It appears that the doctor will not be disciplined by the NH Board of Medicine:
No gag for doctor, judge says
By GARRY RAYNO
Union Leader Staff
18 hours, 46 minutes ago
Concord - A Merrimack County Superior Court judge ordered the Board of Medicine to stop disciplinary proceedings against Dr. Terry Bennett, the Rochester doctor who came under fire for comments that offended three patients.
?The court ruled resoundingly in my favor. Not a bad birthday present,? said Bennett, who celebrated his 68th birthday yesterday.
Judge Edward Fitzgerald?s June 30 ruling said the Rochester doctor?s constitutional rights to free speech and due process were violated by the board. The judge said the board?s regulations are not drawn narrowly enough to protect free speech, so the board is not entitled to regulate speech at all.
The complaints included charges that Bennett ?stunned, shocked, embarrassed (and) humiliated? a woman by telling her she was so obese she might only be attractive to black men. In 2001, a female patient said he suggested she shoot herself to end her suffering. The third complaint came from a woman who said she was offended by Bennett?s comments on how her son might have contracted hepatitis.
?While the Court does not in any way condone the type of comments made by the petitioner, it is nonetheless important, as a general matter, to ensure that physicians and patients are free to discuss matters relating to health without fear of government reprisal, even if such discussions may sometimes be harsh, rude or offensive to the listener,? Fitzgerald wrote.
Bennett?s attorney, Benjamin King of the Concord law firm of Douglas, Leonard & Garvey, said yesterday ?each of the pending complaints concern the content of speech. The absence of narrowly tailored regulations, renders the prosecution of any of the complaints constitutionally improper. We?re very pleased to have vindicated Dr. Bennett?s constitutional rights.?
The board had scheduled a disciplinary hearing several times this spring, but postponed action until the court ruled on Bennett?s request for an injunction.
Penny Taylor, administrator for the Board of Medicine, said they had just received the court order yesterday.
?We?d have to talk to the board attorney to see what the next step is,? she said.
Assistant Attorney General Elyse Alkalay, who represented the board, told The Associated Press she is reviewing the ruling and expects it will be several days before a decision is made whether to appeal.
?The board has a 10-day window here and we?ll see if they appeal this and waste your and my tax dollars. They have never understood the limits of their power,? Bennett said.
At some point, Bennett said he plans to sue everyone involved for ?malicious prosecution.?
?It?s been a devastating and infuriating two years; it cost me $50,000 and I had to explain to my crying 10-year-old daughter why everybody hates her father,? he said. ?I don?t forget stuff like that.?
In his ruling, Fitzgerald writes “the Court finds that the regulations under which the petitioner is charged are impermissibly vague because they do not provide a reasonable opportunity to understand what conduct is prohibited. The statute, rule and principle relied upon by the Board give only general descriptions of what is expected of physicians.”
The board?s attorney argued persons in licensed professions do so subject to the regulations of the licensing boards and do not have the same free speech rights as those outside licensed professions, but the court rejected the argument.
?The Court does not agree that the decision by a person to subject him or herself to the regulations of licensed professions necessarily limits his or her right to speak freely and, in fact, the Board points to no law in New Hampshire that so holds,? the judge wrote.
The board appealed an earlier Fitzgerald ruling ordering the board to make its decisions in public in Bennett?s case. Fitzgerald reaffirmed his order in February after the board?s attorney asked him to reconsider.
King said the new ruling makes that appeal to the Supreme Court moot because now the board is not authorized to deliberate on any of the complaints against Bennett.
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