Two doctors have filed the first federal lawsuit to stop a new California law that they say shuts down doctors’ free speech rights, by restricting the medical advice they can give patients regarding COVID-19. The law, signed on Friday by Governor Gavin Newsom, authorizes the Medical Board of California to pursue professional sanctions and even license revocation against doctors who share information about COVID-19 that challenges the “scientific consensus.”
Mark McDonald, MD, a Los Angeles psychiatrist, and Jeff Barke, MD, an Orange County primary care physician, are represented by the Liberty Justice Center, a national nonprofit law firm dedicated to protecting Americans’ constitutional rights. The case was filed in the U.S. District Court for the Central District of California against the Medical Board of California and Attorney General of California. The plaintiffs also filed papers seeking a preliminary injunction to protect their free speech rights as the case unfolds.
Daniel Suhr, managing attorney at the Liberty Justice Center, said, “We rely on our doctors to give us their best medical advice, yet the State of California is stopping doctors from doing just that. That’s not just wrong, it’s unconstitutional. Doctors enjoy the same free speech rights as other Americans. The State of California cannot define a so-called scientific consensus on an issue and then punish anyone who dares challenge it.”
Under the terms of the new law, Assembly Bill 2098, the Medical Board is authorized to punish doctors who share “misinformation” with their patients, and then defines “misinformation” as anything that “is contradicted by contemporary scientific consensus.”
In his signing statement, Newsom acknowledged that he was “concerned about the chilling effect” of legislating doctor-patient conversations. Nontheless he signed the law because it was “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.”
Critics argue that the text of the measure does not spell out what constitutes an egregious instance, or what metrics will be used to determine malicious intent.
Dr. Mark McDonald, a plaintiff and doctor in Los Angeles, said, “If this period has taught us anything, it is that the scientific and medical environments are constantly evolving, as new information and studies confirm or reject prior policies. Doctors need the freedom to explore alternatives and share opinions that challenge the scientific consensus – that is inherent in the nature of the scientific enterprise. California cannot insert itself into the physician-patient relationship to impose its views on doctors and end all debate on these important questions.”
The lawsuit, McDonald v. Lawson, was filed October 4, 2022, in the U.S. District Court for the Central District of California. The Motion for Preliminary Injunction was filed the same day.
A recent article on this new law by the Los Angeles Times notes that the new law was endorsed by the California Medical Assn., which represents nearly 50,000 physicians throughout the state.
But critics say they are worried that singling out a rapidly evolving and relatively new disease could have unintended harms.”I am concerned this bill will not take into account how quickly information changes in COVID-19,” said Dr. Monica Gandhi, an infectious disease specialist at UCSF.
She cited as an example the antiviral medication Paxlovid. The Food and Drug Administration’s guidelines for emergency use of the drug aren’t updated fast enough to reflect the latest research showing that while it helps senior citizens, it doesn’t do much for patients under 65.