On Aug. 5, the U.S. Court of Appeals for the Sixth Circuit ruled
in Kiser v. Kamdar, et al., finding that the district court improperly dismissed a licensed
dentist’s First Amendment claim against the Ohio State Dental Board for banning
him from calling himself an endodontist, although he is trained in endodontics,
because he performed procedures outside that specialty.
be a Board-recognized specialist, a dentist must complete a postdoctoral
education program in a specialty recognized by the American Dental Association
(ADA) and limit the scope of his/her practice to his/her specialty. Any dentist
that does not meet these requirements is considered a general dentist according
to the Ohio Administrative Code (Code).
Ohio, a dentist’s status as a Board-recognized specialist affects the
terminology that they may use in advertisements. According to the Board’s
regulations, the use of the terms “specialist,” “specializes” or “practice
limited to,” or the terms “orthodontist,” “oral and maxillofacial surgeon,”
“oral and maxillofacial radiologist,” “periodontist,” “pediatric dentist,”
“prosthodontist,” “endodontist,” “oral pathologist,” or “public health dentist”
or other similar terms that imply the dentist is a specialist may only be used
by licensed dentists recognized as a specialist by these regulations: A general
dentist who uses the abovementioned terms in advertisements can have their dental
license placed on probationary status, suspended or revoked by the Board. Although
a general dentist “is not prohibited from announcing to the public that he/she
renders specific types of services, including . . . specialty services,” he/she
may not use “words or phrases which are otherwise prohibited by this rule,” according
to the Code.
plaintiff, Russell Kiser, D.D.S., is a licensed dentist with postdoctoral
education in endodontics. Although Dr. Kiser has the specialized education needed
to be a Board-recognized specialist, he chose not to limit his practice
exclusively to endodontics. As a result, as specified in the regulations, Dr.
Kiser was treated as a general dentist, and he was banned from using the word
“endodontist” in his advertisements.
dismissing Dr. Kiser’s First Amendment commercial-speech claim, the district
court stated that it found “no First Amendment violation because advertisement
for both specialist and general dentistry services violate Ohio laws, which
would constitute advertisement for illegal activity.” However, the
Court of Appeals ruled that there is nothing illegal about performing
endodontic procedures while providing general dentistry services. The Court
found, that as the Board has acknowledged in prior correspondence with Dr.
Kiser, nothing in the challenged regulations prevents Dr. Kiser from performing
endodontic procedures while offering general dentistry services, so long as his
advertisements comply with the Board’s regulations.
The case has been sent back to the district court for further
review, consistent with the opinion of the U.S. Court of Appeals.