Legal Principles Supporting PMA and Private Association Activities 

 

  • The State, in its sovereign capacity, is vested with police power which includes the power to conserve and protect the public health.

  • The exercise of the police power is available only for the purpose of promoting or protecting the general welfare; the interest of the public as distinguished from those of the individuals or persons.

  • Protecting the public is the prime reason for requiring the licensing of a health care provider.

  • A license granted by the State to engage in a profession has none of the elements associated with a contract.  A license is not a contract and it does not confer on the licensee an absolute right to practice the profession without limitations.  The licensee has no vested property right in his license.

  • The license to practice a profession is a property right of the licensee in the sense that it deserves appropriate protection of the law.

  • Due process is necessarily a flexible term, and its application depends upon the demands of the particular situation.

  • Hearsay evidence can be used against a practitioner in disciplinary hearings.

  • Courts reject any presumption of impermissible bias simply because the same administrative body performed the investigative, prosecutorial, and adjudicative phases of a contested license revocation proceeding.

  • A health practitioner’s license may be revoked upon a showing that he has been providing treatment that is different from the accepted ordinary custom and practice for his discipline.  Public policy favors prompt discipline of one who has engaged in impermissible acts.

  • The licensing board is free to consider the bias of witnesses and to evaluate the credibility and weight to be afforded the testimony of each witness and can utilize its experience and technical knowledge in evaluating the evidence

  • Judicial review of administrative process is intended to assure that evidence on which an administrative agency or board acted was probative and reliable and that the action taken was fundamentally fair.

  • The reviewing court only determines whether: 1. The tribunal acted fraudulently, arbitrarily or capriciously.  2. The administrative order is substantially supported by evidence.  3.  The tribunal’s action was within the scope of its legal authority.

  • A reviewing court will not substitute its judgment for that of the hearing board when the record reasonably supports the board’s conclusion.  Findings made by the agency or board based on competent evidence are conclusive on review by another court.  there is no right to a trial de novo.

  • The 1st and 14th Amendments to the U.S. Constitution gives the individual the right to free speech, free expression, free press and free assembly against state police power except for special circumstances.  Freedom of assembly is the same as Freedom of Association.

  • Freedom to engage in association embraces freedom of speech and expression.  Freedom in speech and press are coupled in a single guaranty with rights to assemble (association).  All these, though not identical, are inseparate.

  • Freedom of Association applies to members advocating unpopular, controversial, dissident and/or unorthodox public and private views.

  • Freedom of Association does not have to be involved with political expression.

  • First Amendment is not confined to any field of human interest.  The practice of medicine is included as a field of human interest.

  • First Amendment is wholly applicable to for profit business or economic activities.

  • Freedom of association also includes the right to privacy which is inviolate.  Members cannot be forced to disclose information relating to his association views and meetings.

  • Patient’s records are not protected from the State under any law.  However, membership lists are protected from the State under freedom of association.

  • Free trade in ideas’ means free trade in the opportunity to persuade to action within the membership association.

  • Activity that would be illegal for non-licensed individuals dealing with public can be legal within the auspices of a membership association.

  • A member layman can refer another layman member to a particular member health practitioner with constitutional protection.

  • A member layman can advise and give assistance to another member layman with constitutional protection.

  • The State may seek injunctive relief or criminal prosecution to prohibit non-licensed persons from performing licensed services outside a Membership Health Association.

  • Any attempt by the police power of the state to enjoin association activities must be justified by a clear and present danger involving substantive evil.

  • The State cannot foreclose the exercise of constitutional rights by mere labels.

  • No State can pass any law impairing the obligation of a contract.

  • The member and the Membership Health Association have the “right to contract” under the due process “liberty” clause of the 5th and 14th Amendments of U.S. Constitution.  A licensed health practitioner cannot contract with a patient

  • A Membership Health Association would not be:  1. A disturbance or breach of the peace.  2. A fraudulent solicitation.  3. A criminal activity.  4. An overthrow of the U.S. government.

  • The legitimate purposes of the Membership Health Association are to:  1. Further the frontiers and cutting edge of medicine.  2. Benefit the public from new discoveries and breakthroughs.  3. To be privately funded – no expense to public taxpayer.

  • A Membership Health Association can assert personal legal rights and protections on behalf of its members and on its own behalf.

  • Health services to the public are governed by license agreement between practitioner and State. vs. Benefits to members are governed by contract between members and Membership Health Association.

  • Public licensed practitioner dealing with public patient’s with no 1st Amendment rights. vs. Private Membership Health Association dealing with private members with 1st Amendment rights.

  • A licensed practitioner can perform services for the public and be a participant as a member within the Membership Health Association.

  • The State may not withhold a benefit or privilege (license) on condition that recipient agrees to give up some measure or facet of his constitutionally protected freedom of association.

  • State statutes must be strictly construed.  Where the statute lists specific causes to suspend or revoke a license, the statute automatically excludes all other specific causes for suspension or revocation.

  • The choice is between:  Inquisitional Due Process or Constitutional Due Process.

  • An attempt to harass or discipline a licensed health practitioner for his association activities could immediately be countered with a civil suit to enjoin the board from taking action against the practitioner.

© 2023 by Lawyer & Lawyer.

FOLLOW US:

  • w-facebook
  • Twitter Clean