The Orange County Register: How California turns doctors into outlaws

In California, dentists do it, and so do veterinarians. Psychologists, chiropractors, pharmacists, and physical therapists do it. Heck, even Dr. Phil, Dr. Laura, and Dr. Jill Biden do it.

Despite their vastly different professions, all these people use the title “Dr.” in their fields. So why then are Doctors of Nursing Practice prohibited from doing so?

They shouldn’t be, but in California, they are.  However, by prohibiting this select profession from using their earned title, California is violating the First Amendment.

Sarah Erny earned her doctorate in nursing practice (DNP), the highest advanced degree for nurse practitioners. At her wellness clinic on the Central Coast of California, her patients knew that she was a nurse practitioner — the sign on her office door and her website clearly stated so — and they insisted on referring to her as “Dr. Sarah.” They believed that she should be proud of her doctorate.

As it turns out, Dr. Erny and a whole host of professionals (including the aforementioned dentists, veterinarians, psychologists, chiropractors, pharmacists, and physical therapists, to name a few) are outlaws. Under a California statute, Cal. Bus. & Prof. Code § 2054, only certified physicians and surgeons can legally use the title “Dr.” Never mind that the certificates issued by the Medical Board of California nowhere contain the word “Doctor” or the sacred initials “Dr.” Section 2054 criminalizes the use of these titles by the wrong professionals, who may be punished by up to $1,000 in fines.

When the state came after Dr. Erny, it unleashed a trifecta of punishment. The local district attorney brought suit and, within a week, had extracted a settlement of nearly $20,000 and an order requiring her to monitor the Internet for five years to scrub every reference to her as “Dr.”; the Medical Board of California issued a citation and fine of $2,500; and the Board of Registered Nursing brought a separate action seeking to revoke or suspend her license. Not one of those entities alleged that any individual believed that Dr. Erny was a physician, much less that any patient was harmed by her or her use of the prohibited title.

Section 2054 monopolizes a common term, “Doctor,” and the title, “Dr.,” reserving it for physicians and surgeons despite the fact that it can refer to a variety of professionals who have earned an advanced degree. It calls to mind Alice’s post-Wonderland adventures in Through the Looking Glass:“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean—neither more nor less.”

California’s law is the strictest of its kind. All other states that have chosen to regulate the use of the title “Dr.” in the healthcare context simply require disclosure of the healthcare professional’s credentials or profession. Indeed, even the American Medical Association’s proposed model legislation, The Healthcare Transparency Act, does not ban the use of the word “Dr.” by non-physicians. Rather, it requires them to accurately and clearly disclose their training and qualifications.

While there is no doubt that the state has an interest in protecting patients from fraudsters masquerading as physicians or surgeons, § 2054 restricts far more speech than necessary to achieve that goal. Doing so violates the First Amendment to the United States Constitution.

Represented by Pacific Legal Foundation, three Doctors of Nursing Practice — Jackie Palmer, Heather Lewis, and Rodolfo Jaravata-Hanson — recently filed a lawsuit challenging the constitutionality of § 2054. All three fear that they might find themselves in Sarah Erny’s shoes. Like every DNP I’ve spoken to, Palmer, Lewis, and Jaravata-Hanson are proud to be nurse practitioners, and they have never led anyone to believe that they are physicians. Indeed, they are always careful to specify their credentials lest anyone confuse them for a physician. The three DNPs regularly work with physicians and understand that each professional plays a role in providing quality healthcare.

Patients are entitled to know the level of education and experience their healthcare provider possesses. We can all agree on that. And the way to make that happen is through transparency and disclosure, not the criminalization of truthful language and threats to the licenses and livelihoods of honest, hardworking professionals. California’s actions against Dr. Sarah Erny put in stark relief the extent of its power to ruin lives by policing language even when no one is harmed or threatened with harm.

For the time being, Dr. Phil is on notice. Somehow, “The Phil Show” doesn’t have quite the same ring.

This op-ed was originally published in The Orange County Register on September 6, 2023.