This Article identifies three fundamental legal principles underlying medical boards' authority to discipline physicians: the goal of public protection, substantive due process limitations based on fitness to practice medicine, and the concept of disciplinary minimalism. It demonstrates that boards, which frequently sanction physicians who engage in criminal conduct and other forms of "unprofessional conduct" outside the clinical sphere, often exercise their disciplinary discretion in a manner inconsistent with these fundamental principles. A more effective use of medical boards' scarce resources would involve a focus on physicians whose misconduct is more clearly linked to clinical practice. Accordingly, this Article suggests that boards return their focus to the principles of professional discipline, prioritizing disciplinary actions taken on the basis of competence, rather than character.

The authors argue for recognition of a wrongful living variant of battery in situations where physicians have recklessly or intentionally disregarded or misinterpreted advance directives, and offer guidance on some of the difficult questions relating to damages that have perplexed the courts and commentators in this area. While allowing recovery for wrongful living will not resolve many of the outstanding issues leading to low utilization of advance directives by patients or the need for interpretation of a patient's stated wishes in many circumstances, it will offer significant protection to those who have made their wishes clear.

This Article posits that safe harbor policies, as limitations on medical board autonomy, safe harbor policies must be viewed not merely as artifacts of the political discourse on capital punishment, but as part of the historical narrative of American medical regulation. As a matter of policy, safe harbors cannot be defended by reference to the three traditional justifications for regulating medical professionals -- they are not necessary to keep the profession from exceeding the scope of its delegated powers; they do not promote traditional medical goals; and they do not satisfy the criteria for promotion of important state goals unrelated to medicine. This Article suggests that safe harbors and other restrictions on board autonomy, if not adequately justified, may weaken public confidence in the authority and independence of the medical profession. Because the loss of systemic medical trust tends to have a corrosive effect on the medical profession’s ability to promote patient interests and public health, policymakers should be wary of adopting safe harbors without first considering their trust implications in the professional sphere.

In the following reports, the members of a University of Pennsylvania research group that I directed explore this issue in two ways. First, they update and review an analysis of quantitative scholarly research on the quality of health Web sites. Second, they examine the general discussion of health Web sites over six months in 47 media outlets representing a wide range of media, from medical research journals to television network news operations.

The topic is important because so many people go online to get health information. A national survey conducted by the Pew Internet & American Life Project is perhaps most definitive. It found that 62 percent of internet users have gone online in search of health information. Extrapolating from its data, the Pew group further found that about 6 million Americans go online for medical advice on a typical day. That, it added, means "more people go online for medical advice on any given day than actually visit health professionals, according to figures provided by the American Medical Association."

The Pew group also found that Web health "seekers" often use search suggestions from friends, search with others, or ask people they consider knowledgeable searchers to help them find health information online. They report being satisfied with their searches, and the few who discuss their findings with physicians state that they agreed that what they had learned was correct. The Pew researchers readily admit that the health seekers may not have been as successful in gaining correct knowledge as they believe. And, in fact, an experimental study by Stanford and colleagues concluded that consumers make judgments about health site credibility in ways that are quite different than what medical professionals consider appropriate.