Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

California doctors found “guilty” of spreading “misinformation” about COVID-19 may soon face disciplinary action, if pending legislation is signed into law. Yes, you read that correctly. The governor of California is expected to make a final decision in less than two weeks.  

The name of this new law: Assembly Bill 2098 (AB 2098). 

What is AB 2098? To quote the legislative counsel’s digest directly… 

Existing law provides for the licensure and regulation of physicians and surgeons by the Medical Board of California and the Osteopathic Medical Board of California. Existing law requires the applicable board to take action against any licensed physician and surgeon who is charged with unprofessional conduct, as provided. 

This bill would designate the dissemination of misinformation or disinformation related to the SARS-CoV-2 coronavirus, or “COVID-19,” as unprofessional conduct. The bill would also make findings and declarations in this regard. 

The directive also covers “misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.”  

The “what” of the disciplinary action is not defined, but since disciplinary action involves the state’s licensing entities (the Medical Board of California and the Osteopathic Medical Board of California), it is probable license suspension and/or revocation are on the table. 

Did this come out of nowhere? Not quite.  

Last year, the Federation of State Medical Boards issued a warning: Doctors spreading misinformation would soon be at risk of discipline. As of this publication, no states have stepped up to bat and codified the warning. If California does sign AB 2098 into law, it will be the first state to enforce that warning.  

Reaction has been predictably mixed. Some healthcare professionals and healthcare-adjacent entities are celebrating the law.  

The California Medical Association President, Dr. Robert E. Wailes, has stated the following… 

“Purposefully spreading false information is a violation of public trust that can cost people’s lives. AB 2098 will help preserve the integrity of the medical profession.” 

The state chapter of the America College of Emergency Physicians appears mostly in favor of the bill, though it should be mentioned some doctors perceive it as a threat to free speech.  

Some of the law’s detractors are more direct.  

In August, the Physicians for Informed Consent sued the California Medical Board to stop it from investigating and disciplining doctors who “who publicly disagree with the government’s ever-evolving, erratic, and contradictory public health Covid-19 edicts.” 

The Physicians for Informed Consent lawsuit argues that the Medical Board has weaponized the phrase “misinformation” to unconstitutionally target dissenting physicians, including by “attempting to intimidate by investigation, censor and sanction physicians who publicly disagree with the government’s ever-evolving, erratic, and contradictory public health Covid-19 edicts.” 

The bill currently defines misinformation as follows: “False information that is contradicted by contemporary scientific consensus contrary to the standard of care.” It defines disinformation as misinformation that has been “deliberately disseminated with malicious intent or an intent to mislead.” This is a sticking point for critics, who claim the definition is vague to the point of impotence.  

While the goal of disrupting the flow of bad information is noble, many doctors believe the implementation (and subsequent regulation/enforcement) of such a law is dubious. 

Nearly 200 comments (most of them several paragraphs) appended to our source suggest the legislation struck a nerve. We’ve written about a certain phenomenon in the past, where legislation passed in California eventually becomes the national standard – for better or for worse.  

A quote from Michael Crichton seems particularly relevant here. Crichton received an M.D. from Harvard Medical School. He never practiced. He became a writer and filmmaker. His works included Coma, Jurassic Park, and The Andromeda Strain.  

“I want to pause here and talk about this notion of consensus, and the rise of what has been called consensus science. I regard consensus science as an extremely pernicious development that ought to be stopped cold in its tracks. Historically, the claim of consensus has been the first refuge of scoundrels; it is a way to avoid debate by claiming that the matter is already settled. Whenever you hear the consensus of scientists agrees on something or other, reach for your wallet, because you’re being had. 

Let’s be clear: the work of science has nothing whatever to do with consensus. Consensus is the business of politics. Science, on the contrary, requires only one investigator who happens to be right, which means that he or she has results that are verifiable by reference to the real world. In science consensus is irrelevant. What is relevant is reproducible results. The greatest scientists in history are great precisely because they broke with the consensus. 

There is no such thing as consensus science. If it’s consensus, it isn’t science. If it’s science, it isn’t consensus. Period.” 

A Popperian, indeed. 

Regardless of whether you believe various comments about COVID are legitimate or misinformation, the more practical concern is heavy handed Board enforcement. Is a letter to the editor fair game to revoking one’s license? How about a comment on a private bulletin board? What if the standard of care is a moving target? What if we change our minds and update our words? I cannot see how the Boards would fairly enforce such a dictate. For the same words, some would be severely punished. Most would see no action.  

Doctors should, of course, be held to high standards. That said, while not all crazy ideas are great, it’s wise to remember most great ideas start out as crazy. We should be careful about stifling creativity and innovation. 

“As California goes, so goes the nation.” Or so the saying goes. Will we see the same play out here? Time will tell. In less than two weeks, we’ll have an answer – and likely a follow-up piece. Stay tuned.  

And as always – let us know your thoughts below.

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

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.