Simpson on Licensing

 Posted by on 22 May 2009 at 12:01 am  Government, Health Care
May 222009

During an earlier NoodleFood discussion on whether physicians should be forced to work during pandemics as a condition of retaining their medical license, the discussion turned towards the appropriateness of medical licensing in general.

Steve Simpson of the Institute of Justice had the following excellent comments to make in response to some questions. With his permission, I’m reposting his remarks here.

With respect to the question that doctors know up front that they agree to certain terms before they accept a license, hence they’ve voluntarily contracted to any associated obligations:

First, doctors do not consent to medical licensing in the sense in which that consent could legitimately be said to impose further obligations on them, the way one consents to the obligations in a contract.

Doctors do not get to decide to practice with a license or without a license. They are compelled to practice with a license whether they want to or not. So it is wrong to claim that they somehow consent to whatever obligations come with licensing. The state offers them the “choice” of practicing with a license or not practicing at all. That is not a choice the state has to authority to impose upon doctors, any more than it has the moral authority to offer citizens the “choice” of being enslaved citizens or not being citizens at all. I could say much more about this, but I’ll leave it at that.

With respect to the concern that private medical licensing groups would have a conflict of interest between setting high standards vs. retaining their members (and hence government would be better at protecting the public from shady practitioners):

Second, your view that private medical licensing would constitute an inherent conflict of interest because it would be doctors essentially engaging in self-regulation is wrong on many fronts. The fallacy at the root of your view is that individuals are capable of objectively governing the lives of others but not capable of governing their own lives because of their own self interest in the latter situation but not the former. There is much to say to this, and reading Atlas Shrugged would be a good place to start in learning why that view is the exact opposite of the truth, but let me say just a couple things.

You say that there is no guarantee that private medical boards will set high standards or improve them as necessary. But there is, and it’s the best guarantee that has ever existed–rational self interest. Doctors are neither insane, nor irrational (indeed, if they were, I submit they would not be doctors now would they). Nor are their patients. Doctors have no desire to harm or injure their patients, for, among other reasons, if they do they will not remain doctors for very long, they will have no patients, they will get sued, etc.

Moreover, there is no guarantee that state regulatory boards will set high standards either. Indeed, state regulatory boards have no incentive whatsoever to keep current with the latest developments in medicine and to ensure that their standards are high. What is the cost to them if they do not do so? They are committees, and thus each individual can always shuffle off the responsiblity for their failures to someone else, and even if they are found to have failed to set high enough standards, they suffer no consequences whatsoever. Their income and careers are not on the line, they will never be fined or sanctioned for their failures, and rarely, if ever, are any regulatory boards ever held accountable for their failures.

But there’s another mistake in your thinking about this that many people make, which is to consider any regulatory boards to be separate from the professions they regulate. This is flawed as a matter of both history and common sense. Historically, occupational licensing has typically been championed by the very professionals who are to be licensed. They do this both to “professionalize” their industries–because it is much better to be “state licensed” than simply to be qualified–and to make it much harder for others to compete with them.

As a result, all occupational licensing agencies or boards that exist today are composed of the very professionals that they regulate. This makes perfectly good sense when you consider that no one else is qualified to regulate them. Who is going to decide what the proper standards for doctors are but doctors? Likewise lawyers, plumbers, carpenters, engineers, architects, stenographers, morticians and funeral directors, barbers and cosmetologists, florists, etc. Do you know what standards even a licensed florist or interior decorator must meet to be qualified? I don’t. So who, but other florists and interior designers are going to regulate the florists and interior designers?

The term for what I am talking about is “regulatory capture,” which simply means that the idea that regulatory boards and agencies of any type are somehow “separate” from the industries they regulate and thus “objective” is utter, unbridled nonsense. It is a pipe dream. It is the sort of thing that we all believed in fourth grade when we thought that committees should run the whole wide world because that would be “fair.” My point is not simply that regulatory capture is likely to happen.

My point is that occupational and industrial or economic regulation is virtually impossible without regulatory capture, and, indeed, the regulators actively want the participation of the industries they regulate because otherwise they would not know what the hell they were doing. So your view that regulatory boards are somehow more “objective” and less “conflicted” than private boards is just not true factually and by the very logic of what such regulation aims to do.

And with respect to occupational licensing in general:

I could go on about occupational licensing all day. At IJ, we’ve done quite a lot of work on the subject, so if anyone is interested in more concrete examples of how licensing evolves in a given profession, check out our website, particularly the economic liberty cases and some of our research publications ( Or just shoot me an email (or ask a question here) and I’ll do my best to answer it or direct you to more information.

The idea that licensed workers voluntarily consent to the obligations imposed on them by states is really unjust in more ways than I mentioned. As a lawyer, I see this all the time.

The states in which I’m licensed are constantly imposing new requirements, like mandatory pro bono, additional “continuing legal education” and the like to which I never consented and that are burdensome, costly, almost always a complete waste of time, and useless from the standpoint of improving my qualifications. In fact, what does motivate me to do a good job is precisely the opposite of all of these (and more) unchosen obligations.

I am motivated by the chosen obligations I freely decided to accept when I became a lawyer. My own desire to produce excellent work, to give my client the best work I can, to win my cases or at least to outlitigate the other side at every step, and to constantly produce a better brief or better argument or better analysis than I did the last time out.

But even if those things didn’t motivate me, I and every other regulated professional would be motivated by the desire not to be embarrassed or to develop a bad reputation (and I have both colleagues, clients, and judges to worry about) or the other things I mentioned in my last post. In fact, I have never in my 15 year career met anyone who was ever motivated to produce good work by the states in which they were licensed. I could produce consistently incompetent and crappy work for years before any of the three states in which I’m licensed would take notice. My colleagues, my employer, my clients, and all the judges I appear before would take notice long before the state bars.

So my point is that the notion that we voluntarily assume the obligations of our state licenses is both a classic moral inversion–because it is in fact the voluntary obligations that motivate professionals and regulated occupations to produce high quality work–and it is illogical in that it contradicts the supposed purpose of licensing, which is to impose obligations on regulated occupations that they did not choose, because, allegedly, they can’t voluntarily regulate themselves. See the contradiction? On the one hand, the obligations of licensing are “voluntary.” On the other, licensed occupations can’t be self-regulated because “voluntary” regulation would not work. Heads they win, tails we lose.

Thank you, Steve, for this great impromptu analysis!

Here’s the full discussion thread, which includes links to additional articles on licensing by Alex Epstein (“End Government Licensing“) and Shirley Svorny (“Medical Licensing: An Obstacle to Affordable, Quality Care“).

(Crossposted from FIRM blog.)

Say What?

 Posted by on 20 May 2009 at 11:01 pm  Health Care
May 202009

Breaking news from the American Medical Association on dealing with the swine flu:

In the event that quarantine and isolation measures are needed, physicians should ensure that the least restrictive measures are employed in a manner that does not discriminate against particular socioeconomic, racial or ethnic groups.

OK, let me try to unpack this.

A physician makes a determination that a patient sick with swine flu (or any other communicable disease) is so dangerous that isolation and quarantine is warranted. The factors which the physician took into account in reaching this determination are scientific: how easily the disease spreads, what stage of illness the patient is in, and so on. The socioeconomic, racial or ethnic status of the patient is immaterial to this determination. The only question is: does the patient’s condition pose a danger to the public?

If the patient is a danger to the public, does he or she become any more or less of a danger depending on his or her socioeconomic, racial or ethnic status? Are rich white people more dangerous when sick with the swine flu than poor black people? If there is no difference in communicability of a disease based on socioeconomic, racial or ethnic status, what possible rationale is there for basing decisions to isolate or quarantine based on socioeconomic, racial or ethnic status?

Clearly, there is none. So the only point of the AMA’s exhortation is to remind physicians: your decision to quarantine a rich white guy will not be subject to second-guessing, but you must be prepared to defend as medically necessary your decision to isolate or quarantine any poor, non-WASP.

If doctors’ decisions to quarantine poor non-whites are vulnerable to attack as discriminatory, don’t you think it’s likely that some doctors will tend to quarantine fewer dangerous patients simply to avoid the charge that they’re prejudiced?

It looks like the AMA is saying: it’s OK to endanger the public if your reason is to avoid hurting the feelings of some hypersensitive tribalists. To which I say — say what? has just published my latest health care OpEd, “Health Care Reform vs. Universal Health Care”.

Here is the opening:

Health Care Reform vs. Universal Health Care

President Obama and Congress have now shifted their attention towards health care reform. This subject is critically important to anyone who might need medical care someday — namely, all Americans. Unfortunately, too many pundits and politicians erroneously equate “health care reform” with government-run “universal health care.” Before we rush headlong into any such program, here are three basic facts that Americans should know about universal health care…

The three basic facts I discuss include:

1) Government-run “universal health care” leads to rationing
2) Health care is not a “right”
3) Free-market health care reform can and does work

Read the whole thing here.

May 042009

Professor Carl Coleman of Seton Hall Law School has written an interesting paper entitled, “Beyond the Call of Duty: Compelling Health Care Professionals to Work During an Influenza Pandemic”.

I haven’t read the whole thing yet, but I’m in substantial agreement with the abstract:

In anticipation of pandemics and other mass disasters, several states have enacted little-known laws that authorize government officials to order health care professionals to work during declared public health emergencies, even when doing so would pose life-threatening risks. Health care professionals who violate these orders could face substantial penalties, ranging from license revocations to fines and imprisonment. The penalties would apply even to individuals whose jobs do not normally involve clinical responsibilities, as well as to health care professionals who are retired or taking time off from work to care for their families. This Article argues that these laws impose burdens that exceed the ethical commitments individuals make when they accept a professional license. In so doing, they compel health care professionals to engage in what is normally considered supererogatory behavior — i.e., acts that are commendable if done voluntarily, but that go beyond what is expected.

In making this argument, the Article rejects commonly-made assertions about health care professionals’ ethical obligations, including the claim that health care professionals assumed the risk of infection; that a social contract requires health care professionals to work despite potential health risks; and that individuals who have urgently-needed skills have an obligation to use them. It concludes that, while health care professionals can legitimately be sanctioned for violating voluntarily-assumed employment or contractual agreements, they should not be compelled to assume life-threatening risks based solely on their status as licensed professionals. In place of singling out health care professionals for punitive measures, the Article argues that policy-makers should institute mechanisms to promote volunteerism.

(The full paper can be downloaded here.)

A few comments:

1) I’m encouraged that there’s a recognition that there is no such thing as a duty to engage in suicidal self-sacrifice.

2) This shows what happens when the government is granted the power to license practitioners in any field, whether it be medicine, nursing, cosmetology, etc. The government can then claim, “We’ve granted you this privilege, now you have to pay for it by performing additional duty on our terms rather than your own”.

3) This is yet another reason to oppose government-mandated medical licensing, in addition to the arguments made by Alex Epstein (“End Government Licensing“) and Shirley Svorny (“Medical Licensing: An Obstacle to Affordable, Quality Care“).

(Via Marginal Revolution.)

Apr 292009

In anticipation of the nationwide April 15 Tea Parties, FIRM (Freedom and Individual Rights in Medicine) offered free copies of Dr. Leonard Peikoff’s “Health Care is Not a Right” brochures to Objectivists to distribute at their local Tea Parties. Based on feedback from around the country, these were popular items.

I’ve since received multiple requests for more brochures, but unfortunately I’ve given them all away.

However, Tod (the original designer of the brochure) has created a nicely-formatted PDF version of Dr. Peikoff’s essay. Now anyone can download and print out copies to give out at future Tea Parties, community events, etc.

The link to this version, as well as to other OpEds and essays can be found at the main FIRM webpage.

BTW, Tod is also the creator of the Objectivist greeting cards, including the popular alternative Dec 25 “Newton Cards“.

Thanks again to everyone who helped spread Dr. Peikoff’s essay last week!

Head Trauma CT Scan

 Posted by on 29 April 2009 at 12:27 pm  Health Care
Apr 292009

While working a recent evening shift, the following dramatic case came through the ER. The patient was a 61 year old man in a bad car accident who arrived in the ER unconscious with obvious head trauma.

Here are two sample images from the CT scan of his head.

The arrows on the first image point to extensive internal bleeding and air within the skull, with gross distortion of the normally symmetric brain structures:

A second image shows more detail of the depressed skull fractures. (This is the same location as the first image but with the brightness/contrast settings altered to show bone detail as opposed to brain and soft tissue detail):

Immediately after his CT scan, he was taken to the OR for emergency neurosurgery. The last I heard, he was still alive but his future was still very uncertain.

Just Say No Fast Tracking

 Posted by on 27 April 2009 at 11:01 pm  Health Care
Apr 272009

In response to this article on how the Democrats in Congress are seeking to “fast-track” some kind of health care “reform” — likely universal, mandatory insurance — Hannah Krening wrote the following letter to Colorado’s two senators:

Dear Senators Bennet and Udall,

I have read the recent Reuters article and want to register my vehement objection to this underhanded approach to the debate on health care. I do not want government involvement in my health care decisions. I want a free-market approach to medicine.

Creating new government tentacles to surround my physical well-being and doing so in a way that “rams” it through (Reuters words, not mine) betrays the unprecedented power-lust present in Washington these days. Your participation in this “deal” would be a gross betrayal of your constituents and the Constitution. I hope you will find the conscience and backbone to resist participation.


Hannah Krening
Larkspur, Colorado

Inspired by her good example, I wrote the following:

Dear Senators,

I am writing to express my dismay over the prospect that some kind of socialized medicine (like mandatory, universal coverage insurance) will be imposed on America by “fast-tracking” health care reform. It is grossly irresponsible for the legislature to take such drastic action without proper debate and discussion. We’ve already seen too many frantic attempts to do something quick — anything, no matter how irresponsible — over the past few months. It’s time for the legislature to slow down — preferably before you grind the economy to a halt.

You might have won an election, but you have no right to dispose of anyone else’s life, health, and wealth. For you to attempt to ram socialized medicine down our throats — without so much as offering Americans the chance to form and express their opinions on the matter — is morally wrong. It’s also a sign that your position is weak — that you cannot persuade Americans of the merits of your views by any rational appeal to facts. Indeed, you have reason to worry: socialized medicine in any form is always disaster.

I do not want any government involvement in my health care. I do not wish my life and health to be subject to the whims of government bureaucrats. I support the elimination of the whole horrid web of entitlements and controls that are strangling medicine while driving up costs. The free market has not failed: your government controls have failed. Repeal them — and restore the doctor-patient relationship to its properly private sphere.

Diana Hsieh
Sedalia, CO

I encourage you to write your senators about this issue. Even just a sentence or two is adequate, so long as you express yourself clearly. If you live outside of Colorado, you’re certainly welcome to adapt the text of my letter for your own purposes.

Alarming Flu Reports From Mexico

 Posted by on 26 April 2009 at 11:01 pm  Health, Health Care
Apr 262009

BBC News has posted a number of “in the trenches” readers’ reports on the swine flu epidemic in Mexico. Here are two disturbing excerpts from Mexican physicians:

I’m a specialist doctor in respiratory diseases and intensive care at the Mexican National Institute of Health. There is a severe emergency over the swine flu here. More and more patients are being admitted to the intensive care unit. Despite the heroic efforts of all staff (doctors, nurses, specialists, etc) patients continue to inevitably die. The truth is that anti-viral treatments and vaccines are not expected to have any effect, even at high doses. It is a great fear among the staff. The infection risk is very high among the doctors and health staff.

There is a sense of chaos in the other hospitals and we do not know what to do. Staff are starting to leave and many are opting to retire or apply for holidays. The truth is that mortality is even higher than what is being reported by the authorities, at least in the hospital where I work it. It is killing three to four patients daily, and it has been going on for more than three weeks. It is a shame and there is great fear here. Increasingly younger patients aged 20 to 30 years are dying before our helpless eyes and there is great sadness among health professionals here.

Antonio Chavez, Mexico City

…I work as a resident doctor in one of the biggest hospitals in Mexico City and sadly, the situation is far from “under control”. As a doctor, I realise that the media does not report the truth. Authorities distributed vaccines among all the medical personnel with no results, because two of my partners who worked in this hospital (interns) were killed by this new virus in less than six days even though they were vaccinated as all of us were. The official number of deaths is 20, nevertheless, the true number of victims are more than 200. I understand that we must avoid to panic, but telling the truth it might be better now to prevent and avoid more deaths.

Yeny Gregorio Dávila, Mexico City

A few natural questions:

1) How will this affect border control policy?

Mexico has arguably been teetering on the edge of being a “failed state” for a few years now. If a flu pandemic causes the central government to lose effective control over the country, will we see a flood of desperate illegal immigrants seeking to cross into the US to escape the problems in Mexico? And given that some of those people may be infected, how will the US respond?

Although I support open immigration in the sense that Craig Biddle discusses in his article “Immigration and Individual Rights” from the Spring 2008 issue of The Objective Standard, I also completely agree with him that it is a legitimate function of government to prevent people with deadly communicable diseases from entering this country. In an emergency, this may require fairly drastic steps (such as deploying the US military along the border).

Hence, border security may become a big issue in the near future.

2) If the pandemic strikes the US, will this lead to a permanent increase in government control over our lives?

Again, in a mass casualty medical emergency, I think the government can legitimately impose controls that would not normally be justified. For instance, it might restrict normal commerce, assume temporary control of hospitals and health care facilities, impose quarantines/curfews on neighborhoods and cities, etc. One can argue over whether any specific proposed measures are justified for a given emergency, but the basic principle is valid.

But we also know that once government assumes “emergency” control over a sector of the economy, it rarely gives up that control after the emergency has passed.

Hence, a flu pandemic could lead to permanent new government controls over health care and/or other major sectors of the rest of the American economy, even after the immediate crisis has passed.

3) What would be the long-term economic effects of a flu pandemic on the US?

If there is significant loss of life, the individual tragedies will be bad enough.

But I expect this would be compounded by significant disruption of normal economic activity. In the present political climate, this could deepen our current recession, thus creating more pseudo-justification for further government controls over the economy, which would further worsen the recession, etc. How far could this downward economic spiral go?

We’ll soon know the answers to these questions.

I also wish to emphasize that I am not taking an alarmist position. For instance, I think it’s a huge positive that medical technology has advanced immensely since the flu pandemic of 1918.

If you want to read some good practical advice, take a look at this page from epidemiologist Dr. Tara Smith (not the Objectivist philosophy professor) written during the bird flu scare of two years ago. In short, she recommends:

Don’t panic
Wash your hands
If you’re sick, stay home
Don’t touch your eyes/nose/mouth
Stock up on food, water, and other household necessities (i.e., standard prep for blizzard, earthquakes, or other natural disasters)

There is also recent research suggesting that Vitamin D may help strengthen your ability to fight off the flu. (The article doesn’t specifically address swine flu, but my guess is that correcting any Vitamin D deficiency wouldn’t hurt and would likely help against this new virus.)

[Note from DMH: As I've mentioned before -- here and here and here -- most Americans are deficient in vitamin D. For example, a recent study showed that 72% of men over 65 are deficient using 30 ng/ml as the cutoff. From what I've read, levels should be over 60 ng/ml. For some people, that can require thousands of IU supplementation per day.]

So don’t panic, keep informed, and stay tuned for updates!

(BBC link via Instapundit.)

Today’s X-Ray Case

 Posted by on 20 April 2009 at 11:56 am  Health Care
Apr 202009

This one isn’t really a diagnostic dilemma. Instead, I’m presenting it because of the history:

“During seizure, patient’s friend placed nail clippers in friend’s mouth because he was worried patient would bite tongue.”

I’m sure you can guess what happened next:

I think this qualifies as a “Want to Get Away?” moment… (Via K.D.)

Hsieh LTE in NY Times

 Posted by on 30 March 2009 at 11:02 am  Activism, Health Care
Mar 302009

The March 30, 2009 New York Times has printed my latest LTE on health care. It’s the 6th one down:

Re “A Health Plan for All and the Concerns It Raises”:

To the Editor:

It would be just as wrong for the government to compete with private insurers to provide health insurance as it would be for the government to compete with G.M. or Ford to build taxpayer-subsidized “public automobiles.”

The unfair competition from a public plan would destroy the private health insurance industry. The inevitable result would be the rationing and other horrors of a Canadian-style single-payer system, which most Americans neither wish nor deserve.

Paul Hsieh
Sedalia, Colo., March 25, 2009

The writer, a medical doctor, is a co-founder of Freedom and Individual Rights in Medicine.

It was written in response to their March 25, 2009 story, “A Health Plan for All and the Concerns It Raises“.

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