Gov. Gavin Newsom signed a bill that will subject doctors to discipline and possible suspension of their licenses to practice for spreading misinformation about the COVID-19 pandemic to patients, one of the most controversial pieces of pandemic legislation lawmakers sent to his desk.
AB 2098 by Assemblyman Evan Low, D-Campbell, was co-sponsored by the California Medical Association to tamp down COVID-19 misinformation, often spread through social media, promoting untested or ineffective treatments and cures and questioning the effectiveness of face masks and vaccines.
“Many health professionals, including physicians, have been the culprits of this misinformation and disinformation effort,” the California Medical Association lamented to lawmakers. Vaccine advocacy group and co-sponsor ProtectUS added that “licensed physicians possess a high degree of public trust” that if abused can undermine public confidence in effective health measures.
“They have a professional and ethical obligation to counsel and treat patients based not on their own opinion or beliefs, but on medical guidelines and peer-reviewed scientific evidence,” ProtectUS told lawmakers. “When they choose to spread inaccurate information and lend credibility to conspiracy theories, physicians discourage patients from accessing life-saving vaccines.”
Vaccine skeptics and mandate critics were joined in opposition by a number of doctors, health officials and free speech advocates who argued the bill as counterproductive censorship that will further erode trust in health officials.
Among them was Leana S. Wen, a professor at George Washington University’s Milken Institute School of Public Health, former Baltimore health commissioner and author who writes a column for the Washington Post.
In a Sept. 12 Washington Post column, she argued that “while well-intentioned, this legislation will have a chilling effect on medical practice, with widespread repercussions that could paradoxically worsen patient care.”
In the column, which drew praise from health experts like Dr. Marty Makary, a Johns Hopkins University professor, Wen noted that the U.S. Centers for Disease Control and Prevention has repeatedly changed its guidance on COVID-19, including the airborne nature of the virus and the effectiveness of face masks.
Newsom in his signing message said “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.”
Newsom stressed that “this bill does not apply to any speech outside of discussions directly related to COVID-19 treatment within a direct physician patient relationship,” such as general commentary on social media or blog posts.
“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,” Newsom wrote. “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.”
Wen in her column acknowledged the narrow nature of the bill’s provisions, but argued that “the problem is that medical practice is rarely black and white.” She noted that CDC guidance on booster shots is that everyone age 12 and older should get them. But doctors have noted that COVID-19 risks are much lower in the young, many of whom have immunity from past infection with the virus, and the shots carry risk of rare side heart inflammation side effects.
“Most doctors would probably agree that elderly individuals should get the new booster right away,” Wen wrote. “Some providers might not recommend boosters for children and adolescents, especially if they have already had the coronavirus. These actions go against federal guidelines. AB 2098, taken to the extreme, could put many practitioners at risk.”
Even so, Newsom said in signing the bill that “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.”
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