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A federal judge’s recent order blocking California medical regulators from disciplining three physicians over their COVID-19 advice affects “every aspect of medicine now and in the future,” according to Dr. Pierre Kory, one of the doctors who brought the case.
“If we had lost, think about what the future looks like as a doctor,” Kory said this week on “The Jimmy Dore Show.” “It’s so much bigger than COVID.”
Kory said the ruling protects physicians’ ability to give patients the medical advice they believe is best, even when it differs from government recommendations or the prevailing standard of care.
“If I can’t say what I really think is the best thing for their health … we’re talking about a dystopian future,” Kory said. “It wasn’t just about COVID. They could regulate anything I say. … I think medicine would implode.”
Last week, Senior U.S. District Judge William B. Shubb issued a preliminary injunction barring California medical regulators from investigating or disciplining Kory, Dr. Le Trinh Hoang and Dr. Brian Tyson based on the viewpoints they expressed to patients about COVID-19.
Shubb ruled that regulators may not treat a physician’s refusal to communicate the government’s position on disputed COVID-19 issues as either an informed consent violation or a departure from the standard of care.
The lawsuit, filed against two California medical boards by the doctors and Children’s Health Defense (CHD), remains ongoing.
Restricting speech would turn doctors into ‘little pill-pushing robots’
Speaking with Dore alongside Rick Jaffe, attorney for the physicians and CHD, Kory said the case is about protecting doctors’ ability to exercise independent medical judgment — and patients’ ability to receive advice tailored to their individual needs.
“The way I see it, whatever that consensus is, whatever they say the standard of care is … I can differ from whatever they think,” Kory said. “Having a speech that departs from the crowd is not departing from the standard of care.”
Kory said that without those protections, physicians could be pressured to conform their advice to a scientific consensus “manufactured by the pharmaceutical industry,” discouraging them from recommending alternatives to commonly prescribed treatments for depression, heart disease, obesity and other conditions.
“It turns us into little pill-pushing robots … selling drugs to people,” Kory said.
Last week’s ruling allows physicians to speak honestly with patients, even when their medical opinions differ from prevailing health recommendations.
“So at least I can think and say things that are different than the crowd,” Kory said. “Otherwise, we’d just be just one mass with one message to ‘do this’ and ‘don’t do that,’ right? It would have been just absurd.”
The decision also reinforces what Kory sees as a physician’s foremost responsibility — putting the patient first.
“As a professional … you’re putting your patient as your primary consideration,” Kory said. Without those protections, doctors could be forced to first consider “what the government and what the authorities and what agencies run by guys like [Dr. Anthony] Fauci” wanted them to tell patients. “I just can’t imagine that world.”
Kory expressed a similar concern in a recent Substack post, arguing that California sought to control discussions between physicians and patients.
“The state took the most personal conversation in medicine, the one between a doctor and a frightened patient, and tried to put its own words in our mouths, with our licenses held as collateral to make sure we complied,” he wrote.
Early rulings were effectively ‘making speech the standard of care’
The injunction is the latest development in a yearslong legal battle over California’s efforts to regulate what physicians could tell patients about COVID-19.
According to Jaffe, it began in 2021, when “the Federation of State Medical Boards issued a press release saying that it’s the duty of the medical boards across the country to go after doctors for COVID misinformation.”
California later passed Assembly Bill No. 2098, allowing the state to discipline physicians for COVID-19 “misinformation.”
Although the law was later repealed after separate legal challenges, the state continued pursuing doctors under its existing authority to regulate the practice of medicine.
Jaffe said a federal judge initially accepted that theory, ruling “that a doctor advising a patient wasn’t considered speech, but it was considered conduct that could be regulated by a medical board.”
Kory said that reasoning effectively equated physicians’ words with medical procedures. “They’re literally standardizing speech,” he said. “They’re making speech the standard of care.”
The legal landscape changed after the U.S. Supreme Court’s decision earlier this year in Chiles v. Salazar. Although the high court declined to hear Kory’s case, Jaffe said the Chiles ruling established that “you can’t tell a doctor that he has to give one side of the argument, not the other.”
That ruling allowed Kory and the other two physicians to return to a lower federal court, where they won a preliminary injunction.
Jaffe noted that the order technically applies only to the three plaintiff physicians. Even so, he said it sends a clear message to California regulators.
“The medical board is on notice that a federal judge thinks that going after doctors for information and recommendations about COVID violates the First Amendment,” Jaffe said. “So even though technically it applies to these three docs, from a practical point of view, they’re dead.”
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‘We wouldn’t be here without Children’s Health Defense’
Kory also emphasized how close the physicians came to losing.
“You had two circuits who were saying that this was a just law,” he said. “We got through by the skin of our teeth here. We could be in a very different world had the things not gone the way they had. … It’s quite scary when you think about it.”
He credited CHD, which funded the lawsuit, with helping make the victory possible.
“We wouldn’t be here without Children’s Health Defense,” Kory said.
He said CHD has supported numerous legal challenges to what he sees as government overreach and thanked the organization for standing behind the physicians throughout the case.
“To hear that there’s two district courts in this country who can’t get the First Amendment right, that minority opinion shouldn’t be protected,” Kory said. “This country is really going sideways.”
Organizations like CHD “won’t quit and are going to fight insanity at every turn,” he added.
Watch Kory and Jaffe on ‘The Jimmy Dore Show’ here:
Related articles in The Defender
- Federal Judge Blocks California From Disciplining Doctors for COVID Medical Advice That Contradicts Public Health Officials
- Supreme Court Rejects Appeal in COVID ‘Misinformation’ Case, but Doctors Say They Still Won
- Doctors File First Lawsuit Challenging California Law That Seeks to Punish Physicians for COVID ‘Misinformation’
- Doctors, CHD Ask Supreme Court to Review Medical Free Speech Case
- Doctors, Children’s Health Defense to Take Censorship Case to U.S. Supreme Court After Appeals Loss
