As many of you know, I have been hard at work on a big First Amendment case to stop the Cali. Medical Board (and maybe soon other medical boards soon) from investigating physicians for their public criticism of the mainstream Covid narrative.
I happen to think that a physician has an unfettered right to express her opinion about matters of public health without the threat of professional discipline. While medical boards might have jurisdiction to oversee the standard of care for practicing medicine, they have no such authority over physicians who publically speak out against the standard of care or the government’s response to the pandemic.
As far as I can tell, there is not a single case in United States jurisprudence that has allowed a state health care board to discipline physicians for their public speech. And, there is seventy-five years of precedent which says that it is flat-out unconstitutional for a board, or any government agency to try to do so. We’ll see what Federal District Judge John A. Mendez says about it at the September 27th hearing.
There has been a lot of paperwork flying back and forth between the lawyers in the past few weeks in connection with this hearing. Our view is that the Board does not have the right to even investigate a physician for public speech, and as indicated, we have case law to back that up.
However, the Board came up with a defense that frankly, I would not have thought of in a million years. It’s so diabolically clever that it takes my breath away. I doubt any of you will even believe it. You should be in awe and heartened that the Board has such geniuses running the show over there. Ready, here it is:
Human being employees at the Board do not start board investigations of complaints (or at least online complaints). It’s the Board’s computers that do it (just like the nefarious computers in the Terminator movies and Hal in 2001: A Space Odyssey). After an online complaint is filed, the computer spits out a form letter containing a summary of the complaint and demands that the physician answer the complaint on pain of possible disciplinary action. Since these letters are generated by the computer and its presumed deep digital analysis, humans at the board can’t be responsible for any of the alleged constitutional violations, because as everyone knows, you can’t sue a computer for constitutional violations. Do you think I’m kidding?
Here are the exact words of the Board official asserting this ingenious defense.
One part of the papers states that the letter sent to Dr. Mackenzie (the lead plaintiff in our case) commencing the investigation was just the Board “conducting a brief inquiry of sending Plaintiff an initial standard form letter that is typically generated when the MBC receives an online complaint to request a response … in order to determine if a referral of the matter to an investigative field office was necessary.”
Another part of the paperwork (a declaration sworn to by a high Board official), said that “… in response to receiving the online complaint, a staff service analyst on behalf of the MBC mailed a MBC standard form letter … informing him of the allegations lodged against him. ***
This standard form letter is generated and sent to the subject of a complaint when the MBC receives an online complaint….”
Ok, so a standard form letter is generated by the computer after it receives the online complaint, and the human assists the computer by putting the letter in an envelope affixing postage, and talking the letter to the mail department, is how I read it. But maybe I’m giving too much credit to the human because putting the letter in the envelope and affixing postage could also have been done the computer, or a less intelligent computer relative. We just don’t know at this point.
There is one small problem: The Board has a website, which for laudable transparency reasons, describes the complaint process. Here is what the Board represents to physicians and consumers:
“The Central Complaint Unit (CCU), part of the Enforcement Program, is responsible for the initial intake and review of all the complaints received to determine if there may have been a violation of the laws governing the profession which warrants further investigation.
* * *
CCU staff review all new complaints to determine the nature of the allegations and whether the complaint falls within the Board’s jurisdiction.”
Complaint Review Process, Consumers, MEDICAL BOARD OF CALIFORNIA, https://www.mbc.ca.gov/Consumers/File-a-Complaint/complaint-process.aspx (emphasis added).
Anyone see a problem here? Like what happened to the “CCU staff review of all new complaints to determine the nature of the allegations and whether the complaint falls within the Board’s jurisdiction.”
Well, actually, I have a theory about that: Part of the Board’s defense was to explain away why it waited six months after a human decided that Dr. Mackenzie did not spread “Covid information.” No, this time it wasn’t the computer’s fault. Rather, “Unfortunately, due to severe budgetary and staffing issues, the MBC staff service analyst did not transmit a closing letter… [for six months].”
So, here is how the dots might be connected: Maybe the computer was forced to step-up to the plate because the Cali. government didn’t give the Board enough money to properly run the agency. And maybe that is why humans are apparently no longer involved in the initial screening of complaints, and why humans now just put the computer’s letters into envelopes and take them to the mail department (assuming Hal Jr. doesn’t perform those functions).
Ok, we’ve now heard from the Board. I think we need to reserve judgment until we hear from the computer. Anyone speak Fortran?
Rick Jaffe, Esq.
P.S. The Board is apparently having its meeting tomorrow, August 24th, and Friday. If any of you attend, and if there is a public question period, maybe ask when humans will return to service and process complaints to make sure the Board actually has jurisdiction to commence an investigation.
And if you run into the computer, tell it to give me a call.