Beware of “Aiding and Abetting” the Unlicensed Practice of Medicine

“Aiding and abetting” are two words often associated with criminal law, as in, “The getaway car driver was charged with aiding and abetting the bank robbery.” But for physicians as well as many other professionals who are required to be licensed by the Illinois Department of Financial and Professional Regulation (IDFPR), aiding and abetting the unlicensed practice of their profession can also mean severe disciplinary action, including license revocation.

For physicians in particular, aiding and abetting the unlicensed practice of medicine can be a potentially disastrous minefield, as the permissible and seemingly innocuous delegation of certain tasks to assistants or others can inadvertently lead to IDFPR concerns.

Included among the over 40 enumerated bases for disciplinary action set forth in the Illinois Medical Practice Act (225 ILCS 60/1 et seq.) is “aiding and abetting an individual not licensed under this Act in the practice of a profession licensed under this Act.”

What Exactly is the “Practice of Medicine”?

The problem arises because the Medical Practice Act, despite its title, nowhere defines exactly what the “practice of medicine” entails. Section 22 of the Medical Practice Act directs the IDFPR to adopt rules that set forth standards to be used in determining several violations and terms under the Act. However, it does not require the Department to set forth explicit standards defining the practice of medicine.

As one court explained, the reason the legislature did not define “the practice of medicine” in the definitions section of the Act is “because a flexible definition of the practice of medicine is required in a statute intended to govern various healers from osteopaths to herb doctors. Siddiqui v. IDFPR, 718 N.E.2d 217 (4th Dist. 1999).

Not every act performed by a physician constitutes the practice of medicine. Duties such as changing bandages, administering injections, drawing blood, and taking blood pressure are often performed by nonphysicians. However, the fact that licensed professionals other than physicians may be permitted to perform certain medical procedures under the supervision of a licensed physician does not render the performance of those same procedures by unsupervised and unlicensed individuals outside the ambit of the Medical Practice Act. People v. Bickham, 621 N.E.2d 86 (1993).

Delegation of “Patient Care Tasks” to Qualified or Supervised Individuals Can Be Permitted

Similarly, Section 54.2 of the Medical Practice Act specifically allows physicians to delegate authority to certain individuals:

  • Physicians can delegate patient care tasks to a licensed practical nurse, a registered professional nurse, or other licensed person practicing within the scope of his or her individual licensing Act.
  • Physicians can also delegate such tasks to physician assistants or advanced practice nurses.
  • In an office or practice setting and within a physician-patient relationship, a physician may delegate patient care tasks or duties to an unlicensed person who possesses appropriate training and experience provided a health care professional, who is practicing within the scope of such licensed professional’s individual licensing Act, is on site to provide assistance.
  • No physician may delegate any patient care task or duty that is statutorily or by rule mandated to be performed by a physician.

Diagnosis, Treatment Plan, and Prescriptions Cannot Be Delegated

What cannot be delegated, and what do not constitute “patient care tasks,” are the diagnosis of illnesses, and the development of treatment plans, including prescribing drugs. Siddiqui v. IDFPR, 718 N.E.2d 217 (4th Dist. 1999). For example, the Pharmacy Practice Act of 1987 provides that a pharmacist may advise or counsel patients on the use of drugs or devices and provide health information related to them, however, the pharmacist’s role does not extend to deciding whether to prescribe drugs. This requires a medical judgment as to the needs of the patient, the effect of the drug, and the effectiveness of other types of treatment.

Physicians should ensure that they have developed specific protocols and procedures that define the permissible roles and actions of nurses, assistants, and others in their practice and be wary of delegating any tasks that may involve the diagnosis and the use of professional medical judgment in deciding on a course of treatment.

Louis R. Fine: Chicago Physician License Defense Attorney

Throughout my career, I have been protecting the livelihoods and professional futures of physicians and other health care providers before the IDFPR, combining insight and experience with zealous and strategic advocacy.

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will protect your Illinois physician’s license and get you back to your patients and your career.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

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