CONCORD, N.H. (AP) – Doctors have a right to free speech even when their comments insult or offend patients, a judge ruled in the case of a doctor who allegedly told an obese white woman she might only be attractive to black men.

State and American Medical Association requirements to treat patients with “compassion and respect for human dignity and rights” are so vague they are unconstitutional, Judge Edward Fitzgerald said in the case of Dr. Terry Bennett of Rochester.

In a Merrimack County Superior Court ruling released Thursday, Fitzgerald halted proceedings by the state Board of Medicine that could have resulted in discipline against Bennett, who was accused earlier of telling a woman recovering from brain surgery to buy a pistol and shoot herself to end her suffering.

The board deemed that allegation unfounded, but decided to take another look at it when the obese woman’s complaint surfaced in early 2004.

That patient paraphrased Bennett’s comments, which he denied making, as follows: “Let’s face it, if your husband were to die tomorrow, who would want you? Well, men might want you, but not the types you want to want you. Might even be a black guy.”

Bennett has denied making the comment, but has said he has seen polls supporting that position.

“If you look at polling, nobody likes fat women,” he said last year. … Is it right? No. Is it sensible? No. Is it true? Yeah … Black guys are the only group that don’t mind that. Is that racist to say that?”

Fitzgerald said he did not condone remarks attributed to Bennett, but said he had a right to speak bluntly.

“Fitzgerald said the AMA rules do not specify what it means to treat, or fail to treat, people with “compassion and respect for human dignity and rights.”

AMA spokesman Robert Mills in Chicago did not immediately return a call seeking comment.

Fitzgerald also ruled the board’s own Web site counsels patients that complaints concerning “high fees, rudeness or “poor bedside manner’ do not ordinarily violate” its disciplinary provisions “unless they also involve dishonesty or exploitation or gross negligence on the part of the physician.”

Bennett’s lawyer, Benjamin King, said the ruling upholds the free speech rights of doctors.

“The state of New Hampshire would need to amend its regulations if it intended to regulate physicians’ speech,” he said. “By the same token, the AMA would have to amend its principles if intended to govern physicians’ speech around the country.”

He said most of allegations against Bennett are just allegations.

“It was never determined in this litigation the exact content of what Dr. Bennett said, beyond the fact that he called one of the patients fat.”

Bennett, who turned 68 on Thursday, claimed victory.

“It’s pretty clear,” he said. “The question now is: Will the board waste more of your and my tax dollars and appeal this, or accept done as done?”

Either way, he said the case is not over. If the board drops the case, he said he plans to sue everyone involved for “malicious prosecution.”

If it does appeal, he said he will wait until the final outcome before acting.

“I am not inclined to be forgiving about it,” he said. “It’s been devastating and infuriating.”

Assistant Attorney General Elyse Alkalay, who represented the board in the court case, said she was reviewing the ruling to decide whether to appeal. Penalties available to the board range from doing nothing to reprimanding, suspending or revoking the licenses of doctors.

Bennett is not without supporters. Some attended a board hearing to protest.

“He’s told me things that I didn’t want to hear sometimes, but it was my own fault, you know,” patient Karen McMullen said last year.

McMullen said Bennett urged her to lose weight and quit smoking.


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