When last new material graced this blog, it was about how antivax pediatrician Dr. Paul Thomas had launched a legal assault on the Oregon Medical Board because it has disciplined him for cases in which his antivaccine activism applied to his practice had endangered the health of his patients. Specifically, in a bid to intimidate the members of the Board, Dr. Thomas had sued them each personally for a total of $35 million. Even though it was a highly dubious lawsuit with little chance of success, Dr. Thomas’ lawsuit didn’t need to succeed, however. It just needed to impose anxiety, expense, and effort on members of the Board, which would allow it to serve as a deterrent to their further action, as well as a warning to physicians and lay people who might want to sit on a state medical board and use that position to apply penalties. The idea behind suits like Dr. Thomas’, of course, is to make members of state medical boards fear personal financial and professional ruin for doing the right thing. Enter Richard Jaffe, Esq.
Longtime readers might remember Rick Jaffe. Best known as the lawyer of cancer quack Stanislaw Burzynski, although the two had a falling out over unpaid legal fees and he doesn’t represent Burzynski anymore, Mr. Jaffe has long been one of those “health freedom” lawyers who back in the day used to specialize in defending quacks whose quackery got them into in trouble with the FDA or the law. More recently (although prepandemic), he spent his time railing against efforts to eliminate CME credit for courses in “integrative medicine” quackery and defending the owners of quack stem cell clinics, although in fairness, their quackery did seem on occasionto be too much for even him to defend. It is thus utterly unsurprising that he has now glommed onto the right wing COVID-19 anti-public health grift machine. But how this time?
Readers have been sending me a post from Jaffe’s blog, LAWSUIT! CALI. MEDICAL BOARD SUED FOR FREE SPEECH VIOLATIONS, (AND THERE MIGHT BE MORE LAWSUITS COMING). (The all caps should tell you much of what you need to know about the article; I copy-pasted the title exactly as it appeared on his blog.) Jaffe starts right out boasting:
Friday afternoon, I filed a federal civil rights lawsuit on behalf of a physician against the Medical Board of California for investigating him for speaking out in public against the government’s Covid mandates, and his questioning some of the “consensus” science and public health goals (zero Covid).
Of course, you can’t have a dubious right wing lawsuit designed to attack a regulatory agency like the Medical Board of California without an appeal to raise money, and Jaffe’s announcement is no different. At the end of his post, he pleads:
The next thing for me to file is a motion for a preliminary injunction. I would expect the Board to challenge the lawsuit. The hearing before the judge should be in around 60 days or maybe after labor day. There’s much more work to do to get to that point.
THIS WILL BE A 100% COMMUNITY-FUNDED LAWSUIT.
Here are the links to donate (credit card, and Paypal (including credit card via Paypal) and Zelle)Orac note: I can’t help but mention the parentheses within parentheses. Apparently punctuation is not Mr. Jaffe’s strong suit.
After that, Jaffe promises:
Please support the right of physicians to speak out against government’s ever changing Covid edicts.
If there is a big enough response from the community, two other things will happen:
First, once AB 2098 gets finalized, the First Amendment violations in the bill will be added to this lawsuit.
Second, If I can find the right plaintiffs, similar lawsuits will be filed around the country against other medical boards which are doing the same to other physicians.
Balls to the walls!
Sorry, Mr. Jaffe, there’s only one “balls to the wall” that I “Accept”:
First of all, what is AB 2098? As I discussed a few months ago, it’s one of two companion California bills, SB 1018 and AB 2098, introduced by Sen. Dr. Richard Pan and Assemblymember Evan Low respectively, that are designed to empower the Medical Board of California to discipline physicians holding a California medical license if they spread COVID-19 misinformation or, more generally, dangerous health misinformation. AB 2098 passed in the California Assembly a month ago and is now being considered by the California Senate.
The bill defines “misinformation” as “false information that is contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee.” It defines “disinformation” as “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.”
The legislation specifically targets three types of misleading information concerning COVID-19. The first is nonfactual information about the nature of the virus, such as inaccurate comments about its severity. Saying COVID is comparable to less serious diseases, for instance, would be prohibited.
Second, the bill prevents the dissemination of inaccurate information regarding COVID treatment, including promoting unproven treatments and therapies. Third, the bill prohibits providers from giving inaccurate information concerning COVID vaccines.
From Jaffe’s blog, I also learned that the bill being considered in the Senate had been amended (amended version here). Interestingly, Mr. Jaffe is most definitely not pleased, as the changes actually appear to make the bill stronger. First, a definition was changed, from “This bill would designate the dissemination or promotion of misinformation or disinformation related to the SARS-CoV-2 coronavirus, or “COVID-19,” as unprofessional conduct” to “This bill would designate the dissemination of misinformation or disinformation related to the SARS-CoV-2 coronavirus, or “COVID-19,” as unprofessional conduct.” So the doctor doesn’t necessarily have to be actively promoting COVID-19 misinformation. It also eliminated a requirement that the board “consider specified factors prior to bringing a disciplinary action against a physician and surgeon,” specifically, “both whether the licensee departed from the applicable standard of care and whether the misinformation or disinformation resulted in harm to patient health.”
Mr. Jaffe in particular hates two definitions in the revised bill:
“Misinformation” means false information that is contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee.
“Disinformation” means misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.
These are, of course, standard definitions of “misinformation” and “disinformation,” but they cheese Mr. Jaffe off mightily, leading him to rant:
The gross negligence part is a meaningless throwaway, not an analytical tool. If you’re giving patients information contradicted by the “contemporary scientific consensus” about something relating to a deadly pandemic that could change a patient’s behavior and increase their risk of being infected, hospitalized or die, you can bet the farm that will be viewed as gross negligence by the Board.
So, there you have it: Under the bill, docs can’t provide advice to patients about Covid unless the advice is consistent with the “contemporary scientific consensus.” If you don’t follow the scientific consensus, if you’re caught, you likely will be subject to Board action (Maybe, see vague comments below.)
Not exactly, but this is a favorite trope of quacks and antivaxxers, that doctors “can’t” say anything that doesn’t adhere to medical “dogma,” lest they be excommunicated—or worse!—from the Church of Medicine. Such a trope intentionally ignores anything resembling nuance, in particular the part about how “contemporary scientific consensus” and “standard of care” actually encompass rather broad swaths of evidence and practices and you have to be very far from that consensus and standard in order to enter the category of misinformation. Even then, because doctors tend to stick together and react in a very threatened manner whenever faced with any sort of regulations on their professional speech, even when the regulations are narrow and there’s no chance they’d run afoul of them.
It’s an unfortunate tendency that I’ve noticed in my colleagues to view themselves as potential Brave Maverick Doctors, who “think different” and are more creative and imaginative than the “herd.” Sometimes, the way doctors talk, you’d think we’re a profession of Galileos—of note, Jaffe’s book about defending quacks like Stanislaw Burzynski, naturopaths, and chiropractors is unironically entitled Galileo’s Lawyer—than, as is the case for most of us, nonscientists who do the best we can to apply scientific results to the care of patients. Indeed, as I wrote a long time ago, in his book Jaffe described how he had helped Burzynski game the clinical trial process to stave off prosecution by the FDA for using his unproven antineoplastons to treat brain cancer. In any event, the reason for the reference to AB 2098 in Jaffe’s post becomes clear if you know what’s going on with the bill. It hasn’t passed both houses of the California legislature yet; so Jaffe can’t really include it in his lawsuit. He’s sure ready to add it, though, assuming the bill passes and is signed into law.
Who is the plaintiff in Richard Jaffe’s lawsuit, though? (I thought it odd that Jaffe didn’t mention his name in the blog post.) It turns out that the plaintiff is Douglas Mackenzie, MD, a Santa Barbara plastic surgeon who has become a big name in COVID-19 contrarianism, with the defendant being William Prasifka, the executive director of the Medical Board of California. Jaffe also names “John and Jane Does 1-10 being unknown state and other individuals who violated Plaintiff’s clearly established First Amendment rights.” I’m not a lawyer, but it sounds to me as though he’s suing board members individually, as Dr. Thomas is trying to do. I do wonder, however, why Jaffe doesn’t know who these other ten defendants are.
Just as was the case with Dr. Thomas’ lawsuit against members of the Oregon Medical Board, here Dr. Mackenzie leans heavily into a “free speech” defense against being disciplined by the Medical Board of California, portraying it as an assault on his rights. Whenever I hear such a claim from a physician being disciplined by his medical board, I like to tell him to stop right there. Being a physician is not a right, and if a state medical board tries to discipline you for using your status as a licensed physician to spread dangerous health misinformation it is not an assault on your “rights.”
Unsurprisingly, like Dr. Thomas’ lawyer, in Dr. Mackenzie’s complaint Jaffe leans heavily into right wing grievance “free speech” hyperbole:
3. This is a First Amendment challenge to the Medical Board of California’s attempt to intimidate by investigation, censor and sanction physicians who publicly disagree with the government’s ever-evolving, erratic, and contradictory public health Covid edicts.
4. Seventy-five years of judicial precedent has established that licensing agencies cannot sanction, prosecute or even investigate physicians for speaking out in public about a matter of public concern, regardless of the content, the expressed view point, and even if those views are contrary to the opinions of the “medical establishment.”1
5. The courts have been extremely harsh when the government tries to suppress speech because of its content and viewpoint likening such efforts as an attempt to create an Orwellian “Ministry of Truth” 2 and analogizing government efforts to interfere with medical discourse to the world’s most repressive regimes. 3
I must admit that the use of the term “Ministry of Truth” from George Orwell’s classic dystopian novel Nineteen Eighty-Four was a nice touch, given how the same term had been so recently effectively employed to shut down a government committee designed to help deal with disinformation. (Jaffe even referenced the novel in his footnotes!) Moreover, I like how Jaffe ignores the difference between “speaking out in public about a matter of public concern” and, in essence, conning the audience.
Another nice touch adding to the accusation that the State of California, through its regulatory body the Medical Board of California, is some sort of totalitarian entity that encourages snitches and informants, much as all totalitarian governments do, labeling citizens who complain to the board about Brave Maverick Doctors who are doing nothing more than exercising their God-given free speech rights as, well, snitches and informants, like Germans under the Nazi regime:
7. The Board has tacitly deputized California residents as potential informants to report physicians who criticize the government’s public health Covid edicts, so that the Board can censor, sanction and reeducate them via its disciplinary process.
8. In this case, the Board’s abject affront to the First Amendment goes far beyond the Plaintiff and the two other physicians, and even beyond the MBC itself. The Board’s investigation is a response to a “call to action” by a private membership organization of state medical boards (the Federation of State Medical Boards, the “Federation”) to cajole its member agencies to investigate, censor and sanction physicians who challenge public health edicts.
By this definition, any citizen who brings a complaint to the police or any state regulatory board about misconduct or someone breaking the law could be called an “informant.”
So what’s Dr. Mackenzie’s complaint? Last August, Dr. Mackenzie spoke at a Zoom meeting of the Santa Barbara Unified School District, where he, predictably, ranted about COVID-19 restrictions and said:
It’s time to realize like some countries are, that SARS – CoV2 is endemic. We are not going to get to Zero Covid ever. We can’t make it disappear with a vaccine, especially one that may improve symptoms, but as we are seeing won’t stop reinfection or transmission. And despite the hype from the politicians and media, public health officials and physicians should have known this from the conclusions of the original studies. As far as variants, no, it’s not the unvaccinated’s fault, it’s the nature of a respiratory virus and the limitations of these vaccines. They actually risk creating more virulent escape mutations. Think about the overprescribing of antibiotics and the emergence of resistant bacteria. Same concept.
It never ceases to amaze me how poorly many doctors understand infectious diseases, virology, and evolution. As I’ve pointed out many times, what contributes to the rise of immune-evading variants more than anything else is allowing the virus to circulate so widely and in so many hosts. As the rise of Omicron has shown, “natural immunity” (immunity as a result of an infection) is at best not much better than immunity from the vaccine, and the latest Omicron variants are unfortunately very good at evading immunity from previous variants like Delta and even earlier Omicron variants. Basically, Dr. Mackenzie was parroting a common antivaccine line that dates back to before the pandemic, when Andrew Wakefield said basically the same thing about measles vaccines, even going so far as to imply that MMR vaccines could result in a mass extinction of human beings.
Jaffe further writes in Dr. Mackenzie’s complaint:
24. As of the date of the filing of this action, the Board has not dismissed the complaint even though it is abundantly clear from precedent in this circuit as well as Supreme Court precedent that an administrative agency cannot sanction a licensee for publicly expressing his or her views on a matter of public importance.
25. The Board’s investigation has had a chilling effect on Plaintiff, and he has concerns about expressing his views in a public forum in light of the Board’s continuing investigation of him. 26. Upon information and belief, the Board has taken similar investigatory actions against at least two other physicians in the state. The complaint to which one of the physicians was required to answer included the fact that the physician attended an anti-mandate rally.a
One is tempted to respond: Good! Physicians should feel a “chilling effect” about the consequences of irresponsibly using one’s medical licenses to make misinformation seem credible, but then I guess Jaffe would view me as some sort of horrific Big Brother-supporting authoritarian. I view it, of course, as enforcing professional principles and protecting the public, but, then, I’m not a quack or a quack’s lawyer, nor do I make a false analogy to physicians who spoke out for medical marijuana who faced sanctions to their licenses, given that cannabis can have some medicinal uses (as overblown and poorly supported in science as the claims for them have often been), while there is no good scientific support for the antivaccine nonsense spewed by the likes of Dr. Mackenzie.
Did I also mention that Dr. Mackenzie is a member of the antivaccine group Physicians for Informed Consent, a group that I’ve commented on before for its promotion of the opposite of “informed consent,” something I like to call misinformed refusal? (Misinformed refusal is the refusal of vaccines based on accepting antivax misinformation and disinformation as accurate.) In fact, I’ll even quote his blurb from PIC’s website:
A few years ago I began to grow curious about the issue of vaccine safety when I noticed the degree of vitriol that the topic would trigger in many physicians. In addition, doctors never seemed to be able to back up their claims of vaccines being universally safe and effective. One of the first books I read on the subject was Dr. Suzanne Humphries and Roman Bystrianyk’s book, Dissolving Illusions. I was stunned to learn that death and morbidity from vaccine preventable infectious diseases (and the ones for which there were no vaccines as well) plummeted prior to the advent of their respective vaccination programs. Unfortunately, I also found that so many of the vaunted studies that underpin mandatory vaccination legislation are deeply flawed or even fraudulent.
Suzanne Humphries is one of the quackiest of the antivaccine quacks out there, and has been predating the pandemic by decades. Any physician who takes her ill-informed ravings the least bit seriously as legitimate science should not be a physician. Also note how Dr. Mackenzie invoked two huge antivax tropes, first the false claim that “vaccines didn’t save us,” based on the deceptive conflation of mortality with incidence of infectious diseases, and lies about fraud in the studies showing that vaccines don’t cause autism and are safe and effective.
There’s little doubt to me that Dr. Mackenzie was antivaccine to the core before the COVID-19 pandemic. Don’t believe me? Then let me refer you to a post that I wrote featuring him before, in which I pointed out that he did interviews for Andrew Wakefield and Del Bigtree’s VAXXED tour.
Here’s even more of Dr. Mackenzie’s “wisdom”:
…I think it’s, it’s more that physicians are just simply, they they’ve been brainwashed from the first day of medical school and It’s just that they don’t get the alternative views and they don’t read the huge amount of science that supports the dangers and risk of vaccines and what’s in the vaccines. They just, they just don’t know about this stuff . . . or they’ll, they’ll quote, they’ll just quote the AAP guidelines, or they’ll quote the CDC, or they’ll quote Paul Offit and they’re not doing their own reading or their own analysis of these things . . .
I can’t find the link to the video that Dr. Mackenzie appeared in because YouTube appears to have deleted it, but I do still have my description of it from my blog, where he described how he supposedly had “weighed both sides” and become an antivaxxer because he thought the evidence supported that position, He also repeated a number of antivaccine myths, such as the claim that unvaccinated children do not get autism and that there is virtually no autism among the Amish, who don’t vaccinated, the latter of which is a myth created by the late Dan Olmsted. (There is, and the Amish do vaccinate.) It turns out that Dr. Mackenzie also read Wakefield’s book (I assume it was Callous Disregard) and later hailed it as a moment “kind of when the lightbulb went off.” This led him down the rabbit hole to reading Suzanne Humphries’ book and its revisionist history. He also seemed to like to repeat a charge that physicians are “brainwashed from the first day of medical school” and called for that hoariest of hoary antivaccine “perfect studies,” the “vaccinated/unvaccinated.” Not surprisingly, Dr. Mackenzie also showed himself to be into conspiracy theories like the “CDC whistleblower” conspiracy theory.
I’d be willing to bet that Dr. Mackenzie’s speech at a Zoom meeting of the Santa Barbara school board was tame in comparison to the misinformation he’d been spreading for years before.
So what does Dr. Mackenzie want in terms of relief? At least he doesn’t ask for the ridiculous sum of $35 million. Instead, he’ll accept damages determined at a jury trial plus legal costs. (How benevolent.) He also wants an injunction against the Board against continuing its investigation of him, as well as injunctions against the Board continuing any current investigation of physicians for COVID-19 misinformation and barring it from initiating any new ones.
I’ve written many times about how toothless state medical boards have been reining in doctors who are quacks and/or antivaccine, even ones who are dangerously so. Even long before the pandemic, state medical boards were underfunded and understaffed, while all too often the law allowed physicians to view their medical licenses, once obtained, to be a right rather than a privilege. Through lawsuits like that of Drs. Thomas and Mackenzie, to be followed by who knows how many more, we’re seeing a strategy consistent with many other right wing anti-regulatory strategies that seek to hobble the FDA, EPA, and other government regulatory agencies not just through getting sympathetic legislatures to pass new laws hobbling state medical boards, but by filing lawsuits, no matter how dubious, to tie them down in litigation, even if that litigation has little hope of actually succeeding.
Welcome to the Brave New World, to cite another dystopian novel.