Night Shift – Due Process Demands More

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This month EPM published an interview with ABEM President Marianne Gausche-Hill regarding ABEM’s decision to take action against emergency physician’s board certification for spreading COVID “misinformation.”

Dr. Gausche-Hill provided additional context for ABEM’s position, but ABEM’s “stronger statement” also leaves many unanswered questions and creates potential constitutional issues in the process.

ABEM’s statement cites “a number of physicians and members of the public” who contacted ABEM complaining about physicians sharing misinformation. ABEM provided no specific examples of the complaints, provided no examples of the alleged “misinformation” being promulgated and gave no guidance on how ABEM addressed those complaints.


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We will never know the identity of the complainants, the number of complainants or the number of physicians being complained about. ABEM also fails to describe any factors that it would consider when deciding whether a physician’s statements about COVID could “threaten public safety and create patient harm.”

Simply citing “a number of physicians” who have made generic “complaints” about “outrageous claims” is hardly showing us with the “full transparency” that ABEM wishes to demonstrate.

By making such vague pronouncements, ABEM implies that board certified physicians either remain silent about any COVID-related issues or risk losing their board certification. Substantive due process demands more.


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Dr. Gausche-Hill does give one example of what ABEM considers an “outrageous claim” by physicians: “the COVID mRNA vaccine alters a person’s DNA.”

Here’s an article by a PhD in Biochemistry and Molecular Biology analyzing a Harvard/MIT study and concluding that mRNA vaccines possibly can alter human DNA.

While not coming to a definitive conclusion on the issue, the author stated that the issue “deserves more study.” I fail to see how ABEM board members with little if any training in molecular biology could even begin to refute a molecular biologist’s insights on this topic.

Yet, according to the ABEM Board, I could personally be risking my board certification by propagating this “outrageous claim.” Without the training and expertise of a molecular biologist, ABEM’s opinions on whether mRNA vaccines could alter human DNA would be uniformly rejected in any court of law. Yet ABEM is proposing that opinions failing to meet evidentiary admissibility in court should be used as the sole evidence necessary to potentially revoke a physician’s board certification.


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By questioning ABEM’s position, I am not advocating that medicine abandon regulation of physician behavior. We need oversight to keep medical practice within reasonable bounds. The problem is that the definition of “reasonable bounds” is often a moving target – especially when discussing medical opinions.

Most physicians have a pretty good idea of what is clearly acceptable and clearly unacceptable behavior. There is a variable “grey zone” between those extremes. Arbitrarily applying harsh sanctions to activities within this “grey zone” may amount to a boot on the neck of those who demand scientific scrutiny, might discourage scientific study and could discourage scientific debate over scientific opinions.

Aside from the “alter DNA” comment, ABEM provides no guidance on what it considers as COVID “misinformation” worthy of sanction. The problem with ABEM’s stance is that its proposed sanction is not a mere formality.

ABEM is literally threatening to jump on the “cancel culture” bandwagon by using a physician’s opinion to invalidate decades of study, hundreds of thousands of dollars in educational expenses and well-earned professional reputation.

With such high stakes for board certified physicians, ABEM either can’t or won’t provide reasonable examples of statements that would lead to such Draconian punishment.

Before ABEM implements its enhanced scrutiny over COVID “misstatements,” I would challenge each of the ABEM Board members to list five statements about COVID that they consider sanctionable.

If any of those allegedly sanctionable statements can be shown to have a reasonable scientific basis, then those board members would have to agree to public censure, loss of their board certification and revocation of their medical licenses. Outrageous claims suddenly don’t seem so outrageous when the boot is on your own neck.

Dr. Gausche-Hill cited the case of a physician whose medical license was suspended by the Oregon Medical Board for spreading “misinformation.” That case should serve as a dire warning about unfettered board actions.

In that case, the Oregon Medical Board immediately suspended a physician’s license without first allowing the physician to have a hearing to refute the board’s accusations.

In other words, prior to his license suspension, the physician received no procedural due process. When issuing its immediate suspension order, the board declared that “continuation in practice of the licensee constitutes an immediate danger to the public.”

The long list of board accusations focused on the physician informing patients that masks do not prevent the spread of COVID and that in some cases, masks may be harmful to patients’ health.

After my Great Mask Debate with [EPM Editor-in-Chief] Salim in September’s edition of EP Monthly, I suppose I’m lucky that I don’t practice medicine in Oregon. One board accusation stated that the physician’s medical license warranted immediate suspension in part because he failed to have hand sanitizer available in his clinic.

Even more troubling is that the board was notified of the physician’s actions in July 2020, investigated the physician, and initially took no further action.

It was only after the physician spoke at a Trump rally in November 2020 that the board issued an immediate license suspension, suddenly labeling the physician’s longstanding practices an “immediate danger.”

The physician has since filed a civil rights/due process lawsuit for damages and attorneys’ fees against the board and each of the board members. I predict that he will win a large judgment. If you want to learn more about the physician’s actions, the board’s allegations and the pending lawsuit, see this post from February. https://sullivanlegal.us/oregon-medical-board-sued-after-suspending-doctors-license-over-mask-use/.

If we want to question a colleague’s stance on an issue, fine. If we want to debate someone who holds an opinion contrary to ours, that’s a good thing. If medical boards want physicians to provide a scientific basis for their opinions, fine.

Ask physicians for studies justifying their statements. Censorship is wrong. Censorship is wrong when colleagues do it. Censorship is wrong when physician organizations do it. Censorship is wrong when media and private corporations do it.

Knowing what we know now, imagine the disastrous consequences that would have occurred during the opioid crisis had ABEM boldly announced that any “misinformation” about opioids could result in adverse action against a physician’s board certification.

Imagine how the opioid epidemic would have been perpetuated because medical professionals feared questioning the Joint Commission’s “pain as a fifth vital sign” axiom. How many additional patient deaths would have been attributable to such censorship?

Every inventor, every pioneer, and every visionary began with an “outrageous” opinion – an opinion that defied prior beliefs. We must exercise the utmost caution when sanctioning physicians merely because their opinions differ from our own. Medical progress depends, in part, on scientific debate about such opinions.

By labeling unconventional opinions or opinions that question current dogma as “outrageous” and stating that such opinions may “threaten public safety and create patient harm,” the ABEM Board and its members censor the same scientific debate they purport to encourage – and they risk the same fate as the Oregon Medical Board in the process.

ABOUT THE AUTHOR

SENIOR EDITOR DR. SULLIVAN, an emergency physician and clinical assistant professor at Midwestern University in Illinois, is EPM’s resident legal expert. As a health law attorney, Dr. Sullivan represents medical providers and has published many articles on legal issues in medicine. He is a past president of the Illinois College of Emergency Physicians and a past chair and current member of the American College of Emergency Physicians’ Medical Legal Committee. He can be reached at his legal web site http://sullivanlegal.us.

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