My ‘medical technicians’ are unlicensed. What is my crime?

Dr. M has practiced dermatology for 25 years. During that time he has hired and fired secretaries, nurses and licensed medical assistants. His three most devoted and loyal employees have worked with him for over two decades. All three began their work with Dr. M during high school as minimum wage, part-time secretaries. After completing high school they became full-time employees. Their tasks included answering the phone and scheduling patient appointments.

These employees loved their jobs and never sought any further schooling of any kind. Over the course of 20 years, the employees became familiar with every aspect of Dr. M’s dermatology practice. Because there was so much turnover of his clinical staff, Dr M began to ask these three women to play the role of medical assistants.

At first they would take a dermatologic history from patients. Ultimately, after so many years of working in Dr M’s practice, all three “medical technicians” became very facile at acne surgery, small biopsies and simple suturing. Dr. M was convinced that these trained workers were more reliable and performed better quality work than any licensed medical personnel ever previously employed in his office. He was quick to tell his peers about the quality of their work and the fact that no medical malpractice litigation had ever ensued because of their labors.

Unfortunately, after two decades of experience, all three medical technicians were served legal papers for practicing medicine without a license. In addition, Dr. M is accused of aiding and abetting the practice of medicine without a license. Such a crime is a felony in his state and could force Dr. M to lose his medical license. Dr. M is incensed and seeks legal advice. How could his actions be considered a crime?

Aiding and abetting

Aiding and abetting a crime means to assist the perpetrator of a crime. A person aids and abets the commission of a crime when he or she (1) with the knowledge of the unlawful purpose of the perpetrator, (2) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (3) by act or advice, aids, promotes, encourages or instigates the commission of a crime.

An aider and abettor is one who is present at the crime scene and by word or deed gives encouragement to the perpetrator of the crime, or by conduct makes clear that he or she is ready to assist the perpetrator when such assistance is needed. To aid and abet another to commit a crime, one must associate with the venture, act with the knowledge that an offense is to be committed, and share in the criminal intent of the perpetrator of the crime. It should be noted that a person may aid and abet without actively participating in an overt act.

In Barry v. State Medical Board, the record showed that Dr. Barry specifically limited the conduct of his assistant, who while not properly registered as a physician’s assistant, was a registered nurse at all times while working for Dr. Barry. There was no evidence that the assistant made any independent medical judgment or performed any medical procedures. The assistant’s conduct never exceeded the scope of practice for a nurse. Thus, the court ruled that the Ohio State Medical Board improperly imposed a penalty on Dr. Barry for assisting and abetting a nurse in the unauthorized practice of medicine.

In Siddiqui v. Illinois Department of Professional Regulations, the court held that the purpose of the Medical Practice Act is to protect the public health and welfare from those not qualified to practice medicine. Dr. Siddiqui was assisted by a trained and licensed pharmacist’s assistant. The physician was charged with allowing the assistant to use his medical license, as well as aiding him in the unlicensed practice of medicine in violation of the Illinois Medical Practice Act.

What is the 'practice of medicine'?

Specific acts performed by the assistant included the removal of sutures, the administration of injections, the diagnosis of diseases in patients, and the prescription of medications by signing Dr. Siddiqui’s name on prescription blanks. The physician argued that not every act performed by a physician constituted the practice of medicine. The court conceded that duties such as changing bandages, administering injections and drawing blood are often performed by non-physicians. However, the court found that diagnosing disease and making final decisions about the treatment of patients by prescribing medications - even by reissuing prior prescriptions - crossed the line into the practice of medicine.

The fact that licensed professionals other than physicians could legally perform certain medical procedures under the supervision of a physician did not exempt the performance of those same procedures by an unsupervised and unlicensed individual from the scope of the Medical Practice Act.

Dr. M’s assistants may be more valuable than any licensed healthcare professionals he has ever hired. Nevertheless, they are not licensed healthcare professionals. He may be found guilty of aiding and abetting a crime.