COVID-19 critique sparks California free-speech clash

As Douglas Mackenzie drove from his Mission Revival office down the palm-lined streets of Santa Barbara, Calif., a summer playground scene startled the doctor.

“I see kids outside, playing sports, wearing masks—it’s absurd!” he told Santa Barbara school officials in August 2021. “There is no science or logic to support that. I worry about society’s descent into a mass psychosis trying to reach an impossible goal of eradicating COVID.”

Four months later, the Medical Board of California asked Mackenzie to answer complaints about his COVID-19 critique. In essence, the plastic surgeon faced investigation not for how he practiced, but for how he spoke about medicine.

Now, Mackenzie and a medical trade group are suing the executive director of the medical board, a state agency that licenses over 152,000 doctors in California. They filed the civil rights lawsuit in a Sacramento federal court and claimed Mackenzie’s constitutional free speech and due process rights were breached.

In a July 14 letter—six days after the suit became public—the board confirmed Mackenzie’s investigation was closed. Still, he and Physicians for Informed Consent will pursue the suit to protect doctors from sanctions. A hearing is scheduled for Sept. 27.

At the heart of the case is the ability to question coronavirus mandates, especially when science points to alternatives. An example: Mackenzie lauded ivermectin as an effective treatment while the U.S. Food and Drug Administration discouraged its use.

Still, California’s medical board can hold doctors to a standard of care consistent with directives from the FDA and the Centers for Disease Control and Prevention. Failure to follow that guidance could raise a red flag when peer medical experts, retained by the board, review a case.

In publishing 20 research challenges to vaccine mandates, Physicians for Informed Consent fears future reprisals from California’s medical board without court protection. The board, however, fears medical practice may run amok if physicians aren’t held to a clear standard of care.

“The board is deeply concerned about physicians who place their patients in unnecessary risk of serious illness through the spread of COVID-19 misinformation (or) disinformation,” spokesman Carlos Villatoro said. Disagreement among physicians about individual patient care isn’t uncommon, but California’s Business and Professions Code forbids public communication that’s false, fraudulent, or deceptive, he said.

California’s legislature could complicate the case further. A bill passed by the state’s Assembly in late May faces an Aug. 31 deadline for Senate passage. Originally drafted to discipline doctors for any public speech that contradicts “scientific consensus” on COVID-19, the legislation now would apply to speech by physicians to patients.

In a February meeting, medical board president Kristina Lawson told the board it had a duty to protect the public from misinformation offered by physicians in the media and online. Lawson’s statement, reinforced by a national board, has the effect of a new enforcement policy in the view of Physicians for Informed Consent. Yet Villatoro said the board has not adopted such a policy.

Of 10,000 annual complaints, the medical board is reviewing 1,394 current complaints about COVID-19 alone. All, including Mackenzie’s case, remain confidential unless the state’s attorney general pursues charges following a board investigation.

General counsel Greg Glaser said Physicians for Informed Consent knows about more than 20 letters warning California doctors who have challenged vaccine norms. Not only do physicians face pressure about speaking out in public, but government scrutiny of medical records is frightening them from seeking any vaccine exemptions for children, he said.

“That’s the real issue before the court,” Glaser said. “Is this a recurring issue? Are these doctors being effectively silenced?”