SAN JOSE, Calif. — As an emergency physician at Stanford and Mills-Peninsula hospitals who has treated hundreds of COVID-19 patients, Dr. Ram Duriseti recalled bucking a prevailing treatment strategy early in the pandemic of rushing the sickest patients onto ventilators not only to help them breathe but to reduce spread of the virus.
The medical world has since backed away from such aggressive use of ventilators, Duriseti said, but he fears in the near future his professional instincts could cost him his medical license under a new California law Gov. Gavin Newsom signed at the end of September. Set to take effect next year, it bars doctors from spreading misinformation about COVID-19.
Duriseti has joined four other California physicians in filing a federal lawsuit against Newsom and the state medical board arguing the law violates doctors’ constitutional First Amendment free speech and Fourteenth Amendment due process rights.
“Rarely does a state legislature pass a bill that is so obviously unconstitutional,” the complaint says. “Even more rarely does a governor sign that bill into law.”
It’s unclear how the new law could impact doctors’ bedside decisions in crucial moments of care. During the height of the pandemic, the medical community and public health experts raised an alarm as misinformation about vaccines and treatments proliferated across the internet, polarizing the public and peddling discredited remedies like hydroxychloroquine to COVID deniers.
The law’s author, Assemblyman Evan Low, D-Campbell, didn’t answer requests for comment about the lawsuit last week. He told fellow lawmakers this year the bill is “crucial to addressing the amplification of misinformation and disinformation related to the COVID-19 pandemic.”
“Licensed physicians, doctors, and surgeons possess a high degree of public trust and therefore must be held accountable for the information they spread,” Low said in comments to the state Assembly about his bill, AB 2098, co-sponsored by the California Medical Association. “Providing patients with accurate, science-based information on the pandemic and COVID-19 vaccinations is imperative to protecting public health.”
Newsom, in signing the bill, said he understood concerns about the “chilling effect” it “may have on physicians and surgeons who need to be able to effectively talk to their patients about the risks and benefits of treatments for a disease that appeared in just the last few years.”
But the governor added he was satisfied it was “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.”
Jenin Younes, a lawyer with the New Civil Liberties Alliance, a Washington, D.C., nonprofit that is handling the lawsuit on the doctors’ behalf, said the governor’s musings carry no legal weight and the law will be interpreted based solely on its language, which the complaint argues is too vague and invites abuse.
“When you’re afraid to speak because you think you could be punished for it, it can result in people self-censoring,” Younes said. “Scientific consensus isn’t defined. It means doctors will be afraid to say things the law wasn’t even intended to include.”
The ACLU of Northern California called on the courts last week to block the law, arguing it “doesn’t strike the right balance between free speech and patient safety.”
The plaintiff doctors have been vocal in the debate over pandemic health policy, pushing back publicly on school guidance and mandates. Duriseti and Dr. Tracy Beth Høeg are affiliated with the “Urgency of Normal” group that in June urged the Centers for Disease Control and Prevention to dial back school guidance to minimize disruptions from quarantines and end vaccine mandates.
Dr. Aaron Kheriaty is a private practitioner who testified on COVID policy before a Senate panel in January. Dr. Pete Mazolewski is a trauma surgeon at John Muir Health who said his approach to delaying immediate removal of an inflamed appendix in favor of antibiotic therapy has since become standard.
And Dr. Azadeh Khatibi is a Los Angeles physician who said she owes her life to a doctor who was willing to reject the medical consensus regarding her own diagnosis with an unspecified life-threatening illness for which she was given only a 25% chance of living another five years. At the time, she said, the standard of care was to avoid aggressive treatment, but she went with a doctor’s contrary advice and made a remarkable recovery.
“Had my doctor’s speech been chilled to only advise and offer ‘consensus’ treatments, I might not be alive today,” Khatibi said in a court declaration.
Several of the doctors said they have been threatened on social media that they will be reported to the state medical board as soon as the law becomes effective. The lawsuit notes posts by a Phoenix pediatrician, Chris Hickie, who called the doctors “quacks.”
Hickie maintained this week in a brief interview that the suing doctors “all deserve to lose their licenses” and said “I hope their suit gets tossed.”
He is part of a “No License for Disinformation” group of doctors who have called for license review of physicians they say have promoted fringe theories and frustrated the public health fight against the virus.
Duriseti in a court declaration said early intubation of severely ill COVID-19 patients was a practice adopted primarily to protect health care workers, but that “as scientific knowledge and understanding of the disease evolved, we have moved away from invasive ventilation as a primary intervention.”
While some patients eventually need invasive ventilation, it puts stress on the lungs and requires sedation to control gag reflexes. A June 2021 Anesthesiology and Pain Medicine survey on intubation of COVID patients found “no association between intubation timing and mortality of the infected patients,” and that “noninvasive ventilation may have survival benefits.”
“When the ‘consensus’ was still settled on intubation, I put my patients’ well-being first and advocated for non-invasive ventilatory support whenever clinically safe and feasible,” Duriseti said. “Though my approach later proved to be correct, because at the time that I administered this treatment it was contrary to ‘consensus,’ my clinical advocacy could have been subject to professional sanctions had AB 2098 been the law.”
A first hearing on the federal lawsuit is scheduled for Dec. 12.
