Physician-patient speech: an analysis of the state of patients' First Amendment rights to receive accurate medical advice.

AuthorBlythe, Harrison

CONTENTS INTRODUCTION I. DEFINING THE CONTOURS OF THE PIIYSICIAN-PATIENT SPEECH DOCTRINE II. THE PHYSICIAN-PATIENT DOCTRINE IN ACTION A. Conant v. Walters and Pickup v. Brown B. Wollschlaeger v. Governor of Florida C. Planned Parenthood Minnesota. North Dakota, South Dakota v. Rounds III. AN ANALYSIS OF THE PHYSICIAN-PATIENT SPEECH DOCTRINE IV. TOWARD A PATIENT-CENTERED UNDERSTANDING OF THE FIRST AMENDMENT CONCLUSION INTRODUCTION

Visits to the doctor are, for most Americans, a chore. We go to the doctor not because we want to but because doctors have something that we lack: medical expertise.

When we go to the doctor, we are asking her to transfer a limited amount of knowledge about the human body and all of its potential weaknesses to us. The doctor pokes us, shines light on us to see parts of us that go unseen for several months, directs us to cough or spit or urinate or squat, and asks us questions that we may not want to answer. Then, in between periods of waiting that vary between annoying and absurd, the doctor tells us what is wrong with us and what we can do (or not do) about it.

To say that speech is important to this equation would be like saying speech is important to winning a debate; speech is the very mechanism by which the physician-patient relationship functions. A typical doctor visit is bookended by dialogue between physician and patient. At first, the physician asks, and the patient answers, questions in an attempt to diagnose the patient. At the conclusion, the physician returns to give the patient the diagnosis and the recommended treatment plan.

The First Amendment protects "freedom of speech"-the right of each person to be free from government restrictions on many different kinds of speech. (1) While the First Amendment does not protect all speech, it does cover a vast range of expression. The First Amendment gives a person the freedom to wear a jacket with "Fuck the Draft" printed on the back into a courthouse, (2) a corporation the right to give money to support a political candidate or cause, (3) video game store owners the right to sell violent games to minors, (4) and, as demonstrated below, a doctor the right to recommend that patients use marijuana to treat the symptoms of an illness. (5)

At the same time, however, states have the authority to regulate certain professions, including the medical profession. To be able to practice medicine in a state, a doctor must obtain a license to practice. (6) The license is issued by a state board and carries with it certain obligations and responsibilities-most of which are concerned with protecting the vulnerabilities that are an inherent part of being a patient. (7)

Patients are inherently vulnerable in their relationships with physicians because physicians have the expertise-the medical knowledge-that each patient needs. This creates an "imbalance of power" between the physician and patient. (8) This imbalance can be so great that a patient may come to depend on the physician's expertise "on matters of life and death." (9) Indeed, so vulnerable are patients in some

Risk of exploitation of these vulnerabilities is perhaps at its highest when the physician is communicating with the patient, because that is precisely how and when the transfer of expertise from physician to patient occurs. When a physician tells a patient that the patient needs to undergo, for example, chemotherapy as treatment for malignant cancer, the patient's life is altered in an instant. This imbalance is exacerbated by the fact that most patients take doctors at their word; one can easily imagine that a patient diagnosed with malignant cancer and prescribed chemotherapy might try to schedule treatment as soon as possible, immediately putting trust in the physician's diagnosis and treatment recommendation.

Perhaps the most obvious way to correct the physician-patient imbalance is to regulate physicians in a way that protects patients' interests. (11) As discussed above, states have this power as the licensing bodies for the medical profession.

One common manifestation of state protection against physician conduct is the malpractice suit. Using the cancer patient example above, if the physician were to make a mistake when diagnosing the patient with cancer (and then recommending chemotherapy), the patient would, generally speaking, be able to sue the doctor for malpractice in an attempt to be made whole again. The physician who committed the malpractice could not defend her actions in court by saying her diagnosis and treatment were protected by the First Amendment simply because the diagnosis was made and the treatment prescribed through the medium of speech. (12)

All of this is, more or less, commonly understood. What is not commonly understood, however, is the nature of the relationship between the First Amendment and state regulations of the practice of medicine, including regulations stipulating what doctors can, must, and must not say to their patients. Indeed, the intersection of the First Amendment and physician-patient speech has become so utterly confounding that lower federal courts seem to be issuing conflicting opinions each time a physician-patient speech case arises. (13)

Only in passing has the Supreme Court addressed the conflict between the First Amendment and state regulation of physician speech. (14) This has left lower courts to decide entire cases on the basis of single and isolated statements. (15) Because speech is so critical to the proper functioning of the physician-patient relationship-and because courts cannot agree on a proper legal standard for evaluating First Amendment claims in the context of state regulations of physician speech-it is my position that the Supreme Court should intervene and set a clear standard for lower courts. This standard must take account of states' interests in regulating the medical profession: to protect patients' interests in receiving the best possible medical care.

If a constitutional standard for physician-patient speech fails to take adequate account of patients' rights to receive information under the First Amendment, that standard is insufficient. Moreover, by focusing on physician-patient speech from the standpoint of physicians' rights to deliver information to patients, (16) lower federal courts are failing to protect the constitutional rights of patients as a class. It is the rights of patients to receive information from physicians, much more than the rights of physicians to deliver information to patients, that regulation of physician-patient speech threatens. (17) Thus, it is critical for courts to analyze any regulation of physician-patient speech from the perspective of patients.

In Part I, this Note uses the guidance of scholars to define the contours of the physician-patient speech doctrine. Specifically, Part I attempts to divide physician-patient speech into two categories: physician speech that is equivalent to "conduct" and physician speech that is mere speech. As will be discussed in Part II, the lower courts purport to use these two categories to distinguish between physician speech that is subject to state regulation and physician speech that receives substantial First Amendment protection.

Part II is divided into three sections, each of which explores recent decisions by lower courts and their significance on the greater physician-speech doctrine. Part II.A explains and analyzes two cases from the Ninth Circuit. In Conant v. Walters, (18) the Ninth Circuit struck down a federal policy that threatened to punish any physician who would recommend that a patient use marijuana. (19) Interestingly, the Ninth Circuit was forced to distinguish Conant in the next case I will discuss, Pickup v. Brown, (20) which upheld a California law that prohibits licensed mental health care providers from using certain practices to attempt to persuade juveniles to change their sexual orientation. (21) Part II.B explains and analyzes the Eleventh Circuit's majority opinion in Wollschlaeger v. Governor of Florida, (22) which reversed the trial court in the course of upholding a Florida law that prohibits physicians from asking patients if they own guns. (23) Lastly, Part II.C examines the Eighth Circuit's decision in Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, (24) which upheld state-mandated physician speech regarding the likelihood of a patient who has had an abortion to commit suicide or experience suicide ideation. (25)

Part III ties together the cases discussed in Part II by pointing out the similarities and inconsistencies between them in order to establish something along the lines of a loose-fitting "physician-patient speech doctrine." At the heart of this "doctrine" is a pattern of examining the First Amendment rights at stake from the standpoint of the physician as the deliverer of medical advice, as opposed to the patient as receiver of medical advice.

Part IV argues that the current doctrine fails to adequately take account of patients' stakes in the outcomes of the cases, as well as in the policy created by a First Amendment jurisprudence that looks at physician speech cases through the narrow lens of the physician as deliverer of medical information. While physicians are subject to state regulation, the patient is not. Because patients are not subject to state regulation, any law that cuts into a patient's First Amendment rights should receive more than rational-basis scrutiny. Furthermore, because the Supreme Court has, time and time again, affirmed the First Amendment rights of a person to receive speech, (26) that right should enter into any analysis of a regulation that abridges that right.

I ultimately conclude that in order to create a physician-patient speech doctrine that adequately protects patients' interests in receiving frank and open communication from their physicians, courts must analyze the First Amendment issues from the standpoint of...

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