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and physicians are still being intimidated and threatened by disciplinary action — even though AB 2098 was repealed.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…
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