Does Tennessee's ban on hospitals employing radiologists, anesthesiologists, pathologists, and ER doctors violate those doctors' rights?

Subject

Opinion No. 18-39, Physicians' Constitutional Right to Employment by Hospitals, August 17, 2018

Plain-English summary

Tennessee's hospital licensing law has long contained a carve-out from the general rule allowing hospitals to employ physicians: under Tenn. Code Ann. § 68-11-205(b)(6) and (b)(9)(A), no radiologist, anesthesiologist, pathologist, or emergency physician may be employed by a hospital or hospital affiliate, and no hospital or affiliate may employ any physician to provide services in those four specialties (with a limited carve-out for physicians who are employed for other services and also provide emergency care).

Representative Michael Curcio asked the AG whether that ban unconstitutionally denies these doctors a right to be employed.

The AG's answer was no, and the opinion is unusually short for a reason: there is no recognized state or federal constitutional right to be employed by any particular employer. The statute does not prevent radiologists, anesthesiologists, pathologists, or emergency physicians from practicing medicine; it does not prevent them from working at hospitals; it just prevents hospitals (and their affiliates) from putting them on payroll. They are free to provide services at hospitals as independent contractors or through professional groups, which is the long-standing operating model for these specialties in Tennessee.

The AG did not analyze the policy reasons for the carve-out, and the opinion did not address antitrust, due process, or equal protection challenges to the statute. The question framed in the request was narrow: is there a constitutional right to be employed? The answer was equally narrow: no.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Tenn. Code Ann. § 68-11-205 sits within Tennessee's hospital licensing statute. Subsections (b)(6) and (b)(9)(A) both contain the same prohibition:

[n]o radiologist, anesthesiologist, pathologist, or emergency physician may be employed by a hospital or an affiliate of a hospital and no hospital or an affiliate of a hospital may employ any physician to provides services provided by radiologists, anesthesiologists, pathologists, or emergency physicians; provided, that a physician may be employed to provide emergency medical services, if the physician is employed to provide other medical services.

The statute bars hospital and hospital-affiliate employment of the four named specialties, with a single express exception: a physician may be employed to provide emergency medical services if the physician is also employed to provide other medical services. It does not bar those physicians from practicing at hospitals through other arrangements.

The constitutional question posed in the request was narrow, and the AG's answer was equally narrow. The opinion stated that there is no state or federal constitutional right to be employed, so a statute limiting who a hospital may put on its payroll does not deny the affected physicians any constitutional right. The opinion did not reach any other constitutional theory.

Common questions

Why can't a Tennessee hospital just hire its own radiologist or anesthesiologist?

Tenn. Code Ann. § 68-11-205(b)(6) and (b)(9)(A) bar hospital and hospital-affiliate employment of physicians providing radiology, anesthesiology, pathology, or emergency-physician services. The opinion did not explain the policy behind the carve-out; it addressed only the constitutional question.

Does that mean these specialties cannot work at hospitals?

No. The opinion noted that they can still provide their services to patients at hospitals as independent contractors. The statute restricts the employment structure, not the practice itself.

Could a hospital-employed radiologist sue the state arguing that the ban violates their rights?

The opinion specifically rejected that argument. The AG concluded that no state or federal constitutional right to be employed exists, so the statute does not violate the affected physicians' rights. A challenge framed in different constitutional terms (for example, equal protection) would have to be evaluated separately and was not addressed in this opinion.

Does the opinion bind the courts?

No. AG opinions in Tennessee are persuasive authority, not binding precedent. A court reviewing a constitutional challenge to § 68-11-205 would do its own analysis.

Citations

Statutes

• Tenn. Code Ann. § 68-11-205 (hospital licensing; (b)(6) and (b)(9)(A) prohibit hospital employment of radiologists, anesthesiologists, pathologists, and emergency physicians)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-39.pdf

Original opinion text

Physicians' Constitutional Right to Employment by Hospitals

Question: Tennessee Code Annotated § 68-11-205(b)(6) and § 68-11-205(b)(9)(A) both provide that

[n]o radiologist, anesthesiologist, pathologist, or emergency physician may be employed by a hospital or an affiliate of a hospital and no hospital or an affiliate of a hospital may employ any physician to provides services provided by radiologists, anesthesiologists, pathologists, or emergency physicians; provided, that a physician may be employed to provide emergency medical services, if the physician is employed to provide other medical services.

Do these statutory provisions unconstitutionally deny these doctors the right to be employed?

Opinion: No. There is no state or federal constitutional right to be employed. The statute does not prevent radiologists, anesthesiologists, pathologists, or emergency physicians from providing their services to patients at hospitals as independent contractors, but they have no constitutional right to be employees of any hospital.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Michael G. Curcio
State Representative
425 5th Avenue North, Suite 652
Nashville, TN 37243-0110