The Supreme Judicial Court today upheld the possible license suspension of a doctor who does hair-restoration procedures because his Web site made it sound like he was board certified in hair restoration, when there's no such thing, and said his center had doctors waiting to give people back their hair when, in fact, he was the only licensed doctor in the place.
The state's highest court brushed aside arguments by Dr. Ryan Welter of North Attleborough that the Board of Registration in Medicine's suspension ruling violated his rights because it did not prove that his Web site was designed to defraud follicle-deficient members of the public and that his reference to plural doctors was "aspirational" because he always intended to hire additional doctors, so not a lie. Plus, his assistant, whom he introduced as Dr. Tan, did, in fact, graduate medical school, even if that was in the Philippines, which meant he was not licensed to practice medicine here.
Although the board voted last year to suspend Welter's license, it also voted to stay that suspension if he agreed to a two-year probationary period, after which he could ask for the suspension to be removed from his record. Welter's court appeal sought to have the entire board ruling shaved off his record.
At the root of the court's decision: State law on medical advertising doesn't require a showing of outright fraud, that is, a baldly deliberate intention by a doctor to deceive the public, only that a doctor's Web sites and ads not contain statements that might deceive "reasonable" prospective patients. The board has the right to police this to help ensure patients' faith in the state's medical community is not undercut, the court said.
The court first said doctors need to be held to a higher standard - its ruling starts with a citation of Hippocrates's apocryphal saying, "First, do no harm."
The court then combed through the evidence to show just how Welter's Web site and things he said in his office to prospective patients were, in fact, deceiving.
The court ruled that while Welter's Web site was accurate in stating that "Dr. Welter is board certified, trained and licensed to perform hair restoration procedures for men and women," its overall impression just didn't gel - he is certified in family medicine, not hair restoration, since there is no such board certification for that and that impression is enough to counter the fact that he actually is trained in hair restoration.
The court highlighted that the board's investigation into Welter began when he was ratted out by two other doctors - initially patients of his - when they learned that his associate, introduced as Dr. Clark Tan, was not, in fact licensed as an MD here:
Throughout the website, Welter and Tan were repeatedly referred to in tandem. For example, the website stated: "Dr. Ryan Welter and Dr. Clark Tan have gained recognition in the field of hair restoration for their surgical skills." ...
Consistent with the website's suggestions that Tan was a licensed physician, Tan introduced himself to staff and patients in the offices of New England Hair as "Dr. Tan," and staff referred to him as "Dr. Tan." Welter permitted Tan to distribute business cards to patients identifying him as "Clark Tan, M.D." Consent forms drafted or approved by Welter included language that the signer would "authorize Dr. Ryan Welter, his associate doctors and/or such assistants as may be selected by him" to perform procedures.
The court acknowledged that after Welter learned the board was giving him the hairy eyeball, he removed all references to Tan on the Web site and "changed Tan's position so that he would no longer conduct consultations, assist with procedures, or have contact with patients."
But that was not enough to comb over the damage done in the two years Welter's site made it seem like he was board-certified in hair restoration, that he had more than one licensed doctor in his practice and that he introduced Tan as an MD, the court concluded:
A reasonable prospective patient could reasonably read the website and believe that New England Hair employed multiple doctors, that Tan was licensed to practice in the United States, and that Welter was board certified in hair restoration. And a reasonable prospective patient could further be misled as to Tan's licensing status by the consent forms, the business cards, and the practice of calling Tan a doctor. Indeed, the two complaining patients, who themselves were physicians, were misled precisely in this manner.
Written arguments by Welter and the Board of Registration in Medicine.