Supreme Court Ruling Accords with Modern Healthcare Realities

Supreme Court Ruling Accords with Modern Healthcare Realities

Who should be allowed to perform medical procedures?

The Supreme Court’s ruling in NC Board of Dental Examiners v. FTC that state licensing boards could go too far in prohibiting quasi-medical professionals from offering teeth whitening services was based on Sherman anti-trust laws.  I am sure that many of my fellow medical practitioners disagree with the ruling based on the need to protect the safety of the public. A few of my more conservative colleagues may also feel that medical treatments—even those that may border on the innocuous—should remain in the purview of licensed medical professionals.  While I understand these concerns, I believe that the Supreme Court made the correct ruling because it recognized that non-medical professionals may be more than capable of innovating important services which pose insignificant public health risks and are economically viable. This is best stated by Ken Friedman writing for Forbes, “The Court’s ruling recognizes that letting professionals enforce their own monopolies creates a “real danger” that they will act to further their “own interests,” rather than the public interest. These practices increase prices to the detriment of consumers while decreasing consumer choice.”

Physicians have long been the central actors in delivering medical treatment.  Eventually, nurses were added to assist physicians, and, in modern times, this has been augmented by physician’s assistants, pharmacists and other support professionals.  Almost all of these professions eventually introduced codified licensing requirements that stipulated what proficiencies and knowledge were essential to practice. Despite the resistance of the medical establishment at various times, few today would argue that these professions should be eliminated.

I view the NC Board of Dental Examiners v. FTC as a similar step in healthcare evolution.  Although the primary impetus of the decision in this case was based on unfair trade practices of a governmental agency, the court’s reasoning may be applied to the use of healthcare surrogates like PA’s, CRNA’s and non-medical professionals which can provide important services more competitively. If these groups offer desirable services that are equivalent or superior to those of licensed professionals and can price them competitively, then there should be room for them in the industry.

Although the medical establishment is likely to vociferously argue that healthcare is not the right arena for competitive practices which might undercut public safety, there are numerous studies which indicate that competition benefits the healthcare industry and society. A recent study by Stanford University found that less competition drives prices up and consolidation of practices inhibits cost effectiveness. With healthcare spending in the U.S. equivalent to 17.6% of GDP, new solutions to drive down healthcare costs are a national imperative, and many of these new ideas may come from non-medical groups.

Finally, there is the importance of distribution of responsibilities.  In the case of NC Board of Dental Examiners v. FTC the disruptors of the status quo were non-medical professionals offering teeth whitening services.  A strong argument can be made these services can be shunted to professionals without dental training, allowing dentists to devote their time to truly important services only they can provide. An article by Penelope Dash, M.D. in the Harvard Business Review stated, “For highly specialized services, competition should be limited or used only very judiciously to ensure quality and avoid over-delivery. In contrast, greater competition could be an effective mechanism for improving the quality and efficiency of less specialized services, particularly care delivered outside the hospital.”

The most compelling argument for encouraging entry of non-medical professionals into traditional medical roles is that this increased competition can help drive costs down for patients while concurrently strengthening the quality of care.  For far too long, healthcare has been isolated from market forces which could stimulate greater efficiency and stymy rising costs.  A pioneering study by Daniel Kessler and Mark McClellan for the National Bureau of Economic Research found that hospital competition not only increased the welfare of patients but also helped drive down costs. Although this study focused on organizational competition, the same principles of increased competition can be applied to other medical services.


Article written by:

CEO, Onyx M.D.


Disclaimer: Any personal views expressed in this article do not necessarily represent and are not intended to represent the views of the company or its employees.


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