Opinion | There’s More to Medical Practice Than Meets the Eye

The definition of “medical practice” is imprecise. Court cases have continually changed the meaning. The following is an example of a typically vague and outdated state statute defining the term: “‘Practice of medicine’ or ‘medical practice’ means all activities authorized by a physician’s and surgeon’s certificate…”

Other definitions of medical practice, or what constitutes a medical practice, have been equally archaic. Physicians in Rhode Island concluded: “We need more information about medical practices in the state — much more information — and we need to begin by defining what we mean by ‘a medical practice.’ In fact, we may need more than one definition, as the answer to the question ‘what is a medical practice?’ varies according to why the question is asked, and for what the answer will be used.”

The ambiguity in defining medical practice has led to a broadening of its interpretation over time and has opened new avenues of litigation against physicians who believed they were rendering administrative services, while courts instead found them involved in the treatment of patients, if only peripherally. Three areas of “medical practice” have recently come under scrutiny. They include:

Utilization Review (UR): UR physicians render opinions about whether actual or proposed treatment and services are medically necessary. They work for insurance companies and third-party administrators, and they rarely have direct contact with patients, conferring instead with treating physicians. Nevertheless, their decisions are highly influential and often obstruct treatment or cause harm to patients.

The AMA’s Prior Authorization and Utilization Management Reform Principles are 21 standards that address clinical validity, continuity of care, transparency and fairness, timely access and administrative efficiency, and alternatives and exemptions to UR. However, the document is silent about the role of UR physicians and the context in which UR decisions are made.

One must turn to individually litigated cases to determine whether UR activities constitute the practice of medicine. These cases are usually brought before the court by plaintiffs (patients or their families) injured by UR denials. The outcomes of such cases do not provide a consensus or consistent pattern of reasoning among the courts as to whether UR calibrates with medical practice.

Increasingly, however, physicians are put on the hot spot for their UR decisions, not only by plaintiff’s attorneys, but also by state medical boards responsible for regulating the practice of medicine. Medical boards tend to view UR as an activity under their purview. Physicians should beware recruiters who attempt to lure them into UR jobs by advertising that UR companies are strictly involved in medical review and do not practice medicine because they do not provide medical care or form doctor-patient relationships. The argument just does not hold water.

Expert Witness: Similar to UR physicians, doctors who submit expert opinions in writing or provide expert witness testimony at depositions or in court may influence medical outcomes in the absence of a formal doctor-patient relationship. Although expert witnesses are typically utilized in malpractice cases, some testify in areas indirectly related to patient care — for example, physician peer review, worker’s compensation, and product liability.

According to the AMA, whenever physicians serve as expert witnesses, they must accurately represent their qualifications, testify honestly, avoid personal and financial conflicts of interest, ensure their testimony is evidence-based, and testify only in areas in which they have been trained. Physicians should also have recent, substantive clinical experience and knowledge and not be “hired guns.” The operative word is “recent.”

The most effective (and credible) expert witnesses still see patients, at least part-time, and thus there is little debate whether providing testimony is an extension of their practice. Medical licensing boards may discipline physicians for providing false or misleading testimony or claims that are patently false — for example, spreading coronavirus-related misinformation.

Collaborating Physician: Entering into collaborative agreements with advanced practice providers (APPs), such as nurse practitioners and physician assistants, has become common as APPs have proliferated over the past 2 decades. APPs are often required to have formal agreements with supervising physicians. The failure of physicians to properly supervise APPs may be viewed as a breach of duty and serve as the basis for a negligence lawsuit in the event a patient suffers an adverse incident during treatment with an APP.

Physician supervision is more than a paperwork requirement. The duties of collaborating physicians are separate yet integral to medical practice insofar as collaborating physicians are consultants to APPs. Written agreements stipulate that collaborating physicians may be responsible for evaluating the performance of APPs, reviewing their medical records, cosigning their charts, and providing clinical oversight. Florida law clearly states that supervising physicians are responsible and liable for the performance and the acts and omissions of APPs.

Defining the practice of medicine can be elusive. The field is dynamic and continues to evolve. The evidence suggests that conducting utilization review, providing expert witness testimony, and collaborating with APPs falls within the realm of practicing medicine. All activities are subject to regulation by state licensing boards and are fodder for the legal system.

Because the scope of medical practice is viewed through a wide lens, many jobs previously considered non-clinical or non-traditional now require medical licenses. The North Carolina Medical Board warned that “patient harm can occur when physicians practicing outside areas in which they were trained are unable to meet accepted and prevailing standards of care in the new practice area.”

It seems incredulous that a 1901 editorial in JAMA portended today’s expanded interpretations of medical practice. A bill was before the New York legislature to amend the medical practice law by adding: “Any person shall be regarded as practicing medicine…who shall prescribe, direct, recommend, or advise, for the use of any person, any remedy or agent…for the treatment, relief or cure of any wound, fracture or bodily injury, infirmity, physical or mental, or other defect or disease.”

The operative word is “advise” — and perhaps “recommend” and “direct,” as well.

Arthur Lazarus, MD, MBA, is a member of the Physician Leadership Journal editorial board and an adjunct professor of psychiatry at the Lewis Katz School of Medicine at Temple University in Philadelphia.