Beware of “Aiding and Abetting” the Unlicensed Practice of Medicine

“Aiding and abetting” are two words often associated with criminal law, as in, “The getaway car driver was charged with aiding and abetting the bank robbery.” But for physicians as well as many other professionals who are required to be licensed by the Illinois Department of Financial and Professional Regulation (IDFPR), aiding and abetting the unlicensed practice of their profession can also mean severe disciplinary action, including license revocation.

For physicians in particular, aiding and abetting the unlicensed practice of medicine can be a potentially disastrous minefield, as the permissible and seemingly innocuous delegation of certain tasks to assistants or others can inadvertently lead to IDFPR concerns.

Included among the over 40 enumerated bases for disciplinary action set forth in the Illinois Medical Practice Act (225 ILCS 60/1 et seq.) is “aiding and abetting an individual not licensed under this Act in the practice of a profession licensed under this Act.”

What Exactly is the “Practice of Medicine”?

The problem arises because the Medical Practice Act, despite its title, nowhere defines exactly what the “practice of medicine” entails. Section 22 of the Medical Practice Act directs the IDFPR to adopt rules that set forth standards to be used in determining several violations and terms under the Act. However, it does not require the Department to set forth explicit standards defining the practice of medicine.

As one court explained, the reason the legislature did not define “the practice of medicine” in the definitions section of the Act is “because a flexible definition of the practice of medicine is required in a statute intended to govern various healers from osteopaths to herb doctors. Siddiqui v. IDFPR, 718 N.E.2d 217 (4th Dist. 1999).

Not every act performed by a physician constitutes the practice of medicine. Duties such as changing bandages, administering injections, drawing blood, and taking blood pressure are often performed by nonphysicians. However, the fact that licensed professionals other than physicians may be permitted to perform certain medical procedures under the supervision of a licensed physician does not render the performance of those same procedures by unsupervised and unlicensed individuals outside the ambit of the Medical Practice Act. People v. Bickham, 621 N.E.2d 86 (1993).

Delegation of “Patient Care Tasks” to Qualified or Supervised Individuals Can Be Permitted

Similarly, Section 54.2 of the Medical Practice Act specifically allows physicians to delegate authority to certain individuals:

  • Physicians can delegate patient care tasks to a licensed practical nurse, a registered professional nurse, or other licensed person practicing within the scope of his or her individual licensing Act.
  • Physicians can also delegate such tasks to physician assistants or advanced practice nurses.
  • In an office or practice setting and within a physician-patient relationship, a physician may delegate patient care tasks or duties to an unlicensed person who possesses appropriate training and experience provided a health care professional, who is practicing within the scope of such licensed professional’s individual licensing Act, is on site to provide assistance.
  • No physician may delegate any patient care task or duty that is statutorily or by rule mandated to be performed by a physician.

Diagnosis, Treatment Plan, and Prescriptions Cannot Be Delegated

What cannot be delegated, and what do not constitute “patient care tasks,” are the diagnosis of illnesses, and the development of treatment plans, including prescribing drugs. Siddiqui v. IDFPR, 718 N.E.2d 217 (4th Dist. 1999). For example, the Pharmacy Practice Act of 1987 provides that a pharmacist may advise or counsel patients on the use of drugs or devices and provide health information related to them, however, the pharmacist’s role does not extend to deciding whether to prescribe drugs. This requires a medical judgment as to the needs of the patient, the effect of the drug, and the effectiveness of other types of treatment.

Physicians should ensure that they have developed specific protocols and procedures that define the permissible roles and actions of nurses, assistants, and others in their practice and be wary of delegating any tasks that may involve the diagnosis and the use of professional medical judgment in deciding on a course of treatment.

Louis R. Fine: Chicago Physician License Defense Attorney

Throughout my career, I have been protecting the livelihoods and professional futures of physicians and other health care providers before the IDFPR, combining insight and experience with zealous and strategic advocacy.

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will protect your Illinois physician’s license and get you back to your patients and your career.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Bad Online Reviews Can Hurt Your Business – But Responding in Kind Can Too

If you own a small business or are a professional and have customers and clients, there is a good likelihood that someone has published an online review of your company and its goods or services. From Yelp to Angie’s List to TripAdvisor to any number of websites tailored to particular interests or industries, online reviews can have a profound impact on your business.  Even one negative review can be devastating.

You can find a lot of tips and do’s and don’ts online about how to handle such negative reviews from a strategic and business perspective. On more than one occasion I have had a panicked and apoplectic client ask me whether he can sue the author of a negative review for defamation.

The answer is, of course you can sue “IHateYourBusinesss123”” or whomever made the post. But the reality is that much of what is written in even the most scathing negative review will likely not qualify as actionable defamation. Furthermore, such lawsuits themselves can open up the business owner to further scorn, ridicule, and bad publicity in the fickle social media world.

As a preliminary matter, most online review sites and other platforms (Facebook, Yahoo, Google+, etc.) where comments may appear are immune from liability for defamatory comments in reviews as a matter of federal law. Section 230 of the Communications Decency Act shields such sites from claims based on comments posted by third parties.

What is Defamation in Illinois?

In Illinois, in order to prove defamation, including a claim based on an online review, a plaintiff has to prove:

  • the defendant made a false statement about the plaintiff;
  • there was an unprivileged publication to a third party;
  • fault by the defendant amounting to at least negligence; and
  • the publication damaged the plaintiff.

There is a special category of defamation that does not require a plaintiff to prove actual damages. Defamation per se, as it is called, involves specific statements that are deemed inherently damaging. These statements include ones which assert that the plaintiff:

  • is infected with a “loathsome communicable disease” (e.g. a sexually transmitted disease, HIV, hepatitis, etc.)
  • has a lack of ability to perform their professional duties, or otherwise harms the plaintiff in their professional reputation
  • lacks integrity in their professional duties
  • has committed fornication or adultery
  • has committed a criminal act

Provable Fact v. Opinion

The most common issue that distinguishes an actionable defamation claim based on online reviews from one likely to fail is the issue of whether or not a statement was false. Only false statements of fact can be the basis of a defamation claim, not opinions. A statement of fact has to be able to be objectively proved or disproved. Consider the two following hypothetical restaurant reviews:

“That was the most disgusting and flavorless meal I have ever had in my life.”

“The waiter spit in my food.”

The former is non-actionable opinion, as it cannot be objectively proven that the meal was the “the most disgusting and flavorless” one the reviewer ever had. Conversely, the latter is a statement of fact; it can be proven (perhaps not easily) whether or not the waiter spit in the diner’s food.

Additionally, Illinois courts emphasize the context in which an allegedly defamatory statement has been made in determining whether the statement can be the basis of a claim. Even if a single statement in a long rant is arguably a statement of provable fact, it may not constitute defamation if a reasonable reader would see it simply as invective.

Consider Brompton Building, LLC v. Yelp, Inc., a 2013 Illinois Appellate Court decision in which a building management company sued an anonymous former tenant who had posted a hyperbolic, scathingly negative, and extremely lengthy online review. Even though the rant contained a few objectively verifiable statements, the court found that it could not support a defamation claim because in context they would not be understood to be actual factual allegations. As the court noted, “The context of the defamatory statements is critical in determining its meaning. In determining the context of the defamatory statements, we must read the writing containing the defamatory statement ‘as a whole.'”

Careful How You Respond – Especially if You’re a Physician

The bottom line for business owners and professionals is that a lawsuit in response to outrageous internet reviews and comments that make their blood boil and their businesses suffer may not be the best course of action.  While certain false statements of fact in such comments can be the basis of a defamation claim, business owners and professionals should carefully consider how to proceed lest their response make a bad situation worse.

This is especially true if you are a physician. Doctors and other health care professionals are regularly reviewed online, and some of those reviews come from disgruntled patients who may publicly criticize the treatment they received. The problem is that in an effort to defend the care they provided, some doctors have revealed confidential patient information in comments they have posted in response to negative reviews. Such HIPPA violations, as with other online professionalism mistakes, have serious licensing and regulatory consequences. Any doctor wanting to post an online response to a patient complaint should think long and hard about how they do so – and whether they should respond at all.