The Lonely Doctor
by Kevin Pezzi, MD
Eugene Volokh, a UCLA law professor, wrote an article (The Lonely Optician) for The Wall Street Journal in which he discussed the ridiculous regulations in the state of Washington prohibiting healthcare providers not just from becoming romantically involved with patients or former patients, but even outlawing everyone from doctors to nurses to opticians from commenting on a patient's appearance.
I've met few doctors who are robots and even fewer patients who want robotic physicians, surgeons, nurses, or even opticians. Thus when I worked Sunday mornings in the ER and had patients dressed in their Sunday best, I'd sometimes say something such as, “You look so nice.” If I said that in Washington, I might be subjected to some punishment: perhaps loss of my medical license, or perhaps 100 lashes with a whip soaked in salt and battery acid.
A few other states have tried to impose similarly restrictive professional codes of conduct, but their overly zealous regulation was overturned when courts found that it violated the state constitutional right to privacy, which protects sexual autonomy and everything related to it, including dating and marriage, for everyone: from doctors to dentists to used car salesmen.
Lawmakers with limited intelligence and common sense sometimes try to compensate for their lack of brainpower by writing overly broad regulations because they aren't smart enough to craft commonsensical laws that prohibit unprofessional conduct while permitting humans to be human.
One need not be a legal sage to separate the wheat from the chaff in regard to detecting behavior that could harm patients. For example, a former boss told me how one of our ER docs would get an erection and “press himself” against women during pelvic examinations.
Kooky? You bet. If you knew the rest of what that character did (I described the rest in Love & Lust in the ER), you and I would agree that the State Board of Medicine was eminently justified in permanently revoking his license. However, several years ago I watched a documentary (on PBS, I think) that followed medical students for a year. One of the med students met and later married a gorgeous patient, and no producer or viewer was so shocked that they called 911 to tell the authorities that a medical practitioner used a suture kit as a tool of seduction to mesmerize a helpless young female, rendering her powerless to decide for herself if dating and marrying him was truly what she wanted to do.
States and the federal government sometimes have sinister reasons for creating overly restrictive laws: when so many people are lawbreakers that the government cannot possibly prosecute all offenses, it gives great power to the ones who decide who will be targeted and who will get off scot-free. If you knew every law, you would probably be shaking in your boots (and mad as hell) that you or even a seemingly law-abiding loved one could have committed a crime that could put you in prison for decades. Many of these felony offenses are so common that virtually everyone is guilty of at least one, if not several of them.
When I began working in hospitals it didn't take me long to figure out how administrators justified firing staff they didn't like. If they couldn't find a legitimate reason (which is easy to do, given that every nurse, doctor, technician, or clerk will make occasional mistakes), they would concoct some BS excuse:
ADMINISTRATOR: You yelled at that patient.
NURSE: Yes, but he was punching me!
ADMINISTRATOR: That is no excuse. You still should have acted professionally. Yelling at patients is a violation of our policy. You're fired.
Regulating speech is not legal in the U.S.
In the United States, ALL laws and regulations limiting what doctors and others can say are 100% illegal because of our Constitution, which is the supreme law of the land. The First Amendment states that “Congress shall make no law … abridging the freedom of speech.”
“Congress shall make no law” means that Congress shall make NO law — not one law, or two laws, or a limited number of laws; it means NONE whatsoever! No means zip, zero, zilch, nada. Speech that is restricted in any way is controlled and therefore NOT free and NOT constitutional.
“Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, federal statutes, and U.S. Treaties as "the supreme law of the land." The text provides that these are the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state.” (source)
Furthermore, the Privileges or Immunities Clause (Section 1, Clause 2) of the Fourteenth Amendment to the U.S. Constitution stipulates that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” One of our most fundamental privileges is the right to free speech and immunity for exercising it.
“Even state constitutions are subordinate to federal law.” The U.S. Constitution is valid in 100% of the United States, not just some states, so no state can outlaw free speech or penalize it. It is also valid 100% of the time whether you are at home, at work, or elsewhere.
The Michigan Court of Appeals affirmed that the state does not have the right to outlaw public profanity. Michael J. Steinberg, legal director of the Michigan chapter of the American Civil Liberties Union, said the government “cannot act as speech police.” Nor should they even try. Although some speech seems clearly reprehensible and worthy of deterrence, speech is too subject to interpretation. What Person A finds offensive Person B may find funny. If profanity were illegal, many comedians would be in jail.
I worked for years with a wonderful, kind, and wise ER doc before he became a State Representative. His desire to become a legislator was fueled by a passion for education, something he was knowledgeable about. However, once in office, legislators vote on all sorts of legislation, not just topics they're experts in. Few legislators are constitutional scholars. Frankly, many laymen know more about the constitution than they do. They too often use seat-of-the-pants guesswork to vote for or against laws, but no matter how carefully they craft their wants, if they conflict with the Constitution, they are not valid.
State medical boards, being branches of state governments and enforcing laws and regulations pertaining to the practice of medicine, simply cannot legally restrict physician speech in any way. Any doctor penalized for something he said could sue and win because anyone who deprives a citizen of his constitutional rights is infringing his civil rights (free speech is a first-generation civil right). Any judge or jury member who doesn't have rocks in his head knows that NO law means NO law. Case closed; end of story.