Got a stumper for all you law gurus...non-disclosure vs no license for medical practice..?
So I've been watching this commercial on TV about a miracle weight loss cure that has supposedly worked on lots of people, but they did it in secret. That made me wonder if the reason they did it in secret was because the test were not done by doctors. That in-turn makes me wonder if it is possible to have effective legal immunity if you do something like this without a medical practice license, but do so with a signed agreement from the person to keep it a secret? In other words, if the person tells and you get sued/jailed you can sue back etc. Is that even possible? This concept arose from another case where a doctor was put in prison for curing a woman of cancer but doing so without the government approved method which requires chemo.
Answers:
The hole in this argument is the contract between the doctor and the patient.
Firstly if both parties enter into a contract with the intent to break the law (e.g. to allow the practice of medicine without a license), then neither of the parties will be able to sue on the contract. This is encapsulated in the maxim: ex turpi causa non oritur actio -- no cause of action will lie from an illegal/immoral cause.
It would be impossible for the doctor to sue. In addition the doctor/patient relationship is one of those special relationships which the law says has a higher duty of care. The agreement would be tainted with undue influence and any court could set it aside.
Edit in response to additional info:
It doesn't matter if the agreement itself is perfectly legal on its face -- if the agreement can only be performed in an illegal manner, or one of the parties entered into the agreement intending on performing it in an illegal way -- it will still be tainted with illegality.
How a court would act in this situation may differ according to different fact situations. However as legislation for the licensing of medical practitioners is usually regarded as for protecting the public against unqualified medical practice, the court would choose to enforce or not enforce the contract in a way that would best protect the public and not frustrate the object of the legislation.
So taking the exact situation that you have above -- if the guinea pig entered into the contract as an innocent party, but then subsequently squealed because he discovered that the doctor wasn't licensed, the doctor wouldn't be able to sue on the agreement -- but the guinea pig might. This would all depend on the exact factual situation, as illegality of contracts is one of those tricky areas of law.
Actually NO You cannot enter into a contractual agreement or obligation that is illegal, it nullifies the contract.
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