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On January 21, 2021, a physician sued the Oregon State Medical Board for issuing an emergency order that suspended the physician’s medical license over issues related to mask use in the COVID epidemic. A copy of the Board’s order can be found at this link and can also be downloaded here. As a result of the Oregon Medical Board’s actions, the physician filed a federal lawsuit against the Board members. The federal complaint that the physician filed in the US District Court of Oregon can be found at this link and can also be downloaded here.
Can state medical boards simply suspend a physician’s license under any circumstances? Fortunately for physicians, there are rules that administrative agencies must follow before taking action against a doctor’s medical license.
When Can A State Medical Board Suspend a Physician’s License?
Before a physician can engage in the practice of medicine, the physician must obtain a license to practice medicine under a state’s Medical Practice Act. Licensure requirements vary by state, so there are no set criteria guaranteeing licensure in every state. Performing an online search for the term “[desired State] Medical Practice Act” will help show state-specific medical licensure requirements.
Medical Practice Acts also list the reasons for which a physician’s license may be disciplined. In many cases, reasons for discipline are numerous and often vague. For example, in Illinois, 225 ILCS 60/22 lists FIFTY reasons for which the State may “revoke, suspend, place on probation, reprimand, refuse to issue or renew, or take any other disciplinary or non-disciplinary action” against a licensee “including imposing fines not to exceed $10,000 for each violation.” Some of the more vague reasons that a doctor’s license can be disciplined are listed below.
Potentially sanctionable conduct under the Illinois Medical Practice Act includes
- Engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public.
- Making a false or misleading statement regarding their skill or the efficacy or value of the medicine, treatment, or remedy prescribed by them at their direction in the treatment of any disease or other condition of the body or mind
- Immoral conduct
- Gross and willful and continued overcharging for professional services
- Willfully or negligently violating the confidentiality between physician and patient except as required by law
- The use of any false, fraudulent, or deceptive statement in any document connected with practice under this Act
- Failure to establish and maintain records of patient care and treatment
Physicians spend hundreds of thousands of dollars and in many cases more than 10 years of their life to obtain a medical education. Taking adverse action against a physician’s license to practice medicine often negates the time and money spent in obtaining a medical education. While some may think that “protecting the public” from those with differing opinions is an important objective, checks must be put in place against governmental agency authority.
Consider Dr. Barry James Marshall. His opinions were completely contrary to the medical establishment. During the late 1970s and early 1980s the medical establishment believed that gastric ulcers were caused by “Type A personalities,” stress and spicy foods. Dr. Marshall hypothesized that ulcers were instead caused by a bacterium named Campylobacter pylori. Imagine if a medical board cited Dr. Marshall’s unorthodox beliefs as a reason to suspend his medical license. The world may never have known about H. pylori and its significant effect on development of peptic ulcer disease in humans.
As another example, consider an average person who spent years saving up to put a down payment on a house and then paid the mortgage down over the next 10-15 years. Then imagine that a state inspector confiscated the person’s house (or made the person move out of the house for a year) because the grass was too long and caused an “imminent threat” to the health and safety of other neighbors. Or imagine that a business owner had all his inventory confiscated because of an alleged failure to comply with some business licensure requirement.
Taking adverse action against property interests of a citizen is a serious matter and government agencies must abide abide by the Constitution and adhere to state and federal laws when doing so.
The Requirement for Substantive Due Process Before Taking Action Against A Physician’s Medical License
Substantive Due Process requires that laws or rules imposed by the government have a valid objective, are pursued in a lawful manner, and are not oppressive in nature. Laws must also describe prohibited actions in sufficient detail. This last requirement is known as the “void-for-vagueness” doctrine. If a law’s requirements are so vague that the law “leaves the public uncertain as to the conduct it prohibits” then the law is unconstitutional on substantive due process grounds. For example, in Wollschlaeger v. Governor of State, 760 F.3d 1195 (11th Cir. 2014), the 11th Circuit held (citing several US Supreme Court opinions)
Under “[t]he void-for-vagueness doctrine[,] … ‘a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Thus, a statute is unconstitutionally vague if “it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.”
The problem with at least some conduct proscribed in Medical Practice Acts is that the description of the improper conduct is vague. For example, using the language in the Illinois Medical Practice Act above as an example, what constitutes “unprofessional conduct”? Is raising one’s voice, cursing, or getting in to an argument with staff sufficient cause to suspend a physician’s license? How is there a determination made whether a statement regarding the efficacy of a medication or treatment is “misleading”? If a drug does not have proven efficacy against a disease, can the physician lose his license for prescribing it? If a drug shows efficacy in some studies but not in others, what representations can a physician make? What fees are considered “overcharges” for purposes of licensure actions? Does the Medical Practice Act create a list of acceptable charges? If the Medical Board does not agree with a physician’s opinion in a medical record, can that opinion be considered “deceptive” and subject to adverse action?
The wide potential range of applications for vague terms that may lead to disciplinary action against physicians in Illinois at least raises a question about whether some of the law may be considered unconstitutional on substantive due process grounds.
The Requirement for Procedural Due Process Before Taking Action Against A Physician’s Medical License
The US Supreme Court has considered medical licenses as “property” for purposes of due process. In Barsky v. Board of Regents of University of State of New York, Justice Hugo Black noted that the right to practice medicine was a “very precious part of the liberty of an individual physician or surgeon. It may mean more than any property. Such a right is protected from arbitrary infringement by our Constitution, which forbids any state to deprive a person of liberty or property without due process of law.”
If a State wishes to take adverse action against a physician’s medical license, under the Fourteenth Amendment, the physician is entitled to procedural due process before those adverse actions occur. There is no set definition regarding what procedural due process encompasses, but it generally includes a hearing on the merits of the proposed action before a neutral and independent adjudicator, an opportunity to present a defense and to call witnesses, a right to dispute opposing evidence and cross-examine adverse witnesses, and the right to be represented by an attorney.
Even this rule has exceptions. For example, if the state can show that a physician’s practice constitutes an imminent threat to the public, a physician’s license could be suspended immediately pending a hearing on the merits of the case.
The US Supreme Court held that actions that a State takes against a physician’s medical license must have a rational basis. The Barsky opinion noted
It is one thing thus to recognize the freedom which the Constitution wisely leaves to the States in regulating the professions. It is quite another thing, however, to sanction a State’s deprivation or partial destruction of a man’s professional life on grounds having no possible relation to fitness, intellectual or moral, to pursue his profession. Implicit in the grant of discretion to a State’s medical board is the qualification that it must not exercise its supervisory powers on arbitrary, whimsical or irrational considerations. A license cannot be revoked because a man is red-headed or because he was divorced, except for a calling, if such there be, for which red-headedness or an unbroken marriage may have some rational bearing. If a State licensing agency lays bare its arbitrary action, or if the State law explicitly allows it to act arbitrarily, that is precisely the kind of State action which the Due Process Clause forbids.
Alleged Bases for Oregon Medical Board’s Action Against the Physicians’ Medical License
Turning to the Oregon physician’s case, the “Findings of Fact” alleged by the Oregon State Medical Board which form the basis for its emergency order suspending the physician’s medical license include allegations that the doctor:
- Refuses to wear masks in the clinic and urge persons who enter the clinic wearing masks to remove their masks.
- Regularly tells his patients that masks are ineffective in preventing the spread of COVID-19 and should not be worn.
- Asserts that, because virus particles are so small, they will pass through the recommended N95 masks and most other face coverings people are choosing to wear.
- Regularly advises … that it is ‘very dangerous’ to wear masks because masks exacerbate COPD and asthma and cause or contribute to multiple serious health conditions, including but not limited to heart attacks, strokes, collapsed lungs, MRSA, pneumonia, and hypertension.
- Asserts masks are likely to harm patients by increasing the body’s carbon dioxide content through rebreathing of gas trapped behind a mask. [Note: This CDC study from June 2020 confirms that prolonged use of N95 masks does increase the body’s CO2 content]
- Has COVID-19 protocols for his clinic requiring patients to be masked only if they present with cough, fever, or “suspicious” viral illness and do not call for any of the health care providers to wear masks unless these conditions exist.
- Has signs asserting his clinic is complying with (unspecified) COVID-19 protocols, but does not include any information on what those protocols are.
The emergency order also stated that during an investigator’s December 2, 2020 visit to the doctor’s clinic:
- Neither patients nor health providers were wearing masks in the clinic
- No screening procedures were in place or being conducted (e.g., taking patient temperatures on or before entering the clinic)
- No hand sanitizer was available in the waiting area
- A sign was posted in the public area of the clinic with “warning signs” of CO2 toxicity
- An article was posted in the public area of the clinic, with a portion of the article highlighted that claims 94% of the individuals who will experience serious effects of COVID-19 have co-morbidities.
Because of these allegations, the Oregon Medical Board determined that the physician’s continued practice constituted “an immediate danger to the public, and presents a serious danger to the public health and safety” and immediately suspended the physician’s medical license.
Did the Oregon Medical Board’s Actions Violate the Physician’s Due Process Rights?
Because the Oregon Medical Board issued an emergency suspension order, under the Oregon Revised Statute 677.205 (3), the Board had to make a determination that “continuation in practice of the licensee constitutes an immediate danger to the public.” Oregon Revised Statute 183.430 also allows the Agency to suspend a medical license without a hearing if the agency “finds a serious danger to the public health or safety and sets forth specific reasons for such findings.”
The Oregon Medical Board’s emergency suspension order did list several allegations against the physician as outlined above. However, the allegations that were listed do not appear to constitute an immediate danger to the public or a serious danger to public health or safety. Many of the Board’s allegations focus on the physician’s opinion that masks do not prevent the spread of COVID and that in some cases, masks may be harmful to patients. While this post is not intended to be a forum debating the effectiveness of mask wearing, there are many studies showing that mask wearing has little effect on preventing transmission of disease. A few are summarized below.
- A Cochrane review from April 2020 showed no reduction in influenza-like illness cases between those who wore masks and those who did not – both in the general population and in healthcare workers.
- A 2019 JAMA study showed that use of N95 respirators had no benefit over simple masks in preventing influenza in healthcare workers.
- A May 2020 CDC study showed that “In pooled analysis, we found no significant reduction in influenza transmission with the use of face masks” and “no significant effect of face masks on transmission of laboratory-confirmed influenza.”
- During a 60 Minutes interview in May 2020, Dr. Anthony Fauci stated that “people should not be walking around with masks” and that “there is no reason to be walking around with a mask.” He noted the unintended consequences that accompany mask use such as people “fiddling with the masks.”
- Even the November 2020 Danish Mask Study published in Annals of Internal Medicine (which has been criticized in the media) concluded that “The recommendation to wear surgical masks to supplement other public health measures did not reduce the SARS-CoV-2 infection rate among wearers by more than 50% in a community with modest infection rates, some degree of social distancing, and uncommon general mask use.”
Should the Oregon Medical Board Have Been Sued?
The point is not that masks conclusively work or conclusively do not work in preventing disease transmission. The point is that the Oregon Medical Board had the duty to show that the physician’s actions constituted an “immediate danger” or “serious danger to public health” before it issues an emergency suspension of the physician’s medical license. Not only does the physician have dozens of medical studies supporting his opinions, but the physician’s lawsuit noted that not a single case of COVID could be traced back to the practices of the clinic. If the physician’s recommendations were so serious and immediate, shouldn’t there have been a large spike in COVID cases in patients at the physician’s medical clinic?
Other Board allegations against the physician appear to have little good faith basis. As justification for its allegations that the physician was an immediate and serious danger to public health, the Board cited the physician’s failure to have hand sanitizer in a waiting room, posting of a sign about CO2 toxicity, and posting of an article stating that 94% of individuals who experience serious complications from COVID-19 have co-morbidities. Think about the Board allegations. The Board is alleging that failure to have hand sanitizer in a waiting room is an immediate or serious danger to public health? Posting signs and articles in an office is also apparently an immediate or serious danger to public health – but only if the Board doesn’t agree with the signs or studies. Alleging that these acts constitute an immediate or serious danger to the public could literally be considered violations of the Medical Practice Act in some states.
The timing of the Board’s “emergency” suspension also appears to be somewhat suspect. In this article at PJ Media, the physician’s attorney noted that the Board was made aware of the physician’s actions in July 2020 but took no action. It was only after the physician spoke at a Trump rally in November that the Board considered the physician’s actions an “immediate danger to the public” and took actions to suspend the physician’s license. The physician’s lawsuit similarly notes that the Board opened an investigation against the physician on August 13, 2020 based upon allegations that he was advising the public not to wear masks. If the Board truly believed that the physician’s actions were an “immediate danger to the public,” shouldn’t the Board have protected the public by immediately suspending the physician’s license in July or August 2020 rather than waiting four months?
The federal complaint that the physician filed against each of the members of the Oregon Medical Board (including Kathleen Harder, Saurabh Gupta, Erin Cramer, Robert Cahn, James Lace, Charlotte Lin, Patti Louie, Jennifer Lyons, Ali Mageehon, Chere Pereira, Christoffer Poulsen, Andrew Schink, and Jill Shaw) in the US District Court of Oregon can be found at this link and can also be downloaded here. It alleges that the Board’s decision to suspend the physician’s license was due to a “difference in medical opinion” and that the opinions held by the Board have been “largely disputed by reputable studies and medical experts.” Both of these arguments can be easily proven by citing literature that was readily available to the Oregon Medical Board members before they decided to suspend the physician’s license.
Whether you agree or disagree with this physician’s actions or beliefs, citizens have Constitutional rights and government agencies must abide by Constitutional requirements and clearly-established laws when taking actions against citizens’ life, liberty, or property. This physician’s federal lawsuit raises question as to whether the Medical Board of Oregon’s actions in this case passed Constitutional muster.
See more posts about medical boards at the “Medical Boards” page on this blog.