Because so many physicians were spreading disinformation about the COVID-19 vaccines and medical treatments, California passed a law, AB2098, that would give the Medical Board of California specific authority to take disciplinary action against those physicians. Although the law is good news for those of us who want to limit medical disinformation from some issues measures that may make it difficult to implement.
And of course, anti-vaxxers were opposed to it because they don’t like it when physicians are required to only provide science-based information rather than kowtow to whatever pseudoscientific nonsense is being pushed by science deniers regarding medicine and vaccines.
Unfortunately, after a lot of complaints, California recently repealed the law.
California Medical Disinformation Bill
The state of California licenses over 155,000 physicians, which is the most of any state, so limiting those licensees from pushing medical disinformation may set the tone for the rest of the nation. Unfortunately, the Medical Board of California, which is responsible for licensing medical doctors, has not yet taken action against physicians who have been pushing false information in the state about COVID-19 treatments and vaccines.
Simone Gold, MD, who leads the quack group, America’s Frontline Doctors, and who pleaded guilty to one of five criminal counts filed against her in connection with her participation in the January 6 insurrection at the U.S. Capitol, holds a California medical license. If anyone should lose their license for passing medical disinformation during the COVID-19 pandemic, it is Gold herself.
AB2098 defined medical misinformation as “false information that is contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee” and disinformation as “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead,” while “disseminate” is defined as “the conveyance of information from the licensee to a patient under the licensee’s care in the form of treatment or advice.”
If I were to interpret those conditions of what is medical misinformation and disinformation, I would say that anything that is not supported by a solid scientific basis is bad.
Unfortunately, the bill did not cover disinformation stated “on the airwaves or in social media” that a person who is not the clinician’s patient decides to follow. So if someone like Simone Gold says that ivermectin can treat COVID-19 on Facebook, that’s fine, but if she tells that to a patient, she’s in trouble. I do not know how that loophole is going to work, but I can see a doctor saying “Check out my medical information on Facebook.”
Finally, AB2098 stated that in deciding a case against a doctor, the Medical Board of California “shall consider whether the licensee departed from the applicable standard of care and whether the misinformation or disinformation resulted in harm to patient health.”
This law empowered the Medical Board of California to take strong actions against certain physicians who pass along anti-vaccine tropes and myths to their patients, especially since the COVID-19 pandemic began. To be fair, the Medical Board has taken action against some anti-vaccine physicians and has been the target of some hostility from various anti-vaccine and COVID-19 denier groups.
Despite what California is doing, at least 14 other states have gone in the opposite direction, considering or passing legislation prohibiting disciplinary actions by their state medical licensing agencies against doctors who spread misinformation or allowing them to prescribe off-label medications that have failed to show benefit for COVID-19, such as ivermectin and hydroxychloroquine.
The Federation of State Medical Boards (FSMB), which last year warned doctors that spreading COVID-19 vaccine misinformation may put their medical licenses in jeopardy. Of course, California seems to be the only state currently considering legislation to fight medical misinformation and disinformation.
Kristina Lawson, JD, who was the president of the Medical Board of California at the time this bill was passed and who has been a target of America’s Frontline Doctors, said recently:
The fact of the matter is we have California-licensed physicians causing great harm to our communities, and we have to figure out a way to address that. (These physicians) have intentionally spread false and misleading claims about a wide variety of things, including COVID-19 vaccinations. They’re advocating for the use of unproven, dangerous therapies that are harming California consumers. And they’re stoking fear in communities, not only in California but across the country.
Criticisms of AB2098
There were some valid concerns about the bill, which eventually led to its repeal.
First, some expressed concern that what may be misinformation today may prove to be correct in the future. That’s not how science works — either there is evidence that supports a claim or there is not. Science cannot predict the future.
We are never going to see that homeopathy works. Or that ivermectin will cure COVID-19. It’s very clear what works and doesn’t when employing science-based medicine in this process. And if a physician has some unorthodox hypothesis to treat a disease, they don’t put up a website touting it, and “You can get this cure if you come to my office. No insurance accepted.”
A real physician with an unorthodox idea about medicine goes about it in a structured way, by presenting evidence in the form of a scientific article published in a real journal. Then that physician heads off to meetings to discuss his ideas with leading scientists in this field. They do everything they can to present the science behind their unorthodox idea.
In other words, I think the law can be structured to carve out physicians who push the scientific envelope as long as they are ethical (setting up actual clinical trials for example) and scientific. But if you’re going to push ivermectin or homeopathy just because you “think” they’ll work, despite the evidence, then that’s not being unorthodox, that’s just being dangerous to your patients.
Again, I can spot pseudoscience a mile away, and I can tell when someone is using science to change the paradigm. Anti-vaccine physicians are ignoring the science and relying upon magical thinking, and that’s easy to spot.
So, yes the Medical Board of California was going to have to thread a needle in determining if someone is advocating for something that is based on science or someone is pushing medical disinformation.
Of course, some people think that this law was a restriction of free speech. Again, I am not a constitutional law expert nor do I play one on the internet, but the state licenses the physicians, and they must adhere to the licensing laws and regulations. A medical doctor just can’t claim that “homeopathy works” and thinks that’s covered by free speech. It is not.
Some groups are opposed to the law because they want “a range of options for care and treatment,” which I do not think this law will restrict. One can still get second opinions on say how to treat small-cell lung cancer, because there may be different strategies. But if you want a different opinion on vaccines, sorry, but no. Vaccines are safe and effective, that’s settled science.
But anti-vaxxers are strongly opposed to this bill for all the usual reasons — mainly, they want anti-vaccine doctors to support their efforts and write fake exemptions so that their kids can go to school without all of the mandated vaccinations. Of course, California is slowly taking care of those individuals even without AB2098.
I believe that this law could have been a huge step in the right direction in making physicians stick with science-based medicine. Unfortunately, it didn’t work out that way.
Repeal of the California Medical Disinformation Law
The original intent of the bill was an effort to give the Medical Board of California specific language that granted them the power to discipline providers who were found to have conveyed misinformation about COVID vaccines and treatments, including statements they might make on social media or in other public forums such as public protests.
But as the bill went through its various stages, it was narrowly tailored to apply only to conversations between a doctor and a patient in a clinical setting, and only when the practitioner made statements that were “contradicted by contemporary scientific consensus contrary to the standard of care.” If such actions could be proven, it would be reclassified as “unprofessional conduct,” and the licensee could be subjected to discipline.
As a result of the withering criticisms and litigation, California Governor Gavin Newsom late last week signed into law a bill that repealed its controversial doctor misinformation statute just a year after it was signed.
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