Court Upholds Limits on Doctors’ Advertising

SAN FRANCISCO —  A federal appeals court Friday upheld California’s regulations limiting what medical doctors may say in their advertisements.

A three-judge panel of the U.S. 9th Circuit Court of Appeals rejected arguments that the limitations violated free-speech rights. At issue are 1994 regulations saying that doctors cannot automatically advertise that they are “board certified” by medical institutions.

The appeals panel upheld a state rule allowing the advertising of board certification only if the certifying medical institution has met a litany of requirements imposed by the Medical Board of California, the state licensing agency for doctors.

The appeals panel said California had a public interest in determining whether doctors can describe themselves as board certified. Under the medical board’s definition of board certified, certain standards of education and testing must be met.

“Such consistent usage informs the medical community and the general public that the physicians and surgeons advertising that they are board certified have met a certain standard of postgraduate education and experience,” Judge Procter Hug Jr. wrote.

He wrote that the rule also survived 1st Amendment challenges because doctors “are not precluded from advertising that they limit their practice to certain fields or that they are members of, or have had special education from, nonqualified boards or associations.”

The ruling stems from a lawsuit by the American Academy of Pain Management, which teaches pain-management techniques and issues credentials to its members.

The academy and some of its members challenged the advertising rule in federal court after the Medical Board of California declined to allow academy members to advertise that they were board certified by the academy.

The medical board said the academy, based in Sonora, Calif., did not meet its standards. Among other things, it said the academy did not demand that its members have any formal “postgraduate training.”

In addition, the medical board rejected the academy because its qualifying examinations consisted of 100 multiple-choice questions and takes two hours to complete, while the board demands a minimum 16-hour exam.

The academy’s attorney in the case recently died, and an academy spokeswoman was not available. A spokeswoman for the medical board also was not available.

The case is American Academy of Pain Management vs. Joseph, 01-15764.