What to Know About California's Ban on COVID-19-Related Medical Misinformation

At the end of September, Governor Gavin Newsom of California signed legislation into law that would allow the state medical board to discipline doctors and surgeons who spread medical misinformation to their patients. The legislation specifically refers to information about COVID-19 that the physician themselves knew to be false or misleading: Governor Newsom emphasized that “this bill does not apply to any speech outside of discussions directly related to COVID-19 treatment within a direct physician-patient relationship.”

The part of the bill that’s tricky is enforcing its language. The language above means that physicians can go on spreading false information about COVID-19 on any other platform, including social media. And some doctors are worried that the constraints are too loose to avoid prosecution or punishment themselves.

Physician Lena Wen noted that the facts on COVID-19 are subject to change quickly, recalling that it took the Centers for Disease Control and Prevention (CDC) a very long time to acknowledge SARS-CoV-2, the virus that causes COVID-19, as an airborne virus. “Should doctors have been censured for recommending N95 masks before they were accepted as an effective method for reducing virus transmission?” she asked, adding:

“While well-intentioned, this legislation will have a chilling effect on medical practice. Is it really right for physicians to be threatened with suspension or revocation of their license for offering nuanced guidance on a complex issue that is hardly settled by existing science?”

According to the Newsom, the statute is tightly focused so as to only address either “false information that is contradicted by contemporary scientific consensus contrary to the standard of care,” (Misinformation) or “[misinformation] deliberately disseminated [by a physician or surgeon] with malicious intent or an intent to mislead” (Disinformation). And some other doctors do not share Wen’s concerns, noting professionalism as a great divider for a doctor who feels “threatened” by the bill.

“I do not feel threatened by AB 2098. I do not feel that it limits the autonomy of a physician to practice adequately, concerning the diagnosis, management and prevention of COVID-19,” David Epstein, a contributor to Physician’s Weekly, wrote. “It really focuses on extreme deviation from scientific standards of care and consensus that are supported by the existing science and experts.”

He added:

“Scientific research is being performed in an attempt to save lives in a compressed period of time, we have to use the evidence that we have at the moment. As evidence builds to support one healthcare precept or an opposing one over time, the medical community pivots,.When someone argues that trying to stem the flow of misinformation in healthcare is somehow unscientific, censorship, against the spirit of physicians’ ability to challenge science or independently practice medicine, and promotes dogma, I have to question their understanding of science.”

The state of California is bracing for upcoming legal challenges. The ability to legislate a doctor and patient conversation, which is legally privileged, is disputed; but the law seems to be more of a severe warning sign to California’s medical community that misinformation about the deadly virus will not be tolerated. Newsom said, in his signing statement, that he was “confident that discussing emerging ideas or treatments, including the subsequent risks and benefits, does not constitute misinformation or disinformation under this bill's criteria.”