 and December 31, 1932.  The commissioner’s office had been working with state boards so that they could take appropriate action involving their licensees.

The commissioner lauded the cooperation his agency had received from multiple state medical boards and, in particular, Dr. Charles Pinkham (Executive Secretary for the California Medical Board).

pinkham

Yet at the time of his presentation to the FSMB in 1934, 488 cases (nearly 70%) were still pending any formal action by a state medical board. While the wheels of justice understandably turn slow, Anslingre’s presentation sounded a note of concern that they may have ground to a halt entirely in many of these cases.

Explanations for the backlog and what initially appeared to be state board inactivity came out in the Q&A. Much of the problem arose from state law—usually a critical absence of clear authority allowing the board to act. For instance, the medical practice act in several states did not have narcotic violations as a basis for a license revocation. In nearly two dozen states, license revocation was tied to violations of state law—not federal law such as the Harrison Act.

In other instances, license revocation was the only sanction open to the board. For example, in Minnesota, the board’s only option for a physician’s violation of a narcotics law or in cases of drug addiction was to revoke the license. The board did not have the option to temporarily suspend a license for a physician seeking to rehabilitate. Similarly, the board had no authority to reinstate a medical license once it had been revoked. Noting this reality, a Minnesota board member admitted, “We hesitate to revoke.”

Americans have a tendency to wax nostalgic about the past—to view a time period like this one eighty years ago as somehow “simpler” than our world today. I shared this piece from 1934 to underscore the complexity of medical regulation even then. Regulators faced a challenging interplay of state and federal actors and competing philosophies in addressing substance abuse. They labored under imperfectly drawn state laws that sometimes handcuffed them in trying to address (in a fair and reasonable manner) cases involving their licensees.

Certainly, they weren’t perfect. A backlog of 488 cases is tough to explain without acknowledging that other factors were probably at work too—resource limitations; protection of fellow physicians, etc. I’ll dedicate space in this blog soon to talk about medial boards’ disciplinary function.

[* If the name Harry Anslinger seems vaguely familiar to you, it is likely because of recent stories concerning the U.S. Dept. of Justice’s pushback against state laws legalizing recreational use of marijuana. Authors studying the criminalization of marijuana in the US point to Anslinger’s controversial efforts and ‘racialization’ of the issue beginning around 1936-37]

The opinions expressed here reflect the views of the author and do not represent those of the FSMB.

Sources

H.J. Anslinger, “Traffic in Narcotic Drugs,” Federation Bulletin (May 1934): 136-147.