From Chief Judge Lance Walker (D. Me.) today in Nass v. Maine Bd. of Licensure in Medicine:

As alleged [in the Complaint], this case arises out of the COVID-19 pandemic and the desire of the medical establishment, in this instance the Maine Board of Licensure in Medicine, to compel medical practitioners to toe the line in all matters related to COVID medical treatments as well as messaging concerning vaccination efficacy and treatment alternatives.

Plaintiff Meryl Nass, M.D., has been a Maine-licensed doctor since 1997 with no disciplinary infractions prior to the events narrated below. Dr. Nass has testified to Congress on six occasions and, as an acknowledged expert on anthrax and the anthrax vaccine, has been quoted in major media outlets like the New York Times, the Washington Post, the L.A. Times, and the Chicago Tribune.

Dr. Nass's speech frequently involved topics like the governmental handling of the pandemic, the efficacy of masking and mask mandates, the suppression of effective medications to treat COVID-19 (such as ivermectin and hydroxychloroquine), the safety and risks of the COVID-19 vaccines, and other matters related to the pandemic. She discussed these topics on the radio, in interviews, on her blog, and elsewhere on the Internet. Dr. Nass's expressed viewpoints were critical of the government, its handling of the pandemic, and the vaccines….

The Defendants … all served as members of the Maine Board of Licensure in Medicine during the relevant timeframe. Dr. Gleaton served as the Chair of the Board. In the fall of 2021, Dr. Gleaton issued a position statement on behalf of the Board warning of disciplinary action for licensees "who generate and spread COVID-19 vaccine misinformation or disinformation" "or practice based on such misinformation."

Dr. Nass's viewpoints conflict with those asserted in the Board's position statement and the resources the position statement identified as useful in "support[ing] the fight against Covid-19 misinformation[.]" On or about October 6, 2021, the Board received a complaint that Dr. Nass was spreading misinformation in a video and on her website. The complainant qualified, "I am not her patient. I have never been treated by Meryl Nass, nor has anyone I am associated or acquainted with."

The next day, the Board issued a notice of complaint to Dr. Nass via email and demanded her response by November 6, 2021. On October 10, 2021, Dr. Nass questioned the Board's authority to investigate a complaint that has nothing to do with the practice of medicine and focused entirely on a statement made in her private life. The Board responded on October 14, 2021:

The basis of the Board's jurisdiction is that there is alleged unprofessional conduct, particularly where you have communicated in your capacity as a physician in the interview and on the website that could allow patient and the public to view the information you provide as misleading and/or inaccurate.

Dr. Nass timely responded with a Nebraska Attorney General Opinion Statement that physicians cannot be disciplined for prescribing ivermectin or hydroxychloroquine off-label for treatment of COVID-19….

On November 4, 2021, Dr. Nass appeared before the Maine Board of Pharmacy and advocated for reconsideration of Maine Board of Pharmacy Statement #CI-2021 on dispensing ivermectin. Statement #01-2021 indicated that ivermectin is not FDA-approved for treatment of COVID-19, that use of ivermectin creates a rise in poison control calls, and that pharmacists should take appropriate steps to verify that ivermectin prescriptions are issued for "legitimate medical purposes." As alleged, the rise in poison control calls was actually a misleading media narrative spread by the FDA to frighten people so that they would not use a very safe anti-viral medication. Dr. Nass disputed what she believed to be a false narrative. On December 14, 2021, Dr. Nass and other physicians appeared before a group of Maine Legislators via Zoom in a meeting organized by a legislator to discuss COVID-19.

On January 11, 2022, the Board met in executive session to discuss Dr. Nass. Dr. Fay-Leblanc presented the case against Dr. Nass, observing that the complaints under consideration "really focus around unprofessional conduct due to the spreading of misinformation about COVID-19 – primarily on social media."  Several of Dr. Nass's public remarks were in fact itemized in the Board's January 24, 2022, First Notice of Hearing directed to Dr. Nass. Member Dr. Waddell expressed being bothered by Dr. Nass's "harmful opinions."

Based on these concerns (and others) the Board promptly ordered (among other things[, including] {immediately suspend[ing] Dr. Nass's license to practice medicine}) that Dr. Nass submit to a psychological evaluation under 32 M.R.S. § 3286 (hereafter, the "Psychological Evaluation Order"). That statute authorizes the Board [in relevant part] to require a licensee to submit to a mental or physical examination when there is a complaint or allegation that a licensee "may be unable to practice medicine with reasonable skill and safety to patients by reason of mental illness, … or as a result of a mental … condition interfering with the competent practice of medicine." … The record … suggest[s] that, if anything, the Board considered Dr. Nass's opinions to be the product of not independent thought but a mental illness or mental condition. Alternatively, the imposition of this sanction would suggest that the Board was making an example out of Dr. Nass.

The Board's order chronicled Dr. Nass's public statements (among other issues) as a cause for the Psychological Evaluation Order and immediate suspension. Further inquiries from the Board further suggest its preoccupation with Dr. Nass's public statements. The Board itemized in its charging document several charges based on Dr. Nass's speech activity and later dismissed those charges in response to a motion to dismiss them on constitutional grounds.

The remaining grounds concerned the care Dr. Nass provided to three patients, including one charge that she misrepresented facts to a pharmacist so that the patient could fill a prescription for hydroxychloroquine. These claims asserted noncompliance with the standard of care for telemedicine, but also implicitly included Dr. Nass's prescription of ivermectin and hydroxychloroquine to patients with COVID.  None of the patients complained about the care provided to them by Dr. Nass. Rather, others with connections to the patients made complaints to the Board.

The matter proceeded to an adversarial Board hearing on the patient-centered complaints and concluded with an order finding that Dr. Nass failed to meet the standard of care in relation to patient care. Dr. Nass petitioned for state court review under Rule 80C of the Maine Rules of Civil Procedure. In an order dated October 30, 2025, the Superior Court granted Dr. Nass relief on her challenge to the Board's Psychological Evaluation Order and vacated the Order, finding that the Order was arbitrary and capricious.

The Superior Court otherwise upheld the Board's findings and sanctions, concluding, among other things, that the Board's findings of breaches of the standard for patient care and the sanctions imposed were not the product of retaliatory animus or otherwise the product of unconstitutional bias. The Superior Court determined that, ultimately, even if the Board's members "harbored personal opinions as to the substance of Dr. Nass's speech," in the context of their eventual hearing and determination, "they did not allow those opinions" to determine the outcome and instead based their determination on reliable evidence (expert testimony) that Dr. Nass's practice had fallen below the professional standard of conduct. Neither party appealed the Superior Court's Rule 80C Order and Decision.

The court concluded that defendants were protected in their personal capacities against liability, because of their absolute quasi-judicial immunity, "with respect to the conduct of the hearing and the resulting determination." But the court allowed the claims based on the Psychological Evaluation Order to go forward:

I … agree with Dr. Nass that the immediate imposition of the Psychological Evaluation Order did not bear any of the hallmarks of judicial proceedings. In judicial proceedings, at a minimum probable cause findings ordinarily are required to justify pretrial impositions. In this case, as alleged, the Board dispensed with preliminary proceedings altogether.

Accepting for present purposes that Defendants acted in the absence of any showing that a psychological evaluation was warranted, they were effectively acting as hybrid complainant-adjudicators misapplying their power to make ex parte adjudications based on a predetermined perspective that Dr. Nass must be of unfit mind to speak out as she did, largely on the basis that her views were discordant with their own orthodoxy. This assessment is reinforced by their failure to afford any process whatsoever, as alleged, which approach was alarmingly out of step with anything like the judicial process. Under these alleged circumstances, the proceedings as of January 2022 lacked any safeguards to protect against agency zeal and resembled investigatory action imposed, somewhat ironically, in the absence of evidence rather than the initiation of an impartial, sober, thoughtful judicial process designed to assess the truth of facts to arrive at the existence of probable cause to justify such a sanction.

In acting as they allegedly did, Defendants emphatically would not have been performing "functions essentially similar to those of judges or prosecutors, in a setting similar to that of a court." Nor is it fair to say that immunity from the potential imposition of liability for such conduct is "essential to protect the integrity" of quasi-judicial administrative proceedings. A medical licensing board has no need to conduct itself in this manner at all, the contrary is in fact probably indicated and it should always consider whether evidence of mental incompetence is extant…. The supposed "function" at issue (a Psychological Evaluation Order based on no evidence or process) does not need to be insulated from the "harassment" of litigation because it simply ought not occur, ever. Nor were any "safeguards" apparent. Nor is it evident that the approach taken by Defendants insulated the process from undue "political influence."

To the contrary, political influence would appear to have been the point. Rather than acting as insulation against political influence, Defendants were something like conductors for it. Nor was there any apparent application of "precedent." Nor was an adversary process employed.

That leaves only the "correctability of error on appeal." That did occur here, but only after the Board conducted a year-long hearing during which Dr. Nass was labeled an "immediate threat to the public." See National Practitioner Databank Report. That is an insufficient reed standing on its own to support the "exceptional" weight of absolute immunity. Consequently, for this component of Defendants' alleged conduct, qualified rather than absolute immunity sets the proper standard….

Defendants' [qualified immunity] argument rests on a presumption that the Superior Court's findings are preclusive on all qualified immunity elements. Yet, they also state:

[A]lthough the [Board]'s Order Directing Evaluation did not include facts to establish the statutory grounds to accord with Maine administrative law, the Superior Court expressed no concerns that the [Psychological Evaluation] Order might have been issued out of a desire to retaliate against Dr. Nass's views on the COVID vaccine or any other motivation barred by the United States Constitution.

But because the Superior Court "expressed no concerns," it is difficult to understand why issue preclusion would apply. This lack of expressed concern is hardly the same thing as a decision on the issue, and an undecided issue cannot support issue preclusion. Moreover, the Superior Court vacated the Psychological Evaluation Order after concluding it was arbitrary and capricious, which, if anything, invites further examination into the actual cause of the order. Ultimately, the Superior Court's findings and conclusions do not compel recognition of qualified immunity.

Beyond leaning on the Superior Court's findings, Defendants do not argue that the facts and circumstances alleged do not raise a controversy over a clearly established right….

{Defendants' papers carve out the Psychological Evaluation Order as the only theoretical component of Dr. Nass's case that might deserve different treatment than every other action taken by Defendants. Dr. Nass, too, draws lines, and she would include both the Psychological Evaluation Order and the Immediate Suspension Order if absolute immunity is applied to the hearing and the ultimate decision.

Because of the way the arguments have been presented, I am not persuaded that the immediate suspension order necessarily falls within the scope of quasi-judicial immunity. It would be worthwhile to consider the standard that applies to such an order and whether it depended entirely on the imposition of the Psychological Evaluation Order or was better informed from an evidentiary standpoint, pushing it into the realm of quasi-judicial conduct as opposed to political conduct.

Ultimately, I intend with this Order only to insulate Defendants from liability arising out of the hearing and the eventual determination. But Defendants are free to return to the question of where the line should be drawn in later, presumably summary judgment, proceedings.}

Gene Libby, Michael Saucier, and Tyler Smith (Libby O'Brien Kingsley & Champion, LLC) represent Nass.

The post Suit Alleging Medical Establishment's Desire to Compel Doctors "to Toe the Line in All Matters Related to COVID …" Can Go Forward appeared first on Reason.com.