If your medical or specialty board has gone after you, keep 3 legal concepts in mind

Here are 3 legal concepts that are very important to consider, because there is a good chance your medical or specialty board did not adhere to them, which puts them at risk of you taking legal action against them. Whether they are a medical board (or a specialty board trying to usurp regulatory authority it never had before) these concepts can help you beat them. Remember, the Board members are not paid extra to deal with legal cases, to be defendants, or in my state to sit in hearings. So while the board STAFF may be happy to embroil its members in spurious legal matters involving licensees, as they get paid to deal with them, the board MEMBERS only lose time and money when you take legal action against them.

1. Due Process—not easy to define quickly. It is broken down into procedural due process and substantive due process. The attempt that my medical board made to conduct a secret meeting without a transcript at which it voted to suspend my medical license was a gross violation of procedural due process, established in several constitutional amendments and Supreme Court decisions. This is just one example.

2. Bad Faith—Bad faith refers to dishonesty or fraud in a transaction. Depending on the exact setting, bad faith may mean a dishonest belief or purpose, untrustworthy performance of duties, neglect of fair dealing standards, or a fraudulent intent. It is often related to a breach of the obligation inherent in all contracts to deal with the other parties in good faith and with fair dealing.

3. Contract law—A contract is an agreement between parties, creating mutual obligations that are enforceable by law. The basic elements required for the agreement to be a legally enforceable contract are: mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality.

All medical boards and specialty boards have lawyers on their staffs, so they have no excuse for ignoring the law or trying to make up law that does not exist. Going after misinformation and disinformation attempts to prosecute doctors for law that does not exist in 49 states, and is a gross violation of the First Amendment. The new medical misinformation law (AB2098) is being challenged in California by CHD and others. That is why the Board dropped the charges of misinformation in my own case before the hearing started—because you cannot violate a law that does not exist. My medical board would never specify exactly what I said that was misinformation—they knew from the start they were on shaky ground. Therefore, was prosecution on these grounds based on Bad Faith?

Remember that medical boards were established simply to carry out the law that the Legislature has passed. The Boards have no authority to create their own laws. They can make rules, but those rules need to conform to the laws established by the legislatures.

The agencies of your state can issue rules, but these rules too are for the purpose of carrying out laws passed by the legislature. In some cases, the state agencies overstepped their authority as well, putting them at risk of a suit. For example, the legislature of Maine passed a law allowing doctors to issue waivers for vaccines, with the only stipulation being that the physician must write that a vaccine is inadvisable for a particular patient. Yet a state agency, and the medical board, have tried to ignore this law and investigated and punished doctors who issued vaccine exemptions. This is a violation of law, and is probably the reason that Dr. Paul Gosselin got his license back at the conclusion of his hearing. Because had they revoked it permanently, he might have sued them for their violation of law, and they certainly don’t want that to get into the public’s consciousness.

Maine has a violation of due process embedded in its laws, that might also be challenged. This is a statute that allows the medical board to order a mental or physical examination of any doctor at any time, as a condition of licensure. The statute does not require the board to have any evidence to support its requirement for a doctor to undergo such examination, and the board demands that the examination be conducted by its own chosen examiner, while the doctor must pay the fee for the exam. Where is there any due process in this demand? Was my board acting in bad faith, ordering this exam on me without any complaints by anyone that I was in any way impaired? Wasn’t the board demanding this exam so that its chosen examiner could come up with some legally viable justification for suspending my license, which the board had already suspended?

Now let me talk about contracts, which applies especially to the attempts by several specialty boards to take away board certifications from doctors for speaking out.

A specialty board has a contract with a doctor. The board will issue a specialty certification if the doctor has completed certain educational and testing requirements and paid a fee. The doctor receives their certification in exchange for years of work and paying high fees for the tests and the certificate. There was no written or unwritten stipulation that the specialty board could rescind the certification for publicly speaking out regarding reasonable medical care, or using certain modes of treatment. That was never part of the contract.

For boards that are suddenly claiming that using licensed drugs for COVID, criticizing federal policies for COVID or criticizing the value of COVID vaccines is unprofessional and therefore the specialty board has the right to revoke a certification—well, that was never part of its contract with the doctor. So pulling a certification for issues that were never specified in the original contract is breach of contract.

Furthermore, the processes the specialty boards are using, as described by CEO Richard Baron, MD wrt the American Board of Internal Medicine (ABIM) (in his podcast with the New England Journal of Medicine) probably are procedurally unfair. Dr. Baron earns over $1 million/year to threaten doctors for a crime that does not exist. Baron, notably, refused to specify where the line was between misinformation and genuine disagreement in that podcast, though he seems to have no difficulty at all drawing the line when it comes to licensees who speak publicly about how to manage COVID. In a truly Orwellian effort, the ABIM and the ABIM Foundation have dedicated the year to ‘building trust’ in medicine.

Fortunately, seasoned attorney Andrew Schlafly of the American Association of Physicians and Surgeons is handing the case of Dr. Peter McCullough, whose ABIM certification was spuriously pulled. See Schlafly’s discussion here.

We are going to win these cases, and the various boards will be put back in their place, chastened and poorer. The specialty boards are sitting on tens of millions of dollars in their organizations and their foundations, and appear to have forgotten that turnabout is fair play. The AMA alone is sitting on around a billion dollars, and though it has not revoked anything, since it has nothing to revoke, it too joined the fray to call for punishing doctors who resist the narrative. Obtaining damages should solve this problem. I have been unable to work for 11 months and my reputation was shredded. How much do you think that is worth?

Do you think the membership of these organizations is going to reelect the officers and renew the contracts of the CEOs when the membership realizes they have cost the organizations a great deal of their prestige and their nest egg?