opinion

Serving as legal champion for the medical profession

A message to all physicians from AMA Board of Trustees Chair Steven J. Stack, MD, on the Association's support for physicians in courts of law.

By Steven J. Stack, MD , an emergency medicine physician in Lexington, Ky., was chair of the AMA Board of Trustees during 2012-13. Posted March 18, 2013.

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In February, the United States Supreme Court ruled on the first of seven cases currently before it with important implications for physicians. The American Medical Association is engaged in every one of these cases. And, by the way, the AMA is also engaged in 15 other cases in various state supreme courts. The AMA brings real muscle in support of physicians at the courthouse.

While AMA involvement with this many high-profile cases simultaneously is exceptional, the AMA's commitment to fighting for the rights of physicians and their patients is business as usual.

For nearly two decades, the AMA, both independently and in partnership with state medical societies, has weighed in on important cases affecting physicians, patients and the practice of medicine. For every one of us, all the physicians of this country, this is a very good thing.

At first, it may not be obvious to a Kentucky emergency physician like me, but seemingly remote court cases that address medical liability in Colorado and New Hampshire, or medical staff autonomy in Minnesota, can establish legal precedents that directly affect my future work and career.

To ensure that physicians and our medical profession are protected, the AMA and state medical societies joined forces in 1995 to establish the Litigation Center of the American Medical Association and the State Medical Societies. The Litigation Center provides physicians — and ultimately the entire medical profession — with legal advocacy and expertise. Among the 250 or so cases it has taken on over the past 18 years, many have set important legal precedents. Others have had broad, practical implications for patients or the medical profession. And some have simply been the right thing to do.

Typically, the Litigation Center becomes involved in three types of cases.

  • The first is a “David-and-Goliath” situation, in which a case of interest and importance to physicians involves a physician or group of physicians up against opposition with much deeper pockets — think hospitals, insurance companies or even the government. In these cases, the Litigation Center has given physicians a powerful advocate they could never otherwise afford and when they needed it most.
  • A second type of case involves supporting state and specialty societies addressing various issues of concern such as insurance industry practices, government funding or regulation, or scope of practice.
  • The third type of case is a lawsuit, generally at the appellate level, in which an important legal precedent could be established. In such cases, the Litigation Center often files an amicus or “friend of the court” brief, providing organized medicine's perspective on important issues tangential to the case.

For the Litigation Center to engage in a case, it must address issues consistent with AMA policies and those of the participating medical societies. Support may include the Litigation Center becoming a party in a lawsuit, filing an amicus brief or providing financial grants or in-kind services to support the case.

To ensure that its focus remains broad and inclusive of physicians' interests nationally, the Litigation Center's executive committee is composed of members representing state medical societies from across the country, nonvoting members from the AMA Board of Trustees and an attorney appointed by the AMA Office of General Counsel. Current leadership includes representatives from medical societies in Colorado, Kentucky, Maryland, Missouri, New Jersey, Oregon, Rhode Island and Virginia. Representing the AMA board are Stephen Permut, an MD-JD from Delaware, and Georgia Tuttle, MD, from New Hampshire.

Suffice it to say, the Litigation Center and its leadership stay immensely busy these days, as unprecedented changes in health care challenge our medical profession daily.

The six pending cases before the U.S. Supreme Court address a broad range of issues, from the patentability of human genes, to “pay for delay” — a situation where pharmaceutical companies protect off-patent drugs by paying generic manufacturers not to produce them — to the issue of racial diversity as a college admissions criterion (which has implications for medical schools), to antitrust and medical liability issues, to more broad-based matters like challenges to the Defense of Marriage Act.

In the Supreme Court case decided in February, Federal Trade Commission v. Phoebe Putney Health System Inc., the court addressed whether the “state action” doctrine, which immunizes actions of state bodies from challenge under the federal antitrust laws, would protect the decision of a state-created hospital authority in Georgia to approve a hospital merger. While it's not immediately obvious why this case could be of concern to the medical profession, the state action doctrine is an important premise underlying the independence of decisions of state medical licensing boards. The AMA was quick to realize that an unnecessarily restrictive interpretation of the state action doctrine in the Phoebe Putney case could have serious implications for state medical licensing boards. The AMA's amicus brief urged the Supreme Court not to intrude inappropriately on the long-established role of state licensing boards to protect their citizenry from the unqualified practice of medicine.

While I recognize that many of these cases go unnoticed in the physician community, their importance should not be lost. These seemingly small battles must be fought diligently on behalf of physicians and patients, or we will find ourselves on the downside of the proverbial “slippery slope” — losing ground on important issues affecting medical practice and patient care. These legal efforts are a critical part of the AMA's strategic focus on enhancing physician satisfaction with their practice environments.

With all we do as physicians just to take care of our patients, it's reassuring to know that legal experts from the Litigation Center of the AMA and the State Medical Societies are protecting our interests in the courtroom. The sheer number of medically related cases before the U.S. Supreme Court and others across the country speaks volumes for the value of strong legal advocacy for physicians and our medical profession. Case closed.

Steven J. Stack, MD , an emergency medicine physician in Lexington, Ky., was chair of the AMA Board of Trustees during 2012-13.

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