Sunday, July 09, 2006

NH court: Doc has 1st Amendment right to be a jerk

As reported by the Associated Press, New Hampshire judge Edward Fitzgerald "has ordered the state Board of Medicine to stop disciplinary proceedings against a doctor accused of telling a patient she was so obese she might only be attractive to black men and advising another to shoot herself following brain surgery." The article reports that Terry Bennett, M.D., says "he planned to sue everyone involved for 'malicious prosecution.'

"'I am not inclined to be forgiving about it,' he said. 'It's been devastating and infuriating.'"

New Hampshire Public Radio aired a good piece on the matter, including comments by medical ethicist Larry McCullough (tough love -- and tough speech -- may be what the doctor ordered and is within the bounds of standard medical practice) and Vermont medical professor Virginia Hood (offensive speech can cause harm).

There are a few excerpts from the judge's opinion in an article in the Manchester Union-Leader.

This case raises some interesting issues. First, can it possibly be true that a medical board can't decide that certain speech constitutes unprofessional conduct and punish a licensee for engaging in such conduct, even if the speech is otherwise protected by the First Amendment? And second, the First Amendment cuts both ways. Recall the 2002 Ninth Circuit decision that First Amendment rights of physicians meant the federal government couldn't revoke the drug licenses of California physicians who recommended marijuana to their patients (Conant v. Walters).
posted by tommayo, 10:00 AM

Health care law, with digressions into constitutional law, poetry, and other things that matter