Doctors Who Spread Medical Misinformation Should Lose Their Licenses. Why Don’t They? ❧ Current Affairs
Each of these statements was made during the pandemic by medical doctors who remain licensed to practice medicine.
“This virus has a cure. It is called hydroxychloroquine, zinc, and Zithromax. I know you people want to talk about a mask. Hello? You don’t need [a] mask. There is a cure.”
Stella Immanuel, M.D. Licensed in Texas, July 2020
“[P]eople … have long suspected there was some sort of an interface, yet to be defined, an interface between what’s being injected in these shots, and all of the 5G towers.”
Sherri Tenpenny, D.O. Licensed in Ohio, July 2021
“Anyone here waiting for an apology from Birx, Fauci & Biden & all the democratic governors for their unconstitutional tyrannical #MaskMandates? #Masks #FaceMasks #MasksDontWork”
Sherri Tenpenny, D.O. @BusyDrT, Feb. 10, 2023
“I don’t want to be part of this mass genocide that I see happening [with COVID vaccines]. … And yet I have an unrestricted license to practice, for 30 years.”
Rashid Buttar, D.O. Licensed in North Carolina, October 2021
Conspiracy theorist and Trump supporter Immanuel, who is also a pastor, was one of the white coat-clad America’s Frontline Doctors, members of a right-wing political group with ties to the Tea Party Patriots. They appeared in a July 2020 video at the Capitol, which President Trump praised and helped to go viral. The video reached 20 million Facebook users within hours. (Donald Trump deleted his tweet, and the video was recognized as misinformation and soon taken down by Facebook, YouTube, and Twitter. Donald Trump Jr. was banned from tweeting for 12 hours because Twitter said he had engaged in “sharing misinformation on COVID-19” by sharing the video.) In the video, the doctors said that interventions such as masking, social distancing, and school closings were unnecessary and that hydroxychloroquine “could both prevent and cure” COVID-19. In just a two-month period in 2021, America’s Frontline Doctors raked in over $6 million on telehealth evaluations that included prescriptions for hydroxychloroquine and ivermectin, two hyped (based on bad science) medications used for COVID-19 that have repeatedly been found ineffective at treating COVID-19.
Immanuel was recently named the “highest U.S. prescriber of ivermectin and hydroxychloroquine” for the last two years, according to an analysis of prescription data by MedPageToday, a medical news website. Astonishingly, Immanuel’s prescribing habits are apparently legal. For its part, the Texas Medical board had made its stance on COVID-related treatments painfully clear. In July of 2020, referencing rumors of an unnamed “cure” for COVID-19, the board said it would not “issue endorsements” of any treatments and that “patients and physicians have a right to decide what treatments may be used for COVID-19.” In the fall of 2021, the board released a notice about prescription use of COVID-19 therapies, saying that they wouldn’t “endorse or prohibit” any particular therapies for the condition, preserving physician’s use of “off-label” therapies. (“Off label” means a medication is being used to treat a condition for which it lacks FDA approval. While off-label prescribing happens commonly, like any privilege left to individual physician discretion, the practice can be abused—as has been the case with both hydroxychloroquine and ivermectin during the pandemic.)Politico reported that in 2021, poison control centers received increased calls related to ivermectin overdoses.” rel=”footnote”>1
Ultimately, Immanuel was fined $500 by the Texas Medical Board in October 2021 and given “corrective action”—not for prescribing bogus treatments but for failing to properly document informed consent for her “off-label” hydroxychloroquine treatments. The board’s action was non-disciplinary. (In another notable case, in 2022, Houston doctor Richard Urso was cleared of malpractice claims by the Board for his use of hydroxychloroquine to treat COVID-19.)
Tenpenny, who rails against face masks as “germy” and harmful (they suppress your immune system, she claims), has also claimed that the COVID vaccine “makes people magnetic.” She has been pursued by the Ohio Medical Board since 2021 (recent local reporting indicates “unspecified reasons” for the board inquiry) and has failed to respond to their communications and subpoena.
Buttar has long practiced medicine in North Carolina despite offering expensive sham treatments for cancer and autism. Buttar is also active on Twitter, where he does live streams; on a recent stream about gun violence, he implied that COVID vaccinations were to blame for frequent mass shootings because they cause people to be in pain from heart or lung problems and the AI in them is interfering with people’s neurologic system, presumably making them mentally disturbed. Buttar has a veritable rap-sheet of “adverse actions” taken by the North Carolina Medical Board going back to 2007. Buttar even referred to the medical board as a “rabid dog” that the legislature needed to “put down” for trying to discipline him years ago.
These doctors are just a few of the many who have made news over the years for spreading misinformationthe most influential spreader of coronavirus misinformation”; Christiane Northrup, M.D., a former obstetrician-gynecologist (no active license but has a grandfathered board certification in her field from 1981) and “champion of a feminine and intuitive approach to health and well-being” who was once “Oprah’s favorite gyno” and is now an anti-vaccine and QAnon conspiracy theorist; and, of course, Mehmet Oz, M.D. (licensed in Pennsylvania), celebrity doctor, wannabe politician, and promoter of hydroxychloroquine, whose The Dr. Oz Show bombarded audiences with 13 seasons of “magic” health cures and helped the former cardiothoracic surgeon amass a net worth of nine figures as of 2022, the year his show ended. Tenpenny, Buttar, Northrup, and Mercola are all featured alongside Democratic presidential candidate Robert F. Kennedy Jr. in the Center for Countering Digital Hate’s “Disinformation Dozen,” a list of anti-vaxxers with large platforms who spread misinformation online. (There are many other prominent physician COVID contrarians and minimizers who would take up an entire article themselves.)
That these doctors still retain their medical licenses (or board certifications) despite such terrible rhetoric and practice, and dozens of doctors have continued to spew misinformation and minimize COVID-19 and COVID vaccination without much consequence, points to a troubling and long-standing problem with the regulation of the medical profession. In 2022, Politico reported that only eight physicians had been disciplined by medical boards since January 2021 for “spreading coronavirus-related misinformation.” As David Gorski, M.D., Ph.D., a cancer surgeon and researcher, wrote in a June 2022 blog post—his response to an editorial in the New England Journal of Medicine calling for doctors to face consequences for spreading misinformation:
Again, this was a problem that I had long written about going back to the very beginning of this blog, namely how toothless state medical boards are, how easily bad and even dangerous doctors can keep practicing, and how oblivious our fellow physicians had been to the threat of medical misinformation before the pandemic, a threat to which they have only fitfully been waking up.
To understand the complexity of the problem with physician regulation, we can look at two major currents: the ethical questions raised by the rise of Oz, and the growth of the anti-vaccine and health freedom movements, which was helped in no small part by the fraudulent work of disgraced former British physician and anti-vaccine activist Andrew Wakefield.
Perhaps the most recognizable (and one of the most long-standing) of the Doctors Behaving Badly bunch is Mehmet Oz, who has been called both “America’s Doctor” (Oprah) and “America’s Quack” (Gorski). He was on faculty at Columbia University for many years—during which the institution faced criticism for keeping him on—until the spring of 2022, when the media reported that he had been largely “scrubbed” from their website ahead of his Senate run (he lost to John Fetterman). Oz’s interest in alternative medicine dates back to his childhood days, writes Vox contributor and Oz profiler Julia Belluz, who has written nearly two dozen articles about him and the questionable ethics of his enterprise of books, magazines, and talk shows in which he has dispensed medical information and recommendations that are often based on little more than hype. Some of Oz’s most notorious claims include “the miraculous powers of green coffee extract and the fat-burning magic of raspberry ketone.” Congress scolded him in 2014 for his role in promoting bogus therapies that one medical ethicist likened to “fairy dust.” There was even a so-called “Oz effect,” or claims of increases in sales of products after they were mentioned on Oz’s show. Oz has done his own share of pandemic misinformation. As just one example, according to the New York Times, Oz went on Fox News 25 times to endorse hydroxychloroquine or chloroquine in March and April 2020.
Writers who profile Oz tend to concede an uncomfortable truth: that there’s something icky about what he’s doing in blurring the line between offering medical advice and entertainment, or “medutainment,” and that the financial incentives seem off. But it’s rare for anyone to suggest he be disciplined by his state medical board for such behavior. There have been two exceptions. One is Jen Gunter, M.D., an obstetrician-gynecologist known for her strongly worded debunks of Gwyneth Paltrow’s Goop nonsense (jade eggs, vaginal steams, and now—sigh—back-door ozone). In 2022, she reported Oz to the Pennsylvania State Medical Board, citing his endorsement of a long-time go-to quack therapy, colloidal silver, which can have a number of untoward side effects and is not considered safe by the FDA, as well as Oz’s misinformation on masking during COVID. The state medical board currently notes no disciplinary actions on Oz’s public profile.
Belluz was also asking, back in 2014, why it was that “Dr. Oz can say anything and keep his medical license.” As she noted, the American Medical Association (a conservative group that, it should be noted, has historically opposed reform toward universal single-payer healthcare) has created guidelines around ethical behavior, but they can’t enforce anything. And Columbia, for its part, said it would not censor a faculty member’s free speech. It turns out that in 2014, then medical student at University of Rochester (now a pathologist) Benjamin Mazer was calling for New York State to “treat health advice on TV in the same vein as expert testimony, which already has established guidelines for truthfulness.” That would have been something!
Political scientist Dominik A. Stecula and colleagues have situated Dr. Oz within a larger media ecosystem they call alternative health media (AHM), which they describe as media that popularizes alternative medicine therapies while at the same time casting doubt on mainstream medicine and on government agencies such as the CDC and FDA. Examples of AHM include The Goop Lab, Natural News, Mercola.com, Alex Jones’ Infowars, and The Doctors, a talk show featuring four doctors that ended in 2022 after 14 seasons on air.
The features of AHM are reminiscent of what Lauren Fadiman, looking at the issue from a folklorist’s perspective, recently described in this magazine as a culture of “medical skepticism,” which encapsulates not just a penchant for alternative medicine and a fear of (assumed) harmful mainstream medical practices along with institutional distrust but can also accommodate “full-blown conspiracy theories” about COVID vaccines or government leaders being pharma shills.
The influence of such media—and the doctors who work for them—cannot be overstated. As Stecula et al. note, at a time when many people lack access to a primary care doctor and want health advice, shows like Oz offer a parasocial relationship with someone who is “relatable, accessible, and trusted.” It’s easy to see how influential Oz, who has been described as “telegenic,” can be in this kind of setting.
One thing I’ve realized over the years is that, in general, doctors behaving badly seem to get a free pass and a lot of sympathy. For example, Sandeep Jauhar, a cardiologist, wrote a 2014 memoir, Doctored, about some of his time in practice. He admitted to doing questionable things when he was freelancing (essentially, gig work) with a local doctor who ordered unnecessary cardiac testing on unwitting patients. He did it to finance his family’s lifestyle. He discussed how the medical system in the area was essentially operating as a huge racket, shuffling unsuspecting patients to doctors and procedures they didn’t need. “I always felt as if I were selling my soul,” he said of that work. Book reviewers acknowledged the questionableness of his behavior and of the perverse financial incentives that cause doctors to do more things to patients to bring in revenue, but nobody really says that this kind of behavior ought to be disciplined in any way by a medical board. Many people, doctors and non-doctors, seem to assume that some degree of unethical look-the-other-way behavior goes on in medicine, and this is simply accepted. It could be that this kind of acceptance makes it easier for the public to accept charlatans like Oz and other persuasive misinformers.
If, as Fadiman wrote, for-profit healthcare creates mistrust among the public, then it also encourages unethical physician behavior—in patient practice, or in public pronouncements and the media—which then becomes somewhat acceptable to a public eager to seek trust in a “brave maverick” or contrarian physician who offers them cures or the truth. All the while, regulatory bodies are ill-equipped to deal with the damage done not just to the profession’s credibility but to public health.
Doctors, of course, have been on the wrong side of public health long before COVID and Dr. Oz, and one doctor in particular is partly responsible for the rise of the anti-vaccine movement in the last two decades. Andrew Wakefield, a former physician from Britain, published a paper in The Lancet in 1998 in which he hypothesized a link between the measles, mumps, rubella (MMR) vaccine and autism. His fraudulent work, which was later retracted (he was also stripped of his medical license), was responsible for “usher[ing] in a new era of distrust for vaccine[s],” writes Peter J. Hotez, M.D., Ph.D. in 2021 in an article about the rise of antiscience in the U.S. (Despite massive evidence that vaccines are safe and effective and that vaccines do not cause autism, the vaccine-autism myth just won’t die.) Hotez, a pediatrician and vaccine scientist, writes that the anti-vaccine movement has grown stronger since the early 2000s, as states have seen increases in legislation to allow religious or philosophical exemptions to routine childhood vaccinations. Decreased vaccination rates have resulted in outbreaks of vaccine preventable diseases such as measles, a highly contagious disease that can cause dangerous complications such as pneumonia, brain swelling, or even death, particularly in young children. (Measles had been declared eliminated in the U.S. in 2000, but outbreaks have occurred in recent years, including large case numbers in 2019 due to unvaccinated people.)
Furthermore, Hotez notes, the anti-vaccine movement has taken up the libertarian banner of medical freedom or health freedom, which combines a skepticism of mainstream medicine along with a tendency to promote unproven cures (before ivermectin and hydroxychloroquine, there was, for example, MMS, or miracle medical solution, a bleach enema ‘treatment’ for autism). As these movements have grown, particularly in the Pacific Northwest and the Southwest, anti-vaccine political action committees have formed. In his 2021 book Preventing the Next Pandemic: Vaccine Diplomacy in the Time of Anti-Science, Hotez writes:
Of the 14 metropolitan areas in western states and the state of Michigan where in 2018 we identified large numbers of children not receiving vaccines, most if not all were located in states where anti-vaccine PACs are active. Measles cases appeared in 7 of those 14 counties in 2019. In contrast, there are few if any lobbies or PACs specifically committed to vaccines.
In a 2022 article called “The Great Texas COVID Tragedy,” Hotez linked the state’s high death toll to the fact that it’s a state “which has been ground zero for the anti-vaccine health freedom movement” in the U.S., and because conservative parts of the state had low levels of COVID-19 vaccine uptake. As Hotez notes, the World Health Organization in 2019 listed “vaccine hesitancy” as one of 10 threats to global health alongside air pollution, climate change, and antibiotic resistance. That the dishonest work and activism of a former physician could help bring about one of the top threats to global health ought to be a source of shame for the profession—as is the ongoing slew of misinformation and anti-vaccine rhetoric coming from physicians.
Today’s misinformation doctors are often associated with larger right-wing moneyed efforts, as reported in December 2022 by the Center for Media and Democracy’s Walker Bragman:
Throughout the pandemic, a number of doctors and other medical experts have leveraged their credentials to promote misinformation and build large social media followings, styling themselves as bold whistleblowers challenging a tyrannical medical establishment. Many of these professionals have been promoted by the political Right, particularly business-aligned groups like those in Charles Koch’s influence network that oppose public health measures and workplace safety requirements for businesses.
Remember the Great Barrington Declaration that came out in the fall of 2020? It was an open letter authored by three academics (affiliated with prominent institutions the University of Oxford, Stanford, and Harvard) who got access to President Trump to promote their misguided idea of a herd immunity/anti-lockdown approach to COVID. Bragman notes that the aim of the declaration was “to undermine scientific consensus around public health measures.” But the World Health Organization and other major public health groups and scientists dismissed the approach. The Declaration arose from the American Institute for Economic Research (AIER), a libertarian think tank with ties to the Koch Foundation and which promotes climate denial and the supposed harms of labor unions and corporate regulation. Additionally, the Koch-funded New Civil Liberties Alliance supported a challenge on behalf of five doctors to California’s 2022 state law that would allow for doctors who spread “coronavirus lies” to be disciplined. In January of this year, a federal judge halted the enforcement of the law.
We can thus identify a thread from anti-vaccine sentiment to medical freedom to right-wing and libertarian attacks on public health during the pandemic. At the center of this lies the physician misinformer, who promises not only the truth, but to sell you something—and is getting away with it.
In the context of California’s attempt to discipline physicians for misinformation, in November 2022, the New York Times asked, “Is Spreading Medical Misinformation a Doctor’s Free Speech Right?” Clearly, the correct answer to this question is, Absolutely Not. Just as licensure doesn’t confer the right to malpractice or to inflict harm, it does confer a responsibility to give sound medical advice and not engage in the promotion of quackery.
But it’s easy to be gaslit by takes like: “Who determines what false information is?” such as was asked by Dr. Jeff Barke, a Southern California physician quoted in the article. Barke expressed concern that California’s law would “impose a rigid orthodoxy on the profession that would rule out experimental or untested treatments.”
But you don’t have to be an adherent of a “rigid orthodoxy” to understand that disproven or dubious medical treatments should not be recommended to the public (or mass-prescribed via telehealth, which is another problem in and of itself) or that conspiracy theories about 5G and mass genocide are simply beyond what any reasonable and informed physician should be saying. To paraphrase Gorski: in medicine, we may not always know what’s right (understandings of diseases and treatments evolve with time and new evidence), but we usually do know when something is wrong. Thus, the idea that we can’t determine truth amounts to a kind of radical relativism, as if there’s some kind of arrogance to claiming that something is true and something else isn’t.
In another Times article about this year’s court ruling against California’s law, one doctor said, “Today’s quote-unquote misinformation is tomorrow’s standard of care.” To entertain this kind of situation, consider the cases of hydroxychloroquine and ivermectin. Both were known to exhibit anti-viral properties before the pandemic. So there was a theoretical basis to think the drugs might work against COVID-19. But they don’t. We have to judge today’s information by what we know today, and the claims being made by the misinformers listed here are simply not plausible or have not been shown to be valid (or have even been disproven).
Furthermore, the idea that today’s “misinformation” will be vindicated tomorrow is simply wishful thinking, especially when the proposed thing isn’t even really plausible (microchips and vaccines, vaccines and genocide, masks as ineffective, which simply doesn’t add up with what we know about the physics of how masks work to block respiratory particles).
The stakes for people’s lives, and for public health, are too high to allow charlatans, grifters, and misinformers to continue unabated. It’s even worse that people in the healing profession profit off of fake treatments—Immanuel, Tenpenny, Mercola, Northrup, and Buttar, for instance, offer dozens of pills and supplements on their, or affiliate, websites. Take note: if a doctor is trying to sell you something such as a supplement, run the other way. I don’t care how many letters they have behind their name. It’s a conflict of interest of the worst kind, and it’s wrong.
We all probably know someone who has foregone medical treatment or vaccination (or sought out bogus treatments) due to fears or conspiracy theories brought on by misinformation. A family member of mine believed the false claims that COVID vaccines cause infertility and that rapid tests contain tracking devices inside them. He didn’t wear a mask in public, and he didn’t get vaccinated. He came down with COVID in fall 2021 and got ivermectin prescribed to him via a telehealth appointment. He continued to worsen at home and avoided getting a physical assessment until he became too short of breath to walk around. Just shy of 60 years old, he died after a prolonged hospitalization. His death was likely entirely preventable.
One analysis reported in NPR found that around one-third of U.S. COVID deaths could have been prevented with vaccination. We can then wonder how many of those vaccine refusals were caused by misinformation. Additionally, a 2022 Morning Consult poll showed that nearly three-quarters of doctors surveyed said that misinformation, whether about COVID or non-COVID topics, was negatively impacting clinical care (and that physicians who “intentionally spread misinformation should be held accountable”).
It’s not just the press that frames medical misinformation coming from doctors as a free speech issue. Consider the case of Simone Gold, M.D., the founder of America’s Frontline Doctors. She was sentenced to prison for her involvement in the Jan. 6, 2021, Capitol riots and served 60-days’ time for a trespassing charge. Interestingly, the judge who sentenced her “emphasized that her statements about COVID vaccines and unproven medications were not the reason for imposing her incarceration—nor was she being punished for exercising her right to free speech—but her trespassing into a federal building was.” Here, the judge is helping to prime the public to see medical misinformation speech as untouchable under the First Amendment.
Gold, meanwhile, has her own rap-sheet of actions pertaining to her license, including a felony conviction, malpractice judgment, and hospital disciplinary action (the details of which are not public per the state board website). In a document dated January 2023, Gold faces a “petition to revoke” her medical license in California related to her conviction as well as general unprofessional medical conduct (the document specifically listed her speeches and activities advocating against COVID-related public health measures and vaccines as pertinent to her unprofessional conduct). Her California license is still listed as active. And she has now gotten a license to practice medicine in Florida.
How could that happen? This brings us to the problem of state-based medical licensing.
Just as the public health response to the pandemic has been fragmented and state based, with leaders loath to interfere with states’ rights, medical licensure is state based. The Federation of State Medical Boards (FSMB) is a nonprofit that advocates for the 71 medical boards operating in U.S. states and territories. Some states have more than one board, and boards may also oversee the licensure of others such as acupuncturists and podiatrists. The country has just over 1 million licensed physicians, according to the federation’s latest census.
According to the FSMB, the right of the states to license medical doctors under the 10th Amendment was solidified by the 1889 Supreme Court Case Dent v. West Virginia, which upheld a lower court’s decision that a man named Frank Dent could not claim a right to practice medicine since he hadn’t undergone what was considered the proper training at the time. The practice of medicine is governed in each state by a Medical Practice Act, which defines the practice of medicine and outlines standards for licensing, renewal, professional conduct, and discipline of physicians. Boards essentially operate to enforce the Medical Practice Act and to discipline and rehabilitate doctors when necessary. The FSMB website says that their ultimate goal is to “keep patients safe.” Boards are staffed by doctors, other healthcare providers, and members of the public (most of the latter are appointed by governors).
The boards’ potential inadequacies are numerous. First, political appointees can be a problem generally, especially when so many officials, particularly Republicans, have shown themselves to be broadly anti-public health during the pandemic.picked him). Politico reported recently that he altered vaccine safety study results to make the vaccines look riskier than they are. In Texas, a recent investigation by KXAN News found that Governor Greg Abbott appointed “top dollar donors” to sit on the state medical board, in addition to people “from telecom, business, real estate and energy sectors, with no obvious patient advocacy or medical experience.”
Furthermore, medical boards are underfunded (they rely on state budgets) and understaffed for the volume of work required of them. Boards may receive complaints in the hundreds or thousands, and these may take months or longer to investigate, much less resolve. Boards also tend to focus on individual impairment issues (alcohol or drug abuse or other inappropriate conduct) and helping doctors get care or treatment that they need. (While these issues are certainly important, they clearly aren’t the only problems worth investigating.) As current FSMB President and CEO Humayun J. Chaudhry, D.O. told CNN in October 2021: “The system has been set up as a complaint-based system. … These state boards simply do not have the resources … to monitor what’s happening on the internet or what’s going on even in an individual patient encounter.”
This is all not very reassuring.
Yet, it’s pretty obvious that when doctors spout misinformation, such behavior ought to bring inquiry by those charged with “keeping patients safe.” To which some will respond: well, the public isn’t their patient. They aren’t practicing medicine by tweeting, and they only have a responsibility to follow the rules regarding interactions in the exam room, clinic, or hospital. But these boundaries aren’t always so clear. In the case of Oz, for instance, Benjamin Mazer pointed out that Oz essentially had 4 million patients (the show’s average daily viewership around 2004, which jumped to 22 million at the height of the pandemic in 2020) and that he and other physicians encountered patients who had stuck with Oz’s medical advice and treatment recommendations over their in-person doctor’s recommendations.
The FSMB noted in its 2022 Annual Report that it was alarmed by the amount of medical misinformation that had surfaced during the pandemic. In 2021, they released a statement warning that doctors’ COVID vaccine misinformation could put their license at risk. They noted that their statement had “major impact” because it got 3.4 million views on Twitter and was picked up by CNN and other major news outlets and mentioned in 1,400 news stories. They held two town halls, which medical board members could attend, as well as a webinar. That all sounds….great. But what about discipline?convicted of fraud.” rel=”footnote”>4
In 2021, 3,402 physicians were disciplined; most of these actions were reprimands or restrictions on licensure. The terrible truth, though, is that neither FSMB’s annual report nor their snapshot of disciplinary actions from 2021 indicates how many physicians were disciplined specifically for misinformation (remember, Politico said it was only eight as of February 2022). At the time of publication, FSMB had not responded to my email inquiry asking for those numbers.
Board specialty certification groups have tried to up the ante as well. The American Board of Emergency Medicine, American Board of Pathology, American Board of Internal Medicine, American Board of Family Medicine, and the American Board of Pediatrics released similar statements indicating that engaging in misinformation amounted to unprofessional conduct and that certification could be at risk. Taking away board certification is not a trivial thing. Without board certification—demonstrating expertise in one’s area of medicine—doctors will find it difficult to get a medical job in many institutions. But these statements, too, may have amounted to mere warnings, as it doesn’t appear anyone has had their board certification rescinded for misinformation. (Some doctors have been suspended or fired from their jobs here and there, but this is not a systemic solution.)
The bottom line comes down to something the FSMB says in its training video online for prospective board members: “All members of boards must put the best interests of the public—not health care providers—first.” And yet, medical boards seem to be failing to live up to the demands of the moment, one which happens to be a largely unmitigated public health disaster.
It certainly doesn’t help that right-wing legislatures have been hostile to medical boards during the pandemic. When, for example, in 2021 the Tennessee Board of Medical Examiners issued a warning about COVID vaccine misinformation to its doctors, a Republican legislator on a powerful committee demanded that the Board remove the statement from its website and even threatened to “terminate” the Board. The board acquiesced and voted to remove the information from its website.
The FSMB has also documented what it calls “legislative overreach,” or bills that defang “boards’ authority to investigate patient harm related to COVID-19.” They noted that as of 2022, there were more than 45 such bills in 23 states. Becker’s Hospital Review in 2022 reported that
More than half of all U.S. states have proposed or passed legislation designed to promote access to ivermectin. … Twenty-eight states have bills that would either restrict medical boards’ authority to discipline clinicians who prescribe the unproven COVID-19 treatment, allow off-label use of the medication or both. … The legislation reflects growing political pressure to restrict boards’ authority to penalize physicians over health misinformation.
Examples of such legislation abound. This year’s Virginia’s SB 793 amends the code of Virginia to allow medical practitioners to prescribe, administer, or dispense hydroxychloroquine and ivermectin for patients diagnosed with COVID-19 and prevents the medical board from disciplining practitioners “solely” for that act. This year’s Texas SB 514 would cancel any discipline imposed on practitioners governed by the medical board who were investigated for making statements about the efficacy of masks or failing to wear masks as well as expunge the records of board discipline and investigation of these people. Even more extreme, Louisiana’s SB 29 from 2022 would prohibit employers from disciplining doctors for providing any medical treatment that was carried out with patient consent. (So now the practice of medicine is only limited to whatever any patient will agree to?) Florida’s HB 687 from 2022 would protect doctors free speech rights and limit the authority of the medical board to discipline a doctor for speech unless it could be proven that that speech caused “direct physical harm” to a person with whom the doctor had a therapeutic relationship in the prior three years. While these bills have not become law, the presence of so many of them is a clear sign that the physician regulatory system is actively being undermined.
To think about disciplining doctors for giving out medical misinformation, we have to contend with doctors’ free speech rights under the First Amendment. As Seton Hall Law Professor Carl H. Coleman writes, “a basic tenet of first amendment law” is that harmful speech should be challenged with “counterspeech.” According to this logic, it’s OK for a doctor with a large social media following to say that vaccines are magnetic as long as we put up some counter posts saying that that’s not true. But this hardly seems like it would be effective. Applying the counterspeech standard to medical misinformation seems dicey at best and foolish at worst. Brandolini’s law, or the asymmetric bullshit principle, as Gorski points out, says that the “amount of energy needed to refute bullshit is an order of magnitude bigger than to produce it.”
There’s also an argument to be made that physicians are not just private citizens who may say whatever they want. The free speech rights of the physician which would allow misinformation have been conceived of in terms that are too libertarian for public safety. We have to bring the balance back in favor of public health and the public good.
Fear of over-censure is no excuse not to go after the low-hanging fruit now (conspiracy theorists and misinformers with large platforms) and to find ways to reasonably assess other doctor misinformation and discipline such behavior. Doctors who spread misinformation should face disciplinary action by medical boards, including, in some cases, having their licenses revoked. Medical specialty boards, which handle board certification, ought to use their influence, too.
Hall argues that there is a way for medical boards to discipline physician misinformation without running afoul of First Amendment. He proposes use of the “actual malice” standard as used by the legal profession to discipline lawyers’ actions not just in practice but in actions that reflect more generally on their fitness to practice law. (Hall also argues that Medical Practice Acts can be adjusted to explicitly include standards around medical speech for unprofessional behavior.) This is essentially the route California has taken with Gold in their accusation of unprofessional conduct. As the Times summed up, the California law was “narrowly written in hopes of avoiding First Amendment entanglements,” and Governor Gavin Newsom said that the law had been “narrowly focused on malicious intent.” But the LA Times reported in March of this year that the law remains “entangled in lawsuits” related to free speech or the law potentially being too vague. If these kinds of laws cannot pass legal scrutiny for vagueness, then they are going to have to be more specific.
Physician autonomy sounds like another hurdle—licensed doctors should be allowed the authority to treat patients as they see fit and to exercise their right to free speech. This sounds reasonable. And yet, why is it that the standards in place now seem to result in outcomes that harm patient care and public health?
A look at the larger issue of physician autonomy reveals that it seems to be upheld in ways that result in patient and public harm. Consider anti-abortion and anti-trans healthcare bills. We’ve seen that these bills make doctors hesitate to give care to patients, which ultimately threatens patients’ lives. The physician’s autonomy, and the patient’s health, therefore, are placed second to the law. I’ve written about how this is unethical with abortion (it is, too, with gender-affirming care) and how doctors need to take care of their patients according to appropriate standards of care rather than acquiescing to unjust laws.
Right now, we face an uphill battle to protect the public from medical misinformation that promotes dangerous disproven and unproven
The right-wing tendency is always to do less to help the collective, which is, of course, made up of individuals. The libertarian “health freedom” ideal, if taken to its logical conclusion for physicians, would mean, as Gorski puts it, “freedom from professional responsibility, government regulation, or any consequences whatsoever for endangering patients.” Combining this with the anti-vaccine tendency and the most extreme elements of today’s right wing—which propose doing away with much of the government’s regulatory oversight altogether—would yield a decidedly anti-public health and excessively deregulated society.
Such medical deregulation was endorsed by laissez-faire capitalist economist Milton Friedman, who complained that licensure created a shortage of doctors and thus harmed the public (physician shortages are always a valid concern, but there are multiple reasons for this which are beyond the scope of this article). “I conclude that licensure should be eliminated as a requirement for the practice of medicine,” he wrote. Less government regulation would rein in the licensing body’s “monopoly” power, he believed.
But here, his solution is even worse than the problem he complains about and would certainly lead to more public harm. The answer to physician shortages (real or an imbalance in supply and demand) and perverse economic incentives in medicine is to remove the profit motive from medicine and create a system that centers human needs. We must enact single-payer universal healthcare (Medicare for All) and any and all accompanying legislation we need in order to build the human and physical infrastructure necessary to provide care to everyone and to adequately regulate physicians—not make it so that anyone can practice their version of medicine. And preserving free speech and physician autonomy must not come at the cost of the public’s safety and well-being.
It’s past time to reign in these bad physician actors and give them a hefty dose of disciplinary medicine. We need to adequately staff and resource medical boards so that they can do their jobs to discipline doctors whose words (and likely deeds) go against acceptable professional standards, and going forward we ought to consider a national licensing system for doctors.writes the following:
The bottom line is that practicing medicine is a privilege, one of the highest privileges society can grant to any human being. It is not a right. Unfortunately, all too often the law treats it more like a right.renewed her license, anyway. Doh!” rel=”footnote”>7 … That needs to change, and that change needs to include stopping physicians from abusing the privilege of their profession to spread disinformation that kills, as too many physicians [have done].
I would also add that medical misinformers and their ilk have made a mockery of their profession. Medicine isn’t wizardry. Medical education and licensure do not transform a person into some kind of genius who can come up with and proclaim whatever they think sounds good despite the facts and despite potential harms to patients and listeners. I don’t think some doctors quite realize this, and their arrogance makes them think that their education and licensure mean something other than what it does.
Going after licensure is not enough. Doctors can and will continue to use their medical degree and grandfathered board certification status to confer legitimacy upon themselves to advance their (often commercial and political) agendas. We need a strong commitment from the public, public institutions, and from physicians about what we want medicine to be: based on good scientific evidence, prioritized on keeping the public safe from unproven, disproven, and unnecessary treatments, and free of the corrupting profit motive.
Although there is significant distrust in American healthcare, people still seem to trust doctors. But if we don’t fix the problem of physician regulation, that trust may soon be gone.
