On Monday, the Utah Supreme Court struck down as unconstitutional an attempt to limit malpractice suits by the state’s medical board. Given this naked defense of doctors’ interests at the expense of patients’ rights, we should view skeptically claims from medical boards and other defenders of licensed professions that their raison d’être is consumer protection–at least when the interests of the practitioners they represent are in conflict with those of the public.
While Utah’s system was particularly broken, the basic motivation behind the policy that was struck down makes some sense. Malpractice lawsuits are expensive for the participants and complicated for the judges. Therefore, before setting foot in the courtroom, around twenty-nine states require some sort of pre-litigation mediation or review to weed out frivolous cases, reach potential compromises, and establish basic medical facts related to a given case. In many states, medical boards are not involved in this process, and things work reasonably well.
However, in Utah, the medical board expanded this process into a parallel judicial system heavily biased in favor of licensed practitioners. To sue for malpractice, plaintiffs must appear before the Division of Occupational and Professional Licensing (DOPL) to go through a preliminary hearing. In 2010, the state legislature gave the DOPL authority to reject cases, preventing further legal proceedings. One of those rejections hit Yolanda Vega, who was seeking justice for the sudden death of her 44-year-old husband after minor surgery. After significant legal wrangling, she finally arrived at the Utah Supreme Court, which ruled unanimously in her favor.
Judge Deno Himonas objected to the “total disposition of a case…outside of the courts, without any standard judicial process or the consent of the parties.” While the 2010 law was struck down for violation of due process rights, there are profound policy objections to this entire quasi-judicial system. A medical board of doctors, by doctors, and for doctors is not an impartial body fit to review malpractice cases. Lawyers familiar with Utah’s system say that the medical board “nearly always” finds claims non-meritorious on the first petition. These findings are unsurprising given licensing boards’ systemic failure to discipline doctors on matters as basic as sexual misconduct.
People are well aware that public-sector unions can bias government policy against cutting administrative bloat or abating law enforcement abuses (those on the left point to police unions, and those on the right will point to virtually any other public sector union). However, many do not realize the comparable danger in delegating tremendous powers to professional licensing boards. As this Utah case demonstrates, these boards (read: guilds) far too often serve the interests of the practitioners they are supposed to regulate rather than those of patients.
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