Bill to cancel doctors for ill-defined COVID-19 'misinformation' nears adoption in California

Physicians group already suing Medical Board of California for chilling effects. Bill no longer targets docs who "promote" misinformation to public at large, suggesting lawmakers fear legal challenge.

Updated: September 3, 2022 - 1:42pm

Gov. Gavin Newsom (D) can make California the first state to revoke doctors' medical licenses for disseminating to their patients COVID-19 "misinformation or disinformation" that falls afoul of a fluctuating "scientific consensus" reflected in an undefined "standard of care" — but he'll have to rebuff a chorus of doctors and likely litigation to do it.

Introduced this winter to combat purported COVID-19 misinformation while using outdated statistics, AB 2098 is now on its way to Newsom's desk. 

It passed the Senate 28-6 Monday with no discussion and a single Republican vote in favor, according to Californians for Good Governance, which opposes the bill. The bill page was frequently inaccessible or sluggish Tuesday, suggesting a flood of traffic. Newsom hasn't taken a public position, according to The New York Times.

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AB 2098 would deem medical professionals guilty of "unprofessional conduct," punishable by the Medical Board of California and the Osteopathic Medical Board of California, for disseminating "misinformation or disinformation related to" the risk of COVID, its prevention and treatment, and the "development, safety, and effectiveness of COVID-19 vaccines." 

The version approved by the Senate Monday removed a clause requiring "gross negligence." Earlier versions had already removed the original's four-factor test for determining whether to open investigations and added a severability provision that protects the law as a whole from any provisions struck down in court.

Physicians for Informed Consent didn't wait for the bill to become law, filing a First Amendment lawsuit against the Medical Board last month for its administrative, rather than statutory, "attempt 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."

AB 2098 defines "misinformation" as "false information that is contradicted by contemporary scientific consensus, contrary to the standard of care," but the bill does not define "standard of care."

A 2011 legal review in the Western Journal of Emergency Medicine, published by the University of California Irvine emergency medicine department, said courts' understanding of "standard of care" has changed over time. 

While "several important cases" suggest doctors can be found culpable for not pursuing a "reasonable" practice, even if it's not "the standard," more recent jurisprudence has cleared physicians who do "what a minimally competent physician in the same field would do in the same situation, with the same resources," the paper said.

Board-certified ophthalmologist Houman Hemmati, who is organizing opposition to AB 2098, warned that "standard of care" is highly subjective and can refer to the practices of "many" doctors in a given community, regardless of their scientific merit.

He said the bill would turn California into a "medical police state" where politicians make medical judgments and physicians could lose their careers for perceived disagreement with Newsom, whom Hemmati compared to the Iranian regime his family fled to escape persecution of "physicians who didn't parrot the regime's policies."

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The bill faces opposition from other California doctors known for challenging lockdown policies, COVID mandates and their evidentiary basis, including Stanford medical professor Jay Bhattacharya, coauthor of the Great Barrington Declaration.

Former UC Irvine psychiatrist Aaron Kheriaty, fired for refusing its COVID vaccine mandate, and epidemiologist Tracy Beth Hoeg, who left UC Davis in July, testified against the bill.

In an unrelated tweet thread Monday that has bearing on the legislation, Bhattacharya pointed to dueling research months apart last year on how COVID vaccines affect organ-transplant patients, highlighting the transience of "The Science."

Johns Hopkins researchers found little if any immune response in patients who received the vaccines in May, while UC San Diego researchers found the opposite in July.

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The bill no longer applies to physicians who "promote" purported misinformation, only those who "disseminate" it through the "conveyance of information from the licensee to a patient under the licensee's care in the form of treatment or advice."

In theory, that change should prevent mass reporting campaigns against high-profile doctors who have spoken against strict COVID mitigations, such as Bhattacharya and his colleague Scott Atlas, a lonely voice on President Trump's coronavirus task force.

Dozens of Stanford Med faculty denounced Atlas for his COVID views after his Trump appointment, while a larger group of Stanford faculty across disciplines sought to cut off the Hoover Institution from the university because of affiliates such as Atlas and Bhattacharya, who are also founding fellows of Hillsdale College's Academy for Science and Freedom.

The lawsuit against the Medical Board says this revision to AB 2098 shows that lawmakers "recognized in writing that physicians cannot be sanctioned based on their public disagreement" with the purported COVID consensus.

If applied in her own jurisdiction, a "promote" provision could have plausibly ensnared CDC Director Rochelle Walensky, California lawyer Keith Bishop wrote in The National Law Review, citing her recent admission that "we are responsible for some pretty dramatic, pretty public mistakes, from testing to data to communications."

Stanford's Michelle Mello, with dual appointments in the medical and law schools, warned this spring that the First Amendment preempts the prohibition of purported vaccine misinformation under Supreme Court precedent.

"One problem is that we may not all agree on how demonstrably false something has to be in order for it to be restricted," and especially for scientific claims, "the knowledge base that makes a statement true or false evolves over time," she told a law school blog.

New Civil Liberties Alliance lawyer Jenin Younes called AB 2098 "absolutely horrifying" from a First Amendment perspective. The CDC's recently revised COVID guidance implicates at least four of her firm's lawsuits, she previously told Just the News.