Dotti v. Virginia Board of Medicine

407 S.E.2d 8, 12 Va. App. 735, 8 Va. Law Rep. 42, 1991 Va. App. LEXIS 166
CourtCourt of Appeals of Virginia
DecidedJuly 1, 1991
DocketNo. 0657-90-1
StatusPublished

This text of 407 S.E.2d 8 (Dotti v. Virginia Board of Medicine) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dotti v. Virginia Board of Medicine, 407 S.E.2d 8, 12 Va. App. 735, 8 Va. Law Rep. 42, 1991 Va. App. LEXIS 166 (Va. Ct. App. 1991).

Opinion

[737]*737Opinion

BARROW, J.

The appellant, a chiropractor, appeals a reprimand by the Virginia Board of Medicine. He contends that Code § 54.1-2938, requiring chiropractors to use the word chiropractor with their name if they use the title doctor, and Code § 54.1-2914(A) (12), prohibiting the publication of a claim of superiority, are unconstitutional. We hold that Code § 54.1-2938 does not violate the equal protection clause of the fourteenth amendment and that, although Code § 54.1-2914(A)(12) is not unconstitutionally vague, its application to the appellant impinged upon his right to free speech.

The Virginia Board of Medicine held a formal administrative hearing to determine (1) whether the appellant’s business card violated Code § 54.1-2938 which requires “[chiropractors using the title ‘Doctor’ or ‘Dr.’ in connection with their names [to] also use the word ‘Chiropractor’ or ‘D.C.,’ ” and (2) whether the appellant’s advertisement, published in the Yellow Pages of a local telephone directory, violated Code § 54.1-2914(A)(12) which prohibits the publishing of an advertisement by a practitioner of the healing arts containing “a claim of superiority.”

The appellant’s business card reads:

TIDEWATER CHIROPRACTIC CENTER
Preventive Family Health Care
DR. JOHN T. DOTTI

(phone number and address omitted). The appellant testified at the hearing that every time he handed out the card, the recipient looked at it and responded, “Oh, so you’re a chiropractor.”

The appellant’s Yellow Pages’ advertisement states that the appellant is a “Sports Medicine Specialist.” In support of his position that he is a sports medicine specialist, the appellant testified that: he took a variety of courses at Texas Chiropractic College related to sports medicine; he participated in a sports medicine program while attending chiropractic college; he is a former member of the ACA Council on Sports Medicine; he has served on a voluntary basis as a staff physician with college and private athletic teams; he was formerly associated with Gold’s Gym; and he [738]*738attended two different seminars on sports medicine in 1986, one in Virginia Beach and one in Florida. The appellant testified that he was not certified in the area of sports medicine because “[t]he Medical Board will not certify chiropractors.” He also testified that he received Continuing Chiropractic Education credit for the seminar in Virginia Beach and “would have received [credits] from the State of Florida if [he] had applied for them, but since [Virginia] doesn’t recognize such procedures, [he] didn’t apply for them.”

The Board found the appellant in violation of both statutes and, in addition to reprimanding him, ordered him to cease and desist from advertising in violation of the statutes. On appeal, the circuit court found that the appellant failed to demonstrate an error of law and affirmed the decision of the Board.

I. THE BUSINESS CARD

In Virginia, if a chiropractor uses the title “Doctor” in connection with his or her name, he or she is required to also use the word “Chiropractor” or “D.C.” with his or her name.1 Code § 54.1-2938. In support of its conclusion that the appellant was in violation of this statute, the Board found that the appellant had used a business card since 1987 in which “Dr.” was used in connection with his name without the words “chiropractor” or “D.C.” The appellant argues that this conclusion is erroneous because: (1) he is in factual compliance with the statute, and (2) the statute violates the equal protection clause of the fourteenth amendment by treating chiropractors differently from other doctors.

In contending that he is in factual compliance with the statute, the appellant argues that the word “chiropractic” on the top of the card satisfies the statute. He points out that the statute does not require that the title “Doctor” be followed by the designation “chiropractor.” He also claims that the card was not “used” until it was presented to someone and that every time he handed out a card the recipient would look at it and say, “Oh, so you’re a chiropractor.” We find these arguments unconvincing. Code § 54.1-2938 plainly requires that the word “chiropractor” or “D.C.” be used “in connection with” the chiropractor’s name when that chi[739]*739ropractor attaches the title “Doctor” to his name. The word “chiropractic” used in the name of the clinic is not sufficient. Further, even if the Board accepted the appellant’s testimony that everyone he handed the card to acknowledged that he was a chiropractor, appellant did not comply with the statute. The fact that a recipient of the card states, “Oh, so you’re a chiropractor,” does not constitute compliance with the statutory mandate. Therefore, we conclude that evidence that the appellant “handed out thousands of [business] cards over the years” on which he used the title “Dr.” in connection with his name without also using the word “chiropractor” or “D.C.” is substantial evidence supporting the Board’s finding that the appellant is in violation of Code § 54.1-2938. See Virginia Real Estate Comm’n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983).

Next, the appellant claims that Code § 54.1-2938 is unconstitutional in that it violates the equal protection clause of the fourteenth amendment. Specifically, the appellant asks us to apply strict judicial scrutiny to Code § 54.1-2938 because the classification in the statute “impinges upon a fundamental right explicitly or implicitly protected by the Constitution.” San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973). According to the appellant, the classification impinges upon his first amendment right of free speech by inhibiting his ability as a chiropractor to “convey his societal status.” We conclude that the classification does not inhibit the conveyance of information; rather, it requires the dissemination of more information. To comply with the statute, a chiropractor must be more specific about his “societal status” than other doctors: he may communicate that he is a doctor as long as he simultaneously communicates that he is a chiropractor.

Since a fundamental right is not impinged upon by Code § 54.1-2938, the classification in the statute need only “bear a ‘reasonable’ relation to a ‘legitimate’ governmental objective.” Salama v. Commonwealth, 8 Va. App. 320, 323, 380 S.E.2d 433, 435 (1989) (citing City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)). The Commonwealth argues that the statute fulfills a governmental interest by ensuring “that the public has at least some of the information necessary to make an informed judgment when seeking chiropractic care as distinguished from” other types of health care. We conclude that this interest is legitimate and [740]*740that the requirement that chiropractors communicating that they are doctors simultaneously communicate that they are chiropractors reasonably serves this interest.

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Related

Dandridge v. Williams
397 U.S. 471 (Supreme Court, 1970)
Papachristou v. City of Jacksonville
405 U.S. 156 (Supreme Court, 1972)
City of New Orleans v. Dukes
427 U.S. 297 (Supreme Court, 1976)
Salama v. Commonwealth
380 S.E.2d 433 (Court of Appeals of Virginia, 1989)
Virginia Real Estate Commission v. Bias
308 S.E.2d 123 (Supreme Court of Virginia, 1983)
Brown v. Lukhard
330 S.E.2d 84 (Supreme Court of Virginia, 1985)
In re R. M. J.
455 U.S. 191 (Supreme Court, 1982)

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Bluebook (online)
407 S.E.2d 8, 12 Va. App. 735, 8 Va. Law Rep. 42, 1991 Va. App. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dotti-v-virginia-board-of-medicine-vactapp-1991.