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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.

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