Scope of practice: how do certain laws protect healthcare providers from competition?


Through medical boards and legal systems, states determine what the scope of practice should look like for healthcare providers. These regulations affect a large number of healthcare providers, from dentists to doctors to chiropractors.

Last week the State Medical Societies, Kentucky Medical Association, and Litigation Center of the American Medical Association filed an amicus brief in Kentucky. This brief supports a state circuit court’s decision to affirm the right of physicians to provide expert review of medical records that include chiropractic treatment in insurance litigation. The Kentucky Board of Chiropractic Examiners, backed by the state, asserted that review of chiropractic records by physicians violated state law prohibiting non-chiropractors from reviewing chiropractic patient care. The amicus brief argues that this position is an overreach of the current Kentucky law, and it infringes on the ability of physicians to provide expert services in litigation. This matter is currently before the Kentucky Court of Appeals, and has not yet been decided.

Other courts have weighed in on the issue of scope of practice as well. In 2001, the Tennessee Medical Association sued the Tennessee Board of Dentistry regarding scope of practice.  The dentistry board authorized maxillofacial surgeons, who perform surgery on the jaw and face, to also perform aesthetic and reconstructive surgery on the head and neck, including the nose, ears, and eyelids. The Tennessee Medical Association argued that such authorization exceeded the dentistry scope of practice. The Tennessee Medical Association prevailed at both the trial and appellate level.

Both cases demonstrate the desire of healthcare providers to protect their respective practice area from competition. For example, the Kentucky law protecting chiropractors from peer-review of physicians was clearly intended to protect chiropractors from encroachment by other healthcare providers. The intent of the law was not to prevent expert testimony in litigation. Interpreting the law to require expert testimonies from multiple healthcare providers would result in lengthy and convoluted litigation, and, well, litigation is lengthy and convoluted enough already. Scope of practice laws can have unanticipated effects, and it is up to each state to decide how to deal with these consequences while still protecting its healthcare providers from undue competition.