Public Health Law Map - Beta 5 - Medical and Public Health Law Site

5. Corporate Employers and Institutions
The great majority of midlevel providers are employees. Most physicians now
become employees as they enter practice, and many of the older private practices
have been sold and their owners have also become employees. Medical care
practitioners may work for hospitals and clinics providing medical services to the
general public, in the medical departments of nonmedical businesses providing
occupational and general medical care to the other employees, or in governmental
institutions such as prisons and schools. They are subject to the same rules as other
professional employees. This means that while the employer can set the general
workplace rules, the employer may not require medical care practitioner employees
to violate the terms of their license or to violate professional norms of practice.
While some physicians now work as employees of hospitals, most physicians who
practice at hospitals are independent contractors whose relationship with the hospital
is governed by the medical staff bylaws. The effect of this contract is to ensure that
the nonemployee physician is subject to the rules of the institution. Many managed
care companies use this same model for their relationships with physicians. These
contracts pose difficult legal issues. They may impinge on the physician’s
professional decision making and may limit the patient’s right to information or
alternative treatments. Since the physician is not an employee, there are few
protections available if the contract is terminated because the physician is unwilling
to comply with improper practices.
B. Clash Of Cultures
Law and medicine are both learned, licensed professions, practiced by
demographically similar individuals. Each profession has a well- developed paradigm
that governs the relationship between independent professionals and their clients. The
attorney–client relationship shares many characteristics with the physician–patient
relationship: attorneys have special education and experience not possessed by clients;
attorneys have a license that allow them to perform tasks that a layperson may not
perform; attorneys must keep clients’ matters confidential; and attorneys owe clients a
special duty to put clients’ interests before their own interests (a fiduciary duty). It is
these shared values that lead medical care practitioners to assume that attorneys deal
with clients’ needs in the same way as they do. This is not a correct assumption. The
attorney–client relationship is profoundly different from the physician–patient
relationship. This difference can lead to hostility and dangerous misunderstandings
between medical care practitioners and attorneys.
The key difference between legal and medical relationships is that law is not based on
a scientific paradigm. There have been efforts to bring social science and economic
analysis techniques to bear on legal problems, but these have been of limited utility.
The evolution of legal theory is a nonrational social process that most resembles
religious disputation. One accepts a premise and then develops an intricate set of rules
and theories based on that premise. We see Marxist-based legal systems, democraticbased
legal systems, and legal systems such as Islamic law that are openly derived
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