10 pieces of advice for medical professionals if your Board comes after you

More coming on this topic

A Medical (or Nursing or any other Board) is composed of two groups: a collection of staff, who do almost all the work and are state employees (and who might act with political malice) and Members, who hear and participate in brief discussions, then vote on each case, but do little else. Your interactions will all be with the staff, but it is the members, educated by the staff, who determine your fate.

First thing, check with your malpractice carrier as they probably cover you for up to $25,000 in legal expenses. They are likely to assign you an attorney. But sometimes they will allow you to choose your own attorney. This is worth fighting over, nicely.

Second, get a good attorney. Shop around. Do interviews. Ask the attorneys you know for advice. This is harder that it looks. Most attorneys want to handle your case their way. But you may have other ideas; I did. Check with other attorneys who know their work or talk to former clients. The most important thing you can do for yourself is to have an attorney who is on your side and works with you regarding how to conduct your defense.

Third, Boards have basically been functioning independently, and the attorneys who do Board cases usually don’t challenge the Boards on procedural issues—yet this is likely to be the best way to get the Board off your back early in the process. An attorney challenging the Board on its procedures, citing the law in your state, is likely to make the Board step back—the Board does not want to have to defend itself.

Although I initially hired attorneys who did lots of Medical Board cases, in the end it was a former prosecutor (former county DA) who was willing to grapple with my Board and fight the way I asked him to.

Fourth, be aware that the Board members are likely, in the end, to know very little about you. In my state, members of the Board only receive $1200/year for their service, which usually entails a monthly meeting. They are not paid extra to read the exhibits or the case files, and they are not paid extra for the days they sit in hearings. This means they (presumably) do not welcome extra work. They want to get through as many cases as possible during each meeting, and so they are likely to know very little about each case. They accept what the Board staff, who are state employees, tell them to do. In my case, the Board staff had already decided to suspend me before the Board members heard about the case. I know this because they told my lawyer 4 days before the meeting that was what would likely happen.

Fifth, Board members who vote on your case may be ignorant of the laws governing their behavior. The Board staff do the investigating. Then they boil down the case for a Board member. That Board member presented my case to the rest of the members. Except she presented a very biased story, leading the Board to unanimously vote to suspend my license without even a hearing. It seems they were not familiar with the statutes governing their work, because I had not met any of the criteria required to issue an immediate license suspension.

Sixth, make sure you have all the evidence necessary for your defense. The Chairwoman of the Board told me that I could not record the meeting where my case was discussed—and where my license was suspended—because it was illegal. When I asked how I might get a transcript she told me there would be no transcript. Fortunately I had already started recording when she said that to me. Hearing that a secret meeting, with no transcript, would determine the fate of my license did not sound right. So I left the device on. It turned out that the chairwoman was incorrect, and I had the right to make a record of how my case was being evaluated. So do not go to a psych exam or anything else unless you have audio or video evidence of the entire proceeding, because you are likely to need it later. I have heard from other doctors that once a mistake or a lie gets into the record, if you lack independent verification of what occurred, it is almost impossible to expunge later.

Why did they do this to me and how can you prevent them doing something similar to you? I believe the Board and staff had made a calculated bet that I would not challenge their decision because of my age and the enormous costs involved. When it costs hundreds of thousands of dollars to fully fight a Board, few doctors and even fewer nurses are able to do so. So the older ones simply retire. I was offered that option—retirement is a true win for the state. It costs them minimal time and effort to shut you down permanently.

Furthermore, the Board staff thought I was ignorant and vulnerable. I had responded to all their inquiries myself, instead of putting everything in the hands of an attorney. They assumed that they would not be challenged, because basically, they never have been. If someone wants to keep their license, generally they will be agreeable if not obsequious.

Seven, my strategy was different. If you choose my path, know what you are getting into. My voluntary acknowledgement that I was forced to tell a white lie to a pharmacist to get potentially life-saving hydroxychloroquine (HCQ) for a patient was, in the view of the Board staff, a foolish admission that I was guilty of an offense. I had made the admission in an effort to get them to reverse their policy of suppressing the prescribing and dispensing of HCQ and ivermectin. Silly me. But my case has allowed me to challenge the Board publicly regarding the fact that they had a written policy allowing hydroxychloroquine for acute COVID, while they promulgated an unwritten policy to frighten doctors who prescribed the drug with potential suspension of their licenses. This second policy had to remain unwritten, because it was illegal, arbitrary and capricious.

While on the one hand you should NOT respond directly to the Board but instead have your attorney do so, as they may use what you tell them to incriminate you, my case is different. I was mostly concerned about challenging their unwritten policy to suppress the use of HCQ and IVM. So I was okay with opening up this area of inquiry and duking it out with the Board. There were a lot of lives at stake.

Eighth, do not try to be friendly to a Board. When a Board begins to investigate you, you have left the world of medicine and science and moved into a world of law. You will win or lose based on the law, or other forces, not on whether you are a nice guy. Do not deal with them directly.

Hopefully, if the investigation gets going, your attorney will cite chapter and verse to the Board about how you were within your rights and they will decide to drop your case and move on.

Ninth, the Board may ask you for bizarre things, but you may not need to fulfill their request. I know of several doctors who were told to fly out of state to go to a special place for a neuro-psychological or psychiatric evaluation. There are psychologists and psychiatrists closer to home who may not be beholden to the Board; why can’t you choose your own evaluator? Your lawyer should protect you from this. If you do wind up going for any kind of evaluation, videotape it and have a witness if possible.

In my case, the Board suspended my license, then asked for a lot of additional information. We had to file a lawsuit against the Board to stop a psych exam and halt giving them lots of additional information.

However, another lawyer pointed out a bit later that the Board had already punished me. It did not get “free discovery” after the fact—it was not allowed a fishing expedition to try to justify my suspension with evidence it collected after the punishment had been issued.

Tenth, you need a community. We at Childrens Health Defense in the US and in Europe (the same tactics are being used in both places) would like to establish a place where doctors can anonymously connect online with each other. Boards in the US are going after hundreds, if not thousands, of doctors who failed to follow the COVID narrative. They want you to feel alone and vulnerable. But you are not. Let me know how to connect you and help you as best I can.

There are good legal arguments why they cannot convict you for misinformation, for using drugs for early COVID treatment, and for speaking the truth about the COVID vaccines. In fact, the Federation of State Medical Boards, which has been pulling the state Board’s strings behind the scenes, acknowledged that the First Amendment is a huge hurdle to the charge of misinformation in this publication. In my case, shortly before my hearing started, the Board attorney dropped the charges of misinformation, of off-label prescribing, and begged to avoid discussion of COVID vaccines. So, there is progress.

The Federation of State Medical Boards, however, came up with new strategies Boards could use to get around the First Amendment and justify punishing independent doctors who dispute the COVID narrative. The same tricks are being used across the country. I am working to get a lawyer to craft the legal arguments against them, with citations, which we will post. Here is what the FSMB told the Board to charge doctors with if misinformation won’t work:

1. Failure to adequately obtain informed consent by not providing adequate or truthful information to patients about proposed treatments
2. Engaging in conduct that is likely to bring the profession into disrepute (unprofessional conduct)
3. Engaging in unethical conduct by harming the public
4. Using experimental forms of therapy without proper informed patient consent, without conforming to generally accepted criteria or standard protocols, or without proper periodic peer review of results.

5. Failure to adhere to an applicable standard of care

And the FSMB goes on to make further legal suggestions:

In assessing a licensee’s alleged infraction, state medical boards may wish to consider which factors addressed in the above examples are relevant and addressed in their Medical Practice Acts as bases for imposing disciplinary action. Potential questions and considerations for the board include:

o Did the spread of disinformation occur during the course of provision of care or in the context of an established physician-patient relationship?
o Did the infraction involve conduct on the part of the licensee, or speech only?
o Was the licensee acting in a professional capacity or as a private citizen?
o Does disinformation (in public or private) indicate high likelihood that the same
disinformation is being provided to patients?
o Did the infraction result in harm to the health of the licensee’s patient(s) or did it result in broader harms to the public health?
o Was demonstrable harm involved? Was it direct or indirect harm?
o Did the licensee knowingly disseminate disinformation? That is, can intent be
established?

Note how misinformation got turned into disinformation. However, these are new crimes invented by the COVID thought police, and (although recently criminalized in California) the ‘crimes’ of misinformation and disinformation are almost certainly unconstitutional.

Finally, there is extensive case law supporting the concepts of bodily autonomy and informed consent. Colleen Huber, ND, has compiled much of it here. This will provide support for doctors who have issued vaccine waivers.

Doctors are notoriously quiet about their interactions with Boards. But it is time to work together, develop the best legal strategies, fight back and win some cases—and once we shame the Boards and publicize the fact they have in fact been acting to harm the health of our citizens, this particular form of oppression will, I hope, stop.

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Let me end on a positive note. International law is on our side. A total of 172 countries are parties to the International Covenant on Civil and Political Rights:

According to the 1948 Universal Declaration of Human Rights, Article 19,

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

According to the 1966 International Covenant on Civil and Political Rights, 

“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

And the Nebraska Attorney General protected doctors and pharmacists in Nebraska from their Boards, explicitly allowing them to prescribe HCQ and IVM. His opinion is a tour de force, which goes into detail about why the CDC, FDA and NIH guidelines are contradictory, unscientific and should not be followed. It should be cited in every case.