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A few weeks ago, we alluded to a piece of legislation on the docket in California. The name of this law: Assembly Bill 2098. Its purpose: Punish doctors spreading COVID-19 “misinformation.” While no doubt well-intentioned, the practical reality of enforcing such a law raised the eyebrows of doctors and laypersons alike.
The question going around: “Well, how is this thing going to work?”
We no longer need to wonder – we’ll know soon enough. California governor Gavin Newsom signed the bill into law at the end of September.
Read his statement via this link and below…
Assembly Bill 2098 provides that the dissemination of misinformation or disinformation related to COVID-19 by physicians and surgeons to a patient under their direct care constitutes unprofessional conduct.
I am signing this bill because it 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, this bill does not apply to any speech outside of discussions directly related to COVID-19 treatment within a direct physician patient relationship.
I am 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.
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.
There are several line items worth unpacking. The first: The bill does not address misinformation spread via social media.
This is an interesting (but expected) omission. Social media has been (and will continue to be) a vehicle for all kinds of misinformation – not just COVID misinformation. According to the provisions of the law, the state can only act against doctors found guilty of spreading misinformation in the context of direct care.
If we were to guess, the logistics involved in proving a doctor spread misinformation on social media were too demanding, even on paper. Content published on social media is often edited or removed entirely following its publication. Doctors under scrutiny would likely pre-emptively purge their accounts, making the act of retrieving evidence a slog.
While the law’s passage may shock some doctors, the legislation didn’t fall out of heaven without warning. Last year, the Federation of State Medical Boards (FSMB) issued a statement (copied below) foreshadowing the law’s creation and passage.
“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. They also have an ethical and professional responsibility to practice medicine in the best interests of their patients and must share information that is factual, scientifically grounded and consensus-driven for the betterment of public health. Spreading inaccurate COVID-19 vaccine information contradicts that responsibility, threatens to further erode public trust in the medical profession and puts all patients at risk.”
While this warning was not specific to one state, it is worth mentioning that California is the first state to sign such a bill into law.
The law’s proponents argue AB 2098 will prevent needless suffering and save lives. Those against the law believe it is still too broad in its implications to do anything more than disrupt and distract. Even two years into the pandemic, many doctors agree to disagree regarding best care practices specific to the treatment of COVID.
As of this publication, no doctor has been disciplined because of it. We’ll keep an eye out for the day that happens and evaluate the outcomes – if that day comes at all.
Perhaps we are asking the wrong question: We know “someone’s getting dinged” eventually. But who will be the first? We do know this: Until other states adopt similar laws, that doctor will be in California.
What do you think? Let us know in the comments below.
"Can Medical Justice solve my problem?" Click here to review recent consultations...
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
Ok…..Providers can’t discuss contradictory COVID opinions in California, can’t advise on abortion in Idaho, can’t ask about guns in the home in Florida. What’s next?
NewSpeak is here, and 1984 is upon us. Reactionary and radical politicians need to leave health care options alone!
Joel Cleary, MD. MHA. FAAOS
So, what is “misinformation”? I don’t see it defined here. What it sounds like they mean is saying something that disagrees with what the CDC or other government arm says is Truth. And there’s the rub: it’s beginning to appear that the government was wrong on a number of things that had ben pointed out along the way:
Like whether the vaccine confers immunity. Now it appears that it doesn’t, and there are those–in the gov!!–who have said that they never thought it would. Well, that’s interesting, isn’t it? If you told a reluctant patient two years ago that the experimental vaccine isn’t expected to make him or her immune to covid, what would be that person’s reason for getting vaccinated?
Like whether there are serious complications that might (did!) arise from getting the RNA vaccine. At first, I was pretty skeptical that the complications were really caused by the vaccine, but the epidemiology of the complications, especially cardiac ones, has gotten more clearly delineated, it’s very much starting to look like that’s exactly what’s been going on.
And then there is the question of research that no one has talked about. mRNA vaccines in humans had never before been tried. For FDA purposes, human “research” is the a priori gathering of data on medical-related diagnostic and/or therapeutic modalities. They might be medicines/drugs, contrast materials, or surgical devices. mRNA is certainly a medicine/drug for these purposes.
The FDA. has strict requirements for things like this, among which is the obtaining of informed consent BEFORE someone agrees to be a subject in the experiment. And participation MUST be entirely voluntary: coercion is expressly prohibited. I can’t speak for others, but I’m certain that no one asked me to sign a consent. And the pressure to get vaccinated was high.
I would argue that anyone who brought pressure of any sort to bear on anyone–and here we’re talking about 200,000,000 anyones in the US–to get vaccinated was in flagrant violation of FDA rules regarding research. Mr. Fauci would be the single largest violator of these rules, and he certainly knew better. He just reasoned, most likely correctly, that he’s above the law.
And…what if a doctor tells a patient what he [the doctor] believes to be best for that patient–that advice being contrary to accepted dogma? We take oaths to protect patients. What happens when doctors are told to do things that they believe not to be in a patient’s best interest?
I suspect that whoever the first person to get dinged with Newsome’s law will appeal it to SCOTUS. And SCOTUS will 6-3 declare it unconstitutional. In fact, I’ll wager a dollar on that. Any takers?
1)The MIT Technology Review of a couple of years ago, had an issue that discussed at the beginning of the Covid pandemic was what MRNA did to mice. It was shocking that the inventors of the technology knew about the inflammatory responses, but thought that they had engineered it out by the time they had gotten around to the human vaccine. The sad news is that they didn’t. The rush to produce a vaccine, with this new technology, has left us as a country and a world with all kinds of problems. Inflammation, myocarditis, infertility. All of these things were known and the geniuses behind all of this, did not hesitate to roll out this new tech on unsuspecting humans. The vaccine based on the data should not be used in children or young men, or for fertility reasons for young women. The vaccine should have been confined to the those that were elderly or at high risk.
2)Clearly vaccines being offered as the sole treatment, was wrong. Offering only antivirals that wind up with re-emergent covid, is wrong. But treatment with inexpensive drugs AT EARLY STAGES has been suppressed. The lives of many many people were lost because such treatment which has been proven with many studies overseas could have been saved. But because these drugs were generic there was not going to be a huge payout to the pharmaceutical industry with vaccines if cheap effective treatment worked.
3)The best cure for what ills us is free speech. Alex Jones of Infowars was just sued and had a judgement handed down against him (to the tune of almost $1 Billion), for stating that the Sandy Hook school shooting never took place, and was a hoax. This was demonstrably false. But his position and the publicity around it has no doubt cost him many users and exposed him for the conspiracy theorist that he is. So freedom of speech acted as a sanitizer to decrease his viewership and reach.
4)We have a first amendment in the US protecting freedom of speech. Politicians want to control free speech so no one will oppose them. It is likely that this legislation will not pass muster at the Supreme Court. Even neo nazis protesting that the holocaust never occured, were allowed to march in Skokie, Illinois. But their stance garnered ridicule and they lost influence as a result of their publicity. They did not gain followers.
5)The erosion of free speech is symbolic of a greater trend to eliminate dissent, and opposition at any level as a means for control of people. If the powers that be succeed, we will wind up as a communist country. If they do not succeed, freedom will have a new shot in the arm. We are one large terrorist attack away from united the United States, and eliminating those that divide us for another generation. We came back from each war, a stronger and more united republic, (with the possible exception of Vietnam). Maybe it takes a war internally over our freedoms to get the country to realize we are better united then divided.