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California lawmakers last month quietly repealed the state’s “medical misinformation” law, which was intended to punish doctors for spreading COVID-19 “misinformation” — but two state medical boards claim they still have the right to sanction doctors for disseminating “misinformation.”
Plaintiffs in one of the lawsuits challenging Assembly Bill 2098 (AB 2098) before it was repealed are looking to change that.
“Because of the repeal of AB 2098, and the board’s position that it can still sanction the speech targeted by the soon-to-be-repealed law, we are pivoting in our lawsuit and arguing to the judge that they can’t do it under their general statute either because the speech does not change just because the legal theory/statute changes,” said California attorney Richard Jaffe.
Jaffe, who represents the plaintiffs in Hoang et al. v. Bonta et al., filed an amended complaint to expand the scope of the original lawsuit to challenge claims made by the Medical Board of California and the Osteopathic Medical Board of California. The amended complaint also seeks to add two new plaintiffs.
Writing on his blog, Jaffe said he and his plaintiffs are seeking “to change course and stop the medical boards from trying to censor physicians under a new legal theory.”
Hoang et al. v. Bonta et al., filed Dec. 1, 2022, is one of several lawsuits that challenged AB 2098. The law, signed by Gov. Gavin Newsom in September 2022, took effect Jan. 1, 2023. However, less than a month later, a federal court issued an injunction blocking the law.
Children’s Health Defense (CHD) is one of the plaintiffs in Hoang et al. v. Bonta et al.
AB 2098 was repealed on Sept. 14, when lawmakers voted 35-1 to pass another bill, Senate Bill 815 (SB 815), which contained a clause that repealed AB 2098. Newsom subsequently signed the bill on Sept. 30. However, the repeal won’t take effect until Jan 1, 2024.
The Los Angeles Times’ Sept. 11 report revealing news about the proposed repeal of AB 2098 quoted California Assemblymember Evan Low (D-Silicon Valley), the bill’s co-author, who said that disciplinary actions against doctors accused of spreading “misinformation” would continue even without the law in place.
“The Medical Board of California will continue to maintain the authority to hold medical licensees accountable for deviating from the standard of care and misinforming their patients about COVID-19 treatments,” Low said.
Jaffe told The Defender this was an admission that “the repeal does not affect the board’s ability to investigate and sanction doctors for spreading COVID misinformation to their patients because they can do that under their general powers to enforce the standard of care.”
“The California government is taking the position that the repeal means nothing since they can do the same thing under a different statute,” Jaffe said. “So much for all the urgent need for AB 2098 to protect the public. It now turns out they didn’t need the law at all, according to their latest pronouncements.”
At least one California doctor was recently charged by the Medical Board of California for spreading “COVID misinformation” under those powers, Jaffe said.
As a result, “We chose a different path,” Jaffe said, explaining that the amended complaint continues the original claims against AB 2098 “but also asserts claims against the board’s use of their general standard of care statute as a basis of disciplining physicians.”
“We argue that the board’s actions are just as unconstitutional as they were under the specific statute which is set to be repealed,” Jaffe said, adding that the court will hold a hearing on the motion on Nov. 13.
‘The threat to the practice of medicine remains very real’
Two key plaintiffs have joined the lawsuit, according to Jaffe: Pierre Kory, M.D., MPA, president and chief medical officer of the Front Line COVID-19 Critical Care Alliance and Dr. Brian Tyson, a board-certified family practitioner who owns an urgent care facility in southern California.
Explaining his participation in the lawsuit, Kory said, “In the three other court cases against California, the state maintained that ‘professional speech’ is not protected under the First Amendment. Therefore, I’ve joined Dr. Hoang, CHD, Physicians for Informed Consent and Dr. Tyson on this new complaint.”
“This new case asks the court to send a clear message that the government cannot define a new category of unprotected speech and insert itself into the conversation between a doctor and their patient,” he added.
“If my participation as a plaintiff can make a difference in this case, I am more than happy to do what I can to restore my profession to what it once was,” Kory said.
Tyson, who was investigated by the Medical Board of California regarding a news interview he gave to KUSI News in San Diego in September 2020 where he talked about having effectively treated COVID-19 patients with hydroxychloroquine, said that informed consent is under attack by government “misinformation” policies.
“Government policies should never come between patients and providers,” Tyson told The Defender. “We have malpractice laws in place to prevent bad outcomes. Informed consent is the gold standard for decisions of treatment options.”
“If we cannot discuss options that may go against the general consensus, then science and treatment will be stagnant, and progress will stop,” Tyson added.
Regarding the addition of Kory and Tyson as plaintiffs, Jaffe told The Defender, “They are big medical guns who have successfully treated many thousands of COVID patients. I think their voices and insights will be extremely valuable and appreciated by the judge.”
Public health authorities engaging in ‘disinformation campaign’
According to the amended complaint, the stance of the Medical Board of California ignores key factors contributing to waning faith in public health authorities.
“The more the public health authorities speak, the more the public loses faith and trust in the information and recommendations in the public health institutions’ COVID edicts, despite the almost continuous failed results and the repeated empty promises that the public health authorities will do better,” the complaint states.
Public health campaigns promoting COVID-19 vaccines and boosters as “safe and effective,” even in the face of contrary evidence, have contributed to declining public trust in health authorities, according to the complaint — yet, it is the doctors who question such narratives who are targeted for disciplinary proceedings.
“The public’s lack of trust is not the result of what critics of the mainstream COVID narrative say in public or to patients,” the complaint reads. “Rather, it is the overpromising of the benefits of the vaccines and every booster, even though they neither prevent infection or transmission, and whatever effectiveness they have is extremely short-lived.”
The complaint adds that public health authorities “irrationally” downplay such evidence, as part of their efforts “to justify each successive booster.”
Noting that “emails and public testimony from public health officials … show that they have admitted or knowingly misled the public,” the complaint states “it is no wonder that a significant percentage of the public does not believe what comes out of the mouths of the public health authorities and their shills.”
According to the complaint, while “there is a disinformation campaign which has affected the public discourse,” these efforts are “being orchestrated by the public health authorities with the help of corporate interests to foist upon the public … a never-ending number of boosters.”
“Part of this disinformation campaign is to silence critics,” the complaint adds, such as through “COVID-inspired misinformation laws or standard of care prosecutions … All the time vilifying physicians and others who dare to speak up. This is straight from the Orwellian 1984 government’s playbook.”
‘We are not done yet’
Other lawsuits challenging AB 2098 include Høeg v. Newsom, McDonald v. Lawson and Couris v. Lawson, which now face several potential challenges.
Jaffe told The Defender that challenging “the constitutionality of the statute after it has been repealed raises a mootness issue for sure.”
Writing on his blog, Jaffe said, “The medical board and the legislature did not want to run the risk of losing, which would kill their efforts to continue to illegally censor physician speech, so they made a tactical retreat.”
“More cynically, the board, the legislature and the attorney general are all trying to prevent the courts from reviewing the board’s continued illegal actions,” in addition to the board’s continued disciplinary cases against doctors for allegedly spreading medical “misinformation.”
“So, what does that mean?” Jaffe wrote. “It means that we are not done yet, and that is why we are pivoting in our case.”
Jaffe refused claims by lawmakers and the Medical Board of California regarding the need to uphold a “standard of care” by combating alleged “misinformation.”
“My view is that there is no standard of care during a rapidly evolving virus other than what the public health announce is the scientific consensus and best practices until it changes its pronouncements which it has constantly done which has caused all the public’s mistrust,” he said.
On his blog, Jaffe wrote, “From a legal perspective, the medical boards are attempting to create a new category of unprotected speech by claiming that what a doctor says to a patient is considered ‘professional speech’ and is not protected by the First Amendment.”
However, “The definition of ‘professional speech’ and the claim that it is not protected was rejected by the U.S. Supreme Court in 2018,” Jaffe wrote, referring to a 2018 decision in National Institute of Family and Life Advocates v. Becerra, another case relating to efforts in California to clamp down on medical speech.
In that case, the Supreme Court rejected arguments by then-California attorney general Xavier Beccera claiming that medical professional speech is not protected by the First Amendment, Jaffe said.
AB 2098 provided a “supposed fix,” Jaffe said, that would “limit the bill’s application to communications between physicians and patients in the form of treatment or advice.”
Jaffe wrote that this included “essentially all communications between them and would in effect create a categorical exception to free speech rights just because the person has a medical license.”
“We are seeing an erosion of the practice of medicine where doctors are told that we need to take orders from inexperienced bureaucrats or severely conflicted experts instead of making treatment decisions based on our training and expertise,” Kory said. “Many intrusive and illogical policies during the pandemic harmed the public’s health.”
The amended complaint states that “It is imperative that physicians be permitted to speak their minds without fear of government reprisal. This kind of physician/patient communication is within the heartland of the speech the First Amendment protects.”
“And, that is exactly the subject of this lawsuit, whether the government assault on this protected speech comes from a specific (and soon to be repealed) statute, or a general standard of care provision,” the complaint adds.
“Many threatening and delicensing actions have been taken by medical boards against doctors who exercised their autonomy and freedom in treatment decisions on COVID-19. These actions have left physicians adhering to treatment protocols out of fear rather than using approaches that would produce the best outcome for patients,” Kory said.
Jaffe, Kory and Tyson predicted that more lawsuits will be amended to expand beyond challenging AB 2098, to include questioning the ability of state medical boards to target doctors for disseminating purported “misinformation.”
“Our pivot may be the first challenge to this unconstitutional action, but there will be more, from the other AB 2098 players, and maybe some new players will join this fight in the next few months,” Jaffe said. “I also expect to see the same wonderfully informative amici briefs filed in these challenges as were filed in the AB 2098 cases.”
On his blog, Jaffe wrote “The more doctors who challenge [California’s] government on this, the better. And I am sure that there will be plenty of amicus briefs filed in these cases, like there were in the AB 2098 challenges.”
“The case has always been bigger than AB 2098,” Kory said. “The sanctity of the relationship between doctor and patient is still under threat as governments and health authorities try to claim that the First Amendment does not apply to that relationship.”
“Without the ability to exercise my First Amendment rights as a physician, there is no one else with the expertise and authority to speak out about the lies and misrepresentations of an industry with such a long history of civil and criminal fines for their conduct,” he added.
Kory said “The threat to the practice of medicine remains very real in California and many other states in the U.S.”
According to Tyson, medical boards in at least two states — Oregon and Washington — currently are pursuing disciplinary actions against doctors, as is the Federation of State Medical Boards (FSMB).
In July 2021, the FSMB issued a press release recommending that state medical boards take disciplinary action against doctors for spreading such “misinformation.”
“My message to the medical board, Mr. Low, his supporters and to the Federation, is that we are all going to come back for round two,” Jaffe said.
Jaffe also referenced a Sept. 28 decision by a Washington state appeals court freezing the Washington Medical Commission’s disciplinary proceedings against Dr. Richard Eggleston, a retired ophthalmologist, for disseminating COVID-19 “misinformation” to proceed and an appeal of a court ruling against him to proceed.
Jaffe, who represents the plaintiffs in both cases, said he “cited the AB 2098 situation extensively” in the Eggleston case and may use the Sept. 28 ruling as part of Hoang et al. v. Bonta et al. “in different ways, including cross-PR and cross-citing them.”
Tyson expressed his hope that, through their rulings, courts will allow doctors to “practice medicine as we were trained, without government interference.”
“I have an oath to my patients, ‘First do no harm,’” Tyson said. “I want to be able to report my findings clinically and through research on the ground without being attacked or having to worry about losing everything I worked so hard for.”
Kory said that if the California lawsuit is successful, “this would more solidly protect us from the infiltration of public health authorities into the sacred relationship between a physician and a patient.”
“Doctors have an obligation and right to perform their duties based on our knowledge and expertise rather than out of fear of retribution from unconstitutional public policies,” he said. “Thus, proper informed consent will again be possible when patients need guidance around interventions promoted, mandated or recommended by health agencies.”
