SACRAMENTO, Calif. (CN) — A federal judge on Tuesday rebuffed a bid by a group of California doctors and nonprofits to prevent the state's medical boards from disciplining them for sharing information with their patients regarding Covid-19 that doesn't mesh with the official public health viewpoint.
U.S. District Judge William Shubb denied the physicians' motion for a preliminary injunction against enforcement of a section of the California Business and Professions Code in so far as it infringes, according to them, on their free speech rights when it comes to discussing Covid.
Shubb found the physicians lack standing to seek the injunction because they had failed to provide any evidence that there is a "credible threat" that the Medical Board of California or the Osteopathic Medical Board of California are about to go after them for the conversations they have with their patients as opposed to the treatment they provide.
"Plaintiffs have failed to make the necessary showing, as the record is utterly devoid of any evidence that the boards have or may use their authority under section 2234(c) to do anything other than regulate physician conduct, let alone discipline physicians for their protected speech in the manner plaintiffs suggest," Shubb said.
The same judge last year had sided with some of the same plaintiffs in two challenges to a since-repealed California law that would have allowed the medical board to discipline doctors who share information about Covid that is not a part of the "contemporary scientific consensus."
Richard Jaffe, an attorney representing the doctors in nonprofits in the current case as well as in the previous ones in which they prevailed, said he was disappointed in light of the judge's decision last year, but he acknowledged it was a bigger ask to have the judge restrict the boards from regulating doctors than it was to block a newly passed law.
"It's a heavy lift for a district court," Jaffe said.
Jaffe said the same chilling effect on free speech was at issue in the request to prevent the boards from disciplining doctors over Covid information they share with their patients as in their earlier challenge to the state law where they got a preliminary injunction even though the law wasn't yet enforced.
Shubb also wasn't persuaded by the argument that the doctors face a risk of discipline for any care provided to treat Covid-19 because, they argue, there is no legitimate Covid-19 standard of care.
While acknowledging the plaintiffs' frustration over the various discrepancies and shifts in recommendations concerning the disease, Shubb said it doesn't follow from such scientific disagreement and inconsistencies in public health recommendations that there is no standard of care applicable to Covid-19.
"For the court to conclude that no standard of care exists in the realm of Covid-19 would create an unprecedented exception to the long-established regulatory paradigm governing medical professionals," Shubb wrote.
"Such a conclusion would also functionally exempt doctors from both private malpractice actions and disciplinary proceedings under section 2234(c) whenever they provide care in connection with that disease, placing the public at risk of harm without recourse or adequate oversight."
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