Health Systems Agency of Northern Virginia v. Virginia State Board of Medicine

424 F. Supp. 267, 2 Media L. Rep. (BNA) 1107, 1976 U.S. Dist. LEXIS 12466
CourtDistrict Court, E.D. Virginia
DecidedNovember 4, 1976
DocketCiv. A. 76-37-A
StatusPublished
Cited by2 cases

This text of 424 F. Supp. 267 (Health Systems Agency of Northern Virginia v. Virginia State Board of Medicine) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Health Systems Agency of Northern Virginia v. Virginia State Board of Medicine, 424 F. Supp. 267, 2 Media L. Rep. (BNA) 1107, 1976 U.S. Dist. LEXIS 12466 (E.D. Va. 1976).

Opinions

BUTZNER, Circuit Judge:

The principal issue in this case is whether the plaintiffs have a constitutional right to gather, publish, and receive information about the services and fees of physicians practicing in their community. The defendants assert that physicians who furnish information to be published in a medical directory, as proposed by the plaintiffs, would violate § 54-317(13) of the Virginia Code. This statute provides in part:

“Any practitioner of medicine . shall be considered guilty of unprofessional conduct if he:
(13) Advertises to the public directly or indirectly in any manner his professional services, their costs, prices, fees, credit terms or quality.”

We hold that § 54-317(13) abridges the plaintiffs’ first amendment rights,1 and we enjoin the defendants from enforcing the statute against physicians furnishing information for the directory.

I

The facts have been stipulated by the parties. The plaintiff, Health Systems Agency of Northern Virginia, a nonprofit Virginia corporation, has been designated by the United States Department of Health, Education, and Welfare as the health planning agency for northern Virginia.2 The Agency plans to publish a directory of factual information to help per[270]*270sons select physicians. The kind of information to be included and the general format of the publication are illustrated by the following sample of a directory listing:3

Another plaintiff, Virginia Citizens Consumer Council, is a nonprofit, nonpartisan, volunteer organization incorporated in Virginia. Its president, Helen Savage, who is also a plaintiff, and many of its members seek the services of doctors practicing in northern Virginia. Members of the Consumer Council wish to receive the proposed directory because they believe they would benefit from the information.

The defendants are the Virginia State Board of Medicine and its members. The Board is empowered, by § 54-316(3) of the Virginia Code, to discipline any physician “guilty of immoral conduct, or of unprofessional conduct as defined in § 54-317.” Consequently, it can enforce the statute’s prohibition against advertising by physicians.

The Agency investigated the information about physicians available from the telephone directory, the local medical societies, the American Medical Directory, the Directory of Medical Specialists, and the Washington Physicians Directory.4 It found that a resident of northern Virginia cannot readily obtain any information other than the name, address, telephone number, and spe-ciality of a physician. Professional directories, which include educational credentials, are generally unavailable to the public.

The Agency asked the Board whether physicians would violate § 54-317(13) if they supplied information for the directory. In its reply, the Board enclosed a copy of an opinion by the Attorney General of Virginia which stated:

[271]*271“A physician may allow information tobe published regarding his identification as a physician and his business location and telephone number. I am of the opinion, however, that a physician, who provides information regarding the costs, prices, fees, credit terms or quality of his professional services in order that they may be published in a Directory as proposed, would be in violation of the prohibition set forth in § 54-317(13).”

Because of this statutory prohibition, physicians will not furnish to the Agency for publication any information about their professional services, costs, prices, fees, and credit terms. Nevertheless, physicians may legally and ethically furnish the same information to prospective patients.

II

The defendants suggest that this court should abstain from adjudicating the constitutionality of § 54-317(13) until Virginia courts determine that physicians furnishing information for publication in the directory would violate the statute. We conclude that abstention would be inappropriate.

The abstention doctrine is' properly invoked when an ambiguous state law is subject to an interpretation which would avoid or substantially modify a federal constitutional question. See Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). If the state law is not subject to such an interpretation, it is the duty of the federal courts to accept jurisdiction even though the state law has never been interpreted by a state court. Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Harman v. Forssenius, 380 U.S. 528, 534-35, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965).

In this case, we need not await a decision by the state court. The parties have stipulated that the section “prohibits a practitioner of medicine or the healing arts from furnishing the information enumerated therein for publication in the Directory.” Moreover, the Attorney General of Virginia has ruled that physicians who supply information for publication in the directory would violate the statute.

We agree with the stipulation of the parties and the ruling of the Attorney General. The mandate of the statute is clear. It specifically prohibits a physician from “advertising to the general public directly or indirectly in any manner his professional services, their costs, prices, fees, credit terms or quality” (emphasis supplied). Since the statute is not subject to an interpretation which would avoid or substantially modify a constitutional question, it is the duty of this court to accept jurisdiction.5

Ill

The defendants insist that the plaintiffs lack standing to invoke the jurisdiction of the court. They argue that since § 54-317(13) prohibits physicians from advertising, only physicians have standing to challenge the constitutionality of the statute. In countering this argument, the plaintiffs deny that they are attempting to assert the rights of physicians. Rather, they contend that the statute infringes their own first amendment rights to gather, publish, and receive information about physicians’ services.

Standing involves both constitutional limitations on federal jurisdiction and prudential limitations on its exercise. To establish the constitutional dimension, the plaintiffs must make out a “case or controversy” against their adversaries within the meaning of Article III. To demonstrate that this case is not barred by prudential considerations, they must show that their right of action rests on a constitutional or statutory basis. Warth v. Seldin, 422 U.S. 490, 498-501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Employing these tests, we hold that [272]*272the plaintiffs have alleged a first amendment interest sufficient to challenge the constitutionality of the statute.

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Bluebook (online)
424 F. Supp. 267, 2 Media L. Rep. (BNA) 1107, 1976 U.S. Dist. LEXIS 12466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/health-systems-agency-of-northern-virginia-v-virginia-state-board-of-vaed-1976.