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Judge Rules Doctors Have Free Speech
By Kerry Grens on Thursday, July 6, 2006.
A recent decision by a Merrimack Superior Court judge ruled doctors have the same free speech rights as anyone else.
The New Hampshire Board of Medicine wanted to investigate Rochester doctor Terry Bennett for making offensive remarks to patients.
But the Judge stopped the investigation because it would violate the doctor’s free speech rights.
According to Judge Edward Fitzgerald, calling a patient fat or unattractive to men—though it may be offensive—is permissible.
New Hampshire Public Radio’s Kerry Grens has more.
In two thousand one, a patient who suffered from brain injuries wrote a complaint to the Board of Medicine.
In it, she said that Doctor Terry Bennett told her he’d be relieved if she committed suicide because her pain would be over.
In two thousand four, the Board received another complaint.
The patient wrote that Doctor Bennett told her if her husband died, no one would want her, except maybe black men, because she was too fat.
Doctor Bennett says the complaints are a distortion of conversations he had with the patients.
But he does admit that he approaches medicine with a tough love attitude, and might make upsetting statements to get his patients’ attention.
He says he gives this speech to all obese women as a way to get them to lose weight.
Bennett: Single male Americans die like flies at every age group. So there’s never enough to go around. There’s always more single women. So you poll the guys, and I don’t care if they got a belly they need a wheel barrow to push around, they’ll tell you that they really don’t like obesity, but for one group: black guys. They’re neutral to positive on obesity, for reasons that are not entirely clear and I will not go into all that.
But those are the factual observations. The next observations are there’s almost no single black guys in new Hampshire.
Doctor Bennett concludes to his patients that, statistically, the future for an obese, single woman in New Hampshire reads lonely and ill.
He views his approach as an effective way to get patients to change their behavior.
But for the patient who complained to the Board of medicine, the speech made her shocked, humiliated, and angry instead—though she never claimed her health was harmed.
When the Board moved to investigate the complaints, Bennett’s attorney Chuck Douglas took the board to court.
Douglas: They were proceeding in disciplining Doctor Bennett for a variety of complaints all arising out of things he said, not things he did.
According to the state law, the Board of Medicine can take disciplinary action if a doctor has engaged in dishonest or unprofessional conduct, has been negligent in practice, or has intentionally injured a patient.
Attorney Douglas argued successfully the law does not suspend a doctor’s right to free speech.
Douglas: Certainly if he recommended something that was clinically bad for the patients, that’s a different question. You don’t have the free speech protection. But in all these cases he was trying to help them.
Though Doctor’s Bennett’s approach to medicine might be unconventional, it is protected by constitutional law, so says Franklin Pierce Law Professor Jeff Roy.
Roy: The Supreme Court has made clear that people even in heavily regulated professions like doctors and lawyers do retain their free speech rights. The question is, at some point does someone like a doctor or lawyer cross the bounds of what is ethical?
Laurence McCullough, Professor of Medicine and Medical Ethics at Baylor College of Medicine, says becoming verbally aggressive to get a patient’s attention is not unethical.
McCullough: That’s a matter of discretion and judgment on the part of doctors. Now how do you find out that you’re going to offend someone, you find out later. One way to read his behavior is he was really concerned to try to get some behavioral change in patients and attempted to use some blunt talk to do it. Doctors talking bluntly to patients is well within professional behavior.
Doctor Virgina Hood disagrees.
She is a medical professor at the University of Vermont and a member of the Ethics and Human Rights Committee at the American College of Physicians.
She says offensive speech can harm.
Hood: Is it legal? Probably. It’s clearly legal, because somebody said it is. But it’s not professional behavior.
And whether tough talk does much good to effect change in patients, Hood says, is up for debate.
But many of Doctor Bennett’s patients say it works for them.
The attorney general’s office, which represented the Board of Medicine, has not yet decided whether it will appeal the decision.
SOQ
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I am a black man who has lived in NH since 1973. I was shocked, angered and offended by the comments of Doctor Terry Bennet stating that black men love fat women. I cannot believe that such an ignorant person can be a doctor. Only a racist cretin would publicly make such a comment. My daughter graduated from Robert Wood Johnson Medical School a few weeks ago, she's doing her residency at Columbia University. She is already 10 times the doctor that this idiot Bennet will ever be. Terry Bennet owes black men an apology
Yvan
I;m a "white women"-not that it matters. I am outraged by the mouth, never mind the mind, of this idot!!! This man has been allowed to run the edge of the line for years. This is really beyond belief!!! Just when do the rights of real persons come into play?!?!?!
This type of comment could not only hinder the well-being of a women but cast negitive impressions on "black men" as well. The fingers of this type of comment are endless...
If this man is allowed to continue to practice without consequesces---SHAME ON US!!!!!
Think about that one!
Brenda
Justice Served!
Thankfully Judge Fitzgerald made the right call. We can't legislate polite behavior - it's ridiculous that the case even got this far. If people don't like Dr. Bennett's approach, find a new doctor! Isn't that one of the benefits of a free market society?
Personally, I think that Dr. Bennett is on the right track. We have a major obesity problem in this country and very little is being done about it. This crisis is going to cost us millions in healthcare costs, lost productivity, and quality of life. We need more people like Dr. Bennett to show a little 'tough love'.
If the overweight patient in question had put as much effort into exercise as she put into trying to bring Dr. Bennett down, perhaps she'd be a lot better off...
As a black man, former journalist, Assistant Attorney General and practicing Civil Rights lawyer, everything I have to say about Dr. Bennett I have entered on my blawg at Chris King's 1st Amendment Page:
http://christopher-king.blogspot.com/2006/07/kingcast-welcomes-nh-dr-ter...
As a First Amendment scholar, this is what I will be watching very carefully as my counsel and I compare and contrast his case with mine, for attempted felony extortion in Jaffrey, NH:
-------
I will find it interesting to see how far New Hampshire protects my First Amendment Rights to seek redress through the NAACP for Civil Rights abuses in a very professional Demand Letter to Jaffrey, NH Police Chief Martin Dunn, per case law established in NAACP v. Button, 371 U.S. 415 (1963) -- vis a vis how far the State protected Dr. Bennett's rights to issue totally unprofessional and racist comments to his patients.
Dr. Bennett was able to enjoin any governing disciplinary action based on his First Amendment Rights, just as any Civil Rights Organization should enjoy the First Amendment Right to issue a Demand Letter to the police after careful review of relevant police reports and dismissal of the underlying charges against the Defendant.
It's really pretty simple: The mere fact that your speech upsets someone should not subject you to professional or criminal sanction.
Peace.
Hello Everyone.
Reading through the physician's disgusting comments, I was reminded of similar situations in K-12 environments. To this day, I can recall certain teachers' cruel "jokes" about physical appearance, especially during gym classes. At least with doctors, we as adults can make a report to the State Board of Medicine and/or just go to another MD. Schoolchildren, however, must silently simmer in their shame or be sent to the principal's office for "mouthing off."
In my own experience, humiiation is not a motivator but the basis for a rotten memory that can last a lifetime. Any opinions on this?
ihabramson@aol.com
Hi all,
I've never actually have "come out" about this... But, after reading everyone's posts, and the decision on this being made... I felt the need to respond.
I am the "obese" patient that actually filed the complaint. That's all that I did. I filed a complaint. I didn't sue, I didn't do anything else but file a complaint.
I did however have to silently "listen" and read all of the cruel remarks that others have made.
I never asked for ANY of this. It was my right (Just as Bennett has the "right" to free speech) to file a complaint against a physician that I thought/felt was wrong. He did do harm to me. I can't even tell you how horrible he made me feel. He crossed a line that he didn't need to cross. How is it that he felt that he could speak to me about my sex life??? How would he know what type of man would find me attractive??? He's a general practitioner for crying out loud. And by the way, I did chose to leave his practice and never return.
To all of you who think that I was out there to make a buck - I wasn't. I wasn't trying to get him in trouble. All I wanted him to understand is that he really shouldn't speak that way to people. It can, and did do more harm than good.
I find it interesting that the article states "But many of Doctor Bennett’s patients say it works for them." This is interesting, because if you live in NH, you have probably had the privilege of seeing these 'patients' on WMUR, picketing in support of Dr Bennett. Most of these folks were noticeably over weight, and were serving coffee and donuts at their rally.
With all of the female body conscious issues we have in the world today, shouldn't someone's psyche be considered when giving them your patented 'you're a fat women in NH who's husband is going to die like a fly' speech?'. Don't people deserve care that is meant to be informative and enlightening? Not humiliating, degrading, and let's not foget to mention racist...because that is the true crux of the remark, it was given tinged with racism and it was received exploding with it....