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Doctor-Patient Speech and the First Amendment:

The New Hampshire Board of Medicine has been considering disciplining Dr. Terry Bennett for the following incidents:

  1. "According to the Patient A complaint, in June 2004, the petitioner spoke harshly to Patient A regarding her weight. According to the Notice of Hearing, the petitioner is alleged to have said 'You need to lose weight. Let's face it if your husband were to die tomorrow who would want you. Well, men might want you but not the types that you want to want you. Might even be a black guy.'"

  2. "[I]n 2001, the petitioner suggested to Patient S that rather than live with her extensive brain injuries, she should purchase a gun and commit suicide to end her suffering. The petitioner denies making the comments alleged in the Patient S complaint."

  3. "[T]he petitioner is accused of speaking harshly to Patient D in 2003 regarding her son's hepatitis condition"; no further details are given.

The Board was investigating whether such statements violate N.H. Rev. Stat. Ann. 329:17, VI(d), which bans "unprofessional conduct" by doctors, and N.H. Admin. R. Med. 501.02(h), which says:

A licensee shall adhere to the Principles of Medical Ethics - Current Opinions With Annotations (2004-2005) as adopted by the American Medical Association.

Principle I of the AMA's Principles in turn says:

A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.

A New Hampshire trial court has just enjoined the investigation on First Amendment grounds. Professional-client speech, the court held, is protected by the First Amendment; it didn't discuss precisely how protected it is substantively, because it held that the regulation was unconstitutionally vague:

The AMA's Principle I states only in general terms that physicians should treat patients with dignity and respect, but does not define the circumstances under which a physician will be found to have violated that principle. While it would be unreasonable to expect the AMA, or any other body, to define each and every utterance that might create liability, the cited principle provides little guidance as to what speech falls within its ambit. Further, whether a person is treated with dignity and respect are, at least initially, subjective determinations left to the sensitivities of the listener. Such a remarkably subjective standard is certainly not the narrow type of regulation that could comply with constitutional requirements.

Anderson (mail) (www):
Well, men might want you but not the types that you want to want you. Might even be a black guy

Okay, if the law won't allow a self-policing (sometimes) profession to discipline members for this kind of conduct, then the law needs to be changed.

I can't imagine that the First Amendment allows me to treat my clients abusively without jeopardizing my bar license.
7.14.2006 4:07pm
chrismn (mail):
Earth to lawyers: Not everything deserves a lawsuit or other legal process (such as those for revoking a license).

If you treat your clients (verbally) abusively, they do have the option of simply walking out. It's a free country.

Should the Soup Nazi lose his restaurant license?

I find this to be a major point of departure between liberals and conservatives and/or libertarians. Most (not all) liberals tend to believe that all bad behaviour should be legally sanctioned in some way or another. Somehow, just somehow, the government needs to do something about it.
7.14.2006 4:21pm
cathyf:
So, suppose Patient A happens to be strongly sexually attracted to black men. So, taking her physician's advice on how to be more attractive to black men, she gains more weight. Thereby harming her health. Wouldn't she have a legitimate complaint against the doctor for giving health advice which harmed her health?

If a doctor advised patients that the healthiest lifestyle choices were to smoke, drink excessively, avoid exercise, avoid consuming any foods not high in saturated fats, etc., would that advice be protected by the first amendment?

cathy :-)
7.14.2006 4:23pm
LawyerJ:

Okay, if the law won't allow a self-policing (sometimes) profession to discipline members for this kind of conduct, then the law needs to be changed.


The trouble with your conclusion is that "this kind" of behavior is pretty ill-defined.

For the sake of argument, I'll agree that the doctor's conduct is of a type that would cause the average member of the community, upon hearing of it, to exclaim "outrageous." That points to the patients' proper remedy: the tort of outrage, or intentional infliction of emotional distress. I could imagine a judgment well within constitutional bounds (assuming you buy into Gore's holding that there is such a thing as constitutional bounds for civil damages) yet sufficient to deter this flaming a--hole of a doctor from repeating his behavior, or even practicing medicine in the area.

I can't see the state getting in here and second guessing a doctor's judgment on how to counsel patients. Suppose, for example, that the fat woman had been his patient for 20 years, and he had tried all other means of persuasion at his disposal to stop her slow suicide by food. That doesn't excuse the racist component of his alleged speech, but it certainly brings the rest of it within the realm of reason. And even the racist bit of it -- suppose it's the patient herself who's the racist and the doctor, knowing that, was seeking in any way he could, to wake her up to realities of her health problems (saying words that he himself found deeply offensive, and which taken out of context could make him look bad). I'm not asserting any of these suppositions are true -- I have no personal knowledge -- but they're certainly plausible. Think of the chilling effect a license revocation would have. "Pretty please with a cherry on top" is simply not going to work for all patients, but that's what you'd be limiting doctors to.
7.14.2006 4:26pm
chrismn (mail):
Cathy,

Those are serious questions (even with the :-) in there). Your question basically is: If speech alone can constitute malpractice, does this violate the First Amendment? Why is it constitutionally protected to say Lyndon Larouche would make a good president, when any reasonable person knows he wouldn't, but not constitutionally protected to say smoking is good for you?

But these are not the questions in this case. Rudeness is not malpractice. So while your question it is a good one, it is not the one on the table.
7.14.2006 4:31pm
Luke:
chrismn:

You can't possibly say that with a straight face. Liberals have a lockdown on controlling behavior through legal coercion? Please.
7.14.2006 4:32pm
Luke:
caveat: While you would definetly be correct if you defined conservative = libertarian, most people (or me at least) don't understand that term that way today, as conservativism has largely abdicated from its small-government roots. But, if you sincerely believe that conservativism is mostly about limited government intervention, then I retract my indredulous comment.
7.14.2006 4:35pm
chrismn (mail):
Luke,

I agree with you that conservatives have all sorts of things they want to make illegal that liberals don't.

But I'm not talking big stuff here. Just the little stuff like here. In normal conversation it does seem in my casual experience that your typical conservative or libertarian is far more likely to say, when confronted with a less than perfect aspect of the world like rude doctors "Oh well" vs. "We should do something to fix this." In my experience the things conservatives want to make illegal that liberals don't is not because they think the law can fix all problems, but that these particular things, to them, are big enough deals that the law has to intervene.
7.14.2006 4:39pm
Alan P (mail):
Earth to lawyers: Not everything deserves a lawsuit or other legal process (such as those for revoking a license).


Nothing in the OP says anything about a lawsuit. It is about a State Board acting to discipline a member for violation of its ethical provisions.

Consider, If I am in Court and for reasons I consider appropriate, I decide to curse at the Judge. First, I would be cited for Contempt. First Amendment privledge. I don't think so.

Following that episode, the State Bar Disciplinary Committee would be likely to take action against me as well. Again, First Amendment protetion. Not hardly.

As to Doctor Patient privledge, the Privledge belongs to the patient and not to the Doctor.

This decision is ridiculous.
7.14.2006 4:40pm
Anderson (mail) (www):
The trouble with your conclusion is that "this kind" of behavior is pretty ill-defined.

That's a problem for the profession. Virtually every professional code of ethics is full of "ill-defined" stuff. Read any state's code of professional conduct for lawyers.

So what? Are "conservatives" now arguing for a Constitutional right to be a doctor or a lawyer?
7.14.2006 4:40pm
Public_Defender (mail):
Should the Soup Nazi lose his restaurant license?
We should hold physicians to a higher standard that restaurant owners.

Points one and two are clearly unprofessional by any reasonable standard.

I would hope that the doctor wouldn't lose his license over these remarks, but some sort of reprimand seems appropriate. Professions have the duty to police themselves. If they don't demand professionalism, then they really aren't professions.

If the doctor wants the right to abuse the people he serves, he should put away his stethoscope and open a soup stand.
7.14.2006 4:49pm
jdmurray:
Luke,

When it comes to behavior that that is about hurting someone's feelings (we used to call that bad manners), chrismn is right on.

The offender will incur consequences in damage to the relationship, whether it's commercial, personal, or otherwise, and legal sanctions aren't needed.

In this case, the doctor loses a patient (customer) and her fees. If he makes a habit of this behavior, he loses lots of customers.

The cons and libertarians I know think that's enough. Do liberals?
7.14.2006 4:50pm
LawyerJ:

So what? Are "conservatives" now arguing for a Constitutional right to be a doctor or a lawyer?


A strawman argument if ever there was one.

What's being argued for (and those who know me would find it beyond absurd to see me labelled conservative) is the application of black-letter first amendment law: government curbs on speech can be void for vagueness. How bague is too vague? There's the rub, and Eugene would know better than I just how the 1st A. question would play out here. But for the reasons in my first post, I'm on the doctor's side on that precise question (note this does not mean I'm arguing that the doctor acted appropriately here, as I think my first post made clear)
7.14.2006 4:50pm
David M. Nieporent (www):
So what? Are "conservatives" now arguing for a Constitutional right to be a doctor or a lawyer?
Are you arguing that the government can take your job away merely for being rude? (We're not talking about an employee of the government; we're talking about a private citizen.)

Why isn't the proper remedy for this (alleged) behavior for the patients to grow up and get a new doctor?

Who runs to the government and complains because someone offends them?
7.14.2006 4:55pm
Frank Drackmann (mail):
What do you expect from a Harvard graduate? Dr. Bennett most likely appealed to one of the few things that might help his patient lose weight. She probably has the problem with Black Males, not Dr. Bennett.
7.14.2006 5:06pm
Luke:
No one uses the law to intervene in an area where they think the issue is "no big deal." The fact of the matter is you are merely conflating your "big deals" with liberals' "small deals" (that sounds kind of dirty, doesn't it?) Conservatives and liberals differ on what the big deals are.

Liberals would be far more likely to shrug their shoulders at homosexuals and homosexual marriage, for instance, whereas conservatives feel it is a 'big deal' enough to ban (both marriage and homosexual activity).

For my part, I am basically a free speech libertine
7.14.2006 5:07pm
Luke:
No one uses the law to intervene in an area where they think the issue is "no big deal." The fact of the matter is you are merely conflating your "big deals" with liberals' "small deals" (that sounds kind of dirty, doesn't it?) Conservatives and liberals differ on what the big deals are.

Liberals would be far more likely to shrug their shoulders at homosexuals and homosexual marriage, for instance, whereas conservatives feel it is a 'big deal' enough to ban (both marriage and homosexual activity).

For my part, I am basically a free speech libertine and don't believe their are really grounds for punishment by the state's licensing board. However, there are certainly grounds for a "mental pain and suffering" (or something akin, IANAL) lawsuit if the right kind of lawyer was found.
7.14.2006 5:08pm
Aidan Maconachy (mail):
There has been a general decline in what was once called "polite behaviour". We shouldn't assume that doctors and other professionals are immune from these influences.

Every time I pick up a paper some female member of the teaching profession is en route to court for soliciting sexual favors from underage male students, or for posting scantily dressed pics of themselves on the internet. The norms that once governed behaviour more or less successfully have been completely subverted by new media that frowns of censorship, or even minimal controls. So I don't think people who behave in extreme ways are necessarily the exception. We seem to be in the age of the a'hole and "bad" behaviour (by earlier standards), is actually rewarded.

I was in a games room recently and a group discussion in the main room began to get out of hand. A couple of the chatters were being constrained and reasonable in their responses, but they were sidelined by a guy who used the "c" word liberally while also demonstrating excellent debating skills. In the end it was the abuser who won out and who attracted fawning compliments from people who were obviously impressed by his willingness to abuse and humiliate his opponents.

The cultural climate is quite different now and to expect the AMA or any other professional body, or even the government, to enact rules to rein in extreme behaviour is unreasonable. It's became more of a dog-eat-dog environment, and I agree with the person up-top who said that we always have the option to react. Of course, the reality is that some people are victims of the type celebrated in Depeche Mode's "Master and Servant". They take it when they are in the situation (perhaps even enjoy it), but then go away and decide they have been abused - often after being convinced by family members.

So, my advice would be to forget looking for professional or governmental protection. If someone crosses the line in their dealings with you, stand up for yourself. Even if you don't have buds to back you up, you do have a phone, and the one thing professional bullies hate is the prospect of the word getting out and about.
7.14.2006 5:10pm
Luke:
Oops, double post. Can someone delete the 4:07 post (and this one)?
7.14.2006 5:10pm
Anderson (mail) (www):
Who runs to the government and complains because someone offends them?

So if I commit legal malpractice, the client should just shrug and sigh, "well, I'll know better next time"?

Obviously not.

So where, exactly, does the professional line end?

The kind of people who have a fit about "vague" ethical and professional guidelines, are probably the people who don't need to be professionals in the first place. I certainly wouldn't trust you to mow my yard, let alone be my doctor or lawyer.
7.14.2006 5:11pm
hey (mail):
Out of context, the doctor appears to be an ass. Thankfully, despite the wishes of the left, there is still a free market in healthcare and people can choose their doctors. The appropriate actions by a patient hearing the doctor's comments are a) slap him across the mouth (female patients only), b) storm out of the office, declaring how you will never speak to them or be a patient of theirs ever again and c) tell all people you know about how rude and impolite the doctor is. Running to a quasi judicial board is a load of bollocks.

People have lost faith in their abilities to resolve disputes themselves and offload far too much to the state and lawyers. A Shakespearean remedy is perhaps called for.
7.14.2006 5:20pm
Robert Lyman (mail):
I think it exceedingly odd to suggest a lawsuit rather than disciplinary action.

1) it's highly unlikely these statements will cause the kind of extreme emotional reaction you need to win on an outrage claim, and

2) it's fair to say that at least statement 2 looks very unprofessional and grossly inapproriate for a doctor to be making (although I can imagine context for all three that makes them seem much more reasonable).

Consider: the good doctor here can go to a bar and hit on any girl he wants, and nobody can sue him. But he can't hit on his patients, whether inside or outside of the office. Right? The professional rules are different from the tort rules, because we have different expectations of our doctors than the people we encounter on the street.

3) Also, litigation is vastly more expensive to the parties and the state than a professional discipline proceeding.
7.14.2006 5:24pm
Aidan Maconachy (mail):
Agreed on the lawsuit side of it, but how the heck can you police this stuff when it's all "I said ... she said" back and forth. Time consuming, wasteful and ultimately futile when dealing with instances of alleged verbal insult.

Quite different though if the doctor slaps a patient around or exploits medical procedures for purient reasons. Then for sure, it should be subject to rigorous proceedings.
7.14.2006 5:34pm
Robert Lyman (mail):
I'm also having trouble with the 1st A claim.

What is "zealous representation"? What is a "false or misleading" advertisement? What is "beyond your competence"? What is a "reasonable fee"?

Maybe I have a lucrative career striking down legal ethics rules ahead of me.
7.14.2006 5:43pm
TheNewGuy (mail):
I wonder if some out-of-context quotation is being taken here.

The doctor might be a real dyed-in-the-wool ass, but I'd like to know a bit more about the doctor-patient interaction that happened in those cases before I pass judgement on the man.

I'm an ER physician, and I've had the occasion to use some pretty vulgar and foul language in the course of my practice. Although profanity doesn't bother me particularly (having taken care of Marines out in the desert during my military time), I will say that it's sometimes helpful when communicating with certain patients, or to emphasize a point

That said, you certainly can't speak to a little elderly southern lady in the same manner you'd use with a gangbanger.

Sometimes it's a matter of putting things in terms the patient understands or can relate to... I wonder if the "black guy" thing wasn't an effort in that direction (if it was nakedly racist, then the doctor should be ashamed).

Either way, I think it's excessive to attempt to sanction the man's medical license for being a jerk. Hell, if that were the standard, we'd be missing entire surgical sub-specialties.
7.14.2006 5:46pm
chrismn (mail):

"Either way, I think it's excessive to attempt to sanction the man's medical license for being a jerk. Hell, if that were the standard, we'd be missing entire surgical sub-specialties."


Hah! Which ones?!
7.14.2006 5:49pm
Robert Lyman (mail):
NewGuy,

Is it common for members of those rude surgical specialties to suggest suicide as a treatment option? (assuming that's actually what he did)
7.14.2006 5:52pm
TheNewGuy (mail):
Heheheh... not going there, Chrismn.

I still need those guys to answer my late-night phone calls to patch up my knife/GSW/barfight victims.
7.14.2006 5:54pm
Eugene Volokh (www):
(1) Note that the court decision didn't say the speech couldn't be regulated at all -- it expressed no opinion on the subject, other than to say that it's entitled to some First Amendment protection. Rather, it concluded that the rule involved in this case, which could apply to a wide range of speech, was unconstitutionally vague.

(2) Because the court didn't need to get into details on each statement, it's hard to tell why the doctor mentioned the "black man" matter (if he did) -- but my guess is the same as that of some other commenters: He likely assumed, possibly just randomly but possibly based on a good deal of personal knowledge of the patient, that the patient disliked blacks, and that putting the matter in this deliberately harsh way was the best way to get across to her that she really needed to lose weight.

(3) Looking at the broader First Amendment question -- beyond just the vagueness issue -- it seems like there might be (I'm not sure, but possibly) a distinction between regulations aimed at speech that is likely to be unsound medical advice for the patient (e.g., "sure, go ahead and smoke all you want, smoking isn't really bad for you") and speech that may be sound advice but is offensive (e.g., "lose weight or no man will want you").
7.14.2006 5:54pm
Public_Defender (mail):
TheNewGuy makes several good points, so I modify what I wrote above. Context is important, and we don't have much of it here. Most professionals get salty from time to time. Sometimes it's appropriate. Sometimes not.

Professionals have fewer First Amendment rights than non-professionals, and doctors should have the ability to regulate professional behavior among their own. But they should exercise thay responsibility carefully.

What they need is a non-disciplinary procedure for unprofessional behavior that does not rise to the level of an ethical violation. They could then woodshed a doctor without going after the doctor's license. The doctor could take the criticism or leave it.
7.14.2006 5:59pm
TheNewGuy (mail):
Robert,

Actually, I have seen it suggested, though never seriously. It's usually thrown out there in discussions with patients who can't/won't comply with treatment: "You're killing yourself by not taking better care of your diabetes, Mr. Jones. You may as well put a gun to your head if that's your goal..."

I've never seen a colleague give outright instructions to a patient to kill themselves, but I can easily see where a tongue-in-cheek comment like the one above could be interpreted the wrong way. This is why I'd love to know exactly what was said, and the context of the discussion.
7.14.2006 6:05pm
Tim DeRoche (mail) (www):
I'm no lawyer, so forgive my naivete, but is it common for the law to reference a set of standards established by a professional organization?

Is this at all problematic? It seems to be "outsourcing" part of the law to the AMA.

Just curious if this is common and uncontroversial.
7.14.2006 6:19pm
Robert Lyman (mail):
Tim,

That's practically the definition of "profession."

The idea is, the average person (and the average legislator) can't really tell when a doctor/lawyer/accountant screws up, so you let a bunch of people from that group make (and to some degree, enforce) the rules.
7.14.2006 6:24pm
Frank Drackmann (mail):
Doesn't anyone remember the theme from M*A*S*H? "Suicide is Painless" and one of the major subplots was Hawkeye helping the Dentist kill himself with a "Black Capsule". The Dentist was suicidal because he thought he was gay after experiencing erectile dysfunction. The black capsule was merely a sedative and one of the Nurses came and had sex with him to return him to his former powers. BTW, Dr. Bennett is a Family Practitioner of some 25 yrs experience and probably actually cares about his patients. The easier and more cost effective choice would be just to smile and nod to the obese Patient A, and get on to the next exam room.
7.14.2006 6:44pm
MDJD2B (mail):
When I was a resident, a physician with some strong prejudices was in charge of a second trimester abortion program. As he was injecting the abortifacient through a woman's abdominal wall, he was heard by residents and the patient to say, "Wow, I'm aborting a Jew," or words to that effect. (The woamn wanted the abortion, and this was the only hospital in town that performed them.)

Professionalism imposes stricter limits on the professional's speech than does the Constitution. I submit that two of these limits are:

1. Doctors' speech should convey to patients that they have the patient's best interests at heart. The patient's ethnicity, occupation, histroy of criminl activity, etc., should not affect the doctor's expressed concern for his patient. If a doctor cannot follow this rule, then discipline is in order. I submit that the situation I just described falls into that category.

2. Doctors' communications should be respectful of patients' priorities that may conflict with their good health. If patients' desires to eat, drink, and be merry have higher priority than their desire to maximize their health, then doctors should respect this once they have adequately informed the patients of the consequences of their behavior. Doctors should rarely, if ever, scold their adult patients.
7.14.2006 6:57pm
Dave Hardy (mail) (www):
>"Either way, I think it's excessive to attempt to sanction the man's medical license for being a jerk. Hell, if that were the standard, we'd be missing entire surgical sub-specialties."

>Hah! Which ones?!

Could I nominate Oncology? When my late ex was dying, and they wanted to move her from the bed to a hospice...

1. I'm told over the telephone that she's not gonna make it, they're coming over, and I might want to break the news. I get her mother outa there, sit down, take her hand and explain. Her eyes grow wide. I've had about 15 seconds, and onocologist #1 rushes into the room, says "I see Dave has been talking to you, so I guess this is no surprise. All treatment options have been exhausted, we want to move you to a hospice and get a do not rescitate order from you." She manages to ask, thru me (she could barely speak), can she tell them tommorrow? Reply "No, we might have to intubate you soon. You don't want to die with a tube in your throat, do you, unable to speak?" He didn't even know that she could barely get out a word as it was.

2. I wait for their rounds next morning, and oncologist no. 2 shows up. I've been unable to get any details on her condition, have no clear idea why she's beyond treatment. I introduce myself and ask if we could step into the waiting room for a moment and talk. He snaps back "No. I have over a hundred patients, and I don't have an hour or two to spend on this case." (I had in mind a little more like 3 minutes).

To be fair, I am told that the third oncologist, whom I didn't meet, was a decent guy. And I imagine telling people that they're not gonna make it, on a regular basis, isn't a job one might like. (Another doc later informed me that oncologist no. 2 was indeed a horse's posterior).
7.14.2006 6:59pm
Anderson (mail) (www):
But they should exercise thay responsibility carefully.

Note that the board in this case was investigating the guy. Hadn't even decided to discipline him.

The court enjoined the *investigation*.

Was the board exercising its responsibility carefully? Guess we'll never know.
7.14.2006 7:03pm
Eugene Volokh (www):
MDJD2B: "Professionalism imposes stricter limits on the professional's speech than does the Constitution" is, I take it, somewhat imprecise. The Constitution imposes on limits at all on a private professional's speech. Rather, I assume the assertion is either that (1) "professionalism imposes stricter limits on the professional's speech, limits that aren't legally enforceable but should still be recognized by doctors and their peers, than what the law may impose consistent with the Constitution," or (2) "professionalism allows government agencies to impose stricter limits on the professional's speech than what can be imposed on other people's speech."

If the claim is (1), I think that's certainly right, and though one can debate just what those limits are, that's mostly not a matter on which First Amendment experts can add much. If the claim is (2) (as seems more likely), I wonder why exactly the First Amendment allows enforcement of legal restrictions on speech that "[suggests] that [the doctor doesn't] have the patient's best interests at heart," or that aren't "respectful of patients' priorities that may conflict with their good health." Wouldn't letting the patient go down the street to another doctor be the less restrictive, and basically adequate, alternative to legal restriction on speech? Also, was the court was right in saying that, whatever restrictions may be imposed, the ones that the New Hampshire rule imposed are unconstitutionally vague?
7.14.2006 7:14pm
MDJD2B (mail):
Prof. Volokh,

Thank you for commenting on my comment.

With regard to my first point-- that physician communication should convey that the physician has the patient's best interests at heart:

A medical license allows physicians to do things to their patients that otherwise would be criminal, like cutting them open or inserting metal objects into their reproductive and excretory orifices. This license is granted so that physicians may restore and preserve the health of their patients. There is great potential for harm, and great potential for abuse. This potential is present not only when a doctor performs invasive procedures, but when appropriate medical conversations invade areas of a patient's life that are normally private.

Words, themselves, when used by a physician, may be therapeutic (or countertherapeutic). This is overt in psychiatry, but is true, as well, in other areas. What a doctor says is likely to have impact upon physical health as well as emotional health. This influence is both direct and indirect (the latter being the influence that the words have on the patient's accepting treatment.

So what a doctor says to a patient is not easoly separable from the rest of the therapeutic process. When a physician tells a patient that he wishes he didn't have to treat that patient becasue he does not like her or what she stands for, he is doing more than engaging in free verbal expression. He is engaging in a countertherapeutic activity. Under these circumstances, his privilege to do the other things that physicians are licensed to do should be scrutinized. Take my example of the physician who told a woman (while he was aborting her pregnancy) that he was doing a good thing in preventing people of her ethnicity from reproducing (this happened-- it is not a hypo). This was qualitatively different from making a speech on a street corner saying that people of a certain ethnicity should be aborted. Whatever harm was done cnanot be undone by the woman's going to another doctor. Because this was said in a therapeutic context, this doctor was abusing a state-granted privilege to harm a patient.

It would not be enough to tell the woman that she could go to a different doctor next time she needed care. Even a lawsuit may not be enough. First, there may be no specific damages. Second, the deterrent effects of litigation in a case like this are questionable.

With regard to my second point, I likely was wrong. If you do not like a hectoring doctor, you can find one that doesn't hector. But there comes a point where hectoring crosses the line and becomes emotional abuse.
7.14.2006 8:07pm
Joanne Jacobs (mail) (www):
On "House," the lead doctor frequently is rude to patients (and colleagues). Perhaps only Hugh Laurie can get away with it.

When my father was hospitalized, a staff doctor was offended by my mother's insistence that he be given a test for which he'd been waiting. He was begging for water and he couldn't get it until the test was done. My mother wanted the tester to be asked to make it a priority. The doctor, who just wanted a do-not-resuscitate order, complained she'd raised her voice, which she hadn't, and stalked off in a snit. Despite the doctor's insistence that my father was dying, he pulled through and was able to go home and die six weeks later in his own bed. My mother lodged a complaint about the doctor: My parents are plaque-on-the-wall donors to the hospital, so she has more clout than the average concerned wife.
7.14.2006 8:11pm
MDJD2B (mail):
Also, was the court was right in saying that, whatever restrictions may be imposed, the ones that the New Hampshire rule imposed are unconstitutionally vague?

Prof. Volokh,

The rule may indeed be vague, but (as I suggested in the long post I just posted) this sort of thing is closer to a tort/battery/negligence model than to a constitutional free speech model. I would allow professionals and Boards of Medical Examiners to determine the standard of care regarding professional communications, with the idea that the courts and the legislature are available to react to excesses by the professional and administrative bodies. I can't be more specific-- I haven't had a course in Administrative Law yet (I'm an MD; the "JD" part is 2B).
7.14.2006 8:12pm
Public_Defender (mail):
The opinion was short on law when it came to the right of professions to regulate speech they deem unprofessional. Is that because there is little law or because the court and/or the parties didn't do their research?
7.14.2006 8:20pm
Eugene G. Bernat (mail):
"Might even be a black guy," certainly indicates a racist mindset. I wonder if he has any black patients, if and how has that affected his medical treatment of them. I am a huge supporter of the First Amendment; however, professions and academics should have a degree of regulatory ability, when a professional or academic is acting in their official capacity. Even in terms of academic freedom, which has been in the news lately there should be a degree of regulation (e.g. 2+2=22 or the Earth is flat should be left out of the classroom). If he wants to go and slap a swastika on or a white hood, I believe he has every right to do so, but that ends at the exam room door.
7.14.2006 9:13pm
pallen:
This issue made me think of another: what if we did have state funded medical care, would not the state be then entitled to restrain the speech of doctors in ways not currently possible.

To be more specific, I have Johanns v. Livestock Association and Nebraska Cattlemen v. Livestock Marketing Association in mind.
7.14.2006 9:13pm
Frank Drackmann (mail):
When I was a new intern I had a patient show up at the County Health Department wanting a refill of her medication "HT86". New Interns love writing(more exactly signing) prescriptions so I dutifully looked up the medication in the hospital formulary without sucess. After consulting several textbooks(pre internet days) and a superior who also had no clue, I did what no proud physician wants to do, call the pharmacy. The pharmacist laughed and told me that "HT86" was the in-house placebo available only on special request for select patients. The consensus among the other residents was that placebos were unethical(especially as our institution was close to Tuskeegee) and I should explain to her that she had been taking a colored sugar tablet for the last 6 months. I thought about it for a few seconds and remembering the "first do no harm" rule, signed her new prescription.
7.14.2006 9:23pm
David M. Nieporent (www):
Who runs to the government and complains because someone offends them?

So if I commit legal malpractice, the client should just shrug and sigh, "well, I'll know better next time"?

Obviously not.

So where, exactly, does the professional line end?
If that's the extent of your reading comprehension skills, you probably should have said, "So when I commit legal malpractice..." Who's talking about malpractice? (Did I ask about malpractice? Is your statement in any way responsive to the portion of my post you quoted?) Is there any allegation of malpractice? Did any of the complaining patients suffer any tangible injury? Or is this simply a matter of offending the patients? Should mere offensiveness really result in the loss of a career?

In practice, licensing primarily serves as a form of protectionism. But in theory, it exists to protect the public... from incompetence. Not from mere incivility. Assuming that the allegations are true and that there's no context which justifies or mitigates them, he's a jerk. That seems to be a job for the marketplace, not for licensing.
7.14.2006 10:51pm
jb (mail):
This is nuts. I am a physician/surgeon. Everything I do in interacting with a patient in the therapeutic setting, whether verbal or physical, has the potential to help or harm a patient, and is subject to regulation by the state medical board. This investigation is without question warranted, and if allegations are confirmed, this doc should be sanctioned in some way. He doesn't have a 1st amendment right to prescribe an antibiotic for cancer, and he does not have any right to abuse patients this way.

A more problematic question is the reliance of the court on AMA principles in setting professional standards, and queried by a poster above. A minority, less than 1/3, of American MDs, are AMA members. A major reason, aside from not getting anything of value for the >$400 dues, is disgust at the lefty inspired political stands of the AMA. It really irks me that the legal system relies on the AMA the way it seems to. One example is that the AMA says that it is unethical for a doc to participate is capital punishment. I strongly disagree, and would have no problem assisting if asked, at some risk to my license.
7.14.2006 11:43pm
Robert Lyman (mail):
"Might even be a black guy," certainly indicates a racist mindset.

No it doesn't, any more than "no man will want you" indicates hatred of fat people. That could be how one gets through to a woman known to be both vain and racist.

It could also prove he's racist. Context is everything here.

I disapprove, and I would never say it myself. But it doesn't prove he's racist.
7.14.2006 11:53pm
American Psikhushka (mail) (www):
MDJD2B-

A medical license allows physicians to do things to their patients that otherwise would be criminal, like cutting them open or inserting metal objects into their reproductive and excretory orifices.

Just out of curiousity, if a doctor had illegally nonconsensually done something like you describe above how would one go about finding medical personnel experienced in investigating and documenting cases like that? If local and regional physicians had closed ranks to protect him, how would one go about finding investigators willing to take the case?
7.15.2006 12:31pm
jb (mail):
Every medical board has investigators to check out such incidents. Medical personnel are not trained investigators (excepting forensic pathologists- check your Yellow Pages), so the premise of your question is false. These activities are by default illegal outside the medical setting. In the medical setting, specific consent, usually but not always a written document, is required to make such activity legal. I doubt that your implication that physicians would "close ranks" and interfere with an investigation has validity. It will take more than an allegation to get a conviction, but if something happened and can be substantiated by evidence, the medical board will take action, and refer to law enforcement if appropriate. If it happened outside the medical setting (and maybe even within the medical setting), you could do what everyone else does- call the police.
7.15.2006 3:32pm
rjh:
The decision merely hints at this, but a background check will reveal that this doctor has a long history of problems with the licensing board. Among past infractions that led to punishments are falsification of credentials and failure to notify the board when hospital admitting priviledges were revoked. The two parties have an already very difficult history.
7.16.2006 7:35pm
LAS (mail) (www):
What do you expect from a Harvard graduate? Dr. Bennett most likely appealed to one of the few things that might help his patient lose weight. She probably has the problem with Black Males, not Dr. Bennett.

Your point, if I get it, is well taken. A good doctor should know something of their patient's personal likes and dislikes.
7.17.2006 12:35pm
Public_Defender (mail):
In practice, licensing primarily serves as a form of protectionism. But in theory, it exists to protect the public... from incompetence. Not from mere incivility.

I'd argue that licensing serves all three goals--protection from competition (not a laudable goal, admittedly), protection of the public from incompetence, and protection of the public from incivility.

On that last point, I think a non-disciplinary verbal rebuke from the medical authorities is more appropriate than an attack on the doctor's license.
7.17.2006 3:09pm