Irresponsible medicine or free speech?

Irresponsible medicine or free speech?

Gov. Gavin Newsom has until the end of the month to sign or veto a bill that would make California the first state to let regulators punish doctors who give patients false information about COVID-19 — but which critics say would be a free-speech nightmare.

State law already prohibits doctors from violating the accepted standard of medical care by lying to patients or mistreating them for any illness — including COVID-19. Doctors who do this risk being disciplined by the state’s medical boards or losing their license altogether.

AB2098 by Assemblymember Evan Low, D-Campell, specifically calls out COVID-19 and would amend the definition of unprofessional conduct to prohibit doctors from giving patients “false or misleading information” about the coronavirus— including its risks, prevention and treatment — and about the “development, safety and effectiveness” of COVID vaccines.

The bill passed through the state legislature last month and would take effect Jan. 1. Newsom has not said whether he’ll sign it.

Low paints his bill as “not newsworthy” because “the Medical Board of California already has the authority to regulate licensees. So we are doing nothing extraordinary here.”

In normal times, maybe so. But the bill itself points to the extraordinary politics of COVID that gave rise to the legislation.

The bill suggests that COVID-specific prohibitions are crucial because vaccine misinformation and outright falsehoods have “weakened public confidence and placed lives at serious risk.” It notes that the disease has killed 6,000,000 people, including nearly 90,000 Californians, and that “some of the most dangerous propagators of inaccurate information” are doctors themselves.

Enforcement would be up to the Medical Board of California, which licenses physicians and can discipline them. But going after doctors would be difficult unless the state granted the board greater freedom to examine medical records without patient approval, according to the board’s analysis of AB2098. Most complaints about doctors dispensing COVID misinformation come from the public, not the patient. Without the patient’s consent, “the board will be unable to identify what patient records to subpoena,” or justify why an investigative subpoena is needed, the analysis said.

Lawmakers ignored the board’s request to include “enhanced medical record inspection authority” in the bill. Yet the board voted to lend its support to the bill and agreed to try again for more inspection rights if it becomes law.

Critics oppose AB2098 on free speech grounds. If Newsom signs it, they say, California would become the arbiter of what can be said in private — a Ministry of Truth.

“The notion that the state has the ability to restrict what a health care professional advises a patient, that is Orwellian. We do not do that in the United States. They do that in China,” said Rick Jaffee, a lawyer who is suing the Medical Board of California over what he says are the board’s broader efforts to restrict what doctors can say about COVID in public. (The board declined to comment.)

“The next battle is AB2098,” Jaffee said, adding that he has heard from supporters around the country who are willing to help.

Last year, the national Federation of State Medical Boards entered the fray when it warned that doctors who spread false COVID information risk losing their license.

Some states responded by moving in the opposite direction and trying to protect doctors’ ability to say whatever they want about COVID and even to prescribe bogus treatments. A North Dakota law, for example, lets doctors prescribe the anti-parasitic ivermectin, which has sent many people to poison control centers after false claims went viral about its powers as COVID cure. In Tennessee, lawmakers ordered their state’s medical board to remove from its website a warning to doctors against providing false COVID information.

In California, Kristina Lawson, president of the Medical Board of California, reported in December that she was “followed and contronted” by a group of doctors under investigation by a Congressional panel for promoting false COVID information and selling discredited treatments online.

To Sen. Scott Wiener, D-San Francisco, a co-author of AB2098, the effort to rein in COVID lies, especially from trusted physicians, is a public health priority in the era of COVID, monkeypox and the re-emergence of polio.

“Infectious diseases are having a comeback,” Wiener said.

“When I was growing up, it was unheard of that someone wouldn’t be vaccinated against whooping cough or the measles,” he said. “Now, we see a deliberate campaign by people not to vaccinate their kids. COVID poured lighter fluid on that.”

Dr. Seema Yasmi, an expert on medical misinformation and director of Stanford University’s Health Communication Initiative, said “there is a special place in hell” for doctors who mislead or even lie to their patients.

Throughout the pandemic, she said, people often contacted her to speak with their friends or relatives who were getting bad information about COVID from their health teams — and believing it.

In one case, she spoke with a woman who was distraught because her husband was in intensive care with COVID and not getting better. He was being treated with hydroxychloroquine — a drug desperatedly needed by people with such conditions as lupus. Without scientific backing, then-President Trump promoted the drug for use with COVID, and some doctors scooped it up for that purpose, even though it was found to be dangerous for those infected with the coronavirus.

This created a shortage of that drug, causing a serious problem for people who actually needed it.

That domino effect showed how misinformation and falsehoods from doctors can extend beyond their own patients, Yasmin said.

She dismissed the idea that barring doctors from spreading falsehoods about COVID would restrict their right to free speech.

“That is not a concern to any well-meaning physician practicing evidence-based medicine,” Yasmin said. “We take an oath to do no harm and to protect our patients. Central to that is a commitment to not spread false information.”

Nanette Asimov is a San Francisco Chronicle staff writer. Email: [email protected] Twitter: @NanetteAsimov