Doctor resistance mounts to California law restricting advice to patients on COVID

Five more California doctors have joined the effort to overturn a new state law restricting the advice they can give patients about COVID-19, filing the second federal lawsuit against the restrictive law in four weeks.

The new law authorizes the Medical Board of California to sanction and revoke the licenses of doctors who spread misinformation that challenges the “contemporary scientific consensus” about COVID-19. Democratic Gov. Gavin Newsom signed the bill Sept. 30, which is due to take effect Jan. 1.

Filed Tuesday in the U.S. District Court for the Eastern District of California, the latest lawsuit claims the measure violates physicians’ constitutional rights to free speech and expression. It also alleges that the law interferes with doctor-patient communications.

“Because the term ‘scientific consensus’ is not clearly defined, and arguably impossible to determine, the law is open to arbitrary implementation by the [Medical] Board, which includes many non-physicians,” the complaint states.

The lawsuit, which names Mr. Newsom and the medical board as defendants, seeks an injunction overturning the law.

Alex Stack, a spokesman for the governor, pushed back on the lawsuit in a statement emailed to The Washington Times. He noted that the law targets “disinformation machines” and does not apply to any speech outside doctor-patient communications related to COVID treatment.

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“This is a very narrow bill that targets egregious instances of medical professionals acting maliciously with respect to specific patients. It is about protecting basic patient rights,” Mr. Stack said. “Throughout the pandemic, we saw an entire industry pop up that made money selling snake oil and other dangerous methods for supposedly treating COVID-19, and it cost people their lives while others made money.”

Mr. Newsom in his signing statement acknowledged his own concerns that the law could have a “chilling effect” on speech, but said it had been carefully drafted to deal with abuses and would be overseen by the Medical Board of California.

But this law, he wrote, “is narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care.”

The five plaintiffs counter that it is impossible for the law or the medical board to accurately define the “contemporary scientific consensus” about COVID as new strains emerge.

Attorneys from the nonpartisan New Civil Liberties Alliance, a public interest law firm, are representing Drs. Tracy Hoeg, Ram Duriseti, Aaron Kheriaty, Pete Mazolewski and Azadeh Khatibi in court.

In testimony appended to the complaint, Dr. Hoeg warned the law may interfere with physicians’ “duty to give accurate information to our patients” as new COVID variants emerge, as has happened multiple times since the new coronavirus first emerged in China in late 2019.

Unpredictable shifts in the disease and emerging research about the long-term risk of myocarditis in vaccinated patients make it impossible to give every patient the same advice, the doctor adds.

“This new information has changed and continues to change the risk-benefit calculations for each age, sex and underlying health status demographic and for each dose of vaccination,” Dr. Hoeg wrote. “A generic statement such as ‘the COVID-19 vaccine works’ simply does not account for the complexity of the risk-benefit calculus.”

The lawsuit follows a separate one that two other state doctors filed on Oct. 4, alleging that the law violates freedom of speech and the spirit of scientific inquiry.

Drs. Mark McDonald, a Los Angeles psychiatrist, and Jeff Barke, an Orange County primary care physician, filed that earlier federal lawsuit in California’s Central District. Attorneys from Liberty Justice Center, a Chicago-based nonprofit law firm, are representing them.

For more information, visit The Washington Times COVID-19 resource page.

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