Medical Board overstepped authority
The relationship between a doctor and a patient is one of trust and mutual consent. Doctors have an ethical and professional obligation to do no harm and treat their patients with the best care possible.
That is why when Tennessee doctors were handed an unlawful ultimatum from a board that exceeded its legal authority, I formally requested that the state’s Board of Medical Examiners correct their mistake.
The Tennessee Board of Medical Examiners knowingly failed to comply with essential legal requirements by threatening disciplinary actions against doctors for “misinformation or disinformation” related to COVID-19.
It was my duty as the chair of the Government Operations Committee to rein in this overreach of power.
The Tennessee Board of Medical Examiners is a legislative creation of the General Assembly. As such, like all similarly created executive agencies and boards, it is rightly subject to oversight by the General Assembly. The General Assembly exercises this oversight through government operations committees jointly and separately in each chamber.
The General Assembly’s oversight is to ensure that government boards and agencies operate within established legislative guidelines.
This is especially true for those boards and agencies to which the General Assembly has delegated rule making authority. Moreover, the General Assembly retains the power to dissolve boards and agencies that are fiscally irresponsible, abusive, ineffective, inefficient or otherwise not fulfilling their purpose under their creation legislation.
We have much to learn still about COVID-19. Aside from being unwise to censor or punish any doctor for exercising their independent medical judgment in the best interests of their patients, there are serious problems with the Tennessee Board of Medical Examiners’ decision.
First, multiple sections of the Tennessee Code Annotated address this situation. In fact, these sections specifically restrict boards from using policies or “statements” for disciplinary requirements. Rather, boards are required to use the Uniform Administrative Procedures Act to create rules for this purpose. There very important and straightforward reasons for this requirement.
One of the most-important reasons is that the Tennessee attorney general must evaluate rules to ensure their constitutionality. Another important reason is that rules must be filed with the Tennessee secretary of state to notify the public and allow for public comment.
Finally, to ensure accountability to the electorate, the General Assembly’s Joint Government Operations Committee must approve rules.
All of this review is intended to prevent unchecked bureaucratic missteps that could lead to arbitrary misapplications or capricious abuses.
Such problems could, in contravention of the TCA, “affect private rights, privileges or procedures available to the public” such as licensure revocation. Furthermore, the procedures act establishes due process procedures to allow individuals to legitimately contest potentially unfair or arbitrary misapplications.
Second, consider that the board’s terms, “misinformation and disinformation,” have no official definitions in either the board’s statement, itself, or the TCA. Consequently, the board’s statement neither establishes nor references impartial legal standards by which physicians could avoid threatened disciplinary actions.
The situation is not as some reports have tried to spin it. Rather, it is one of my carrying out my sworn duty of oversight of state bureaucracy on behalf of all Tennesseans.
This duty is to ensure that any executive board operates within legal constraints established by the General Assembly.
Moreover, these constraints were created to further the cause of justice and protect individual rights for all Tennesseans.
It is regrettable that anyone sees steadfastly insisting on the rule of law for everyone, including bureaucrats, in the pursuit of justice as a vice.
Likewise, it is even more lamentable that some see stalwartly supporting individual rights against administrative overreach as anything other than civic virtue.
John Ragan lives in Oak Ridge and represents House District 33 in the Tennessee General Assembly. He serves as chairman of the Joint Government Operations Committee.
