1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 PIERRE KORY, M.D., LE TRINH No. 2:24-cv-00001 WBS AC HOANG, D.O., BRIAN TYSON, M.D., 13 PHYSICIANS FOR INFORMED CONSENT, a not-for-profit corporation, 14 and CHILDREN’S HEALTH DEFENSE, a MEMORANDUM AND ORDER RE: not-for-profit corporation, PLAINTIFFS’ MOTION FOR 15 PRELIMINARY INJUNCTION Plaintiffs, 16 v. 17 ROB BONTA, in his official 18 capacity as Attorney General of California, REJI VARGHESE, in 19 his official capacity as Executive Director of the 20 Medical Board of California, and ERIKA CALDERON, in her official 21 capacity as Executive Officer of the Osteopathic Medical Board of 22 California, 23 Defendants. 24 25 ----oo0oo---- 26 Plaintiffs Pierre Kory, Le Trinh Hoang, Brian Tyson, 27 Physicians for Informed Consent, and Children’s Health Defense 28 brought this § 1983 action against defendants Rob Bonta, in his 1 official capacity as Attorney General of California, and Reji 2 Varghese and Erika Calderon, in their official capacity as 3 Executive Director and Executive Officer of the Medical Board of 4 California and the Osteopathic Medical Board of California, 5 respectively (the “Boards”). (Docket No. 1.) Plaintiffs Kory, 6 Hoang, and Tyson are physicians licensed by the Boards. The 7 remaining two plaintiffs are organizations representing the 8 interests of doctors and patients. 9 Plaintiffs challenge the constitutionality of the 10 Boards’ powers to discipline physicians under Cal. Bus. & Prof. 11 Code § 2234 for conveying COVID-19-related information to their 12 patients. 13 I. Factual and Procedural Background 14 The court previously related this case to two cases 15 that challenged the constitutionality of California’s Assembly 16 Bill (“AB”) 2098: Høeg v. Newsom, 2:22-cv-1980 WBS AC, and Hoang 17 v. Bonta, 2:22-cv-2147 WBS AC. (Docket No. 5.) 18 AB 2098, then codified at Cal. Bus. & Prof. Code § 2270 19 but since repealed, took effect on January 1, 2023. The statute 20 provided that “[i]t shall constitute unprofessional conduct for a 21 physician and surgeon to disseminate misinformation . . . related 22 to COVID-19, including false or misleading information regarding 23 the nature and risks of the virus, its prevention and treatment; 24 and the development, safety, and effectiveness of COVID-19 25 vaccines.” Cal. Bus. & Prof. Code § 2270(a) (repealed 2024). 26 The statute defined “misinformation” as “false information that 27 is contradicted by contemporary scientific consensus contrary to 28 the standard of care.” Id. § 2270(b)(4). The statute augmented 1 the definition of “unprofessional conduct,” id. § 2270(a), which 2 is a pre-existing basis for disciplinary action by the Boards, 3 see id. § 2234. 4 This court preliminarily enjoined enforcement of AB 5 2098 against the Høeg and Hoang plaintiffs on January 25, 2023, 6 on the ground that the law was unconstitutionally vague under the 7 Fourteenth Amendment. See Høeg v. Newsom, 652 F. Supp. 3d 1172 8 (E.D. Cal. 2023). 9 The California Legislature subsequently repealed AB 10 2098, effective January 1, 2024. See Cal. Senate Bill 815 (Sept. 11 30, 2023). Both the Ninth Circuit and this court determined that 12 the repeal of AB 2098 mooted actions challenging the statute. 13 See McDonald v. Lawson, 94 F.4th 864, 870 (9th Cir. 2024); Høeg, 14 2024 WL 1406591, at *1–2 (E.D. Cal. Apr. 2, 2024). This court 15 therefore dismissed the Høeg and Hoang actions. See id. at *3. 16 Plaintiffs filed this action, making similar First Amendment 17 arguments to those raised (but not addressed by the court) in the 18 Høeg and Hoang matters. While the Høeg and Hoang matters 19 involved First and Fourteenth Amendment challenges to AB 2098, 20 the plaintiffs here bring a First Amendment challenge to the 21 Boards’ longstanding authority to discipline doctors under 22 Business & Professions Code § 2234. 23 Plaintiffs now move for a preliminary injunction. 24 (Docket No. 14.) 25 III. Preliminary Injunction Standard 26 To succeed on a motion for a preliminary injunction, 27 plaintiffs must establish that (1) they are likely to succeed on 28 the merits; (2) they are likely to suffer irreparable harm in the 1 absence of preliminary relief; (3) the balance of equities tips 2 in their favor; and (4) an injunction is in the public interest. 3 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); 4 Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir. 5 2011). “[I]njunctive relief [i]s an extraordinary remedy that 6 may only be awarded upon a clear showing that the plaintiff is 7 entitled to such relief.” Winter, 555 U.S. at 22. 8 III. Discussion 9 A. Regulation of Physicians and the First Amendment 10 “[R]egulating the content of professionals’ speech 11 ‘pose[s] the inherent risk that the Government seeks not to 12 advance a legitimate regulatory goal, but to suppress unpopular 13 ideas or information.’” Nat’l Inst. of Fam. & Life Advocs. v. 14 Becerra, 585 U.S. 755, 771 (2018) (“NIFLA”) (quoting Turner 15 Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 641 (1994)). 16 “[P]hysician speech is entitled to First Amendment protection 17 because of the significance of the doctor-patient relationship.” 18 Conant v. Walters, 309 F.3d 629, 636 (9th Cir. 2002). Physicians 19 “must be able to speak frankly and openly to patients,” in part 20 because “barriers to full disclosure would impair diagnosis and 21 treatment.” Id. 22 However, under longstanding Supreme Court precedent, 23 “[s]tates may regulate professional conduct, even though that 24 conduct incidentally involves speech.” See NIFLA, 585 U.S. at 25 768; see also Sorrell v. IMS Health Inc., 564 U.S. 552, 567 26 (2011) (“the First Amendment does not prevent restrictions 27 directed at . . . conduct from imposing incidental burdens on 28 speech”); R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992) 1 (“words can in some circumstances violate laws directed not 2 against speech but against conduct”). “‘[I]t has never been 3 deemed an abridgement of freedom of speech or press to make a 4 course of conduct illegal merely because the conduct was in part 5 initiated, evidenced, or carried out by means of language, either 6 spoken, written, or printed.’” Nat’l Ass'n for Advancement of 7 Psychoanalysis v. Cal. Bd. of Psych., 228 F.3d 1043, 1053 (9th 8 Cir. 2000) (“NAAP”) (quoting Giboney v. Empire Storage & Ice Co., 9 336 U.S. 490, 502 (1949)). 10 Physician conduct is no exception to this rule. 11 Accordingly, the Supreme Court has explained that there is “no 12 constitutional infirmity” where a law “implicate[s]” a 13 physician’s First Amendment rights “only as part of the practice 14 of medicine, [which is] subject to reasonable licensing and 15 regulation by the State.” See Planned Parenthood of Se. Pa. v. 16 Casey, 505 U.S. 833, 884 (1992), overruled on other grounds by 17 Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (cited 18 with approval in NIFLA, 585 U.S. at 769–70). “When a drug is 19 banned, for example, a doctor who treats patients with that drug 20 does not have a First Amendment right to speak the words 21 necessary to provide or administer the banned drug.” Pickup v. 22 Brown, 740 F.3d 1208, 1229 (9th Cir. 2014), abrogated on other 23 grounds by NIFLA, 585 U.S. 755. Indeed, “[m]ost, if not all, 24 medical . . . treatments require speech, but that fact does not 25 give rise to a First Amendment claim.” Id.; see also Robert 26 Post, Informed Consent to Abortion: A First Amendment Analysis of 27 Compelled Physician Speech, 2007 U. Ill. L. Rev. 939, 950 (2007) 28 (“The practice of medicine, like all human behavior, transpires 1 through the medium of speech. In regulating the practice, 2 therefore, the state must necessarily also regulate” the speech 3 of physicians.). 4 1. Overview of Recent Cases 5 In Pickup, the Ninth Circuit analyzed the speech- 6 conduct distinction in a case challenging Washington’s law 7 banning the practice of sexual orientation conversation therapy 8 on children. The court stated that laws regulating the speech of 9 health care professionals could be placed along a “continuum.” 10 See 740 F.3d at 1227. “At one end of the continuum, where a 11 professional is engaged in a public dialogue, First Amendment 12 protection is at its greatest.” Id. “At the other end of the 13 continuum . . . is the regulation of professional conduct, where 14 the state’s power is great, even though such regulation may have 15 an incidental effect on speech.” Id. at 1229 (emphasis added). 16 “At the midpoint of the continuum, within the confines 17 of a professional relationship, First Amendment protection of a 18 professional’s speech is somewhat diminished.” Id. at 1228. As 19 such, the Ninth Circuit explained, in that midpoint category of 20 “professional speech,” “the First Amendment tolerates a 21 substantial amount of speech regulation within the professional- 22 client relationship that it would not tolerate outside of it.” 23 See id. at 1229. 24 Applying these principles to the Washington law, the 25 Pickup court concluded that the challenged law fell at the 26 “conduct” end of the spectrum because it regulated a “form of 27 treatment” and “[did] nothing to prevent licensed therapists from 28 discussed the pros and cons of [conversion therapy] with their 1 patients.” See id. That “speech may be used to carry out” 2 conversion therapy “[did] not turn the regulation of conduct into 3 a regulation of speech.” Id. 4 Four years later, in NIFLA, the Supreme Court 5 considered a California law requiring so-called “crisis pregnancy 6 centers” to make certain compelled disclosures. See 585 U.S. at 7 763-64. In analyzing the constitutionality of the law, the NIFLA 8 court explicitly rejected Pickup’s continuum approach and 9 delineation of “‘professional speech’ as a separate category of 10 speech that is subject to different rules.” See id. at 767. The 11 Court stated that its “precedents do not recognize [a tradition 12 of allowing content-based restrictions] for a category called 13 ‘professional speech,’” but reiterated the longstanding rule -- 14 relied upon by the Pickup court -- that “States may regulate 15 professional conduct, even though that conduct incidentally 16 involves speech.” See id. at 768. 17 In Tingley v. Ferguson, 47 F.4th 1055 (9th Cir. 2022), 18 cert. denied, 144 S. Ct. 33 (2023), the Ninth Circuit considered 19 a challenge to a California law banning conversion therapy that 20 was functionally identical to the one considered in Pickup. The 21 case gave the Ninth Circuit occasion to consider what effect 22 NIFLA had on Pickup. The court concluded that “NIFLA abrogated 23 only the ‘professional speech’ doctrine -- the part of Pickup in 24 which we determined that speech within the confines of a 25 professional relationship” (the “theoretical ‘midpoint’ of the 26 continuum”) receives decreased scrutiny. See id. at 1073, 1075. 27 However, the Tingley court determined that “the 28 conduct-versus-speech distinction from Pickup remains intact” 1 post-NIFLA. See id. at 1055. NIFLA therefore did not abrogate 2 Pickup’s analysis of the Washington conversion therapy law, which 3 fell within the category of professional conduct. See id. at 4 1077. 5 Following NIFLA and Tingley, then, a court’s task in 6 analyzing a regulation of physicians under the First Amendment is 7 to determine whether the law at issue regulates physician speech, 8 in which case it is subject to strict scrutiny; or regulates 9 physician conduct, in which case it is not constitutionally 10 suspect and subject to rational basis review. See NIFLA, 585 11 U.S. at 767; Tingley, 47 F.4th at 1072, 1078. 12 2. Physician Conduct Versus Physician Speech 13 As a representative example, Dr. Kory avers that he 14 provides consultations during which he addresses patient 15 “questions and concerns” about ivermectin for the treatment of 16 COVID-19, including “whether he recommends its use.” (Verified 17 Compl. (Docket No. 9) ¶ 19.)1 Relying on Conant, plaintiffs 18 argue that this type of consultation is protected physician 19 speech. 20 In Conant, the Ninth Circuit addressed the 21 constitutionality of a federal policy of “investigating doctors 22 or initiating proceedings against doctors only because they 23 ‘recommend’ the use of marijuana.” 309 F.3d at 634. This policy 24 was grounded in marijuana’s classification as a controlled 25 substance, which barred doctors from prescribing marijuana in any 26
27 1 While plaintiffs make numerous contentions concerning the efficacy of ivermectin in treating COVID-19, the court’s task 28 here is not to determine the legitimacy of any medical treatment. 1 circumstance. See id. at 632-34. The Ninth Circuit concluded 2 that the policy violated the First Amendment because it 3 “punish[ed] physicians on the basis of the content of doctor- 4 patient communications.” See id. at 637. 5 In coming to this conclusion, the Ninth Circuit pointed 6 out the distinction between a “recommendation” untethered from 7 treatment of a patient, and a “recommendation [that] the 8 physician intends for the patient to use . . . as the means for 9 obtaining marijuana.” See id. at 635. The former is speech, 10 while the latter is regulable conduct -- akin to a doctor’s 11 “prescription” of a drug -- that could lead to criminal liability 12 for aiding and abetting the patient’s violation of federal law. 13 See id. at 635-36. As the Pickup court explained, Conant 14 indicates that “doctor-patient communications about medical 15 treatment receive substantial First Amendment protection, [while] 16 the government has more leeway to regulate the conduct necessary 17 to administering treatment itself.” See 740 F.3d at 1227. 18 It was not, as plaintiffs seem to suggest, the use of 19 the word “recommendation” that was dispositive in Conant. If 20 that were the case, doctors could frame their treatment as 21 “recommendations” to shield themselves from regulation. Instead, 22 it was the relationship of the doctors’ marijuana recommendation 23 to treatment that mattered. See Conant, 309 F.3d at 635-36; 24 Pickup, 740 F.3d at 1227; see also Rumsfeld v. F. for Acad. and 25 Inst. Rights, Inc., 547 U.S. 47, 66 (2006) (“If combining speech 26 and conduct were enough to create expressive conduct, a regulated 27 party could always transform conduct into ‘speech’ simply by 28 talking about it.”). 1 It is important to note the specific context presented 2 by Conant where, by legal necessity, any physician’s 3 “recommendation” of marijuana was entirely disconnected from the 4 physician’s treatment of the patients. This is because to treat 5 a patient with marijuana was illegal and would have subjected the 6 physician to criminal liability (which the parties agreed was not 7 constitutionally problematic). See 309 F.3d at 634-35; see also 8 Pickup, 740 F.3d at 1229 (explaining that the policy at issue in 9 Conant “prohibited speech wholly apart from the actual provision 10 of treatment”) (emphasis in original). Thus, in Conant, it was 11 simple for the Ninth Circuit to create a clear “demarcation 12 between conduct and speech.” See Pickup, 740 F.3d at 1226 13 (citing Conant, 309 F.3d at 632, 635–36); see also Conant, 309 14 F.3d at 635 (indicating that the injunction upheld on review drew 15 a “clear line between protected medical speech and illegal 16 conduct”). 17 Most situations in medical practice are not so clear- 18 cut. Within the same patient conversation, a doctor could go 19 from (1) speaking about his views on a particular treatment based 20 on his experience and expertise, to (2) prescribing the use of 21 that treatment for the patient’s care. The former would be 22 speech, while the latter would be conduct. This is because the 23 “key component” of a doctor’s prescription of a drug is the 24 provision of the drug, not the speech itself. See NAAP, 228 F.3d 25 at 1054. And “the First Amendment does not prevent a state from 26 regulating treatment even when that treatment is performed 27 through speech alone.” Pickup, 740 F.3d at 1230. Thus, when a 28 doctor speaks in his capacity as the patient’s treating physician 1 and incident to his provision of medical care, the physician’s 2 words constitute regulable conduct. 3 Returning to the situation posed by Dr. Kory, his 4 discussion with a patient of the “pros and cons” of ivermectin 5 and a statement that he generally recommends the use of that 6 treatment for COVID-19 could be considered speech. See Conant, 7 309 F.3d at 634; see also Pickup, 740 F.3d at 1229 (law banning 8 conversion therapy was constitutional in part because it 9 “allow[ed] discussions about treatment, recommendations to obtain 10 treatment, and expressions of opinions about” treatment). If Dr. 11 Kory were to prescribe the medication, instruct the patient to 12 take the medication, or otherwise use words to treat the patient 13 -- for example by saying, “I recommend that you take 10 14 milligrams of ivermectin once a day for seven days” -- Dr. Kory’s 15 words could constitute conduct regulable by the state, as his 16 speech was incident to his treatment of the patient.2 Cf. 17 Conant, 309 F.3d at 635-36 (indicating that when a “physician 18 intends for the patient to use [his recommendation] as the means 19 for obtaining” an illegal drug, the recommendation of the drug 20 can be considered criminal conduct). 21 The court recognizes that the distinction between 22 physician speech and conduct may be subtle at times. 23 Nonetheless, “[w]hile drawing the line between speech and conduct 24 can be difficult, [the Supreme Court’s] precedents have long 25
26 2 The court again emphasizes that it takes no position on the propriety of using ivermectin to treat COVID-19. It only 27 concludes that, in the example raised by plaintiffs, treating a patient with ivermectin falls within the bounds of “conduct” that 28 the state may permissibly regulate. 1 drawn it.” NIFLA, 585 U.S. at 769.
2 B. Section 2234(c) Is a Facially Constitutional Regulation of Physician Conduct 3 4 California Business & Professions Code § 2234 grants 5 the Boards authority to “take action against any licensee who is 6 charged with unprofessional conduct.” Unprofessional conduct 7 includes, but is not limited to, incompetence, gross negligence, 8 and repeated negligent acts. Id. Plaintiffs seek to enjoin 9 enforcement of section 2234(c) pertaining to “repeated negligent 10 acts,” which are defined as “[a]n initial negligent act or 11 omission followed by a separate and distinct departure from the 12 applicable standard of care.” Id. § 2234(c).3 Plaintiffs argue 13 that the Boards will impermissibly use section 2234(c) to 14 discipline physicians for constitutionally protected doctor- 15 patient communications concerning COVID-19. 16 The statute is neutral on its face and applies broadly 17 to the practice of medicine by all doctors. It does not 18 discriminate between different types of content or speakers and 19 is therefore not a content-based regulation requiring the 20 application of strict scrutiny. See NIFLA, 585 U.S. at 766 21 (content-based regulations are those that “target speech based on 22 its communicative content”); see also NAAP, 228 F.3d at 1055 23
24 3 Plaintiffs state that they seek to enjoin the entirety of section 2234. However, their arguments appear only to address 25 section 2234(c), and plaintiffs’ counsel admits that he “has not identified any other provision of the Business and Professions 26 Code which could be utilized by the board as an alternative” 27 basis for discipline. (See Docket No. 18 at 10.) The court therefore construes plaintiffs’ motion as a challenge to section 28 2234(c). 1 (“California’s [psychoanalyst] licensing scheme is content and 2 viewpoint neutral; therefore, it does not trigger strict 3 scrutiny.”). 4 Further, the plain language of the statute -- which 5 uses the terms “unprofessional conduct” and “act or omission” -- 6 clearly contemplates disciplinary action for conduct, not speech. 7 The statute’s reference to the standard of care makes this plain 8 as, by its very nature, the standard of care applies to care, not 9 speech. See Alef v. Alta Bates Hosp., 5 Cal. App. 4th 208, 215 10 (1st Dist. 1992) (the standard of care determines “the minimum 11 level of care to which the patient is entitled”) (emphasis 12 added). The statute is therefore a regulation of professional 13 conduct with only an incidental effect on speech, if any. See 14 NIFLA, 585 U.S. at 768; Casey, 505 U.S. at 884. 15 Because section 2234(c) regulates conduct, it need only 16 satisfy rational basis review. See Tingley, 47 F.4th at 1078. 17 Under this standard, a law need only be “rationally related to a 18 legitimate state interest” to pass constitutional muster. See 19 id. Section 2234(c) easily satisfies that standard. 20 A state has “a ‘compelling interest in the practice of 21 professions within [its] boundaries.’” Tingley, 47 F.4th at 1078 22 (quoting Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975)). A 23 state also has an interest in regulating health care providers to 24 protect patient health and safety. See Gonzales v. Carhart, 550 25 U.S. 124, 166 (2007); NAAP, 228 F.3d at 1054. The requirement 26 that doctors provide appropriate care is plainly related to 27 advancing those interests. 28 Indeed, as the Supreme Court has explained: 1 It is elemental that a state has broad power to establish and enforce standards of conduct within its borders relative 2 to the health of everyone there. It is a vital part of a state’s police power. The state’s discretion in that field 3 extends naturally to the regulation of all professions concerned with health . . . . It is equally clear that a 4 state’s legitimate concern for maintaining high standards of professional conduct extends beyond initial licensing. 5 Without continuing supervision, initial examinations afford little protection. 6 7 Barsky v. Bd. of Regents of Univ. of State of N.Y., 347 U.S. 442, 8 451 (1954). Accordingly, state “health and welfare laws” are 9 “entitled to a ‘strong presumption of validity.’” See Dobbs, 597 10 U.S. at 301 (quoting Heller v. Doe, 509 U.S. 312, 319 (1993)); 11 see also Conant, 309 F.3d at 639 (federal courts should respect 12 the “principles of federalism that have left states as the 13 primary regulators of [health professionals’] conduct”); NAAP, 14 228 F.3d at 1054 (citing Watson v. Maryland, 218 U.S. 173, 176 15 (1910)) (“It is properly within the state’s police power to 16 regulate and license professions, especially when public health 17 concerns are affected.”). 18 For the foregoing reasons, the court concludes that 19 section 2234(c) is a facially constitutional regulation of 20 physician conduct.
21 C. Plaintiffs’ Have Not Established Standing to Bring an As-Applied Challenge to Board Enforcement 22 23 Because section 2234(c) is a regulation of physician 24 conduct, Board discipline of protected speech would be, by 25 definition, outside the scope of 2234(c). To obtain an 26 injunction, plaintiffs would therefore need to mount an as- 27 applied challenge to some policy or practice of disciplining 28 physician speech by the Boards. However, plaintiffs have failed 1 to establish standing to challenge any such policy or practice.4 2 Article III standing has three elements: “(1) injury- 3 in-fact -- plaintiff must allege concrete and particularized and 4 actual or imminent harm to a legally protected interest; (2) 5 causal connection -- the injury must be fairly traceable to the 6 conduct complained of; and (3) redressability -- a favorable 7 decision must be likely to redress the injury-in-fact.” Barnum 8 Timber Co. v. U.S. EPA, 633 F.3d 894, 897 (9th Cir. 2011) (citing 9 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)) (internal 10 quotation marks omitted). 11 “[A] plaintiff satisfies the injury-in-fact requirement 12 where he alleges ‘an intention to engage in a course of conduct 13 arguably affected with a constitutional interest, but proscribed 14 by a statute, and there exists a credible threat of prosecution 15 thereunder.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 16 159 (2014) (quoting Babbitt v. United Farm Workers Nat’l Union, 17 442 U.S. 289, 298 (1979)). The Ninth Circuit applies a “three- 18 factor inquiry to help determine whether a threat of enforcement 19 is genuine enough to confer an Article III injury”: “(1) whether 20 the plaintiff has a ‘concrete plan’ to violate the law, (2) 21 whether the enforcement authorities have ‘communicated a specific 22 warning or threat to initiate proceedings,’ and (3) whether there 23 is a ‘history of past prosecution or enforcement.’” Tingley, 47 24 F.4th at 1067 (quoting Thomas v. Anchorage Equal Rts. Comm’n, 220 25 F.3d 1134, 1139 (9th Cir. 2000) (en banc)). “‘Neither the mere 26 4 Although defendants did not expressly argue that 27 plaintiffs lack standing, the court nonetheless has a duty to evaluate Article III standing. See Bernhardt v. County of Los 28 Angeles, 279 F.3d 862, 868 (9th Cir. 2002). 1 existence of a proscriptive statute nor a generalized threat of 2 prosecution’ satisfies this test.” Id. (quoting Thomas, 220 F.3d 3 at 1139). 4 Challenges that involve First Amendment rights “present 5 unique standing considerations” because of the “chilling effect 6 of sweeping restrictions” on speech. Ariz. Right to Life Pol. 7 Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003). 8 “In order to avoid this chilling effect, the Supreme Court has 9 endorsed what might be called a ‘hold your tongue and challenge 10 now’ approach rather than requiring litigants to speak first and 11 take their chances with the consequences.” Italian Colors Rest. 12 v. Becerra, 878 F.3d 1165, 1171 (9th Cir. 2018) (internal 13 quotation marks omitted). Accordingly, when the challenged law 14 “implicates First Amendment rights, the [standing] inquiry tilts 15 dramatically toward a finding of standing.” LSO, Ltd. v. Stroh, 16 205 F.3d 1146, 1155 (9th Cir. 2000). 17 Nonetheless, a plaintiff challenging a law on First 18 Amendment grounds must still demonstrate that “there exists a 19 credible threat of prosecution thereunder.” See Susan B. Anthony 20 List, 573 U.S. at 159; see also Italian Colors Rest., 878 F.3d at 21 1171 (“Even in the First Amendment context, a plaintiff must show 22 a credible threat of enforcement.”). 23 Plaintiffs have failed to make the necessary showing, 24 as the record is utterly devoid of any evidence that the Boards 25 have or may use their authority under section 2234(c) to do 26 anything other than regulate physician conduct, let alone 27 discipline physicians for their protected speech in the manner 28 plaintiffs suggest. 1 1. Threat of Enforcement 2 To show that authorities have communicated a threat of 3 enforcement, plaintiffs point to a statement allegedly made by 4 Assemblyman Evan Low (a sponsor of AB 2098) following the repeal 5 of AB 2098. Low purportedly stated that, despite the law’s 6 repeal, “the Medical Board of California will continue to 7 maintain the authority to hold medical licensees accountable for 8 deviating from the standard of care and misinforming their 9 patients about COVID-19 treatments.” (See Verified Compl. ¶ 73.) 10 Assuming that Mr. Low, in fact, made that statement (which 11 plaintiffs have not established)5, it provides no support for 12 plaintiffs’ argument. Mr. Low is not a defendant in this action. 13 And the pronouncement of a politician, without more, does not 14 indicate that the Boards -- administrative agencies that operate 15 independently of the California Legislature -- will apply the law 16 in any particular way. See Dist. of Columbia v. Heller, 554 U.S. 17 570, 605 (2008) (explaining that so-called “postenactment 18 legislative history” is not legislative history at all and is not 19 a proper interpretive tool); Graham Cnty. Soil & Water 20 Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 297 21 (2010) (“a single sentence by a single legislator” is not 22 5 The statement was provided by plaintiffs only in the 23 form of an unsupported allegation. (See Verified Compl. ¶ 73.) However, the court was able to locate a Los Angeles Times article 24 containing the quote from Assemblyman Low. See Corinne Purtill, Controversial law punishing doctors who spread COVID 25 misinformation on track to be undone, Los Angeles Times (Sept. 11, 2023). The court takes judicial notice of the fact that said 26 quote was attributed to Mr. Low “in the public realm at the time” 27 but expresses no opinion about “whether the contents of th[e] article[] were in fact true.” See Von Saher v. Norton Simon 28 Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010). 1 “entitled to any meaningful weight”); Chem. Producers & Distribs. 2 Ass’n v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006), overruled 3 on other grounds by Bd. of Trs. of Glazing Health & Welfare Tr. 4 v. Chambers, 941 F.3d 1195 (9th Cir. 2019) (“Attributing the 5 actions of a legislature to third parties rather than to the 6 legislature itself is of dubious legitimacy, and the cases 7 uniformly decline to do so.”); X-Men Sec., Inc. v. Pataki, 196 8 F.3d 56, 69 (2d Cir. 1999) (the actions of legislators who 9 “cajole” and “exhort” agencies concerning administration of a 10 statute are “political rather than legislative in nature”); 11 Goolsby v. Blumenthal, 581 F.2d 455, 460 (5th Cir. 1978), on 12 reh’g, 590 F.2d 1369 (5th Cir. 1979) (quoting Reg’l Rail Reorg. 13 Act Cases, 419 U.S. 102, 132 (1974)) (“post-passage remarks of 14 legislators . . . ‘represent only the personal views of these 15 legislators’”). 16 To establish a history of prior enforcement, plaintiffs 17 point to the alleged Board discipline of a physician who is not a 18 plaintiff in this action, Dr. Ana Reyna, for her provision of 19 certain COVID-19-related information and opinions. However, 20 plaintiffs provide nothing more than bare, unverified allegations 21 concerning the basis for Dr. Reyna’s Board discipline. (See 22 Verified Compl. ¶¶ 21, 74.) The only evidence before the court 23 concerning Dr. Reyna shows that she surrendered her license 24 following the commencement of disciplinary proceedings. (See 25 id.) Because plaintiffs have not provided (and the court was 26 unable to locate) evidence regarding the basis for the 27 disciplinary action, the court disregards these allegations. 28 Finally, plaintiffs rely on the administrative and 1 legislative history related to AB 2098 to demonstrate that their 2 desired speech concerning COVID-19 is proscribed by Board policy. 3 But this case pertains to section 2234, not the now-repealed AB 4 2098. Plaintiffs have provided no evidence that the Boards have 5 or will treat the repeal of AB 2098 -- along with this court’s 6 preliminary injunction order and the Ninth Circuit panel’s 7 skepticism of the law during oral argument on the McDonald 8 appeal6 -- as anything other than a mandate to refrain from 9 improper regulation of doctors’ speech. See Rosebrock v. Mathis, 10 745 F.3d 963, 971 (9th Cir. 2014) (“We presume that a government 11 entity is acting in good faith when it changes its policy.”). 12 Indeed, defendant Varghese stated in his capacity as Executive 13 Director of the Medical Board that, following the passage of the 14 repeal bill, AB 2098 would not be enforced even while it was 15 still in effect. See McDonald, 94 F.4th at 869. 16 Accordingly, the court concludes that plaintiffs have 17 failed to establish that there is any threat the Boards will 18 enforce section 2234(c) or otherwise discipline physicians in a 19 manner that implicates their protected speech. 20 2. COVID-19 and the Standard of Care 21 Plaintiffs additionally argue that they face a risk of 22 discipline for any care provided to treat COVID-19 because “there 23 is no legitimate [COVID-19] standard of care.” (See Docket No. 24 14 at 13.) In support of that argument, they cite the 25 declaration they relied upon in Hoang v. Bonta (see Hoang Docket 26
27 6 See Oral Argument at 18:16 - 31:00, McDonald v. Lawson, 94 F.4th 864, No. 22-56220 (9th Cir. 2023), 28 https://www.ca9.uscourts.gov/media/video/?20230717/22-56220/. 1 No. 4-2) and a declaration filed in this matter providing 2 additional information and scientific updates (see Kory Docket 3 No. 14-1). The declarations, authored by Dr. Sanjay Verma and 4 not objected to by defendants, explain the various ways in which 5 the scientific evidence on COVID-19 has changed over time and 6 remains contested. They also explain several ways in which the 7 pronouncements of public health authorities concerning COVID-19 8 have vacillated, at times to the point of either inconsistency 9 with scientific evidence or direct contradiction of prior 10 recommendations. 11 For example, Dr. Verma points out that at the beginning 12 of the pandemic, the CDC represented that cloth masks prevented 13 COVID-19 transmission and recommended their use among the general 14 population. (See Hoang Decl. ¶¶ 13-18; Appendix 1 to Hoang 15 Decl.) Later, scientific studies showed that cloth masks were 16 not effective at preventing the spread of COVID-19, and the CDC 17 eventually changed its recommendation concerning their use. (See 18 id.) As another example, Dr. Verma avers that the CDC continues 19 to recommend that the general population keep “up to date” on 20 COVID-19 vaccines and boosters, despite studies showing dwindling 21 vaccine efficacy and the potential for serious side effects. 22 (See Kory Decl. ¶¶ 39-46.) From such changes, disagreement, and 23 inconsistencies, plaintiffs make the logical leap that there is 24 no standard of care for COVID-19 treatment, placing them at risk 25 of discipline for all COVID-19-related care. 26 The court can understand plaintiffs’ frustration over 27 the various discrepancies and shifts in recommendations 28 concerning COVID-19. And the inconsistencies apparent in many of 1 those recommendations unfortunately do not reflect well on the 2 credibility of those who made them. However, it simply does not 3 follow that there is no standard of care applicable to COVID-19. 4 It cannot be the case that scientific disagreement and 5 inconsistencies in public health recommendations exempt doctors 6 from the requirement that they adhere to the standard of care. 7 The standard of care is a well-established legal 8 concept, “requir[ing] that medical service providers exercise 9 that degree of skill, knowledge and care ordinarily possessed and 10 exercised by members of their profession under similar 11 circumstances.” See Barris v. County of Los Angeles, 20 Cal. 4th 12 101, 108 (1999). As defendants point out, this standard, in one 13 formulation or another, has governed the practice of medicine for 14 centuries. See Robert I. Field, The Malpractice Crisis Turns 15 175: What Lessons Does History Hold for Reform?, 4 Drexel L. Rev. 16 7, 10 (2011) (“[t]he earliest lawsuits for medical mistakes date 17 back several centuries to the formative stages of the common 18 law,” with the “first reported case . . . decided in 1374”); see 19 also Arnett v. Dal Cielo, 14 Cal. 4th 4, 7 (1996) (“[s]ince the 20 earliest days of regulation,” the California medical boards “have 21 been charged with the duty to protect the public against 22 incompetent, impaired, or negligent physicians”). The 23 application of a professional standard of practice is hardly 24 unique to the healthcare context. See, e.g., Gunn v. Minton, 568 25 U.S. 251, 264 (2013) (indicating that states have “a special 26 responsibility for maintaining standards among members of the 27 licensed professions,” including through the imposition of 28 standards of practice for lawyers) (internal quotation marks and 1 citations omitted). 2 “The standard of care against which the acts of a 3 physician are to be measured is a matter peculiarly within the 4 knowledge of experts; it . . . can only be proved by their 5 testimony, unless the conduct required by the particular 6 circumstances is within the common knowledge of the layman.” 7 Flowers v. Torrance Mem’l Hosp. Med. Ctr., 8 Cal. 4th 992, 1001 8 (1994). (See also Calderon Decl. (Docket No. 17-1) ¶¶ 6-7, 9 Varghese Decl. (Docket No. 17-2) ¶¶ 5-6 (explaining that when the 10 Boards investigate a physician, a “medical consultant . . . 11 examines the medical record and any additional evidence to 12 determine whether there is a potential violation of the standard 13 of care,” in which case the matter is subject to further review 14 by a “retained outside medical expert”). Importantly, because 15 determination of the appropriate standard of care “is inherently 16 situational, the amount of care deemed reasonable in any 17 particular case will vary.” Flowers, 8 Cal. 4th at 997 (emphasis 18 added). No court could make a broad pronouncement about the 19 standard(s) of care applicable to an entire disease -- which can 20 present a vast range of clinical presentations and possible 21 treatment options -- let alone conclude that no such standard 22 exists. 23 That the standard of care remains in force in the 24 COVID-19 context is supported by common sense. Although there 25 may be areas of uncertainty when it comes to COVID-19, there are 26 nonetheless types of treatment that are clearly not permissible. 27 As a purely hypothetical example, if a doctor were to order a 28 patient under his care to drink a gallon of industrial rat poison 1 to treat COVID-19, no one could argue that would be consistent 2 with the standard of care. To conclude otherwise would interfere 3 with the State’s appropriate exercise of its authority to ensure 4 that patients are protected from “charlatan[s]” masquerading as 5 professionals. See Pickup, 740 F.3d at 1228. 6 Seeking to brush aside the centuries-long regulation of 7 the medical profession, plaintiffs seem to conflate the standard 8 of care with the vague notion of “scientific consensus.” Their 9 argument is premised on this court’s prior finding that COVID-19 10 was “a quickly evolving area of science that in many aspects 11 eludes consensus,” and therefore the term “scientific consensus” 12 was unconstitutionally vague. See Høeg, 652 F. Supp. 3d at 1188. 13 While the concept of a “consensus” among the medical community 14 may be related to the standard of care, the terms are not 15 interchangeable. And as indicated above, plaintiffs have not 16 offered any evidence that, following the repeal of AB 2098, the 17 Boards will discipline doctors in a manner that conflates the 18 two. 19 Plaintiffs also appear to treat the standard of care as 20 a rigid benchmark that cannot countenance reasonable medical 21 disagreement. To the contrary, the standard of care can and does 22 account for differing views among medical professionals. See 23 McAlpine v. Norman, 51 Cal. App. 5th 933, 938–39 (3d Dist. 2020) 24 (indicating that the standard of care in a medical malpractice 25 action is routinely determined based on “competing expert 26 testimony”); Blackwell v. Hurst, 46 Cal. App. 4th 939, 944 (2d 27 Dist. 1996) (“a difference of medical opinion concerning the 28 desirability of a particular medical procedure when several are 1 available does not establish that the one used was negligent”); 2 Glover v. Bd. of Med. Quality Assurance, 231 Cal. App. 3d 203, 3 208 (1st Dist. 1991) (“As long as the differences of opinion [on 4 the standard of care] are legitimate, we have no dispute with the 5 notion that different methods of treatment can all be considered 6 acceptable medical practice.”); Fraijo v. Hartland Hosp., 99 Cal. 7 App. 3d 331, 343 (2d Dist. 1979) (a physician’s “error in medical 8 judgment” in selecting among treatment options is not 9 automatically considered negligent, but rather is “weighed in 10 terms of the professional standard of care”); Gearhart v. United 11 States, No. 15-cv-665 MDD, 2016 WL 3251972, at *9 (S.D. Cal. June 12 14, 2016) (“Under California law, a mere difference of medical 13 opinion is insufficient evidence to support a finding of 14 negligence.”). 15 “Professionals might have a host of good-faith 16 disagreements, both with each other and with the government, on 17 many topics in their respective fields.” NIFLA, 585 U.S. at 772. 18 “Only rarely does the physician enjoy true certainty regarding 19 any issue.” 1 Am. Law Med. Malp. § 3:8. Disagreement between 20 competent medical professionals on the best course of treatment 21 for a given condition is common, and there is not necessarily any 22 violation of the standard of care in those circumstances. See 23 id. § 3:3 (“Within certain clinical settings, there may be 24 reasonably applicable alternative methods of diagnosis or 25 treatment. A physician choosing one or the other method would 26 not violate a ‘standard’ of good medical practice.”); see also 27 Philip G. Peters, Jr., Doctors & Juries, 105 Mich. L. Rev. 1453, 28 1477 (2007) (“when researchers ask physicians to rate the quality 1 of care provided by other physicians, the participants disagree 2 among themselves” at a “surprisingly high” rate, as “[r]easonable 3 professionals often reach different conclusions about the same 4 evidence”); Peter D. Jacobson & Stefanie A. Doebler, “We Were All 5 Sold A Bill of Goods:” Litigating the Science of Breast Cancer 6 Treatment, 52 Wayne L. Rev. 43, 79 (2006) (in evaluating whether 7 a novel treatment option comports with the standard of care, part 8 of a court’s task is to determine “when the widespread 9 disagreement among qualified medical experts over whether the 10 treatment or procedure at issue has crossed the line from being 11 an experimental procedure to become an acceptable medical 12 practice”); James Ducharme, Clinical Guidelines and Policies: Can 13 They Improve Emergency Department Pain Management?, 33 J.L. Med. 14 & Ethics 783, 786 (2005) (“If there is more than one recognized 15 course of treatment, most courts will allow some flexibility in 16 what is regarded as customary.”); Joan P. Dailey, The Two Schools 17 of Thought and Informed Consent Doctrines in Pennsylvania: A 18 Model for Integration, 98 Dick. L. Rev. 713, 714 (1994) (“Courts 19 have long recognized that medicine is not an exact science and 20 that therefore physicians are bound to disagree over the 21 propriety of various treatments.”). 22 Even medical approaches that are in the minority can be 23 considered within the standard of care. See 1 Am. Law Med. Malp. 24 § 3:3 (“What is custom and practice in the medical profession is 25 usually a reliable measure of due care. However, that is not 26 always the case.”) (citing Texas & P. Ry. Co. v. Behymer, 189 27 U.S. 468, 470 (1903)). It could even be considered a violation 28 of the standard of care to continue using a long-established 1 treatment if a doctor failed to remain informed of advances in 2 medical knowledge. See id. (“The standard of care clearly 3 requires a doctor to keep up to date and abreast of changes.”).7 4 As the Supreme Court has stated, states have “wide 5 discretion to [regulate] areas where there is medical and 6 scientific uncertainty.” See Gonzales, 550 U.S. at 163. COVID- 7 19 is far from the first medical topic to prompt controversy and 8 serious disagreement among doctors and scientists. See, e.g., 9 Conant, 309 F.3d at 643 (Kozinski, J., concurring) (describing 10 the “genuine difference of expert opinion on the subject [of 11 medical marijuana], with significant scientific and anecdotal 12 evidence supporting both points of view”); Caroline Lowry, 13 Intersex in 2018: Evaluating the Limitations of Informed Consent 14 in Medical Malpractice Claims As A Vehicle for Gender Justice, 52 15 Colum. J.L. & Soc. Probs. 321, 339 (2019) (“[t]he standard of 16 care for treating intersex individuals is controversial and ever- 17 changing” due in part to “sparse and incomplete” research on the 18 topic); Katherine Goodman, Prosecution of Physicians As Drug 19 Traffickers: The United States’ Failed Protection of Legitimate 20 Opioid Prescription Under the Controlled Substances Act and South 21
22 7 Indeed, California law recognizes that medical science is frequently changing and can offer worthwhile treatments that 23 are not broadly accepted. The California Right to Try Act, Cal. Health & Safety Code § 111548, provides that a patient with a 24 life-threatening disease who has considered all available FDA- approved treatment options and is unable to participate in an 25 applicable clinical trial has the right to undergo an “investigational” treatment recommended by his physician, see id. 26 § 111548.1(b). A physician is immune from Board discipline for 27 prescribing investigational treatments under those circumstances, when carried out in accordance with the procedural protocol 28 established by the relevant Board. See id. § 111548.3(a). ee mE I OIE I EIN mE
1 Australia’s Alternative Regulatory Approach, 47 Colum. J. 2 Transnat’l L. 210, 226-27 (2008) (“physicians widely disagree 3 about the propriety of administering narcotics for short-term 4 pain or to addicts, and there is little agreement about the 5 addiction risks that narcotics present” and “the maximum 6 thresholds for high-dose opioid therapy”). It would be absurd to 7 conclude that the State forfeits its broad authority to regulate 8 the practice of medicine whenever such disagreement is present. 9 For the court to conclude that no standard of care 10 exists in the realm of COVID-19 would create an unprecedented 11 exception to the long-established regulatory paradigm governing 12 | medical professionals. Such a conclusion would also functionally 13 exempt doctors from both private malpractice actions and 14 disciplinary proceedings under section 2234(c) whenever they 15 | provide care in connection with that disease, placing the public 16 at risk of harm without recourse or adequate oversight. 17 Because plaintiffs have failed to establish a 18 likelihood of success on the merits of their First Amendment 19 challenge to California Business & Professions Code § 2234, IT IS 20 HEREBY ORDERED that plaintiffs’ motion for preliminary injunction 21 (Docket No. 14) be, and the same hereby is, DENIED. 22 | Dated: April 22, 2024 . ak. dy / 23 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
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