Dr. Joseph Mercola's Battle
with His State Licensing Board

Stephen Barrett, M.D.

In 2001, and again in 2004, I asked the Illinois Department of Professional Regulation to investigate Joseph Mercola, D.O., who operated the Optimum Wellness Center in Schaumberg, Illinois. Attaching copies of of various pages from his Web site, I asked the regulators to consider (a) whether he was engaged in misleading advertising and (b) what he and his associates were doing with patients. In June 2004, apparently in response to my concerns, the Department filed an administrative complaint that sought to discipline him for publishing "false and potentially harmful medical advice" on his site [1]. Two months later, the department—which had been renamed Department of Financial and Professional Regulation (IDFPR)—expanded its complaint to object to about a dozen things:

Such complaints are usually followed by an administrative hearing in which the doctor has the opportunity to defend himself. But in this case, Mercola (through his attorneys) filed a motion to dismiss the complaint based on the assertion that the board lacked jurisdiction to discipline him for the "exercise of free speech." The IDFPR disagreed, and an administrative law judge dismissed this motion as well as a motion to reconsider the dismissal. In denying the motion for reconsideration, the judge stated that IDFPR had made "clear allegations" that Mercola had "engaged in . . . unprofessional conduct, making misleading statements regarding his skill, claims of superior care, and deceptive statements which play upon the vanity or fears of the public" and that his defensive arguments can be raised at an administrative hearing [3].

In August 2005, Mercola petitioned the U.S. District Court to stop the disciplinary process with an injunction and award him compensatory damages of $75,000, punitive damages for $100,000, plus attorneys fees for both the petition and the underlying administrative action. The petition asserted:

Were Dr. Mercola neither a doctor nor a licensee of IDFPR, he could still operate his website; convey his ideas and opinions regarding "medical paradigms"; act as a conduit for the ideas and opinions of others; recommend drugs and other substances that he believes are helpful for treating illness, disease or injury; all without necessarily practicing medicine or saying anything that is false or against the law. He should not have fewer rights to share ideas on the Internet than would a layperson [4].

The IDFPR responded that Mercola had the opportunity to defend himself at an administrative hearing and would have the right to court review of any decision, but it would not be proper for the federal courts to interfere with a pending state administrative decision [5]. In October 2005, the District Court agreed and dismissed Mercola's petition with these words:

This court must . . . abstain from adjudicating Dr. Mercola's case. Dr. Mercola's forum for proceeding on this issue is before the Illinois Department of Financial and Professional Regulation. That forum allows him to raise his constitutional challenges. He is able to appeal any adverse decisions to the Illinois courts. There is also no indication that the state administrative proceedings in this matter are motivated by a desire to harass, are conducted in bad faith or so extraordinary that irreparable injury will result if this court does not intercede. . . . . Dr. Mercola's first amendment arguments can be litigated through both Illinois administrative proceedings and in the Illinois state courts. This court must respect the State of Illinois' right to regulate the important state concerns of the public health and the medical profession through its administrative proceedings and state court review [6].

Undaunted, in November 2005, Mercola appealed to the U.S. District Court of Appeals. The docket for the case indicates that the proceedings were suspended shortly afterwards and in January 2007, the appeal was voluntarily dismissed at the request of both parties. By that time, Mercola's Web site no longer listed James Jordan as a staff member; the statements to which IDFPR had objected had been removed; and, according to a report in Chicago Magazine, Mercola had stopped practicing medicine to focus on his Web site [7].

The IDFPR Web site states that Mercola has not been disciplined, and no details about how the complaint was resolved are publicly available. However, I believe it is safe to assume that he and the IDFPR reached a settlement. I suspect that the IDFPR decided that no further action was needed because Mercola had modified his Web site and stopped treating patients. It would be interesting to know whether his decision to stop practicing was influenced by fear of what might happen if the board were to look closely at how he managed patients.

References

  1. Complaint. Illinois Department of Professional Regulation v. Joseph M. Mercola, D.O., filed June 9, 2004.
  2. Amended complaint. Illinois Department of Financial and Professional Regulation v. Joseph M. Mercola, D.O., filed August 2004.
  3. Kubiatowski LA. Order. In Illinois Department of Financial and Professional Regulation v. Joseph M. Mercola, D.O., Feb 18, 2005.
  4. Complaint for injunctive, declaratory and other relief. Mercola v Department of Financial and Professional Regulation et al. U.S. District Court for the Northern District of Illinois, Eastern Division, Case No. 1:05-cv-04400, filed Aug 1, 2005.
  5. Defendants' response to plaintiff's petition for a temporary restraining order and injunction. In Joseph Mercola, D.O. vs Department of Financial and Professional Regulation. U.S. District Court for the Northern District of Illinois, Eastern Division, Case No. 1:05-cv-04400, filed Oct 3, 2005.
  6. Holderman JF. Statement. In Joseph Mercola, D.O. vs Department of Financial and Professional Regulation. U.S. District Court for the Northern District of Illinois, Eastern Division, Case No. 1:05-cv-4400, filed Oct 20, 2005.
  7. Smith B. Dr. Mercola: Visionary or quack? Chicago Magazine, Feb 12, 2012.

This article was posted on September 1, 2015.

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