Washington Doctor Under Investigation for Criticizing COVID Policies Wins Emergency Injunction

A Washington state appeals court this week granted an emergency injunction to a retired doctor who faces disciplinary action from the Washington Medical Commission (WMC) arising from articles he published in a local newspaper in 2021, questioning the official narrative and medical advice related to COVID-19.

Dr. Richard Eggleston, a retired ophthalmologist in Clarkston, Washington, wrote the articles as part of an ongoing column in the Lewiston Morning Tribune. He challenged the WMC’s disciplinary proceedings against him on First Amendment free speech grounds.

According to Tuesday’s ruling:

“The Commission seeks to sanction Dr. Eggleston based on allegations that he, a currently retired physician and surgeon whose license is currently retired active-in-state volunteering, committed unprofessional conduct.”

This “unprofessional conduct” pertained to alleged “false statements” Eggleston made “regarding medical issues and promulgated misinformation regarding the SARS-CoV-2 virus and treatments for the virus.”

The stay delays hearings that were scheduled to begin this week in the Washington Court of Appeals and gives the WMC a brief opportunity to withdraw its charges against Eggleston. Otherwise, the legal process will continue.

In an interview with The Defender, Eggleston said the ruling was appropriate. “I’m very happy to see that this part of the legal system understands this First Amendment issue and basic rights to get accurate information from a physician.”

Todd Richardson, one of the attorneys representing Eggleston, told The Defender:

“We are very gratified to have the court of appeals grant the stay in this matter. I have believed that Dr. Eggleston’s First Amendment rights were being trammeled, and it was of deep concern how slightly the Constitution was considered by the commission, the legislature and others.

“As Americans, if we don’t conscientiously defend these foundational rights and freedoms, we may soon wake up to realize we have lost them. “

Rick Jaffe, an attorney also representing Eggleston, told The Defender:

“The Washington Medical Commission is under the constitutionally mistaken belief that medical boards can discipline physicians for what they say in public. That was something that was floated by the Federation of State Medical Boards [FSMB] in a July 2021 press release, but since then every single state that has considered doing this has backed off, except in Washington.

“Every single justice and judge who has addressed this issue in the past 75 years has said that licensing agencies cannot interfere with the public speech of their licensees.”

The July 2021 FSMB press release stated:

“Physicians who generate and spread COVID-19 vaccine misinformation or disinformation are risking disciplinary action by state medical boards, including the suspension or revocation of their medical license. Due to their specialized knowledge and training, licensed physicians possess a high degree of public trust and therefore have a powerful platform in society, whether they recognize it or not.

“They also have an ethical and professional responsibility to practice medicine in the best interests of their patients and must share information that is factual, scientifically grounded and consensus-driven for the betterment of public health.

“Spreading inaccurate COVID-19 vaccine information contradicts that responsibility, threatens to further erode public trust in the medical profession and puts all patients at risk.”

Lawyers for Eggleston told The Defender this is one of several dozen similar cases the WMC launched against doctors who did not uniformly follow the establishment COVID-19 narrative.

“I am told that there are 60 Washington physicians who are being investigated or prosecuted in part because of their questioning the mainstream COVID narrative,” Jaffe added.

Judge: ‘Chilling effect on speech’ arising from possibility of prosecution is itself a First Amendment violation

According to the Lewiston Tribune, Eggleston sought the stay in order to seek First Amendment protections for his speech, arguing the WMC “seeks to silence the public expression of opinions it disagrees with” and “sanction disfavored opinions.”

Tuesday’s ruling means a delay to a disciplinary hearing with the WMC that had been scheduled for Wednesday through Friday.

“The state’s lawyer, Kristin Brewer, argued in the May 17 hearing that Eggleston’s First Amendment rights were not being violated, because the disciplinary hearing necessary to impose sanctions had not been held,” the Lewiston Tribune reported.

In Tuesday’s ruling, the state argued that its witnesses and members of the WMC would be “inconvenienced” by the stay. However, the court ruled that the WMC “has not demonstrated that a stay would cause actual harm to the public.”

Siding with Eggleston, court commissioner Hailey L. Landrus said he “has a competing interest in enjoining the disciplinary proceedings in order to seek First Amendment protection for his speech, which is the reason for the administrative proceedings in the first place.”

“Denying a stay would … violate his constitutional right to free speech,” Landrus added.

Landrus also referenced a 1965 U.S. Supreme Court decision — Dombrowski v. Pfister — in which the court ruled that the chilling effect on speech arising from the possibility of prosecution was itself a First Amendment violation.

A commissioner is a judge appointed by a court to hear certain limited legal matters in a timely manner.

“I was cheering when I got it,” Richardson told the Lewiston Tribune. “It is a preliminary ruling, and I don’t know what the commission is going to do about it. And so there may be a great deal of work yet to come.”

The WMC now has 10 days to file a motion to reverse the emergency stay. If it does so, Eggleston’s lawyers will have three days to respond. A panel of three judges will then decide whether to reverse the stay.

Lawyers for Eggleston told The Defender the stay is preliminary. If the three-judge panel chooses not to modify the stay, the case will then proceed in appellate court — unless the WMC opts to withdraw its charges against Eggleston.

Richardson shared an analysis of the ruling and the current status of the case with The Defender:

“What does the ruling mean? First, that Dr. Eggleston is not facing a commission panel for three days of testimony and argument to determine whether he gets to keep his license. That day may yet come as this is a preliminary ruling — but if that day comes, it will be sometime down the road and it will require that a series of courts refuse to protect the good doctor’s First Amendment rights. And I really don’t anticipate that to happen.”

Richardson said unless the commission withdraws the charges, “we will proceed with the appeal. Assuming we prevail, then the case could be appealed up to the Washington Supreme Court and/or into the federal court system.”

Otherwise, the case would be sent back to the trial judge for a hearing on whether a permanent injunction should be issued, Richardson said.

According to the Lewiston Tribune, “If the appeal process for the preliminary injunction moves forward, it could take six to 12 months to see a ruling.”

Doctors ‘being persecuted for telling patients the truth’

The WEC claims it received “complaints regarding Respondent’s pseudoscientific publications” in September 2021. The sources of these complaints were not specified in the legal filings reviewed by The Defender.

The specific charges levied against Eggleston include unprofessional conduct, misrepresentation or fraud in any aspect of the conduct of the business or profession, and interference with an investigation or disciplinary proceeding by “willful misrepresentation of facts.”

The WMC relied on a series of articles Eggleston published in 2021, for his ongoing column in the Lewiston Tribune, including:

According to the legal filings, the Lewiston Tribune had a 2017 circulation of approximately 25,000in southeastern Washington and north-central Idaho, in addition to its online edition.

Eggleston’s Sept. 5, 2021, article stated that “ivermectin and hydroxychloroquine are very effective and safe, and should be used along with vitamins C and D, melatonin, zinc, and quercetin,” and referenced “those who wish to control our individual lives and make us part of a Marxist/fascist collective.”

His July 11, 2021, article referenced censorship of non-establishment COVID-19 views in the media, naming the Trusted News Initiative as one of the actors responsible for this, along with Bill Gates and the World Economic Forum. “‘Fear porn’ is always the tool of tyrants,” Eggleston wrote.

In January, Children’s Health Defense (CHD) filed an antitrust lawsuit against the Trusted News Initiative, a consortium of news organizations including The Associated Press, BBC, Reuters and The Washington Post, alleging they colluded with other news outlets and social media platforms to censor diverging viewpoints on COVID-19.

Eggleston’s June 13, 2021, article was critical of the World Health OrganizationBill & Melinda Gates Foundation, and Gavi, the Vaccine Alliance, suggesting that “Many entities want ivermectin to disappear.” He characterized medical journals such as JAMA, The Lancet, Nature and Chest as “ivermectin disinformation sources.”

And in his March 17, 2021, article, Eggleston said he believes that “soon, ivermectin, the inhaled steroid budesonide and others will be the standard of care for prevention and treatment of SARSCov2 (COVID-19).”

The WMC argued that in these and other articles Eggleston wrote in 2021, he “identified himself as a licensed physician by using ‘M.D.’ in the tagline included at the end of the column,” adding that in multiple instances in these columns, Eggleston:

  • Made false statements regarding medical issues and promulgated misinformation regarding the SARS-CoV-2 virus and treatments for the virus.
  • Minimized deaths from SARS-CoV-2.
  • Stated that polymerase chain reaction (PCR) tests are inaccurate for SARS-CoV-2 diagnosis.
  • Stated that COVID-19 vaccines and mRNA vaccines are harmful or ineffective.
  • Stated that ivermectin is a safe and effective treatment for COVID-19.

The WMC also alleged Eggleston “willfully misrepresented facts with regard to the SARS-CoV-2 virus and denied that it existed,” in statements he made to the commission.

These “willfully misrepresented statements,” according to the WMC, included stating that there is “no absolute proof that the SARS-CoV-2 exists” and “influenza cases nearly disappeared in 2020 as influenza was relabeled ‘COVID’ … due to faulty testing.”

‘I’m not going to be afraid to write’

Eggleston and his attorneys argue that he was merely expressing his opinion “to become part of the public debate,” and that at no time did he “use his opinion article to treat, diagnose, or provide care for any patient.”

Instead, his articles in the Lewiston Tribune were “published in an effort to further public debate and offer alternative thoughts and information,” adding that such “content-based restriction on speech” by the WMC “is a violation of the First Amendment and Art. 1, Sec. 5 of the Washington State Constitution.”

Eggleston’s lawyers told The Defender the WMC has given itself broad authority to define “practicing medicine,” including arguing that if a person is practicing medicine if he or she uses the designation “physician,” “surgeon” or “M.D.” on “cards, books, papers, signs, or other written or printed means of giving information to the public.”

Eggleston told The Defender he loves to read, but at some point decided he needed “to do something.” When an opportunity became available at the Lewiston Tribune for a columnist, he applied and was hired.

He said he did not know who submitted the complaints against him, but he expected the WMC would take action against him for his writings. However, in deciding to start writing, he felt he had to stand up for his beliefs.

“I knew that was coming when I started to write this and I suspected that, at some time, someone would follow with a complaint to the commission,” Eggleston said.

“I’m going to write these things. I’m not going to be afraid to write,” he added.

‘I think it is important to realize how fragile our rights can be’

The legal action against Eggleston has followed a circuitous route. The WMC informed him of its investigation on Oct. 5, 2021. He was subsequently served with a Statement of Charges on Aug. 4, 2022, to which Eggleston filed a response on Oct. 9, 2022. The hearing was scheduled for May 24-26, 2023.

Eggleston filed a motion for a temporary restraining order and a motion to expedite his hearing on March 10. On March 17, the second of the two motions was granted by the U.S. District Court for the Eastern District of Washington.

Separate motions by Eggleston to dismiss the case and for a preliminary injunction were rejected on April 28 and May 17.

Jaffe credited CHD with supporting Eggleston in this case. “This is now the second time a CHD-backed case has resulted in stopping a medical board from enforcing COVID misinformation prosecutions,” Jaffe said.

Richardson highlighted the importance of protecting and preserving constitutional rights, telling The Defender:

“One thing is certain — Dr. Eggleston didn’t need this fight as he is over 80 years old and has been retired for over 10 years, but as an old Army veteran, he chose to stand up again and defend the rights of others and he isn’t about to back down now. Dr. Eggleston has had his integrity and medical understanding publicly challenged. Reporters, colleagues, and laymen have judged him, but time is proving him right.

“I think it is important to realize how fragile our rights can be. When we protect them from usurpation, they are robust and form the bulwark of our constitutional system. But if we fail to keep watch over them, those who seek power will quickly attempt to invade them in the most creative of ways, and if they are successful, we will be left forever impoverished for their loss.”

Eggleston said he “looks forward to this battle” and that he is fighting it not for himself, but “for my children, my grandchildren, everyone else’s children and all the other doctors who are being persecuted for telling patients the truth.”

“I actually look forward to this battle, because this is such an important thing, fighting for the First Amendment and patients’ rights to be protected,” he said. “I think we have a great chance to set a standard and set a precedent for freedom of speech by physicians.”

“You have to stand up for what you think is right because you may not have a lot of time to do it.

Michael Nevradakis, Ph.D., based in Athens, Greece, is a senior reporter for The Defender and part of the rotation of hosts for CHD.TV’s “Good Morning CHD.”

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