Idaho Board of Medicine attorney says public opinion will not alter the law

Idaho Capitol Sun

In a roundabout way, the Idaho Board of Medicine addressed some of the controversy surrounding COVID-19 misinformation during a meeting Wednesday.

Board attorney Yvonne Dunbar described the board’s jurisdiction and rules for disciplining doctors, physician assistants and others whose licenses it oversees.

The Idaho Medical Association recently filed a complaint against Garden City pathologist Dr. Ryan Cole. The complaint was not public until the political organization Idaho Freedom Foundation published a blog post about it; since then, the group Health Freedom Idaho has issued a call to action for people to voice their support for Cole.

The Washington Medical Commission has opened an investigation into whether Cole met the standard of care for licensees in that state, the Sun reported this week.

“The Idaho State Board of Medicine is an unbiased regulatory board appointed by the governor. It is not a political body,” Dunbar said at the meeting. “That means, while we understand and appreciate that the public has opinions regarding matters currently in the news, those opinions will not impact how the board proceeds. … The board will proceed within the confines of the law. Public opinion, whether in support of or against the complaint, will not alter the law; the statutory language remains the same.”

Dunbar said the board and its staff “will not respond to any communications which are solely expressing opinions regarding media reports.”

The board has a process for evaluating complaints, she said, directing people to follow the board’s instructions for filing a complaint.

Dunbar said she recently talked with outside attorneys about the board’s approach to handling “certain matters.” She said those attorneys were “supportive of how the board is proceeding on the matters I discussed with them.”

The board did not take any formal disciplinary action in response to a complaint filed in August by Idaho 97 Project Executive Director Mike Satz. The complaint pointed to Cole’s public statements on COVID-19 and the Federation of State Medical Boards’ position that spreading false information may be cause for discipline, the Sun reported.

“The Board’s jurisdiction is governed by what is in its statutes and rules,” said the board’s response to Satz’s complaint. “Neither the Idaho Medical Practice Act nor the applicable administrative rules provide a basis for the Board to discipline licensees for statements made during a conference, to the media, or in any other public setting.”

In the board meeting Wednesday, Dunbar said the board cannot discipline a health care provider for reasons beyond what is specified in the law.

“When the board reviews complaints and investigations, it also considers whether a potential investigation or disciplinary action (could) give rise to constitutional questions,” she said. “As such, the board considers the impact of a licensee’s constitutional rights, such as First Amendment rights, as well as the Fourteenth Amendment rights to procedural and substantive due process and equal protection …”

Dunbar said that in some situations, the board may temporarily suspend or restrict a medical license while it works through the disciplinary process. That would only happen if it was investigating a complaint, if the case met narrow criteria for discipline, and if “the physician is causing great harm to the public, or to a patient or group of patients, or is imminently likely to cause such harm,” Dunbar said. “In order for the board to invoke this provision, the board must first have grounds for pursuing discipline” and must have “clear and convincing evidence” that the physician’s conduct is causing or “imminently likely” to cause great harm.

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