Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Physicians are aware of the mantra “Do No Harm.” There’s a Virginia-based advocacy group also called Do No Harm. One of its missions is to erase identity politics in medical education and clinical practice. It has filed 150 discrimination complaints to the Office of Civil Rights under the US Dept of Education. And with the assistance of the Pacific Legal Foundation, it just filed a lawsuit against the Louisiana State Board of Medical Examiners. Actually, the lawsuit is against Governor John Bel Edwards, in his official capacity as the executive who nominates/selects medical board members.

The gist of the lawsuit is this.

Louisiana passed a law in 2018, Act 599, which specifies the governor must consider candidates ethnicities when making appointments from four entities: LSU Health Sciences Center at Shreveport, LSU Health Sciences Center at New Orleans, Louisiana Hospital Association, and a consumer list of candidates without background medical expertise (laypersons). Every other member from the four entities must have a minority background, such that at least two of the four seats will be filled by minority candidates during the next appointment cycle.

The Act does not define a minority.

Other requirements for physician members are straightforward: “resident of state for more than six months, currently licensed and in good standing to engage in practice of medicine in Louisiana, actively engaged in the practice of medicine in Louisiana, five years of experience in practice of medicine in Louisiana after licensure, not convicted of a felony, not been placed on probation by the Board.”

In the lawsuit, Do No Harm alleged the statute enables the exclusion of non-minority candidates, in violation of the Equal Protection Clause of the Fourteenth Amendment.

The lawsuit catapult enabled liftoff after the Supreme Court decision last year ending affirmative action in higher education. There, Students for Fair Admission, Inv. versus President and Fellows of Harvard College, held “Harvard’s and UNC’s (University of North Carolina’s) admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.”

In a historic decision, the Supreme Court severely limited, if not effectively ended, the use of affirmative action in college admissions on Thursday. By a vote of 6-3, the justices ruled that the admissions programs used by the University of North Carolina and Harvard College violate the Constitution’s equal protection clause, which bars racial discrimination by government entities.

Writing for the majority, Chief Justice John Roberts explained that college admissions programs can consider race merely to allow an applicant to explain how their race influenced their character in a way that would have a concrete effect on the university. But a student “must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote. The majority effectively, though not explicitly, overruled its 2003 decision in Grutter v. Bollinger, in which the court upheld the University of Michigan Law School’s consideration of race “as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.” Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined the Roberts opinion.

Back to the Louisiana lawsuit. It’s not the only one. Do No Harm has also sued Medical Board of California requiring CME courses cover implicit bias training, arguing it violates participants rights to free speech.

In 2019, the California Legislature enacted Assembly Bill 241. As of January 1, 2022, all continuing medical education courses in California must include discussion of “implicit bias.” But the efficacy of implicit bias training in reducing disparities and negative outcomes in healthcare is controversial in the medical community and lacks evidence. Because of that controversy, because they prefer to teach different, evidence-based subjects, and because they do not want to espouse the government’s view on implicit bias, Plaintiffs Azadeh Khatibi and Marilyn Singleton, as well as at least one member of Plaintiff Do No Harm, do not want to be compelled to include discussion of implicit bias in the continuing medical education courses they teach.  

Rather than respect the freedom and judgment of continuing medical education instructors to choose which topics to teach, California law now requires the Medical Board of California to enforce the mandate that all continuing medical education courses include discussion of implicit bias. Under the First Amendment to the United States Constitution, the government cannot compel speakers to engage in discussions on subjects they prefer to remain silent about. Likewise, the government cannot condition a speaker’s ability to offer courses for credit on the requirement that she espouse the government’s favored view on a controversial topic. This case seeks to vindicate those important constitutional rights.

Also in the firing line include governor of Tennessee (addressing Board of Podiatric Medical Examiners) and the medical journal Health Affairs. The common denominator is using race as the distinguishing feature in selecting candidates for leadership roles or positions.

Given that the US Supreme Court has re-defined the contours of what is permissible, oversight organizations are changing direction or messaging. For example,

Joe Knickrehm, vice president of communications for the Federation of State Medical Boards (FSMB), told Medscape Medical News that the organization recommends medical boards include appointees who “reflect the demographics of the state” and are “drawn from different regions…and diverse specialties.”

FSMB’s board membership policy further states that “sex, race, national or ethnic origin, creed, religion, disability, gender identity, sexual orientation, marital status, or age above majority should not preclude an individual from serving on the board.”

While being drawn from different specialties and different regions are ways to define diversity, that is not the colloquial meaning which has permeated public discourse in the recent past. It will be interesting to see how many, if any, of such lawsuits work their way to a decision. And whether some organizations will update their policies in advance  to render the matter moot.

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.