A new law in California will punish doctors if they give their patients information related to COVID-19 that does not conform to “contemporary scientific consensus” and can be deemed “misinformation” or “disinformation” by the California Medical Board or California Osteopathic Board. Assembly Bill 2098 was sponsored by State Senator Richard Pan, a pediatrician, and signed into law by Governor Gavin Newsom on September 30, 2022. It is scheduled to go into effect Jan. 1, 2023, and allows doctors to be charged with unprofessional conduct and put on probation of no less than five years or be suspended and lose their medical license.1 2 3 4
The California Medical Board and California Osteopath Board will have the authority to investigate and adjudicate claims that a doctor violated the law.5 If a physician is found to have departed from the government approved “standard of care” policy related to COVID-19, one of the California medical boards could revoke his or her medical license.6
COVID Standard of Care Policies Have Frequently Changed Over Time
The government, employers, schools, colleges and universities have often changed their policies on masking and COVID vaccinations over the past three years, which demonstrates that the government’s position on COVID-19 facts and policies changes and what is considered “standard of care” may be true one day but not be true the next. Even so, doctors in California who dissent from the government’s official positions on COVID-19 prevention and treatment could lose their career for using their best professional judgement in caring for their patients.7
Highlighting that the bill is another attempt to eliminate the free speech, lawyer Jonathan Turley said:
The problem is they are targeting the very people that we want to feel free to express concerns and doubts. These are the people that we need to be part of the debate, and they are chilling that debate.8
This new law effectively maintains that the current government backed “contemporary scientific consensus” is the only medical advice that a doctor should be allowed to share with their patients about the ever-evolving SARS-CoV-2 virus, whether or not that “scientific consensus” evolves over time or current government policy is considered by a doctor to place a patient at risk because, for example, it is contraindicated by the individual’s medical history.9
Even staunch supporters of the COVID shots and mask-wearing have expressed concern with this new law censoring doctor’s private conversations with and treatment of their patients. Eric Widera, MD, professor of medicine at the University of California, San Francisco warned:
… the standard of care has changed a lot in 2½ years… What was misinformation one day is the current scientific thinking another day.10
Newsom Signs Assembly Bill 2098 Into Law Claiming It is “Narrowly Tailored”
On Sept. 30, Gov. Newsom signed the bill into law stating:
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.11
Gov. Newsom defended his actions claiming that the bill was…
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.12
The governor’s opinion is not supported by the language of the bill itself. There is nothing in the bill to suggest that it is “narrowly tailored” and only applies to “those egregious instances in which a licensee is acting with malicious intent” as Gov. Newsom suggests.13
The bill sets forth…
It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.14
The words “egregious instances” or “malicious intent” cited by Gov. Newsom are not mentioned anywhere in the text of the law. Perhaps that is because it is egregious to assume that a doctor, who shares a professional opinion about what would be in a patient’s best interest based on the individual’s medical history, is doing that with “malicious intent.”
Apparently, the California Medical Board plans to decide on a case-by-case basis what constitutes inappropriate professional behavior that requires punishment after receiving a complaint that a physician has disseminated “misinformation” or “disinformation” related to COVID-19 to a patient.15
According to California Medical Board spokesman Carlos Villatoro, when a complaint is received, the Board…
uses physicians who are experts in their field to review the individual facts and circumstances involved in the situation under investigation, and opine on the appropriate standard of care that should have been followed at that time. No two cases are the same, and the Board would make this determination based on the facts and circumstances of the given case.16
Since decisions will be made by California medical licensing boards based on facts and circumstances at the time of the complaint, doctors may unwittingly put their license on the line when they treat patients using their best professional judgement.17
Dr. Pan said that he proposed the bill to stop doctors like Simone Gold, MD, who founded America’s Frontline Doctors during the pandemic and formerly practiced in Beverly Hills, from providing patients with what he termed “misinformation” about COVID-19. Dr. Pan led the effort to remove the personal belief vaccine exemption from California public health laws in 2015 and, in describing this law, ominously said:
When someone blatantly provides misinformation, totally inaccurate information—especially with intention—that harms patients. That takes away the patient’s ability to make appropriate decisions.18
Dr. Pan’s statement raises two serious issues. First, it appears that he believes patients should only be allowed to receive COVID information and make “appropriate decisions” about their health care if he and the California Medical Board are the arbitrators of what constitutes an “appropriate decision.” In addition, the law does not speak about intention. If intention is not a component of the law, how can the California Medical Board infer or take a physician’s intention into consideration when doling out punishment?
Physician Critics of the New Law Speak Out
Jay Bhattacharya, MD, epidemiologist and professor of Health Policy at Stanford University Medical School wrote an article warning:
The language of the bill itself is intentionally vague about what constitutes “misinformation,” which makes it even more damaging. Doctors, fearing loss of their livelihoods, will need to hew closely to the government line on Covid science and policy, even if that line does not track the scientific evidence… What is abundantly clear is that this bill represents a chilling interference with the practice of medicine. The bill itself is full of misinformation and a demonstration of what a disaster it would be to have the legislature dictate the practice of medicine.19
Dr. Bhattacharya points out that doctors have an obligation to treat their patients according to their individual needs and health history. This law contradicts that principle by requiring doctors to act as agents of the state, who are only allowed to repeat what some characterize as “scientific consensus” but others may characterize as government backed propaganda.20
Legally, doctors owe a duty of care to their patients. This duty of care extends to warning and advising patients of the benefits, risks and side effects of taking a medication or biological and allowing the patient to make an informed, voluntary decision about whether or not to take the risk, which supports the informed consent principle.21
When doctors are prevented from informing patients about the inherent risks of taking a novel vaccine or a drug that could potentially cause harm based on an individual’s health history, or a doctor is too afraid to say anything at all out of fear of being prosecuted for professional misconduct and losing the right to practice, it seems doubtful that this new law will protect doctors with a valid defense in a medical malpractice lawsuit.
Liberal activist Leana Wen, MD wrote in a Washington Post column:
While well-intentioned, this legislation will have a chilling effect on medical practice, with widespread repercussions that could paradoxically worsen patient care… The problem is that medical practice is rarely black and white. Much of the time, broad recommendations are intended to be tailored to the individual patient… Indeed, another lesson from covid is that science is constantly evolving. In a public health emergency, official guidance often lags cutting-edge research. Consider how long it took the CDC to acknowledge that the coronavirus is airborne. Should doctors have been censured for recommending N95 masks before they were accepted as an effective method for reducing virus transmission?
Kevin Kiley a California Assembly member predicted the courts will not allow the new law to stand and tweeted:
On Friday Newsom took a sledgehammer to the First Amendment by signing the medical censorship bill. The courts will strike down AB 2098 in short order.22
Lawsuit Already Filed in US District Court by Two Physicians
Two California doctors, Mark McDonald, a psychiatrist and Jeff Barke, a primary care physician have already filed the first lawsuit in U.S. District Court for the Central District of California asking for the law to be revoked. The doctors are represented by Liberty Justice Center and claim that the new law must be struck down because it violates the First and Fourteenth Amendments. A motion seeking a preliminary injunction has also been filed.23
Daniel Suhr, managing attorney at Liberty Justice Center, explained:
We rely on our doctors to give us their best medical advice, yet the State of California is stopping doctors from doing just that. That’s not just wrong, it’s unconstitutional. Doctors enjoy the same free speech rights as other Americans. The State of California cannot define a so-called scientific consensus on an issue and then punish anyone who dares challenge it.24
It it is difficult to believe that the law will survive constitutional challenges and leaves open the bigger question: how could a bill that is overtly vague and unconstitutional on its face have been signed into law in the first place?
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Click here to view References:
1 Purtil C. Doctors fear California law aimed at COVID-19 misinformation could do more harm than good. MSN Oct. 6, 2022.
2 Johnson R, Kory P. California Gov. Newsom must not declare war on doctors over so-called medical ‘misinformation’. Fox News Sept. 26, 2022.
3 Sacca P. Gavin Newsom signs bill making it easier to punish California doctors who spread COVID ‘misinformation,’ top epidemiologist warns: ‘Chilling interference with the practice of medicine’. The Blaze Oct. 2, 2022.
5 Purtil C. Doctors fear California law aimed at COVID-19 misinformation could do more harm than good. MSN Oct. 6, 2022.
6 Johnson R., Kory P. California Gov. Newsom must not declare war on doctors over so-called medical ‘misinformation’. Fox News Sept. 26, 2022.
7 Halon Y. California’s new bill that punishes doctors for COVID ‘misinformation’ is ‘chilling’ and ‘dangerous:’ Turley. MSN Oct. 3, 2022.
9 Johnson R, Kory P. California Gov. Newsom must not declare war on doctors over so-called medical ‘misinformation’. Fox News Sept. 26, 2022.
10 Purtil C. Doctors fear California law aimed at COVID-19 misinformation could do more harm than good. MSN Oct. 6, 2022.
11 Sacca P. Gavin Newsom signs bill making it easier to punish California doctors who spread COVID ‘misinformation,’ top epidemiologist warns: ‘Chilling interference with the practice of medicine’. The Blaze Oct. 2, 2022.
12 Newsom G. Statement to Members of the California State Assembly on the signing of Assembly Bill 2098 (Professional misconduct by physicians and surgeons in the dissemination of misinformation or disinformation to patients under their direct care related to COVID-19). State of California Office of the Governor. Sept. 30 2022.
13 California Assembly Bill 2098
15 Purtil C. Doctors fear California law aimed at COVID-19 misinformation could do more harm than good. MSN Oct. 6, 2022.
19 Bhattacharya J. A Warning From Shanghai. Common Sense Apr. 12, 2022.
21 Nolo. A Doctor’s Legal Duty of Care Explained. All Law.
22 Sacca P. Gavin Newsom signs bill making it easier to punish California doctors who spread COVID ‘misinformation,’ top epidemiologist warns: ‘Chilling interference with the practice of medicine’. The Blaze Oct. 2, 2022.
23 Mark Mcdonald, Jeff Barke v. Kristina D. Lawson. Case 8:22-cv-01805 Document 1.
24 Doctors File Federal Lawsuit to Stop California Medical Censorship Law. Liberty Justice Center October 2022.