CLEAR

First Amendment lawsuit filed against state Board of Dietetics, alleging censorship of online posts

The Institute for Justice, a Virginia-based libertarian law firm, together with blogger Steve Cooksey, is filing suit against the North Carolina Board of Dietetics/Nutrition alleging that his free speech rights were violated. Mr. Cooksey offers advice on the benefits of following a Paleolithic diet, which he adopted after a diagnosis for Type II diabetes. The Board of Dietetics/Nutrition received a complaint that Mr. Cooksey was engaged in the unlicensed practice of nutrition care services. Both parties to the suit have provided additional information on their respective websites: Institute for Justice and North Carolina Board of Dietetics/Nutrition.

UK case highlights regulators' limited powers to review and/or set aside own disciplinary decisions

In the case of B, R (on the application of) v The Nursing and Midwifery Council [2012] EWHC 1264, The United Kingdom Administrative Court held that the Nursing and Midwifery Council (NMC) could not reverse an earlier decision that a registrant had no case to answer. The Investigative Committee initially found evidence of system failures at the residential facility in question, but that there was insufficient evidence to indicate the registrant was solely responsible for deficiencies in care. The NMC subsequently decided to open a further investigation on the same facts (with the NMC stating that its original Investigating Committee had made errors of law). The High Court held that the case could only be re-opened to 'correct accidental errors which do not substantially affect the rights of the parties or the decision arrived at', which was not the case here. It therefore found the NMC had breached the Claimant's procedural legitimate expectation, acting unfairly and unlawfully.

Full judgement.

Florida case considers best practice vs minimum standard of care; allows webcast testimony of expert witness

In Department of Health, Board of Psychology v. Netta Shaked, Case No. 11-5995PL, Florida's Division of Administrative Hearings ruled that a marital therapist did not fail to meet the minimum standards of performance by terminating her professional relationship with clients via e-mail. The judgement states that the petitioner's expert witness failed to articulate "the minimum standard of performance against which Respondent's actions should be measured. Instead, Petitioner has attempted to hold Respondent to ... what "best practice" requires of a psychologist a termination context.... Indeed it is well settled that a healthcare provider does not depart from the standard of care  ... simply because the "best practice" was not followed. The same case included a successful application by the Respondent to allow an Expert Witness to testify via webcast.

Texas Appeals Court upholds some limits on chiropractors, but permits some diagnosis

A Texas Appeals Court has ruled that chiropractors must restrict diagnostic activity to spinal and musculoskeletal problems, that they may not perform manipulations under anesthesia and an invasive diagnostic test called needle electromyography. However, the court reversed a lower court judge's ruling that prevented chiropractors from ever offering a diagnosis. The Texas Medical Association is to consider whether an appeal of the ruling is appropriate, in the long-running dispute.

Ruling.

Read more here: http://www.star-telegram.com/2012/04/18/3895065/appeals-court-partly-upholds-limits.html#storylink=cpy

West Virginia bill to authorize boards' exemption of CE requirements for some licensees

West Virginia House Bill 4104 would provide licensing boards with the authority to "exempt from continuing education requirements licensees who have been licensed for a total of twenty years or more, in this state or in any jurisdiction with licensure requirements that are substantially similar to licensure requirements in this state". The bill was approved by the House and now moves to the Senate for consideration.

Bill text

Bill tracker.

Missouri court affirms $6.2 million award against state chiropractic licensing board

Missouri's Court of Appeals has reaffirmed a jury's decision to award $6.2 million to a licensee, finding that "Board members failed to conduct a thorough and impartial investigation before filing a formal complaint against Dr. Edwards' chiropractic license, that the Board members were grossly negligent, and that such gross negligence directly caused or directly contributed to cause damage" to the licensee. The case of Edwards vs. Gerstein relates to the case of a Missouri chiropractor who was accused of falsely telling a man he was cured of HIV. The ruling from the Court of Appeals disagreed that the Board is not required to conduct a thorough investigation before lodging a complaint, and that they are only charged with protecting the public. The opinion, written by Judge James Welsh states, "While we agree with the board members that the public's protection is the primary purpose of professional regulation, we do not agree that means the board members owe no other duties to anyone else," he wrote.

Edwards vs. Gerstein

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Paper published providing an overview of recent UK case law in professional disciplinary proceedings

Henderson Chambers has published a paper exploring recent (2008-11) UK case law in professional disciplinary proceedings. The document focuses on the following topics: Procedure (Service, Absence of practitioner and adjournments, Public or Private Hearing), Drafting the Charges, Investigating the Complaint, Disclosure, Abuse of Process, Human Rights and Fairness (Independent Tribunal, Legal Representation), Standard of Proof, Misconduct and Impairment. 

Appeal filed at U.S. Supreme Court regarding Florida's interior design law

The Institute for Justice is representing three interior designers and the National Federation of Independent Business in an attempt to overturn Florida's licensing requirements for interior designers. In Locke v. Ehrig the U.S. Supreme Court is being asked to reconsider a March 2011 ruling by the 11th U.S. Circuit Court of Appeals that interior designers’ “direct, personalized speech with clients” is not protected by the First Amendment. An earlier federal court ruling upheld the requirement for nonresidential interior designers to hold a license. The Institute of Justice cites a broader concern about the practice of not viewing occupational speech as being protected by the First Amendment.

The case was filed several months after an unsuccessful leglsative attempt to deregulate interior designers, and a number of other professions, in the state. Indications are that similar legislation will again be pursued in the next legislative session.

Puerto Rican restrictions on medical practice acceptable, Court of Appeals rules

Puerto Rican regulations barring physicians from performing cosmetic surgery without formal training in the speciality are not unconstitutional, according to a ruling by the U.S. Court of Appeals for the First Circuit. The ruling (Gonzalez-Droz v. Gonzalez-Colon, 1st Cir., No. 10-1881, 9/16/11) held that the regulations met the constitutional test of having a “rational basis” for distinguishing between different classes of physicians. The court noted that the use of board certification in dermatology or cosmetic surgery was an appropriate tool for classifying those permitted to undertake those services, and that requiring board certification is not unreasonable.

Lawsuits filed against Illinois regulator as enforcement of sex crime law gets underway

At least two lawsuits have been filed against the Illinois Department of Financial and Professional Regulation as it applies a new law requiring the revocation of medical licenses of state health care workers convicted of sex crimes, forcible felonies or the misdemeanor battery of a patient. At issue appears to be whether the law can be applied retroactively, revoking the licenses of those previously convicted. At the time of writing the state has announced 22 revoked licenses, with an additional nine being planned. Of this 22, six had active licenses.

More.