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Children’s Health Defense (CHD) on Tuesday sued the Medical Board of California, challenging the board’s ability to discipline doctors for allegedly spreading “misinformation.”
The lawsuit, filed in the U.S. District Court for the Eastern District of California, is a follow-up to a previous complaint filed in December 2022, and an amended suit filed in October 2023, both of which challenged Assembly Bill (AB) 2098.
AB 2098 established that doctors who give “false” information about COVID-19 to patients were engaging in unprofessional conduct, which could subject them to disciplinary action by the Medical Board of California or the Osteopathic Medical Board of California.
A federal judge blocked the law in January 2023. The bill quietly died in September 2023, when lawmakers passed California Senate Bill (SB) 815, which contained a clause repealing AB 2098. SB 815 took effect on Jan. 1.
However, according to the suit filed Tuesday, California’s medical board is still targeting “COVID misinformation,” and physicians are still being intimidated and threatened by disciplinary action — even though AB 2098 was repealed.
The only difference is that now the investigations and public threats are based on “the general standard of care statute.”
Kim Mack Rosenberg, senior counsel for CHD, told The Defender the new lawsuit is critically important to protect the rights of medical professionals to engage in discourse with their patients.”
She said:
“Many may have thought that the repeal of AB 2098 signaled an end of the State of California’s attempts to insert itself into the doctor-patient relationship and manipulate what doctors can share with their patients, punishing doctors who ‘stray’ from the government’s narrative.
“The repeal of AB 2098, while undoubtedly a good thing, is not the end. Instead, California’s overreach and intrusion on doctor-patient relationships continues with the state trying to, as the complaint states, ‘unprotect’ protected speech and argue that these communications are not protected under the First Amendment and instead relate to patient/medical care.”
The lawsuit names California Attorney General Rob Bonta, Reji Varghese, executive director of the Medical Board of California and Erika Calderon, executive director of the Osteopathic Medical Board of California.
Plaintiffs include CHD, Dr. Pierre Kory, Dr. Brian Tyson, a board-certified family practitioner who owns an urgent care facility, Dr. LeTrinh Hoang, a pediatric osteopathic physician and Physicians for Informed Consent, a California nonprofit that advocates for the right of physicians to provide evidence-based information to patients concerning vaccine risks and benefits.
Attorneys for the plaintiffs include Rosenberg, Robert F. Kennedy Jr., CHD chairman on leave, and Richard Jaffe.
According to the lawsuit, the Medical Board of California in 2023 disciplined at least one physician “for information, opinions, and recommendations she made to a patient about the vaccine, including her opinion the vaccine was associated with increases in miscarriages.”
According to Jaffe, “A few weeks ago, the doctor agreed to surrender her medical license. So the [California] board now has its first scalp in the COVID misinformation wars. But if all goes to plan, it will be its last.”
Writing on his blog, Jaffe said, “The second phase of the [California] COVID misinformation wars has now started … The First Amendment will overcome the same defenses previously asserted by California the last times they tried to dictate and suppress physician free speech to patients.”
Plaintiffs in the lawsuit also welcomed the news of its filing.
“This is an important step towards medical freedom to discuss important issues with patients, knowing we will not be persecuted for doing so,” Tyson told The Defender. “It is important to be able to give patients full informed consent on everything we do — what are the true risks and benefits of vaccines, medicines and other treatment options.”
California doctor lost license due to COVID ‘misinformation’
According to the lawsuit, the California legislature and California Medical Board signaled their intent to continue pursuing disciplinary actions against doctors for “misinformation” even as AB 2098 was in the process of being repealed.
The lawsuit alleges California Assemblymember Evan Low (D-Silicon Valley), one of AB 2098’s sponsors, told the Los Angeles Times on Sept. 11, 2023, that “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.”
“Mr. Low’s statement is consistent with the [Federation of State Medical Board’s] position, which is also the Medical Board’s position, that it can discipline physicians for so-called COVID misinformation regardless of the repeal of AB 2098,” the lawsuit reads.
In July 2021, the Federation of State Medical Boards issued a press release recommending that state medical boards take disciplinary action against doctors for spreading such “misinformation.”
The lawsuit states:
“Plaintiffs seek a declaration that the Boards do not have the First Amendment constitutional authority to investigate, prosecute or sanction physicians for providing such recommendations about COVID vaccines/boosters, or on or off-label FDA approved treatments for COVID, or for any other COVID-related subject.”
The plaintiffs also are asking the court to issue a declaratory judgment that it is a “First Amendment violation … to investigate, prosecute or sanction physicians based on information, opinions, recommendations or advice they provide to patients concerning the safety and efficacy of COVID vaccines,” or other COVID-19 treatments, dietary supplements or public health measures, such as masks.
The plaintiffs also seek “a preliminary and then permanent injunction enjoining the Defendants from commencing any such investigation or prosecution in violation of the First Amendment rights of physicians and their patients.”
Rosenberg said:
“It has been almost four years since the COVID-19 pandemic began and we have seen … time and time again, that the treatments promoted by the government failed many patients while other treatments — which the government tried to suppress — benefited patients with access to doctors who shared information they ethically believed was appropriate and, indeed, critical, to discuss with patients.”
According to the lawsuit, the plaintiffs expect the defendants will argue “that all communications between a doctor and patient are part of patient/medical care, and hence unprotected by the First Amendment under the so-called professional speech exception.”
However, the lawsuit notes the professional speech exception was specifically rejected by the U.S. Supreme Court in National Inst. Advocates & Life Advocates v. Becerra, “which involved the previous unsuccessful effort by the California Legislature to impose government control over health care professionals’ protected speech.”
According to Rosenberg, the U.S. Supreme Court has rejected similar intrusions by California into the doctor-patient relationship and the right of doctors to share information with their patients.
”We hope that this court similarly rejects California’s attempts here,” Rosenberg said.
Tyson said that despite the repeal of AB 2098, “there is still a fear of persecution and disciplinary actions if we have these conversations.” He said he and other doctors are still being blocked on social media and attacks continue from media outlets and platforms.
Tyson previously was investigated by the Medical Board of California for allegedly disseminating COVID-19 “misinformation,” but that investigation was terminated in 2023 without any disciplinary action taken against him.
The lawsuit states that Tyson “has a reasonable and grounded fear that his protected speech to patients might subject him to further board investigation and possible prosecution. As indicated, his protected speech is being chilled by the medical board’s conduct.”
“I was a Congressional candidate that should also be able to have conversations on TV or in public on what I saw and how I treated patients without fear of losing my license,” Tyson said. “We should be able to criticize government agencies when they are wrong.”
“Providers always see the data and the real life of what is going on first-hand. If I report seeing breakthrough cases of COVID in the vaccinated when the CDC was reporting 100% protection, I would hope that can say that on TV and not be punished,” he added.
The Defender on occasion posts content related to Children’s Health Defense’s nonprofit mission that features Mr. Kennedy’s views on the issues CHD and The Defender regularly cover. In keeping with Federal Election Commission rules, this content does not represent an endorsement of Mr. Kennedy, who is on leave from CHD and is running as an independent for president of the U.S.
