In a landmark move, California Governor Gavin Newsom on Friday signed controversial legislation allowing the penalising of physicians who spread lies about COVID in the context of direct patient care, although it won’t apply to those who spread such misinformation on social media.
The law states that such misinformation, when “contradicted by contemporary scientific consensus contrary to the standard of care” and delivered with “malicious intent or an intent to mislead”, can now can be defined as “unprofessional conduct”, and result in disciplinary action.
Violators can be subjected to disciplinary actions from the Medical Board of California or the Osteopathic Medical Board of California, which combined, license some 155 000 doctors, reports MedPage Today.
The Bill, sponsored by the California Medical Association, came after much public controversy and opposition from some clinicians, including former Baltimore health commissioner Dr Leana Wen of George Washington University.
In a widely referenced opinion piece in The Washington Post, Wen wrote that “while well- intentioned, this legislation will have a chilling effect on medical practice, with widespread repercussions that could paradoxically worsen patient care”.
That’s true especially with a virus like COVID, where knowledge about prevention and treatment continues to evolve, and physicians need to tailor broad public policy guidelines from the CDC to their individual patients, she said.
As an example, she wrote that while most doctors recommend that seniors should get the Omicron-specific booster right away, others might advise waiting until winter to better protect over the holidays, which is against federal guidelines.
“But is it really right for physicians to be threatened with suspension or revocation of their licence for offering nuanced guidance on a complex issue that is hardly settled by existing science?” she wrote.
However, Newsom said the new statute's language “is narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care”.
“The Bill does not apply to any speech outside discussions directly related to COVID-19 treatment within a direct physician-patient relationship,” he added.
He acknowledged that he is “concerned about the chilling effect other potential laws may have on physicians and surgeons who need to be able to effectively talk to their patients about the risks and benefits of treatments for a disease that appeared in just the past few years”.
Needless suffering and death
Dr Nick Sawyer, an emergency physician in Sacramento and executive director of the group No Licence for Disinformation, was sceptical that the new law would result in any disciplinary action against physicians. The Medical Board of California has yet to exercise its authority to discipline doctors using the existing statute, he said – a point he has raised with board officials multiple times.
Still, he had urged Newsom to sign it.
Looking at the Federation of State Medical Boards’ (FSMB) legislative tracker, he recently counted 82 proposed Bills in 31 states he said were “effectively pro-COVID misinformation as there is no evidence that either Ivermectin or hydroxychloroquine (aka ‘early treatment’) provide any benefits in the prevention or treatment of COVID-19.
“In fact, there are multiple high-quality studies showing they do not provide benefit,” he said.
And many states have considered or passed Bills that “restrict their state medical boards’ authority to discipline doctors who advocate for or prescribe Ivermectin or hydroxychloroquine for COVID”, like North Dakota, Tennessee and Missouri, Sawyer wrote. Tennessee has made Ivermectin available without a prescription.
“The results of these misguided laws are needless suffering and death, as well as increased costs to federal healthcare programmes because they provide false reassurance to people who then decline to get the COVID vaccines,” he said. “We are pleased the California legislature and Newsom continue to stand up for science, particularly in an era so overwhelmed with COVID-related conspiracy theories and outright lies from licensed doctors nationwide.”
During debate over the Bill in the legislature and during medical board quarterly meetings, some named California physicians who spread false and misleading information through social media or public websites.
That included Dr Simone Gold, who runs the organisation America’s Frontline Doctors, and whose licence was placed on “inactive status” during her prison sentence for trespassing into the US Capitol and making a speech during the insurrection on 6 January.
Speakers said the Bill lacked language allowing discipline against clinicians who spread potentially harmful information on platforms such as Twitter or Facebook, or on television.
FSMB warning
The Federation of State Medical Boards (FSMB), representing medical and osteopathic licensing agencies, last year issued a statement warning that “physicians who generate and spread COVID-19 vaccine misinformation or disinformation risk disciplinary action by state medical boards, including the suspension or revocation of their medical licence”.
And in April, it issued guidance on regulatory policy for boards and licensees regarding the expectations they should have about “sharing truthful and transparent medical information”.
On 18 August last year, MedicalBrief carried an article from Daily Maverick in which a similar warning was issued to physicians in South Africa, with the SA Medical Association (SAMA) saying it was “ illegal and unethical for doctors to spread false information about the COVID-19 vaccine”, and that doctors “have a responsibility to put aside their personal beliefs and have taken an oath to prioritise patients’ well-being”.
This came in the aftermath of Cape Town heart surgeon Dr Susan Vosloo’s anti-vaccination message that had surfaced on the internet the previous week.
Vosloo had added numerous controversial views over how deadly the coronavirus was and how the pandemic was controlled by, among others, the media. She also made a reference to “Vitamin I”, widely accepted as a reference to Ivermectin, and explained how it has been discredited.
She further made a number of claims about COVID-19 vaccines, including that they could have severe side effects and even be fatal.
SAMA said physicians’ personal opinions “must not interfere with sound medical management in the case of a COVID-19 vaccination that is safe, efficacious and which has been approved for use by the South African Health Products Regulatory Authority (SAHPRA)”.
In a statement, SAMA added that under the Disaster Management Act, “anyone who spreads information about COVID-19 with the intent to deceive another has committed an offence and is liable, on conviction, to a fine or imprisonment for a period not exceeding six months”.
“SAMA unequivocally supports vaccination as essential in the public health response to the COVID-19 pandemic and endorses the importance of scientific integrity, transparency and public confidence in vaccines, and calls on the HPCSA to discipline medical professionals who breach their ethical duties by proliferating COVID-19 vaccine misinformation”.
However, no prosecutions have yet taken place.
See more from MedicalBrief archives:
Vosloo video: SAMA will not support doctors facing disinformation charges
US medical boards oppose legislation on disciplining doctors
Anti-vaccine chiropractors: A rising force of misinformation