I have won significant federal court litigation defending health care providers, including physicians and pharmacists. Knowing this, a health care provider growing weary of defending against his or her licensing Board will occasionally ask why I can’t do more in his or her case. For example, one physician wanted me to sue the Oregon Board of Medicine in “a real court of law,” and one nurse asked whether I could obtain a Temporary Restraining Order (TRO) against the Oregon State Board of Nursing. The answer is almost always “No.” Let me explain why.
The 50 states regulate medical licensing and practice standards
In our State-Federal scheme of government, the power to regulate medical practice and licensing is reserved to the 50 states. Admittedly, there is federal “overlay,” but still, when it comes to ensuring safe medical practice through the licensing of physicians, pharmacists, nurses, that role and power belongs to the states.
The 50 states exercise their “power” through state agencies
You may recall from civics classes that state and federal power is spread across three branches of government, the Legislative, the Judicial, and the Executive branches. The Executive branch of state government is headed by the Governor, and the bulk of any state’s work is accomplished through a multitude of state agencies belonging to the executive branch.
Your licensing Board is a state agency
Whether you are a physician, pharmacist, or nurse, your licensing Board is a state agency, specifically empowered to ensure the safe practice of your profession (public safety) and the competency of each individual practitioner.
What you need to know: Respect your licensing Board
So, when the physician wanted me to sue the Oregon Board of Medicine in “a real court of law,” and the nurse asked whether I could obtain a TRO against the Oregon State Board of Nursing, you now know why the answer was “no.” Even when the complaint against you is wrong, or the licensing Board is wrong, the licensing Board is nonetheless fulfilling its role as a state agency regulating your profession. It is true that in some cases there may be an appeal to a state court (this happens occasionally) and, in the exceedingly rare case, an argument for a restraining order from a trial court (this has happened only once in my career), but this is not where you start. You start with the agency – i.e., your state licensing Board – because your state licensing Board is not only empowered to regulate your profession, it has the most power to do so, and your interests will be best served by taking that power seriously.