Physicians sue California over COVID-19 misinformation law

Two physicians who question COVID-19 vaccines are suing to stop a California law that allows regulators to punish physicians for spreading misinformation or disinformation related to the virus.

Mark McDonald, MD, a Los Angeles psychiatrist, and Jeff Barke, MD, an Orange County primary care physician, filed the lawsuit in federal court Oct. 4 against the Medical Board of California and the state's attorney general, Rob Bonta. The physicians, who are represented by the Liberty Justice Center, a national nonprofit law firm, are also seeking a preliminary injunction as the case progresses.

At issue is a law signed by California Gov. Gavin Newsom on Sept. 30. California law already allowed the Medical Board of California and the Osteopathic Medical Board of California to punish any licensed physician and surgeon for "unprofessional conduct." Under the new law, such conduct includes dissemination of misinformation or disinformation related to COVID-19 to a patient under a physician's direct care. Punishment could include suspending or revoking a physician's California license, The New York Times reported.

The lawsuit from Drs. McDonald and Barke alleges that the law violates physicians' free speech rights by restricting the medical advice they can provide to patients, according to an Oct. 4 news release from the Liberty Justice Center.

"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," Dr. McDonald said in the Liberty Justice Center news release. "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."

In a statement to lawmakers Sept. 30, Mr. Newsom said he signed the law "because it is 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."

He said the law does not apply to speech outside of talks directly related to treatment within a direct physician-patient relationship. 

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