-: Harshest sanctions that the Board of Registration
in Medicine has at its disposal.
Why?
Not because he recklessly endangered patient safety
or intentionally committed some act
that implicates his moral character
or his fitness to practice medicine, no.
His license to practice medicine,
his constitutionally protected right
to pursue the profession of his choice
was indefinitely suspended in a case
where he was only found to have violated regulations
that the Board contends
have no intent requirement whatsoever.
The Board's contention today is that these two regulations,
243 CMR 2.07(11)(a) and section 1.03(5)(a)(10),
both have no intent requirement,
not negligence, not intentional misconduct, nothing.
And that they were constitutionally permitted to take away
Dr. Welter's right to practice on that basis.
I'm here today to ask this court to reverse that suspension,
as it runs afoul of both the state and federal
constitutions and is arbitrary and capricious,
it cannot stand.
Justice Cipher: Do you have any cases to compare it to,
in terms of behavior that would've merited
this discipline or behavior that was worse
that got less discipline?
-: Yes.
There's a string site of different cases in our brief
where the Board has found worse behavior
and has actually imposed a lesser sentence.
Perhaps the most on point case that I can point you to
is a case where a doctor engaged an associate
that was not licensed to practice medicine.
He practiced for two years under this doctor.
And then when the doctor went to renew his license,
he failed to disclose three malpractice suits,
including one based on the death of a patient where this
unlicensed practitioner was involved.
In that case, the doctor did not receive a suspension.
He received a reprimand and a fine.
And there are plenty...
We've pointed this out at every stage of the game
to the court.
Justice Gaziano: Has this court ever...
there's a tremendous amount of discretion
as far as discipline goes.
I can't find, or haven't seen a case where this court
has said that they've overstepped their bounds.
-: Where the court has ever found that the Board
has overstepped its bounds?
No, well,
this is the first time actually that this constitutional
issue has been raised to the Board.
-: No, I'm just looking purely at the remedy right now.
We'll get to the constitutional in a moment.
Just the remedy.
It does seem harsh,
but do they have a right to be harsh?
-: There is a case called Brockington
where the court did find that the Board
abused its discretion.
And yes, discretion-
-: In sanction?
-: I'm sorry?
-: In the sanction it imposed?
-: Yes.
There...
And
the court...
Yes, the Board of Medicine does have discretion of course.
It's a regulatory authority and discretion is afforded
but in this case,
I think it's extremely clear that the decision
to sanction Dr. Welter in this way
is both arbitrary and capricious
and constitutionally problematic.
When you're interfering with someone's right
to pursue their profession,
which is a constitutionally protected substantive
due process right,
there has to be a rational basis related to the-
Justice Lowy: Do you take into account
that it was a probationary period
that he can continue to practice and run his business?
-: So there was a probation agreement,
if that's what Your Honor is referring to,
that he agreed to enter into after the suspension
was initially imposed.
Of course, yes.
However, there was a period of time
where he was actually suspended and that was it.
And he had the option to pursue that.
He had to aggressively pursue a probation agreement,
which would allow him to continue to practice.
However, if you looked him up,
-: [Justice Wendlandt] So counsel,
can I ask you a question about that then?
Given that he had this option,
although it's termed an indefinite suspension
and seems harsh and forever,
in fact, it wasn't harsh and forever.
So he can now, as I understand it
is now a practicing physician.
So I guess,
how does that fit into your constitutional argument
that while termed an indefinite suspension,
in fact, it wasn't.
He's still able to be a doctor and earn his keep.
-: Well, I would disagree with the characterization
of it as not harsh
and not permanent because although he is able to practice,
if you look him up on the Board of Registration
in Medicine's website right now, it says he was suspended.
If a payer wants to enter into an agreement with him
so that he can be part of an insurance plan,
they're gonna look him up and they're gonna see that.
And that's gonna impact his ability to engage in...
Justice Cypher: Does it show the suspension
is still active,
or does it read as if it's over?
-: So what it specifically says is that
there's a stay of suspension and probation.
However, it says specifically under the word action,
it says suspension and anybody can look that up
and see it right now.
If you Google his name, an article comes up
from the Board of Registration in Medicine
about this decision and the fact that they entered
an indefinite suspension against him.
Does not mention the probation agreement.
And, importantly, it's irrelevant to some extent
in terms of the constitutional argument,
how bad the punishment was.
Of course we contend as a secondary argument
that in this particular case,
applying this particular sanction
is constitutionally problematic.
Justice Gaziano: It's a rational basis test, correct?
On constitutional grounds? -: Correct.
-: And it's not a rational basis for the board to police
itself as far as false advertising?
-: The board can certainly regulate false advertising
but the problem here is that there's no intent requirement
whatsoever on the part of Dr. Welter.
I think that in order to actually impair his ability to
practice medicine,
the Board has to have some rational basis to do that
that's going to relate to the public welfare
and public health.
And especially in this situation where this is a doctor
that's well respected,
that did absolutely everything in his power
to try to do the right thing here,
took the website down, changed the website, stopped
having...
Justice Gaziano: That's post... that's after he's caught.
-: Well, before the Board issued its statement of allegations
against him.
And mitigating factors are something that the Board
routinely takes into account.
And it's something that should be factored in in deciding
whether a decision that the board has made...
a sanction that's been imposed is arbitrary and capricious.
Justice Gaziano: So the Board's standard
is that you can't falsely advertise
and I get the mens rea part of it
and we could get into what it says,
but isn't it up to the physician to police
his/her own website,
and representations and make sure that the people
under their supervision don't hand out business cards
that say doctor, when they're not a doctor?
-: Well, turning to that particular point,
I think that calling himself doctor
is a little bit overblown in this case
by the Board who,
in its statement of allegations against Dr. Welter,
no less than 30 times referred to this man as Dr. Tan.
So if that alone is enough to cause a problem and implicate
public...
Justice Gaziano: But yeah, I'm sorry
if I'm a patient and someone hands me a business
card that says Dr. Tan,
I'm gonna assume that Dr. Tan is licensed
to practice medicine in Massachusetts
as a consumer, right?
-: Right. That's certainly a reasonable interpretation.
-: Okay, so isn't that false advertising then,
or a deception?
-: Deception is a particular term that implies
there is a level of intent.
And when it's used in any other context,
it has a requirement that the person who has deceived
someone has done so intentionally,
or at least negligently.
Of course with deception, it's an intentional tort.
So to just say this is false,
and anybody could look at it...
Justice Lowy: It doesn't say deceive.
It says capacity to deceive.
It says, practice medicine deceitfully.
Engage in conduct that has the capacity
to deceive or defraud.
-: Right, and that is the problem, Your Honor.
if we read that the way that the Board says it's to be read
where there is no intent requirement,
and it's just an objective standard,
anybody looking at it could feel tricked,
and then you lose your license to practice medicine.
That's a constitutional...
Justice Lowy: It has to be a reasonable interpretation.
But you look at 93(a) and what
we infuse into that meaning, in that context.
And the whole point is that this is
a consumer protection regulation.
It's not the intent of the doctor,
it's the impact on the public.
That's the whole point of the regulation.
-: Well, the point of the regulation
is to protect the public health.
And I think there's an important distinction to be made
when we're talking about 93(a).
Certainly someone could sue,
the AG could go after a doctor for false advertising
and could get an injunction saying
you're not allowed to advertise this way anymore.
But under 93(a) there's no-
Justice Gaziano: If I walk into a sports medicine clinic,
cuz I sprained my ankle or have an ACL injury,
and the literature says that my doctor is board certified,
am I to assume the person's board certified as an ortho,
as opposed to family medicine?
-: Well, if it doesn't say either way,
I suppose it's a reasonable interpretation
on the part of the consumer to take that away from it,
that he was certified in this particular area.
But I think with respect to that statement
on Dr. Welter's website,
the technical terms of the sentence were true.
And importantly, this comes back again to the intent.
-: It says, you'll know the text,
but it says basically the doctor's board certified, period.
And then it goes on.
But when I go on his website,
I'm going there for hair restoration.
I'm not going there for family medicine.
-: Right, but critically,
whether or not the consumer could come away
with that interpretation,
there's still no intent requirement here.
And that's what the problem is.
It's a problem to start impacting-
-: Lowy indicated it's the capacity to deceive is the issue.
And doesn't that statement on the website have the capacity
to deceive the person who's looking for a board certified
person in hair restoration, not family medicine?
-: So it could be read that way
to have the capacity to deceive.
But we are challenging the fact that just evaluating
Dr. Welter's conduct on does it have the capacity to deceive
is not enough in order to start interfering
with his right to practice medicine.
If you look-
Justice Gaziano: So you're saying we should strike down
these regulations as violative of due process?
-: Correct, the way that this is written right now.
We believe that it's constitutionally problematic.
Justice Lowy: It's all right for a doctor to say,
no matter what the intent is,
if we wanna protect the public and protect them from being
deceived, it's okay if you're not a surgeon
to say we have surgeons,
it's okay to suggest you're board certified
in a field that's not applicable.
And it's okay to say doctors when there's only one doctor.
-: Well, it depends on what you mean by the term okay,
Your Honor.
Justice Lowy: What I mean is that the public
is not going to be deceived,
not what is the content or the consciousness of the doctor
who puts this false advertising up on the website
because we're not trying to protect the doctor,
we're trying to protect the public.
-: Right, however, if...
Of course, this can be regulated in some way.
The government can say this should not be out there.
And perhaps that 93(a) is the correct avenue to do that.
It's a different question when we're dealing
with the actual right to practice medicine,
the doctor's license being taken away
for something where he didn't...
The Board did not find and claims
that it didn't have to find
that he acted with any level of intent whatsoever.
Justice Lowy: You keep on saying that.
You said it in your brief
and you said it now twice in argument.
I don't know where there's anywhere in the brief where,
I mean, in the record that says that the Board found
that there wasn't an intent to defraud or deceive.
There is a reference about an aspiration to build
a larger business and hire other doctors.
That's true.
But where in the record does it say
that he had no intent to deceive?
Because I was looking through it as carefully as I could.
-: Well, it does say that he had no intent
to deceive the Board with respect to another issue
in the decision.
I think the overall tenor of the decision implies
that he was trying to do the right thing the whole time.
He asked the MMS multiple times whether he was allowed
to use Dr. Tan in the way that he was.
And he changed everything
as soon as he realized it was a problem.
Justice Lowy: That's on Monday morning.
That's after everything already happened.
You keep on saying that they found
there was no intent to deceive.
What he did... I can't find that, number one.
Number two, his whole point is, in his words,
this is what sets us apart.
This is what makes us special.
This is what sets us apart.
We got surgeons, we got doctors.
We're board certified.
Not only did they not say there wasn't an intent to deceive,
it seems clear that there was.
-: Well, I think...
Actually, if you read the Board's decision,
the Board specifically determined that it did not have to
find intent on this point.
Justice Lowy: I understand,
but it didn't find what you keep on saying,
that he didn't intend to deceive.
-: Well, it didn't make a finding that he did.
Justice Gaziano: It's careless at best.
Would you give us that?
-: You know, I disagree with the characterization
that it's careless.
I think he went out of his way to try and fix the problem.
As soon as he knew it was a problem.
I think he went out of his way-
Justice Gaziano: All right, indulge me.
Assume it's careless.
Doesn't, as a consumer protection matter,
doesn't it put the burden on the physician
to carefully go through their website
and their practice to make sure that it's fair to consumers?
-: Yes.
But the Board would've had to proceed
through a regulation that requires intent of some kind.
-: [Justice Wendlandt] So can I ask you a question about that
in coming back to the constitutionality
of the ability to practice medicine
and earn his keep, as I said earlier,
where...
So the constitutional test is rational basis, correct?
-: Correct.
-: [Justice Wendlandt] So why is it irrational,
that is, not rational, for the Board to say,
as a matter of protecting the public,
we're not gonna have an intent requirement.
Instead, we're gonna hold physicians
to a higher standard in their advertising.
And say, instead, if it's capable of deceit,
we're not gonna countenance that.
And why is that not rational?
-: Well, I think if you go back to the very beginning
when this court first recognized
that this is a constitutional right
to practice your profession,
even back in the Lawrence Case,
when this was first brought up,
the court specifically stated that it doesn't run afoul of
the constitution to take away a license
if somebody's engaged in gross negligence
or something worse.
This court hasn't explicitly decided
whether no level of intent is required.
But I think that it makes sense that if we're going to be
taking this extreme step of suspending somebody's license,
there has to be more of a basis in the public health for
that particular sanction and-
-: [Justice Wendlandt] That may be your estimation
and it could be mine as well,
but why is it irrational to have a different viewpoint
and say, you know what,
we're gonna have a broader onus on physicians
if they wanna practice.
They're gonna have to have their advertisements
not just not intentionally deceitful,
but also broader, not capable of deceit.
-: Well, it's certainly-
-: [Justice Wendlandt] And I understand your viewpoint,
that intent would be nice.
And maybe that would be rational too.
But why is it irrational not to have the intent requirement?
-: Well, it's just that this is such a serious
constitutional right.
And I don't think that we should be interfering with it
unless there is some kind of intent.
And especially where here,
there was no actual harm to anyone,
no patients were injured or anything like that.
It seems extreme and irrational to be taking away someone's
license to practice just on that basis.
-: Can I follow up on questions that Justice Wendlandt
and Justice Lowy, which is the sanction itself?
I understand that the regulation may not require
an intentional violation, but the sanction here is,
as you say, harsher than normal.
(inaudible) what Justice Lowy was saying,
which is they are finding some intentional misconduct here
and that affects the sanction they're imposing.
-: So the Board specifically stated that it did not need to
find intent-
-: Doesn't need to find intent to find a violation,
but it has a lot of discretion in its sanction.
And here the sanction,
maybe this is just a simple
kind of capacity to mislead,
but there's enough misleading behavior here
that they may be increasing the sanction,
because it's not just careless, it's more than careless.
-: So in response to that,
I would point the court to the other decisions of the Board,
where behavior that was not nearly as benign as this
received a lesser sanction.
Justice Gaziano: I know you gave us a string site,
but you... And I neglected to write it down.
There was a case you said we were reversed.
What was the name of the case?
It began with a B.
Do you have that? -: It was called Brockington.
Justice Gaziano: Brockington?
-: Yes.
-: Thank you.
-: But even just looking at the Board's own administrative
decisions and how it's exercised its discretion
in other cases that are somewhat similar,
they've been much more lenient.
And the decision to go with an indefinite suspension
in this case is arbitrary and capricious.
And unless the court has any further questions,
for all of those reasons and the reasons in our brief,
we ask that the court reverse the suspension.
-: [Chief Justice Budd] Okay, thank you very much.
Attorney Furgang.
Samuel Furgang: Good morning, Your Honors.
Samuel Furgang for the Board of Registration in Medicine.
The question that was,
or the issue that was (inaudible) to this court
is whether the regulations which the doctors
were found to have violated should import into
them the elements of the torts.
Justice Gaziano: But before you get there,
I want to end where council left off
as far as the sanction goes in the Brockington case.
We're certainly, well personally,
more familiar with the Board of Bar Overseer cases
because there's more of them and we see
a lot more of them in the sanctions.
We can compare apples to apples.
Not so much in this area.
Can you address the Brockington case and other cases that
show whether or not this sanction was disparate?
Samuel Furgang: Your honor, there are a number of reasons
why the sanction was appropriate and well within the bounds
of the Board.
First of all, it does reflect the more recent determinations
of the Board of dealing with this particular
kind of misconduct.
And I refer the court to the Bergus case, which in fact,
the plaintiff cited in their brief with approval.
Bergus, B, E, R, G, U, S.
Justice Cypher: What was the sanction given in that case?
Samuel Furgang: It was the same sanction
as the one that was imposed in this case,
indefinite suspension with a probationary period
in which the doctor would have to deal with this-
Justice Cypher: Doctors do in that case.
Samuel Furgang: I think it was also
a misreporting of credentialing issues.
There's more detail in our brief,
and I believe the case is actually attached.
Justice Gaziano: And are you familiar
with that Brockington case?
Samuel Furgang: I'm not familiar with that, Your Honor.
Justice Gaziano: Okay.
Samuel Furgang: But I will say just in general,
the specifics of this case and the context
in which the sanction was imposed
are well within the bounds of the Board's discretion.
In particular because what the doctor did here-
-: [Justice Wendlandt] Council, one of the ways
we measure whether or not a sanction is arbitrary
and capricious is comparable conduct.
And so you're saying the Bergus case is comparable
conduct with comparable punishment?
Samuel Furgang: Yes, your honor.
-: [Justice Wendlandt] Okay, any others that we
should be looking at?
Samuel Furgang: No, Your Honor, but I think-
-: [Justice Wendlandt] And if they're in your brief,
I'm happy to just take them from your brief.
Samuel Furgang: Oh, there are cases in the brief,
but as a general-
-: [Justice Wendlandt] Usually there are.
(laughter)
Samuel Furgang: Thankfully. But in addition,
I would also like to point out that there,
if you look at the petitions brief,
there's a significant time gap between the cases which
they say were properly sanctioned and this case,
and that time gap, I believe,
is critical to understanding the Board's actions.
Because during that time,
the proliferation of web advertising expanded dramatically
and the Board properly took into account the ramifications
of the exposure to many, many more people
of this kind of misconduct and what impact
that would have on the reputation of the profession,
if it became widespread.
So while you may have one sanction that was imposed for an
isolated incident, as recently as 2006,
since then, the Board has revisited the issue
and imposed stronger sanctions for that very reason,
because the impact here-
Justice Lowy: Before we, so what we need to do first,
at least I need help with is,
we have to evaluate the sanction.
So the first question is,
what is the sanction?
Is it indefinite suspension?
And we're comparing it to other indefinite suspension cases?
Or is an indefinite suspension where the doctor is,
is actually able to keep on practicing and run his business
because it's a probationary period?
What's the measure?
Samuel Furgang: I think, I believe the measure
is the latter, Your Honor,
because that is the more accurate description
of the sanction that was imposed.
It was a unitary sanction,
a sanction that was an indefinite suspension that was stayed
upon the execution of a probation agreement,
which the doctor did.
And the implication of that suspension and the impact upon
the doctor are far, far different
than a simple indefinite suspension,
as admitted by the petitioner.
He can practice today and in a year,
if he completes his requirements
under the probation agreement,
the suspension will be lifted and he will be free
to practice without any further oversight by the Board.
That is- Justice Cipher: Will he,
when he's looked up on the Board of Registration in Medicine
as a physician, will it still say suspension or suspended?
Samuel Furgang: My understanding is that it will show
that he is free to practice medicine
without any limitation.
I'm not sure if it will show the prior imposition,
but it will certainly show that he is now free
to practice medicine without any limitation by the Board.
And that is a far different situation from being involved
in an indefinite suspension.
And I would also point out in terms of severity,
that at the beginning of this case,
the petitioner executed a voluntary agreement
not to practice medicine.
So in terms of the impact upon the physician,
he had already voluntarily ceased to practice medicine.
So the only time lag in his ability to practice
was that one month, I believe, that it took to execute,
to review and execute the probationary agreement.
And it's certainly well within the constitutional powers
of the Board to do so as the court has adverted to,
there is a rational relationship
between the practice of medicine
and reputation of the physician to the public
and imposing a sanction to preserve the
reputation of the profession, as was the case here.
Justice Gaziano: As far as the regulations go,
you use a legal term of fraud, right?
Samuel Furgang: The word fraud appears nowhere.
It's a capacity to deceive or defraud.
Justice Gaziano: Defraud, okay.
-: I'm being pedantic, Your Honor, I'm sorry.
Justice Gaziano: All right.
So, fraud usually requires some materiality, right?
Samuel Furgang: Yes, Your Honor.
Justice Gaziano: Here there's no materiality requirement?
Samuel Furgang: No, Your Honor.
Justice Gaziano: Isn't that a problem?
Samuel Furgang: No, Your Honor.
Again, because linguistically,
we're talking about engaging in conduct
that has the capacity to defraud or deceive.
And again, as my opponent adverted to,
it would be reasonable
for a person to look at someone calling themselves doctor
and assume that they are
licensed to practice medicine.
So that shows that there is a capacity
to defraud the public materially
by people believing innocently that a person is qualified
to practice medicine in Massachusetts
when they are not.
That is the intent of the statute.
Justice Gaziano: I think,
just looking at the regulation itself,
apart from this case,
absent the common law restrictions on defraud or deceive,
doesn't it have due process concerns or problems
where it could be, for immaterial representations,
could leave a doctor subject to discipline?
Samuel Furgang: No, Your Honor.
I think that here,
the misrepresentations were in fact material,
the Board may not have made a specific finding
because it was not necessary to do so.
And that is because, under the language of the regulation,
it's only whether there's a capacity to do so.
And the evidence was clear that there were repeated
references to Clark Tan as being one of the two doctors
in the practice.
That should, on its face, is a material misrepresentation.
And in fact, as a matter of evidence in this case,
the two complainants that were part of the record,
stated that they were, in fact,
deceived by those representations.
So there was evidence in this case of materiality,
although I do not believe that is necessary.
It's an objective test.
And if you look at the Aspinall case, for example,
there's no requirement for materiality
under the standard of deceptiveness.
Which is what the doctor was found to have committed here.
And the reason for that of course is because
if we raise the standard,
we run the risk of allowing representations of this nature
to proliferate without sanction.
And that's something that the Board is very concerned about
because of the ease with which that kind of misconduct
can be spread through the Commonwealth.
Just a key stroke and you can have hundreds of thousands
of people receiving these advertisements
and being misled with drastic consequences
because of the magnitude of what is going on.
There are other provisions in the regulations
that do require materiality.
That do specifically invoke the language of fraud,
but this is not one of those regulations
and that standard should not be applied to this case.
If it was to do so,
it would defeat the purpose of the rule,
which is to protect the public.
Justice Gaziano: You never changed the regulation
to address internet publication, correct?
Samuel Furgang: No, Your Honor.
I don't believe that they need to.
The fact that the language-
Justice Gaziano: well, it goes to the harshness
of the penalty,
cuz what you've told us,
when we look at this is that it was treated less harshly
when it was print or however people
would advertise back in the stone age.
Now, with the advent of the internet or publication,
we've increased the punishment.
And I'm just wondering whether or not that's fair,
given that it was a standard.
Now you're basically saying
because you can more widely publish,
we're going to increase the penalties
without notice to the physicians of the world.
Samuel Furgang: Well, I believe it's fair Your Honor
because the focus of the regulation's
on the protection of the public
and not the protection of the physician
and where, in the past,
what might have been considered a metaphorical
slap on the wrist
would not achieve the deterrent effect
that this type of sanction did.
Although at the same time I would argue that this is not a
severe sanction.
What it does do is require the physician
to engage in some course of learning and probation
to prevent it from recurring.
Justice Gaziano: Well, it was severe for a month.
Samuel Furgang: Yes, Your Honor,
well, there you go.
A month.
If that is a standard,
then we're in big trouble if a month's suspension
for misrepresentations that took place
for two and a half years
about something that clearly was misleading to the public,
I don't believe that's at all a severe sanction
to be imposed.
And in this case,
what is interesting and maybe may have also led
to the degree of sanction imposed
was that the petitioner did not
concede that he erred in total.
He did remove the advertisement content
relating to Clark Tan,
but he insisted throughout the hearing that he had done
nothing wrong in describing himself as being board certified
because of his claim that it was technically correct.
So-
-: Can I ask a question about board certification?
Are you board certified in hair restoration
or just surgery and family practice?
Samuel Furgang: Dr. Welter was board certified
in family practice.
I am not aware of a board certification
that exists for hair restoration
or at least one that's recognized by the Board in
Massachusetts and that.
-: So his misrepresentation was to suggest
he could do surgery?
I'm confused by exactly the misrepresentation.
Justice Gaziano: Right, so if he can't be board certified
in hair restoration,
how is there an issue?
Samuel Furgang: By that very means.
The public doesn't know that.
Justice Gaziano: I certainly didn't know that.
Samuel Furgang: And the doctor certainly did know that.
Justice Gaziano: Oh, I should, but.
(laughter)
Samuel Furgang: I sympathize and empathize Your Honor.
(laughter continues)
But the issue here is that very issue.
The word board certified has a certain impact
upon the lay public
and in the context in which it was made,
the implication to the lay public is that the petitioner was
board certified in hair restoration when he was not.
And he insisted that there was nothing wrong
with what he did.
And I think that merited a sanction of the nature
that was imposed by the Board.
-: [Justice Wendlandt] When the board decided
to up the sanctions in connection with the increased
capacity for websites to reach many, many people,
did it provide notice to physicians?
Samuel Furgang: No, Your Honor.
And I wanna be careful.
I don't want to suggest that the Board
now has a blanket rule,
that it will always impose a indefinite suspension
with probation whenever there is a misrepresentation.
Every case is different.
The Board looks at the conduct in every case
and it imposes an appropriate sanction
based on the misconduct in every case.
So the fact that this was a web based advertisement
was a factor in the board's consideration.
But I think the important issue for physicians
in general is,
and I would hope that it would be true,
that physicians are not conducting themselves
based upon the nature of the sanction that they may incur.
I think they should be conducting themselves
based on the assumption that they will not violate
any of the regulations imposed by the Board.
So I don't think it's necessary for there to be specific
notice to be given to physicians that they should not issue
misleading advertising on the web.
I think it's clear that they know that already
and that there's no differentiation
in terms of what they should not do,
whether it is in print or on the web or any other forum.
And the nature of the sanction, again,
is a matter of a... It's a factor,
but it is not an exclusive one.
And unless the court has any more questions,
I rest on my brief.