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Board authorized to discipline licensee for self-created credential in ad

The Ohio State Chiropractic Board was acting within its authority when it disciplined a licensee who advertised himself as having a credential that was issued by an organization which he, himself, created, and which was inherently deceptive, a state appellate court held in August.

(Wilson v. Ohio State Chiropractic Board)

In 2015, chiropractor Michael Wilson advertised on television and in print, identifying himself as a doctor and stating that he was qualified to treat, among other things, hormone and thyroid issues, as well as diabetes.

Uniquely, the advertising also identified Wilson as a “D.NMSc,” which stands for Doctor of NeuroMetabolic Sciences, a credential not recognized by the state chiropractic board and, in fact, issued by an organization, the International Association of NeuroMetabolic Professionals, that was created and directed by Wilson, himself, and headquartered in his office.

In August 2016, the board began a disciplinary process against Wilson for failing to clearly identify himself as a chiropractic doctor and for making other misleading claims. While the ads did append the letters “DC”—for Doctor of Chiropractic—to his name, the board considered this as insufficiently clarifying to the public, given that Wilson identified himself as a doctor and many people are not familiar with “DC.”

Following a hearing, the board suspended Wilson’s license for 90 days and fined him $2,000. Wilson appealed, and the case eventually went up to a state Court of Appeals for the 10th District, which reversed the board action August 13.

On appeal, Wilson argued that board’s decision to discipline him based on his use the D.NMSc credential was a violation of his constitutional right to free speech, but the court disagreed, concluding that Wilson’s use of the credential was misleading and thus not protected by the First Amendment.

Although Wilson argued the appellation was a valid credential, Judge William Klatt noted that the credential was bestowed upon appellant by the IANMP—an organization he and his colleagues formed—and one that is unlicensed by any Florida or Ohio entity governing academic accreditation of doctoral programs.

“A member of the public upon hearing or reading that appellant holds a doctorate would assume that appellant has completed a standardized course of study to obtain the degree when in fact appellant created both the credential and the organization that bestowed the credential,” wrote Judge Klatt. The use of the term was “inherently misleading.”

Wilson also argued that the board’s had violated his procedural due process rights to reasonable notice and a fair hearing. At Wilson’s disciplinary hearing, the director of the board, Kelly Caudill, testified that no specific rule prevents a chiropractor from using a certification not recognized by the board; Wilson thus claimed that he had no warning that his conduct would warrant discipline.

The court again disagreed. The issue was not that the board had punished Wilson for using a non-recognized credential. The issue was that Wilson’s use of the credential was misleading, and the board had provided him adequate notice of that basis for his discipline.

Wilson argued that his use of “DC” in his advertisements was sufficient to inform viewers and readers that he was a chiropractor, and not a Medical Doctor. However, the court, surveying the statutory and regulatory landscape, concluded that, under Ohio law, chiropractors are explicitly required to use a variation of word “chiropractic” to identify themselves as distinguished from medical doctors, and upheld the board’s finding that Wilson had violated this requirement.

Finally, Wilson challenged those disclosure requirements as another violation of his First Amendment rights, but the court rejected this argument, as well. The board’s “position that it is deceptive to advertise for healthcare services without revealing the type of healthcare professional providing such services is reasonable enough to support a requirement that such information be disclosed.”

“In our view, a requirement that a chiropractic physician disclose in an advertisement for chiropractic services that he or she is indeed a chiropractor is neither unjustified nor unduly burdensome.”