Dr. Stephen Skoly, Jr. v. Daniel McKee, Gov. of Rhode Island, and James McDonald, Interim Dir. of RIDOH

CASE SUMMARY

Arbitrary and irrational government mandates responding to the COVID-19 pandemic deprived millions of patients across the country of much-needed medical care. The State of Rhode Island provides a particularly acute example of such devastating unintended consequences. The Rhode Island Department of Health (RIDOH) shut down an oral surgery practice that was taking care of over 800 patients per month, plus state psychiatric hospital patients and state prison inmates. By excluding health care providers with natural immunity from practicing, the State created an artificial hospital staffing shortage. To cope with that problem of its own making, RIDOH allowed health care providers with active Covid infections to treat patients instead.

NCLA filed a lawsuit against Rhode Island Governor Daniel McKee and Dr. James McDonald, the Interim Director of RIDOH, in their official capacities. The suit, filed on behalf of Dr. Stephen Skoly, Jr., the oral and maxillofacial surgeon whose practice the State shut down, challenged the State’s arbitrary and irrational policies as violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

There are few practicing oral and maxillofacial surgeons in Rhode Island with the skills and experience of Dr. Skoly. In fact, there is a critical shortage of dental surgeons for the State’s 1.1 million people. Nonetheless, the State arbitrarily and unlawfully ended Dr. Skoly’s distinguished surgical practice, shuttered his medical facility, and left Dr. Skoly’s staff of ten unemployed.

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CASE STATUS: Closed

CASE START DATE: February 4, 2022

DECIDING COURT: U.S. District Court for the District of Rhode Island

ORIGINAL COURT: U.S. District Court for the District of Rhode Island

CASE DOCUMENTS

January 30, 2023 | Plaintiff’s Response to Defendants’ Motion to Dismiss
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August 18, 2022 | Third Amended Complaint in the United States District Court for the District of Rhode Island
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August 18, 2022 | Motion to Amend the Complaint in the United States District Court for the District of Rhode Island
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April 26, 2022 | Second Amended Verified Complaint for Declaratory and Injunctive, and Other Relief
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April 26, 2022 | Motion to Amend Verified Complaint
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March 11, 2022 | Dismissal Stipulation
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March 11, 2022 | March Emergency Regulation
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February 4, 2022 | Motion for a Temporary Restraining Order and Preliminary Injunction and Memorandum of Law in Support
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February 4, 2022 | Complaint for Declaratory and Injunctive, and Other Relief
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PRESS RELEASES

January 30, 2023 | Rhode Island Oral Surgeon Continues Battling Government Retaliation over Opposing Vaccine Mandate

Washington, DC (January 30, 2023) – The State of Rhode Island unlawfully prevented Dr. Stephen Skoly from practicing critically needed dental care in retaliation for his public opposition to the temporary emergency regulation mandating that “all health care workers and health care providers be vaccinated against COVID-19.” Statements by and behavior of state officials make clear that administrative actions against Dr. Skoly were taken precisely because he publicly voiced his opposition and would not have been taken but for Dr. Skoly’s speech. Today, the New Civil Liberties Alliance filed a response to the government’s Motion to Dismiss Skoly v. McKee, et al., in the U.S. District Court for the District of Rhode Island. The First Amendment prohibits government officials from subjecting someone to retaliatory actions, like singling them out for investigation, for speaking out. 

Dr. Skoly, an oral and maxillofacial surgeon, had been practicing his profession in Rhode Island for over two decades when, in response to the Covid pandemic, the Rhode Island Department of Health unlawfully, and in contravention of several constitutional provisions, essentially shuttered his practice. Because of Dr. Skoly’s prior experience being stricken with Bell’s Palsy and his acquisition of natural immunity from his own Covid infection, he declined vaccination. Despite Dr. Skoly’s condition, his commitment to patient safety (including robust masking protocols), and lack of any evidence of patients becoming infected at his office, Rhode Island refused to provide Dr. Skoly with a medical exemption from the vaccine requirement for over five months. 

Dr. Skoly sought an administrative hearing on the compliance order, but this request was resolved through a stipulation of dismissal. On March 11, 2022, Rhode Island replaced the original vaccine mandate with a revised one that did not apply to Dr. Skoly’s practice within his office. But Dr. Skoly’s First Amendment claim in this lawsuit has not been resolved. The question of whether Defendants retaliated against Dr. Skoly for exercising his First Amendment rights remains live and the Court should furnish the requested relief. 

Because retaliatory prosecution for exercising one’s First Amendment rights is unequivocally prohibited, courts have denied qualified immunity to officials who have brought such prosecutions. Here, government officials—per their own admission—prohibited Dr. Skoly from practicing dentistry in retaliation for his public opposition to the state’s vaccine mandate. With NCLA’s help, through this litigation, Dr. Skoly won the ability to resume his medical practice, but the violation of his First Amendment rights must be addressed. The Court should also award declaratory and injunctive relief inhibiting the State from repeating this unlawful conduct in the future. 

NCLA released the following statement: 

“While unlawfully prohibiting Dr. Skoly from seeing patients, the State of Rhode Island permitted individuals with active, ongoing Covid infections to work in hospitals and other healthcare facilities. This disparate treatment and the fact that no other healthcare provider, vaccinated or not, was treated similarly to Dr. Skoly shows that the actions taken against him were not done for any public health reasons, but purely in retaliation for Dr. Skoly’s speech. While NCLA and Dr. Skoly are gratified that Rhode Island has rescinded some of its unjustifiable restrictions and mandates, we still intend to hold Rhode Island accountable for its unlawful and unconstitutional actions.”
— Greg Dolin, M.D., Senior Litigation Counsel, NCLA

For more information visit the case page here. 

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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August 19, 2022 | Oral Surgeon Renews Suit Against Rhode Island Covid-19 Vaccine Mandate, as CDC Eases Guidelines

Washington, DC (August 19, 2022) – The Centers for Disease Control and Prevention (CDC) finally admitted that it makes no sense to distinguish between vaccine immunity and natural immunity. Even so, the State of Rhode Island has put in place an irrational Covid-19 vaccine mandate on medical professionals, including those who have natural immunity to the virus. The New Civil Liberties Alliance filed an amended complaint challenging the mandate in the U.S. District Court for the District of Rhode Island on behalf of local oral and maxillofacial surgeon Dr. Stephen Skoly in the lawsuit, Skoly v. Daniel McKee.

Rhode Island’s order, updated in June, adds a new, not-publicly-discussed section to an existing temporary emergency regulation issued by the Rhode Island Department of Health (RIDOH) in 2021. The new rule requires all Medicare and Medicaid certified providers, suppliers, and healthcare workers to get the Covid-19 vaccine. The mandate discriminates between different types of unvaccinated healthcare workers. The preferred unvaccinated (those with accepted medical exemptions) are allowed to wear N95 masks and work, while the unpreferred unvaccinated (those with a not accepted medical condition, or natural immunity, or a religious belief) are compelled to suffer loss of livelihood despite being willing to be N95 masked.

Dr. Skoly has a history of Bell’s Palsy paralysis and, due to the uncertainties regarding the risk of onset, or duration, of a palsy recurrence, he made the medical decision not to receive a Covid-19 vaccination. In addition, as confirmed by blood tests, Dr. Skoly recovered from a previous Covid-19 infection and now retains a positive level of Covid-19 antibodies; therefore, any risk his presence poses to a vulnerable patient is, at worst, identical to the risk posed by a physician whose Covid-19 immunity is achieved through vaccination. However, the new rule allows for limited medical exemptions, not including Bell’s Palsy.

Dr. Skoly was able to get back to serving his community earlier this year after NCLA sued the government over its discriminatory emergency order. He is now challenging the new mandate, asking the State simply to treat him in the same manner as other healthcare workers being granted medical exemptions. The exempted are permitted to continue to practice their profession, including by seeing vulnerable patients, provided they adhere to safety precautions, primarily N95 masking during employment, with which Dr. Skoly already complies.

Additionally, the government has wrongfully identified Dr. Skoly as a practitioner who has been subject to professional discipline on RIDOH’s website. This false posting has caused, and continues to cause, financial and reputational harm to Dr. Skoly. Despite being requested to do so, Defendants have thus far refused to correct the RIDOH website. Dr. Skoly is asking for compensatory damages for the business he lost.

NCLA released the following statements:

“It is ignorant obscurantism—on the order of claiming the earth is flat, or the sun revolves around the earth—to claim that the Covid-recovered Dr. Skoly presents any greater risk of infection to vulnerable patients than a vaccinated health care worker. With this lawsuit, it is hoped that Rhode Island can be pushed, kicking and screaming if necessary, to accept the science of naturally acquired immunity to Covid.”
Brian Rosner, Senior Litigation Counsel, NCLA

“The Centers for Disease Control and Prevention have finally come around to admit the scientific fact that recovery from Covid-19 embues people with naturally acquired immunity to the virus. Rhode Island’s leaders are apparently slower learners. By continuing to treat Dr. Skoly like he poses a threat to vulnerable patients, even though he has antibodies to the Covid-19 virus, the state’s irrational order cannot withstand a court’s scrutiny.”
Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here and watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

 

May 2, 2022 | WATCH: Rhode Island Doctor Returns to Practice After NCLA Challenges Covid-19 Order

Washington, DC (May 2, 2022) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil liberties group, released a case video today explaining the lawsuit it has brought on behalf of its client, Rhode Island oral and maxillofacial surgeon Dr. Stephen Skoly. The Rhode Island Department of Health (RIDOH) shut down Dr. Skoly’s practice because he refused to comply with the state’s Covid-19 vaccine mandate for health care workers and spoke out against the mandate. Dr. Skoly has a history of Bell’s Palsy facial paralysis and risked a paralysis recurrence if vaccinated. In addition, Dr. Skoly has naturally acquired immunity to Covid, having recovered from a prior Covid-19 infection. Nonetheless, in October 2021, RIDOH shuttered Dr. Skoly’s 11-person medical facility, preventing him from providing care to hundreds of private patients, as well as to the state’s most vulnerable public patients—the residents of the state’s psychiatric hospital and prison where Dr. Skoly was employed as the only dental surgeon.

 

 

The purpose of the vaccine mandate for health care workers was to protect vulnerable patients from being infected, but Dr. Skoly’s patients were at no more risk from him than from a vaccinated oral surgeon for two reasons. First, he already has the antibodies to Covid-19 that a vaccine would provide him. Second, he always fully masks when treating his patients. Even though Rhode Island exempted from the mandate hundreds of health care workers (who had other medical reasons to not be vaccinated) and allowed them to work in close physical proximity to patients (so long as the workers wore N95 masks), the state refused to exempt Dr. Skoly. Rhode Island had no rational basis to treat the masked, unvaccinated Dr. Skoly differently from the masked, unvaccinated exempt health care workers, allowing them to be employed, while forcing him to become unemployed. Bizarrely, Rhode Island even allowed vaccinated health care workers with an active Covid-19 infection to treat vulnerable patients so long as the infected worker wore an N95 mask, but it still refused to allow Dr. Skoly to treat anyone.

On Dr. Skoly’s behalf, NCLA filed a lawsuit against Governor Daniel McKee and Dr. James McDonald, RIDOH’s Interim Director, to force Rhode Island to permit Dr. Skoly to resume practice. In March 2022, after over five months of suspension, and three days before a court hearing where medical experts were to testify to the irrationality of Rhode Island’s conduct, Rhode Island finally relented. It agreed to treat the N95 masked Dr. Skoly the same as other unvaccinated N95 masked workers. Dr. Skoly was permitted to re-assemble his ten-person dental team and return to practice.

However, Dr. Skoly’s case is not over. The lawsuit, Skoly v. Daniel McKee and James McDonald, seeks declaratory relief that Rhode Island violated Dr. Skoly’s constitutional rights, a permanent injunction to prevent Rhode Island from violating his rights again, and damages in part for denying him unemployment insurance during the period of time when he was prevented from practicing. NCLA filed the Second Amended Verified Complaint in Dr. Skoly’s case this past week, laying out his ongoing claims against Governor McKee and Director McDonald.

Excerpts from the video:

“We stayed right through the pandemic. … I caught Covid in December of 2020. But after the appropriate quarantine, we came right back and did what we’re trained to do, which is what health care workers did around the country. Unfortunately, when the vaccine mandate started, these health care workers, once heroes, were now being criticized for questioning the vaccine status, no matter how legitimate their concerns would be.”
— Dr. Stephen Skoly, Plaintiff, Skoly v. Daniel McKee and James McDonald

“Dr. Skoly did not fit into the medical exemptions as currently written, although he has very good reason [to not be vaccinated] … . It is a violation of due process to make Dr. Skoly take this risk … . The state made the decision that vaccination and N95 masking is equivalent for the purpose of patient protection. He is a maxillofacial surgeon. He wears an N95 mask, he wears a surgical mask, he wears gloves. When he is in the operating room with the patient, he looks like an astronaut. He engages in so much more to protect the patient [than mere N95 masking.]”
Brian Rosner, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

February 4, 2022 | NCLA Backs RI Oral Surgeon with Natural Immunity in Suit Against Officials Who Shut His Practice

Washington, DC (February 4, 2022) – Arbitrary and irrational government mandates responding to the COVID-19 pandemic have deprived millions of patients across the country of much-needed medical care. The State of Rhode Island provides a particularly acute example of such devastating unintended consequences. The Rhode Island Department of Health (RIDOH) shut down an oral surgery practice that was taking care of over 800 patients per month, plus state psychiatric hospital patients and state prison inmates. By excluding health care providers with natural immunity from practicing, the State created an artificial hospital staffing shortage. To cope with that problem of its own making, RIDOH has allowed health care providers with active Covid infections to treat patients instead.

Today, the New Civil Liberties Alliance filed a Complaint and a Motion for Temporary Restraining Order and Preliminary Injunction in the U.S. District Court for the District of Rhode Island against Governor Daniel McKee and Dr. James McDonald, the Interim Director of RIDOH, in their official capacities. The suit, filed on behalf of Dr. Stephen Skoly, Jr., the oral and maxillofacial surgeon whose practice the State shut down, challenges the State’s arbitrary and irrational policies as violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Specifically, the suit seeks declaratory and injunctive relief against enforcement of the Compliance Order shutting down Dr. Skoly’s practice.

There are few practicing oral and maxillofacial surgeons in Rhode Island with the skills and experience of Dr. Skoly. In fact, there is a critical shortage of dental surgeons for the State’s 1.1 million people. Nonetheless, the State has arbitrarily and unlawfully ended Dr. Skoly’s distinguished surgical practice, shuttered his medical facility, and left Dr. Skoly’s staff of ten unemployed.

On August 17, 2021, Governor Daniel McKee, through RIDOH, promulgated a regulation that “all health care workers and health care providers be vaccinated against COVID-19 by October 1, 2021.” Dr. Skoly, who has a history of Bell’s Palsy paralysis, made the medical decision not to receive a COVID-19 vaccination due to the uncertainty regarding the risk of onset, or duration, of a palsy recurrence. In addition, as confirmed by a recent blood test, Dr. Skoly retains antibodies after recovering from a previous COVID-19 infection. Because of his naturally acquired immunity, any risk his presence poses to a vulnerable patient is, at worst, identical to the risk posed by a vaccinated physician.

Dr. Skoly is simply asking the State to treat him the same as other health care workers being granted medical or religious exemptions. Those exempted are permitted to continue to practice their profession, including attending to vulnerable patients, provided they adhere to certain safety precautions such as masking. Dr. Skoly agreed to be bound by those mandated precautions—primarily, N95 masking during employment—as he has always worn masks when performing surgery.

NCLA released the following statements:

“For four months, contrary to reason and science, Rhode Island has shuttered Dr. Skoly’s medical practice, depriving hundreds of Rhode Islanders, including its most vulnerable, of necessary dental surgeries. Dr. Skoly and his staff are eager to return to service. Should the federal district court restrain Rhode Island from continuing its unlawful closure, Dr. Skoly has said he and his staff will be able to resume surgeries within 48 hours and that priority in treatment will be given to those whose need is most critical.”
Brian Rosner, Senior Litigation Counsel, NCLA

“The Rhode Island Department of Health has mysteriously refused to follow the science when it comes to natural immunity. Governor McKee has no valid basis to bar Dr. Skoly from performing oral surgery, as it would be perfectly safe. Prohibiting the unvaccinated but naturally immune Dr. Skoly from seeing patients while at the same time encouraging vaccinated health care providers with active Covid infections to treat patients makes no sense. For sheer insanity, that counterproductive policy takes the cake!”
Mark Chenoweth, Executive Director and General Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

 

OPINION

MEDIA MENTIONS