The law of doctoring: a study of the codification of medical professionalism.
This essay argues that the concept of professionalism as it appears in health law is undergoing transformation as the applicable common law doctrines are increasingly being superseded by statutes and regulations. The doctor-patient relationship is being subjected to new rules of conduct intended to affirm the rights not only of patients but also of society at large. The bilateral relationship between doctor and patient has in many respects been transformed into a triadic one in which the concerns of public, as consumer and payor, are increasingly taken into account. In many respects this change has been necessary and inevitable as medicine has become a more commercial enterprise; but the change has also put traditional notions of professionalism at risk. Where professionalism is adversely affected by the process of its codification, it is incumbent upon law and policy makers to be aware of the fact. To this end, this essay first undertakes to define medical professionalism as a legal construct, and then formulates an analytic method with which to determine when professionalism is implicated and whether it is adequately accommodated by the law. The definition of professionalism the author advances is informed by concepts established in the literature of sociology, which identifies four core attributes-functional specificity, trust, disinterestedness and self-regulation. Each of these attributes is examined in turn with reference to case law selected to identify the value in question and to illustrate the nature of the change resulting from its codification.
Fichter
Andrew
A
Widener University School of Law.
D006801:Humans; D010817:Physician-Patient Relations; D010820:Physicians / Q000331:legislation & jurisprudence*; D011364:Professional Practice / Q000331:legislation & jurisprudence*; D014481:United States