California Bill Barring Docs From Telling COVID Lies Signed Into Law

California Governor Gavin Newsom signed legislation on Friday that gives the state some ammunition against 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.

It is said to be the first such law in the nation.

Such misinformation — when it is “contradicted by contemporary scientific consensus contrary to the standard of care,” and delivered with “malicious intent or an intent to mislead” — now can be defined as “unprofessional conduct.”

Violators would be subject to disciplinary actions from the Medical Board of California or the Osteopathic Medical Board of California, which combined license some 155,000 doctors.

In a statement issued on the last day for signing or vetoing this legislative session’s bills, Newsom explained his belief that 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.”

“To be clear,” he continued, “this bill does not apply to any speech outside of discussions directly related to COVID-19 treatment within a direct physician-patient relationship.”

Newsom 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 last few years.”

“However, I am confident that discussing emerging ideas or treatments including the subsequent risks and benefits does not constitute misinformation or disinformation under this bill’s criteria.”

Newsom’s signature on the bill, which was sponsored by the California Medical Association, came after much public controversy and opposition from some clinicians including former Baltimore health commissioner Leana Wen, MD, 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 wrote.

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 license for offering nuanced guidance on a complex issue that is hardly settled by existing science?” she wrote.

Needless Suffering and Death

Nick Sawyer, MD, an emergency physician in Sacramento and executive director of the group No License for Disinformation, acknowledged skepticism that the new law will 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 that he said are “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 that show 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,” such as North Dakota, Tennessee, and Missouri, Sawyer wrote. And 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 programs because they provide false reassurance to people who then decline to get the COVID vaccines,” he said. “We are 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.”

During debate over the bill in the California legislature and during medical board quarterly meetings, some mentioned the names of California physicians who spread false and misleading information through social media or public websites. That included Simone Gold, MD, a former Beverly Hills doctor who runs the organization America’s Frontline Doctors, and who is now dually licensed in Florida.

Speakers lamented that the bill lacked language allowing discipline against clinicians who spread potentially harmful information on platforms such as Twitter or Facebook, on television, or in the U.S. Capitol on January 6.

The California licensing agency automatically placed Gold’s license on “inactive status” during her prison sentence for trespassing into the Capitol and making a speech during the insurrection.

FSMB Warning

The FSMB, which represents medical and osteopathic licensing agencies across the country, last year issued a statement warning that, “Physicians who generate and spread COVID-19 vaccine misinformation or disinformation are risking disciplinary action by state medical boards, including the suspension or revocation of their medical license.”

“Due to their specialized knowledge and training, licensed physicians possess a high degree of public trust and therefore have a powerful platform in society, whether they recognize it or not,” the statement said.

In April, the FSMB issued guidance on regulatory policy for boards and licensees regarding the expectations they should have about “sharing truthful and transparent medical information.”

“Inaccurate information spread by physicians can have pernicious influences on individuals with widespread negative impact, especially through the ubiquity of smartphones and other internet-connected devices on wrists, desktops and laptops reaching across thousands of miles to other individuals in an instant,” the federation said.

Newsom closed his signing statement with, “COVID-19 treatment and care is rapidly evolving and this bill allows physicians to discuss both emerging and current treatments in a manner that is unique to each patient and their distinctive medical history.”

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