STATE BD. OF MEDICAL EXAMINERS v. ROGERS

ALDERMAN, Justice.

This cause is before us on direct appeal to review the decision of the District Court of Appeal, First District, in Rogers v. State Board of Medical Examiners of Florida, 371 So.2d 1037 (Fla. 1st DCA 1979), which construed a provision of the Florida Constitution. Although we find it unnecessary to the disposition of this cause to reach the constitutional construction given article I, section 2, Florida Constitution,1 by the district court, we affirm the result of the district court's decision because, under the particular facts of this case, it appears that the action of the Board of Medical Examiners restraining Dr. Rogers from further utilization of chelation treatment was an arbitrary and unreasonable exercise of the state's police power.

Dr. Rogers, a practicing physician in Brevard County, was ordered by the Brevard County Medical Association to discontinue the use of chelation therapy2 in the treatment of arteriosclerosis. As a result of his refusal to discontinue its use, Dr. Rogers was expelled from the association. Subsequently, pursuant to section 458.1201(1)(p), Florida Statutes (1975),3 the Florida State Board of Medical Examiners filed an administrative complaint charging Dr. Rogers with unprofessional conduct as defined by section 458.1201(1)(m), Florida Statutes (1975).4

The hearing officer, whose findings and conclusions were adopted by the Board, concluded that chelation therapy can best be classified as investigational, that it more likely can be classified as quackery, and that its use outside a controlled environment such as a research institute fails to conform to acceptable and prevailing medical practice. Although not finding that chelation therapy is in any manner harmful to the patient or that Dr. Rogers misled his patients into believing that this methodology of treatment was a cure for arteriosclerosis, the hearing officer determined that Dr. Rogers failed to demonstrate that chelation therapy results in any patient benefit in terms of organic process and recommended that Dr. Rogers be reprimanded, be ordered to cease and desist from employing this treatment, and be placed on probation for one year during which time he should demonstrate the type of exemplary conduct required of a duly licensed physician.

Quashing the Board's order, the district court determined that neither the Board nor the Brevard County Medical Association had made any finding that chelation therapy is in any respect harmful or hazardous to the patient, that Dr. Rogers allowed his patients to make their own choice as to whether to begin this treatment after full disclosure that this methodology has not been proven effective, that chelation therapy is widely used as a treatment for arteriosclerosis by a definite minority of the medical profession, that Dr. Rogers never claimed it was a cure, and that there was no allegation or proof of fraud, misrepresentation, coercion, or overreaching. The district court acknowledged the state's authority to regulate the medical profession but held that the Board's action was not reasonably related to the public's health and welfare. It concluded that the Board, on the record presented for review, could not prohibit Dr. Rogers from administering chelation therapy.

Entrusted with the enforcement of appropriate standards for the practice of medicine, the Board, in restricting Dr. Rogers' professional activities, was acting under the state's police power and pursuant to sections 458.1201(1)(m) and 458.1201(1)(p). Although the state has the power to regulate the practice of medicine for the benefit of the public health and welfare, this power is not unrestricted. The regulations imposed must be reasonably related to the public health and welfare and must not amount to an arbitrary or unreasonable interference with the right to practice one's profession which is a valuable property right protected by the due process clause. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889).

Under the particular facts of this case, we conclude that the Board's action unreasonably interferes with Dr. Rogers' right to practice medicine by curtailing the exercise of his professional judgment to administer chelation therapy. The record before us fails to evidence harmfulness as a reasonable basis for the Board's action in restricting use of this treatment. Cf. Golden v. McCarty, 337 So.2d 388 (Fla. 1976). Furthermore, the evidence demonstrates that no fraud or deception was exercised by Dr. Rogers upon his patients who were fully informed of the nature of the procedure and the possibility of no improvement. Sanctions were imposed against Dr. Rogers because he utilized a modality not accepted by the Board as having been proven effective, not because the Board found that the treatment was harmful or that Dr. Rogers had defrauded his patients into believing that chelation treatment was a cure for their conditions. The Board's findings do not support a conclusion of quackery, and the state-imposed limitation on the administration of chelation treatment has not been shown by the evidence to have a reasonable relationship to the protection of the health and welfare of the public.

Accordingly, based upon the record in this case, we hold that the Board's action is an unreasonable exercise of the police power, and we affirm the result of the decision of the district court quashing the order of the Board.

It is so ordered.

SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.