By: Kristin Madison*
Abstract
When a state disciplines a physician who holds multiple licenses, other states may respond by imposing similar discipline. This response makes sense when states have similar views on unprofessional conduct. Information sharing about out-of-state conduct can improve discipline as a regulatory tool and help ensure that a physician cannot evade discipline. But what happens when state views are discordant? Recent legislative activity in areas such as reproductive care and gender-affirming care have set the stage for discordant discipline; physician conduct permissible in one state may be prohibited in another. If states functioned completely independently of one another, the implications of discordance would be straightforward: contested conduct in the “permissive” state would not trigger any discipline, while similar conduct in the “restrictive” state would result in discipline in that state only. In practice, however, states do not function independently of one another; their regulatory regimes take account of conduct occurring outside their borders. Should a permissive state discipline a physician who engages in prohibited conduct in a restrictive state? Should a restrictive state discipline a physician for engaging in conduct it deems unprofessional, if the conduct occurs in a permissive state? This article explores these and related questions by considering the goals of state-based regulation of physicians. Drawing on examples from state statutes, Federation of State Medical Boards guidelines, the Interstate Medical Licensure Compact, and the American Bar Association’s Model Rules of Professional Conduct, it considers how regulatory regimes might grapple with situations involving discordant discipline. It then evaluates potential implications of alternatives to current regulatory approaches.
* Professor of Law and Health Sciences, Northeastern University. I thank Martha Davis, Claudia Haupt, Rachel Rebouché, Nadia Sawicki, Tara Sklar, and participants in the 2023 Health Law Professors’ Conference and Northeastern Law’s faculty colloquium for their insightful comments. I thank the editors of the Penn State Law Review for their assistance in editing this article. I also thank those involved in the work of the Uniform Law Commission for many conversations that have both increased my understanding of and piqued my interest in variations in state law. All errors are my own.