By Alicia Gallegos

California nurses with doctorates do not have the right to call themselves doctors, a federal court ruled, upholding a state law that regulates what titles health professionals can use in advertisements.

In a September 19 decision, the US District Court for the Central District of California rejected claims by nurses with Doctor of Nursing Practice (DNP) degrees that the state violated their free speech rights by banning them from using the title “Dr” in the healthcare setting.

The use of “Dr” by nonphysicians in clinical settings is “inherently misleading” commercial speech and is not protected by the First Amendment, District Judge Jesus G. Bernal wrote in his ruling.

Pacific Legal Foundation Attorney Donna Matias, who represented the nurses, said the plaintiffs were disappointed that the court “failed to grapple with relevant Supreme Court precedent that protects First Amendment rights.”

“Instead of reining in the state’s power to censor professionals who accurately describe their credentials, the decision emboldens it,” Matias said in an email to Medscape Medical News. “The First Amendment does not allow the government to silence truthful speech simply because some listeners may be confused — especially when disclosure can address any concerns short of a total ban.”

The defendants in the case, California Attorney General Rob Bonta and California Medical Board President Kristina Lawson, did not return messages seeking comment.

The California Medical Association (CMA) welcomed the decision, saying it upholds the state’s “well-established prohibition against nonphysicians using the title ‘doctor’ in healthcare settings.” The CMA filed a joint amicus brief in the case in support of the defendants.

“This decision protects patients by providing clarity and transparency about the level of training and education of the person providing their care,” CMA President Shannon Udovic-Constant, MD, said in a statement. “Allowing patients to make informed decisions is foundational to our healthcare system.”

Under California’s Business and Professions Code Section 2052, anyone who refers to themselves as a doctor in words or in advertisements without having a valid certificate as a physician is guilty of a misdemeanor and subject to sanctions.

Three California DNPs sued the state over the law in June 2023. Two of the plaintiff nurses said they’ve used the title “Dr” in the past on embroidered clinician jackets, clinical documents, nameplates, and social media.

Before learning about the law, plaintiff Jacqueline Palmer testified she introduced herself to patients as “Dr” but always added she was a nurse practitioner. A third plaintiff intended to use the title when he opened his esthetics clinic but put the opening and its website on hold after he learned about the law, according to court documents.

In their complaint, the nurses contended the state law unconstitutionally criminalizes the use of “Dr” and that the measure does not serve a compelling state interest. They argued their use of “Dr” is not misleading and that the state law “regulates more extensively than necessary.”

Attorneys for the state asked the court to throw out the suit, arguing the law is a legitimate regulation of commercial speech because the plaintiffs’ use of “Dr” is “inherently misleading” and that the law advances a substantial governmental interest.

In his ruling, Bernal wrote the harms cited by the state over DNPs calling themselves doctors are “real” and that evidence shows such titles by DNPs can confuse patients. Bernal cited a survey that found 39% of patients believe a DNP is a physician.

“The Court finds that it is reasonable to infer that some consumers will assume that plaintiffs are licensed physicians or surgeons if they use ‘Dr’ or ‘doctor’ in healthcare settings and in advertising materials promoting medical services, even if plaintiffs also identify themselves as DNPs,” Bernal wrote.

Bernal noted that while the use of “Dr” in the healthcare setting is not a traditional form of advertising, the “specific product” plaintiffs seek to advertise is the expertise, knowledge, and quality of services such professional titles convey to patients and colleagues. The nurses have an economic motive for engaging in this kind of speech, which is “to solicit and retain a patient base and improve their professional brand,” Bernal said.

The California Nurses Association declined to comment on the ruling.

Lorie A. Brown, RN, JD, Indianapolis-based attorney who represents nurses and health providers, said she was surprised by the ruling. If a nurse obtains a DNP, it’s reasonable that they should be able to refer to themselves as “Dr,” she said, adding that other professionals with doctorates do not face the same scrutiny.

“The person that gets the doctorate, the DNP or the EdD [Doctor of Education] or the PhD [Doctor of Philosophy], it’s the degree,” she said. “So I guess Dr Jill Biden can still use her [EdD] title, but yet nurses who have the same level of degree can’t use the title, I think that’s unfair. All of your hard work and education, you can’t even use the title that you earn, at least in California.”

Brown said the ruling could have broader implications outside of California, including other courts citing the ruling when title disagreements arise among nurses and physicians. The ruling could also lead to other states enacting similar statutes, she said, adding that California is often seen as a leader in legislation.