By: Amanda Howard
California’s “COVID-19 misinformation” law went into effect on January 1, 2023. The purpose of the law is to prevent the spread of false or misleading information, in other words, the most used word of the pandemic era, “misinformation” relating to COVID-19 by physicians during direct patient care.
So, what does the law mean?
What we do know is that the law is a vague, a no-no in the legal world. We know that patient care is now at risk. The law penalizes physicians who express any sort of doubt or concern about what the government, influential public figures or friends and family are informing their patients on concerning COVID-19. The law effectively prohibits informed consent by preventing physicians from talking to their patients about the risks and benefits of treatments for a disease that is brand new to the world. How will California patients make informed decisions on the issue? Not with full and free input by physicians! We also know the law arguably interferes with free speech, severely squashing 1st Amendment freedom that used to be near and dear to our nation.
We don’t really know what violating this statute looks like or what the text really means. Governor Newsom expressed support for the law when signing the COVID-19 misinformation bill into law stating the bill “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.” Untrue. Look at the text of the law. There is no tailoring going on. It’s just speech control.
More specially, the text of the law doesn’t define what constitutes an “egregious instance,” “malicious intent” or “clearly deviating from the standard of care.” All we know from the text is that “misinformation” is information contradicted by “contemporary scientific consensus contrary to the standard of key.” The key word here is “consensus.” That’s a funny word. Recall that there once was consensus on using mercury to treat STDs and radioactive water to cure mental illness and bloodletting to release evil spirits as being proper medical treatments. As you can guess – they’re not the result of “consensus” anymore because science is ever-evolving. Treatments that were all the rage decades and centuries ago are now debunked. And that’s a good thing. Because the entire scientific theory is rooted in healthy skepticism.
So, if it’s decided by regulators plying their word smithing skills that a California physician has violated the COVID-19 misinformation law, the here and now has consequences. It’s clear that physician can be put on probation or have his or her license to practice medicine suspended or revoked. However, the language also leaves room for civil lawsuits and criminal actions against physicians! The consequences are vague at best and subject to a spectrum of interpretations by a variety of people. We lawyers call this legislative intent and effect as “chilling.”
Whether you’re on the right, left or in-between, enactment of the COVID-19 misinformation law is just the beginning of the practice of medicine in California being politically controlled and the doctor patient relationship being eroded.