California lawmakers have passed a bill requiring physicians and surgeons in the state who spread COVID-19 misinformation to be disciplined for unprofessional conduct.
The legislation, AB-2098, would amend the Business and Professions Code, which already empowers the Medical Board of California (MBC) to take action against “any licensed physician and surgeon who is charged with unprofessional conduct” — examples of which include violating the Medical Practice Act, gross negligence, incompetence, or actions involving dishonesty or corruption.
If the bill is signed into law, any “dissemination of misinformation or disinformation related to” COVID-19 could result in disciplinary action at the MBC’s discretion.
According to the Aug. 23 Senate Floor Analysis, “offering false or misleading information about the nature and risks of the virus; COVID-19 prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines” would qualify as misinformation or disinformation.
“Licensed physicians possess a high degree of public trust and therefore must be held to account,” Assemblymember Evan Low said when he introduced the bill on Feb. 15. “The spreading of misinformation, of inaccurate COVID-19 information, contradicts that responsibility and threatens to further erode the public trust in the medical profession and puts all patients at risk.”
State Senator Melissa Melendez, who voted against the legislation, sees the matter differently.
"Doctors should not be controlled or prohibited by government from giving relevant health information to their patients," Melendez told Timcast. "Californians deserve to make informed decisions about their health without their doctors being threatened with disciplinary actions over what some state board deems ‘misinformation.'"
Other critics of AB-2098, which was passed by the state senate on Aug. 29 with a 32-8 vote, claim it is overly broad, unconstitutionally restricts free speech, and could create an even higher shortage of medical providers in California.
“While we agree that physicians and surgeons should be disciplined for maliciously sharing misinformation and disinformation, there are already measures in place … to discipline for such offenses,” nonprofit A Voice for Choice Advocacy stated in the Senate Floor Analysis. “Furthermore, AB 2098 … would be impossible to implement because there is no definition and no established ‘standard of care’ or ‘contemporary scientific consensus’ for treating COVID-19.”
However, Low and AB-2098’s co-authors, Assemblymembers Cecilia Aguiar-Curry, Akilah Weber and Buffy Wicks, as well as Senators Richard Pan and Scott Wiener, formulate the bill’s definition of “misinformation” upon the notion of a general agreement within the scientific community.
The term is defined as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” Disinformation, according to the bill, is essentially misinformation “deliberately disseminated with malicious intent.”
The senate analysis states that physicians and healthcare professionals “play a critical role in keeping communities safe.” The document references an NPR article that cites The Center for Countering Digital Hate’s claim that “even though the number of doctors involved in spreading this sort of bad information is tiny, they’re having an outsized influence.”
The California Medical Association, a leading supporter of AB-2098, notes that the bill “makes clear that the MBC has the statutory authority to take such actions against physicians that spread COVID-19 misinformation and disinformation.”
But the educational nonprofit Physicians for Informed Consent (PIC), which filed a lawsuit against MBC over First Amendment rights in July, argues that the Board has “weaponized the phrase ‘misinformation’ to unconstitutionally target dissenting physicians.”
According to Greg Glaser, PIC’s General Counsel, even the content of an attachment included in his Aug. 9 declaration filing could potentially trigger litigation from MBC.
"From my perspective, the Board's standard for misinformation is so hopelessly vague, it is impossible for me to advise my client PIC whether the Board will arbitrarily prosecute PIC for content on the attachment even though such PIC content is factual and meticulously cited,” he said.
In a June 1 letter to Low, the MBC requested the bill’s definition of “misinformation” to be modified in an effort to avoid “legal challenges following the imposition of discipline under this proposed law.” The Board’s suggested revision of the definition appears verbatim in the current version of AB-2098.
California Attorney Keith P. Bishop contends that the definition is “particularly troubling.”
“It treats current scientific consensus as unchallengeable truth,” he wrote in The National Law Review on Aug. 23, citing Galileo’s condemnation for contradicting the scientific consensus of his day. “An unintended consequence of this bill will be to stifle the scientific process. Yet unsparing skepticism is fundamental to the scientific enterprise. Scientific knowledge is based on a continuing process of questioning, observation and experimentation.”
The New York Times reports that Gov. Gavin Newsom, who has three weeks to sign AB-2098 into law, has not taken a formal position on the bill at this time.
Low and co-authors Aguiar-Curry, Weber, and Pan did not immediately reply to Timcast's request for comments. Wiener's office declined to comment, saying he "did not author this bill." Wicks' schedule did not permit time for an interview.
