(I’m just kidding, but the proponents selling this stuff aren’t)

In the last 30 years, I have heard all manner of crazy legal ideas propounded by nonlawyer “legal experts” which supposedly immunize or protect licensed and/or unlicensed health care practitioners from government oversight, investigations and prosecutions. Most of the ideas are based on the one of the first 10 constitutional amendments (12, if you’re Donald Trump).

For example, take the Ninth Amendment, which provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This is the so-called unenumerated rights amendment. Some lay legal experts took the position that doctors and others had an un-enumerated right to give or receive any treatment they want regardless of the wishes/laws of the federal or state government. It supposedly gave people all kinds of other rights and abilities not to comply with federal or state law. I recall one of the leading “legal experts” on this was a guy named Conrad LeBeau. If I’m not mistaken, he was prosecuted for some kind of criminal offense, raised the argument in his defense, and to no surprise to anyone other than him and his co-believers, he was convicted and went to prison.

I recall that people also tried to get to the same place with the 10^th Amendment, which provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

That hasn’t worked out either, in the sense that there are no published cases which have disallowed a federal or state agency from investigating, suing or prosecuting a physician because the physician’s 10^th Amendment rights.

But by far, the most popular constitutional panacea which supposedly completely immunizes licensed practitioners from federal and state oversight is based on the First Amendment’s so-called right to associate.

First things first, and a news flash for many:  The text of the First Amendment does not include any language concerning the right to “associate” or to form an “association.” Rather, the right to associate was created by the Supreme Court. For the legally interested, in NAACP v. Alabama, 357 U.S.449 (1958), the Supreme Court held that freedom of association is an essential part of the First Amendment’s freedom of speech provision because effective speech often requires that people join or associate with others. The free speech written right, in conjunction with the written right to “assemble” and petition the government, (also part of the First Amendment), constitute the basis of the Supreme Court’s creation of the implicit judge created constitutional right to associate.

There is a body of case law defining and explaining the right to associate, but it deals with the circumstances under which organizations can exclude people who want to join a group, or whether organizations or businesses can decline to provide services to specific groups of people. For example, the Jaycees was a business related group for men. The Supreme Court held that their members’ right to associate did not allow them to exclude women, because the exclusion was not based on the expressive aspect of the excluded group. On the other hand, a private organization, say an LGBT group, can exclude homophobes from membership because they might adversely effect the group’s ability to express its LGBT point of view.

The other big issue in the right to associate jurisprudence is whether private groups can discriminate against certain people by not provide services to them (i.e. racial minorities or gays). Short answer: They can’t.

I’ve told you the two big jurisprudential/litigation areas involving the right to associate. What doesn’t exist are cases which hold that the right to associate allows health care professionals to engage in illegal or unprofessional activity, and more importantly, that the right to associate somehow divests the federal or state government from asserting jurisdiction over people who may be engaged in illegal activity, or actions which violate some state law or professional standards (like the standard of care).

In short, I have yet to see a reported case or decision on an online case service such as Lexis, West Law or Pacer which held – meaning that the controlling principle of the case – was that a state or federal government did not have the right to investigate or prosecute a person for health care services because the service offerer and recipient were members of an association.

Every time I talk about this non-existent panacea right to associate in public, I ask the audience that if they know of a reported case, to send me the case citation. I have yet to receive a single case citation. The only time I’ve ever seen the issue addressed in a court case was in a Washington state FDA prosecution where the defendant himself raised the issue in a motion to dismiss. His lawyer apparently wouldn’t file the motion, so the defendant filed the motion himself. The judge refused to address the motion because the defendant was represented by counsel.

Circling back to the right to associate, as I said, it’s not in the text of the First Amendment, it’s a judicial creation found to be a necessary component of free speech (and possibly the right to assemble and petition the government). Since the judges created it, the parameters, boundaries or limits of the right are only what the judges say they are.  And the judges (and in particular the Supreme Court) haven’t created any kind of generalized right to associate, let alone a generalized right which divests the government from exercising its police powers. I am certain that the Supreme Court never will create such a right because it would interfere with the government’s police powers. It’s a fool’s bet to bet against the government’s ability to address, rectify or punish conduct which it deems illegal or against public health. (My message to the vaccine concerned as well, per previous posts).

So what about the “legal experts” who are advocating (read, selling) right to associate kits and $2,000 seminars? From what I can tell, when they do cite cases, they cite the non-binding language (called “dicta”) from unrelated cases. One of the first things lawyers learn in law school is to separate the holding of the case, which is the principle of law the case stands for, from the dicta which is the personal opinions or other non-essential parts of the opinion which are not considered binding or precedential. Another thing these folks talk about is the letters they’ve written on behalf of practitioners which supposedly stopped an investigation. Recently, I’ve heard about confidential settlements which they can’t talk about.

Hint: for licensed practitioners, I’ve never heard of a confidential settlement with a medical board. I don’t think it exists because it’s against public policy. A board’s job is to protect the public, and between that and open records, I don’t think a confidential settlement with a state medical board is a thing.

This is all nice and possibly even interesting, but does any of it have any practical impact on practitioners? I think so. Some of you folks have bought into the right to associate (non) thing (literally and figuratively), and make your patients join your “medical association.” That’s fine and harmless.

But suppose you get a board subpoena for medical records of one of your patient/members. You have two choices. Give over the records or use the “right to associate” argument and decline to produce the records. That’s a decision with big consequences.

Failure to provide medical records pursuant to a lawful, self-executing subpoena is a prosecutable violation of the medical practice act. The result of your refusal will probably be a court order to compel you to turn over the records. (And the judge will issue the court order notwithstanding your right to associate argument for the reasons stated above).

What do you do then? If you don’t comply with the court order, next thing is a motion for contempt. Judges don’t like putting Docs in jail, so you’ll get a short reprieve, probably, but in the end, there’s a good chance that if you don’t comply, you could get a few free meals courtesy of the state.

Think I’m kidding or exaggerating? I haven’t personally seen this happen to  a Doc, but a long time ago, in a faraway place (Manhattan), a lawyer refused to turn over to me a client’s case files. I got a court order compelling him to do so. He still refused, so I filed a motion for contempt. The judge gave him another chance and he still refused, so the judge signed the contempt order.

I found out when the lawyer had a late in-the-day court appearance and had him arrested on the steps of the Manhattan federal courthouse. Because of the late hour, the judges were already gone, so the lawyer spent the night in jail (the Tombs, as I recall). They brought him to the judge the next afternoon (it took some extra time because I apparently misfiled the paperwork).  He didn’t look or smell too good. I got the files the next day.  Eventually, in large part because of what he did in that case and another case where he pulled the same trick, he was disbarred. Maybe I caused that too, but it was a long time ago and who remembers.

I tell you this for a couple reasons; to show that bad things can happen and escalate if you don’t follow lawful orders. The lawyer I went after wasn’t a bad lawyer; he just made some poor choices (and his actions pissed me off). Why is that relevant?

Flash to CAM Docs: the members of the state medical boards are politically connected conventional doctors. By and large, these folks think that CAM is worthless if not harmful to patients, and all you CAM Docs are just in it for the money or stupid, or both. (Maybe a slight exaggeration, but that’s my perspective as a result of appearing at most of the state medical boards over a few decades).  The idea that a CAM practitioner would do something which is a slam dunk violation of the medical practice act, and confirms board members’ view of your evilness or stupidity (or both) seems like a poor choice.

Two final things:

We had a hearing in the other case in which the lawyer refused to turn over records. The federal judge was a white haired southern gentleman. The first words out of his mouth were: “Mr. Sheridan, you remind me of a slab of meat rolling towards the buzz saw, and for the life of me, I can’t understand why you’re running towards that saw.”

And finally this: A Texas fellow who is one of the main “legal experts” selling the right to associate and other do-illegal-stuff-and-get-away-with-it miracle kits hit the fed’s radar screen. He was arrested for securities violations. I guess he argued that because his customers were members of his association and maybe some of the other stuff he peddled, the feds couldn’t touch him. The judge apparently disagreed. The jury convicted him and he went to prison.  The good news is that he’s out now and back selling these kits, insisting that they work just fine.

 

Rick Jaffe