The Law of Doctoring: A Study of the Codification of Medical Professionalism

Abstract

This article argues that the concept of professionalism in health law is undergoing transformation as the applicable common law doctrines are increasingly being superseded by statutes and regulations. While legislation is perhaps the better implement when it comes to shaping the relationship among doctor, patient and society to conform to public policy, decisional law is often needed where statutes, rules and regulations inadvertently damage that relationship. Where professionalism is adversely affected by this process of codification, it is incumbent upon decisional law to call the attention of legislators and policy makers to that fact. To this end, the article 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 then adequately accommodated by the law. The definition of professionalism the author advances draws from 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 illustrate the nature of the value in question and the need for judicial intervention where codification has put professionalism's core values at risk.

Keywords: health law, professionalism, physicians, doctors, medical profession

JEL Classification: K23, K32, I18