Doctors who practice in the state of California are waking up to new restrictions in terms of what they can say about COVID-19. Providers who spread misinformation about the virus now risk losing their licenses under California Assembly Bill 2098. The bill, which was signed into law on Friday by Governor Gavin Newsom, is the first in the nation that aims to censor physicians regarding their statements on COVID-19, including treatments and vaccinations.
Several notable doctors have used their platforms to spread false or misleading information about the virus over the course of the pandemic without losing their licenses.
But that is all about to change in California. Under the new law, the Medical Board of California would review the doctor’s interactions with a patient to see if they engaged in unprofessional conduct, and if so, what action may be necessary. The board has the authority to revoke or suspend the provider’s license if they are caught spreading misinformation.
“The spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk,” the law warns. It states that doctors have “a duty to provide their patients with accurate, science-based information.”
Critics say the bill sets a dangerous precedent by silencing doctors who offer alternative points of view. Others say practicing medicine is extremely nuanced, and providers may rely on misleading information without realizing it, especially when combating a new infectious disease.
But Newsom said the bill 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.”
He also noted that the bill “does not apply to any speech outside of discussions directly related to COVID-19 treatment within a direct physician patient relationship,” such as social media posts or other public statements made by doctors.
The governor also acknowledged 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 last few years.”
Several other states, including North Dakota, Tennessee, and Missouri, have considered bills that would revoke licenses for doctors who prescribe ineffective treatments for COVID-19, such as ivermectin and hydroxychloroquine.
Nick Sawyer, an emergency room doctor in Sacramento and executive director of the group No License for Disinformation that aims to ensure that physicians who spread COVID-19 disinformation are held accountable, urged Newsom to sign the bill but said he is skeptical the new law will result in any disciplinary action against physicians.
He said he is “pleased to see the California Legislature and Gov. Gavin Newsom continue to stand up for science, particularly in an era so overwhelmed with COVID-related conspiracy theories and outright lies from licensed doctors across the nation.”
But opponents of the bill see things differently.
“While well-intentioned, this legislation will have a chilling effect on medical practice, with widespread repercussions that could paradoxically worsen patient care,” wrote Dr. Leana Wen of George Washington University, a former Baltimore health commissioner, in an op-ed for The Washington Post.
She warned that science is often slow to respond to public health emergencies.
“These actions go against federal guidelines. AB 2098, taken to the extreme, could put many practitioners at risk. But is it really right for physicians to be threatened with suspension or revocation of their license for offering nuanced guidance on a complex issue that is hardly settled by existing science?”
“Indeed, another lesson from COVID-19 is that science is constantly evolving,” she explained. “In a public health emergency, official guidance often lags cutting-edge research. Consider how long it took the CDC to acknowledge that the coronavirus is airborne. Should doctors have been censured for recommending N95 masks before they were accepted as an effective method for reducing virus transmission?”
Legal experts say the law may be unconstitutional if it restricts free speech.
In 2018, the U.S. Supreme Court ruled that professional speech — speech by licensed practitioners based on their expert knowledge and judgment — is protected by the First Amendment.
However, the court left the door open for regulations of professional conduct that incidentally burden speech. Patient interactions fall under the practice of medicine, which is subject to reasonable licensing and regulation by states.
But critics say the law is vague and open to interpretation, especially regarding misinformation. The new law defines misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”
But there is a difference between misinformation and alternative points of view.
“Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields,” the Supreme Court noted.
It’s unclear what effect the law will have on the medical community, but it will likely face legal challenges from providers who have their license revoked.