Douglas v. State

921 S.W.2d 180, 1996 Tenn. LEXIS 253
CourtTennessee Supreme Court
DecidedApril 22, 1996
StatusPublished
Cited by2 cases

This text of 921 S.W.2d 180 (Douglas v. State) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Douglas v. State, 921 S.W.2d 180, 1996 Tenn. LEXIS 253 (Tenn. 1996).

Opinion

OPINION

DROWOTA Justice.

In this case involving the commercial speech doctrines of the First Amendment, the Tennessee State Board of Dentistry (Board) appeals from the Court of Appeals’ judgment vacating the public reprimand issued by the Board to J. Lee Douglas, a licensed dentist, for violation of the Board’s advertising rules. This case presents the following issue: whether the Board may require Douglas — a general dentist who practices orthodontics but is not specially certified as an orthodontist — to include in advertisements of his orthodontics practice the disclaimer that he is performing the services as a general dentist, when the Board has not presented any evidence that the public has been harmed by advertisements without the required disclaimer. For the reasons that follow, we reverse the judgment of the Court of Appeals, and reinstate the public reprimand issued by the Board.

REGULATORY BACKGROUND

Tenn.Code Ann. § 63-5-107 provides that “it is unlawful for any person to practice dentistry ... in this state, except those who are now licensed or certified pursuant to law and those who may hereafter be licensed or certified and registered pursuant to this chapter.” Responsibility for licensing members of the dental profession rests with the Board. Tenn.Code Ann. § 63-5-101. In addition to conferring licenses upon general dentists, the Board is authorized to certify specialists in certain fields. TenmCode Ann. § 63-5-112 provides, in pertinent part:

No licensed dentist shall hold himself out to the public as a specialist, or being specially qualified in any particular branch of dentistry, or as giving special attention to any branch of dentistry, or limiting his practice to any to any branch of dentistry, until he had complied with the additional requirements established by the board, and has been issued a certificate by the board authorizing him to do so. The board is authorized to certify specialists in the following branches of dentistry:
[182]*182(1) Oral surgery and/or oral maxillofacial surgery;
(2) Orthodontics;
(3) Periodontics;
(4) Prosthodontics;
(5) Pediatric dentistry;
(6) Endodontics;
(7) Oral pathology; and
(8) Any other branch of dentistry hereafter recognized and approved by it.

(Emphasis added).

The fact that a licensed general dentist does not possess a certification in one of the above-named specialities does not prevent him or her from practicing a speciality. If such a general dentist chooses to advertise concerning a specialty branch of his or her practice, however, the advertisement, is governed by Board Rule 0460-2-.10(5)(b), which provides as follows:

A licensee who possesses a verifiable combination of education and experience is not prohibited from including in his practice one or more specialty branches of dentistry. However, any such advertisement of such practice shall:
1. Not use the terms specialty, specializing, specialist, or practice limited to; and
2. Contain the statement “the services are being performed or provided by a general dentist,” and such statement must appear or be expressed in the advertisement as conspicuously as the branch of dentistry advertised.

This requirement, and all others concerning advertising by the dental profession, is explained in the Board’s “Policy Statement” which appears in the preamble to the administrative regulations. That statement provides:

The lack of sophistication on the part of many members of the public concerning dental services, the importance of the interests affected by the choice of dentists and the foreseeable consequences of unrestricted advertising by dentists, which is recognized to pose special possibilities for deception, require that special care be taken by dentists to avoid misleading the public.
Dentists must be mindful that the benefits of advertising depend upon its reliability and accuracy. Since advertising by dentists is calculated and not spontaneous, reasonable regulation designed to foster compliance with appropriate standards serves the public interest without impeding the flow of useful, meaningful, and relevant information to the public.

Finally, the Board is empowered to punish licensees who violate its rules. Tenn.Code Ann. § 63-5-124(a).

FACTS AND PROCEDURAL HISTORY

J. Lee Douglas has been licensed to practice as a general dentist in Tennessee since 1984. Dr. Douglas’ practice includes orthodontics, and his business cards read “J. Lee Douglas, DDS, Family Dentistry, Cosmetic Dentistry, Orthopedics/Orthodontics, TMJ Dysfunction.” Moreover, the language “J. Lee Douglas, D.D.S., Dentistry, TMJ, Orthodontics” is printed on the doorway to his office, (emphasis added). Dr. Douglas does not, however, possess specialty certification as an orthodontist.

In February 1991 the Tennessee Department of Health, Division of Health Related Boards, filed a notice of charges against Dr. Douglas, alleging that he had violated Board Rule 0460-2-.10(5)(b) by failing to state on his business cards and doorway that the advertised orthodontic services “are being provided by a general dentist.” Dr. Douglas answered the charges by arguing, inter alia, that the rule and related statutes violated his rights to free speech as guaranteed by the First Amendment to the United States Constitution and Article I, § 19 of the Tennessee Constitution. Dr. Douglas also argued that the words on the card and door “were neither actually or inherently deceptive, nor were they false, fraudulent, or misleading.”

After a hearing, the Board found Dr. Douglas in violation of the rule. It explained its conclusion in a series of special verdict questions propounded to it by the Depart[183]*183ment of Health, the most important of which are as follows:

[[Image here]]
8. Q: Did the respondent fail to include a disclaimer on his business cards which indicated he was not a specialist in orthodontics or that the services offered are being performed or provided by a general dentist?
A: Yes.
9. Q: Is the advertising by a general dentist that he performs orthodontics as part of his practice without indicating that he is not a specialist misleading or deceptive to the public?
A: Yes.
Why?
If a person advertises a specialty, a layperson would assume that a specialist is practicing that area of dentistry but with a disclaimer, they would not.
[[Image here]]

Based upon its findings, the Board issued a public reprimand to Dr. Douglas.

Dr.

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Related

Walker v. Board of Professional Responsibility of the Supreme Court
38 S.W.3d 540 (Tennessee Supreme Court, 2001)
Ted F. Walker v. The Board of Professional
Tennessee Supreme Court, 2001

Cite This Page — Counsel Stack

Bluebook (online)
921 S.W.2d 180, 1996 Tenn. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-v-state-tenn-1996.