Compelling Images: The Constitutionality of Emotionally Persuasive Health Campaigns

Legislation requiring the display of emotionally compelling graphic imagery in medical and public health contexts is on the rise-two examples include the Food and Drug Administration\u27s recently abandoned tobacco labeling regulations, which would have imposed images of diseased lungs and cancerous lesions on cigarette packaging, and state laws requiring physicians to display and describe ultrasound images to women seeking abortions. This Article highlights the disconnect between the constitutional challenges to these laws, which focus on the perils of compelling speakers to communicate messages with which they may disagree, and the public\u27s primary objections, which are grounded in ethical concerns about the state\u27s reliance on emotion to persuade. This Article argues that, despite inconsistent judicial precedent in the tobacco and ultrasound contexts, concerns about the emotional impact of government mandated images on viewers can and should be incorporated in First and Fourteenth Amendment analyses. In making this argument, the Article relies on the body of First Amendment jurisprudence in which the Supreme Court suggests that images are uniquely dangerous because they are less rational, less controllable, and more emotionally powerful than textual communications

Character, Competence, and the Principles of Medical Discipline

This Article presents a first-of-its-kind analysis of the disciplinary functions of state medical licensing boards-the frequently overlooked administrative agencies designed to serve as the gatekeepers of the medical profession. It concludes that medical boards may have lost sight of their primary goal of patient protection and suggests that a renewed focus on professional licensing boards may go a long way towards addressing some of the quality of care problems plaguing the American medical system. This Article identifies three fundamental legal principles underlying medical boards\u27 authority to discipline physicians: the goal of public protection, substantive due process limitations based on fitness to practice medicine, and the concept of disciplinary minimalism. It demonstrates that boards, which frequently sanction physicians who engage in criminal conduct and other forms of unprofessional conduct outside the clinical sphere, often exercise their disciplinary discretion in a manner inconsistent with these fundamental principles. A more effective use of medical boards\u27 scarce resources would involve a focus on physicians whose misconduct is more clearly linked to clinical practice. Accordingly, this Article suggests that boards return their focus to the principles of professional discipline, prioritizing disciplinary actions taken on the basis of competence, rather than character

Doctors, Discipline, and the Death Penalty: Professional Implications of Safe Harbor Statutes

State capital punishment statutes generally contemplate the involvement of medical providers, and courts have acknowledged that the qualifications of lethal injection personnel have a constitutionally relevant dimension. However, the American Medical Association has consistently voiced its opposition to any medical involvement in executions. In recent years, some states have responded to this conflict by adopting statutory mechanisms to encourage medical participation in lethal injections. Foremost among these are safe harbor policies, which prohibit state medical boards from taking disciplinary action against licensed medical personnel who participate in executions. This Article posits that safe harbor policies, as limitations on medical board autonomy, safe harbor policies must be viewed not merely as artifacts of the political discourse on capital punishment, but as part of the historical narrative of American medical regulation. As a matter of policy, safe harbors cannot be defended by reference to the three traditional justifications for regulating medical professionals -- they are not necessary to keep the profession from exceeding the scope of its delegated powers; they do not promote traditional medical goals; and they do not satisfy the criteria for promotion of important state goals unrelated to medicine. This Article suggests that safe harbors and other restrictions on board autonomy, if not adequately justified, may weaken public confidence in the authority and independence of the medical profession. Because the loss of systemic medical trust tends to have a corrosive effect on the medical profession’s ability to promote patient interests and public health, policymakers should be wary of adopting safe harbors without first considering their trust implications in the professional sphere

Choosing Medical Malpractice

Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law\u27s traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient\u27s agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article fills an important gap in the scholarly debate about whether patients and physicians should be able to modify their default duties under tort law, demonstrating that two lines of rarely-acknowledged cases-- dealing with alternative therapies and Jehovah\u27s Witness blood refusals--lend support to the principle that patients who choose malpractice should be limited in their right to tort recovery

A Theory of Discipline for Professional Misconduct

State medical boards derive their licensure and disciplinary authority from the police powers reserved to the states under the 10th Amendment. Though it is clear that public health, safety, and welfare are well-served by the educational and examination requirements uniformly imposed upon medical professionals, many medical practice acts also authorize discipline for professional misconduct that does not directly implicate clinical competence or patient safety - for example, being convicted of a felony or a crime of moral turpitude, failing to comply with a child support order, providing expert opinion to a court without reasonable investigation, ordering unnecessary laboratory tests, engaging in conduct that brings the medical profession into disrepute, or violating a professional code of ethics. Supporters of such broad disciplinary powers commonly justify them by reference to the easy truisms of professionalism and public trust, but fail to situate their arguments within police power-based theories of state action. This paper aims to develop a comprehensive account of the legal justifications for sanctioning professional licensees for behavior that does not clearly implicate clinical competence

Tort Law Implications of Compelled Physician Speech

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law. State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, but many modify or even reject the procedural requirements for tort liability. Most significantly, these laws relieve prospective plaintiffs of the burden of proving two fundamental elements of negligence—causation in fact and proximate causation. Thus, when states compel physician speech for political reasons, their actions challenge not only constitutional principles, but tort principles as well

Informed Consent as Compelled Professional Speech: Fictions, Facts, and Open Questions

This article explores the relationship between a physician’s First Amendment right to free speech and state informed consent mandates. Sawicki details the convoluted jurisprudence surrounding consent mandates, focusing on one-sided and controversial subject matter that many states require physicians to disclose. Sawicki then offers a legal framework for how a physician-challenged consent mandate may pass through the court system based on existing Supreme Court jurisprudence

A Theory of Discipline for Professional Misconduct

State medical boards derive their licensure and disciplinary authority from the police powers reserved to the states under the 10th Amendment. Though it is clear that public health, safety, and welfare are well-served by the educational and examination requirements uniformly imposed upon medical professionals, many medical practice acts also authorize discipline for professional misconduct that does not directly implicate clinical competence or patient safety - for example, being convicted of a felony or a crime of moral turpitude, failing to comply with a child support order, providing expert opinion to a court without reasonable investigation, ordering unnecessary laboratory tests, engaging in conduct that brings the medical profession into disrepute, or violating a professional code of ethics. Supporters of such broad disciplinary powers commonly justify them by reference to the easy truisms of professionalism and public trust, but fail to situate their arguments within police power-based theories of state action. This paper aims to develop a comprehensive account of the legal justifications for sanctioning professional licensees for behavior that does not clearly implicate clinical competence